ONWUERINGO v. ADEDAPO (2020)

ONWUERINGO v. ADEDAPO

(2020)LCN/15472(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Friday, December 18, 2020

CA/A/59/2017

RATIO

WORDS AND PHRASES: WEIGHT OF EVIDENCE

The standard of proof in civil matters is on the preponderance of evidence or what is called weight of evidence. Meaning of weight of evidence is thus:
Weight of evidence is the persuasiveness of some evidence in comparison with other evidence – Black’s Law Dictionary 9th Ed. PER YARGATA BYENCHIT NIMPAR, J.C.A.

COMPETENCE OF COURT: WHETHER IT IS PROPER FOR A COUR TO RAISE THE ISSUE OF LOCUS STANDI SUO MOTU

The rule is that a Court could raise an issue suo motu but must call on parties to address him before the issue is resolved, seeEFFIOM & ORS V. CROSIEC & ANOR (2010) LPELR-1027(SC) where the Court held that:
“On the issue of whether it was proper for the Court below to raise the issue of locus standi of the Appellants suo motu and determine same without hearing from the parties, it has long been settled that no Court is entitled to do so. The elementary principle is that it is wrong for a Court to raise any issue of fact suo motu and decide upon it, without giving the parties an opportunity to be heard on it. This is so because the Court is bound by and therefore confined to the issues raised by the parties. Where however the Court raises all issue suo motu which it considers material for the proper determination of the case, it must give parties, particularly the party likely to be adversely affected by the issue, to be heard. See AJUWON vs AKANNI (1993) 9 NWLR (Part 316) 182 at 190; AJAO vs ASHIRU (1973) 11 S.C. 23 at 39-40, ATANDA vs AKANMI(1974) 3 S.C. 109; KUTI vs JIBOWU (1972) 1 ALL N LR (Part 11) 180; R.T.E.A.N vs N.U.R.T.W (1992) 2 NWLR (Part 224) 381; FINNIH vs IMADE (1992) 1 NWLR (Part 219) 511 at 537. While the Court has a duty to give the parties the opportunity to be heard on any issue it raises suo motu a failure to do so does not necessarily lead to a reversal of its decision. To warrant an appellate Court’s reversal of the decision, the Appellant must go further to show that the failure to hear him on the point occasioned some miscarriage of justice. See IMAH vs OKOGBE (1993) 9 N.W.L.R (Part 316) 159 at 178; OLUBODE vs SALAMI (1985) 2 N.W.L.R (Part 7) 282. As I indicated above this principle that the Court ought not to raise an issue suo motu and decide upon it without hearing from the parties applies and so the Court’s deliberation on it was an exercise in futility. It is not mainly to issues of fact. In some special circumstances, the Court can raise an issue of law or jurisdiction suo motu and without hearing the parties decide upon it. TUKUR vs GOVERNMENT of GONGOLA STATE (1989) 4 N.W.L.R (Part 117) 517 is instructive on this point. In that case although the issue of venue was not raised and argued by the parties in their briefs, it being an issue of jurisdiction was taken by the Court.”
Per TABAI ,J.S.C ( Pp. 31-33, paras. B-A )
However, there are exceptions to the rule. See OMINIYI V. ALABI (2015) LPELR-24399(SC) where the Court held thus:
“The settled position of the law, as correctly stated by learned counsel on both sides is that a Court is not entitled to raise an issue suo motu and decide on it without affording the parties an opportunity to be heard. This is because in doing so the Court is seen to leave its exalted position as impartial arbiter and descend into the arena of conflict. See: Kuti v. Balogun (1978) 1 SC 53 @ 60; Obawole v. Williams (1996) 10 NWLR (pt. 477) 146; Stirling Civil Eng. (Nig.) Ltd. v. Yahaya (2005) 11 NWLR (pt. 935) 181; Omokuwajo V. F.R.N. (2013) 9 NWLR (R.1359) 300. There are a few exceptions to this general rule. In the case ofEffiom V. C.R.S.I.E.C. (2010) 14 NWLR (Pt. 1213) 106, relied upon by learned counsel for the respondent, this Court reiterated the general principle stated above. His Lordship, Tabai, JSC, who wrote the lead judgment went on to state at page 133 – 134 H – A (supra): “As I indicated above this principle that the Court ought not to raise an issue suo motu and decide upon it without hearing from the parties applies mainly to issues of fact. In some special circumstances, the Court can raise an issue of law or jurisdiction suo motu and without hearing the parties decide upon it. Tukur V. Government of Gongola State (1989) 4 NWLR (pt. 117) 517 is instructive on this point. In that case, although the issue of venue was not raised and argued by the parties in their briefs, it being an issue of jurisdiction, was taken by the Court.”
Per KEKERE-EKUN, J.S.C ( Pp. 23-24, para. A). PER YARGATA BYENCHIT NIMPAR, J.C.A.

EVIDENCE: ADMISSIBILITY OF HEARSAY EVIDENCE

There is hearsay too and hearsay evidence is not evidence the Court can consider, see SIMEON V STATE (2018) LPELR-44388(SC) which held as follows:
“Hearsay evidence is defined in Section 37 of the Evidence Act, 2011 as follows: “37. Hearsay means a statement – (a) oral or written made otherwise than by a witness in a proceeding; or (b) contained or recorded in a book, document or any record whatever, proof of which is not admissible under any provision of this Act, which is tendered in evidence for the purpose of proving the truth of the matter stated in it.” Section 38 provides: “38. Hearsay evidence is not admissible except as provided in this Part or by or under any other provision of this or any other Act.” In Utteh vs The State (1992) LPELR-6239 (SC) @ 21 A – B; (1992) 2 NWLR (Pt.223) 257 @ 273 F, it was held that: “A piece of evidence is hearsay if it is evidence of the contents of a statement made by a witness who is himself not called to testify. It presupposes that if any fact is to be proved against anyone, it ought to be proved in his presence by the testimony of a witness sworn to speak the truth and testifying to facts within his personal knowledge, subject to recognised exceptions.” See also: Arogundade Vs The State (2009) LPELR-559 (SC) @ 23 B – D; Kasa Vs The State (1994) 5 NWLR (Pt.344) 269. The hearsay rule is to protect an accused person from being convicted upon the testimony of a witness who did not see, hear or perceive in any other manner, the facts given in his testimony. Where it is shown that the evidence relied upon to convict an accused person amounted to hearsay, an appellate Court would quash the conviction See: Ijioffor Vs The State (2001) LPELR-1465(SC) @ 19 B-F.” Per KEKERE-EKUN, J.S.C. PER YARGATA BYENCHIT NIMPAR, J.C.A.

TITLE TO LAND: WAYS OF ESTABLISHING TITLE TO LAND

It is settled that there are 5 ways of establishing title to land, see NWABUOKU & ORS V. ONWORDI & ORS (2006) LPELR-2082(SC) where the apex Court held thus:
“In Idundun v. Okumagba (1976) 9-10 S.C. (Reprint) 140; (1976) 9-10 SC 227; this Court held that there are five ways in which title or ownership of land could be proved. They are (1) By traditional evidence. (2) By production of documents of title duty authenticated and executed. (3) By acts of ownership extending over a sufficient length of time, numerous and positive enough as to warrant the inference of true ownership (4) By acts of possession and enjoyment. (5) Proof of possession of connected or adjacent land in circumstances rendering it probable that the owner of such connected or adjacent land would, in addition, be the owner of the land in dispute. See also Omoregbe v. Idugiemwanya (1985) 2 NWLR (Pt.5) 41; Mogaji v. Cadbury (Nigeria) Ltd. (1985) 2 NWLR (Pt.7) 393; Ezeoke v. Nwagbo (1988) 1 NWLR (Pt.72) 616; Fasoro v. Beyioku (1988) 2 NWLR (Pt.76) 263; Okpuruwa v. Chief Okpokam (1988) 4 NWLR (Pt.90) 554. A plaintiff need not prove all the five ways to succeed in an action of title to land. He can succeed if he proves even one of the ways. In other words, the five ways enumerated in Okumagba are not cumulative but concurrent.”
Per TOBI ,J.S.C ( Pp. 13-14, paras. D-B )
See also the case of AIGBOBAHI & ORS V. ALFUWA & ORS (2006) LPELR-267 (SC).

It has also been settled that proof in civil matters is on the preponderance of evidence, see OSUJI V. EKEOCHA (2009) LPELR-2816(SC) where the Court held as follows:
“As rightly observed by the learned counsel for the Appellant civil suits are decided on the balance of probabilities, on the preponderance of evidence. This connotes that the totality of the evidence of both parties is bound to be taken into account and appraised so as to determine which evidence has weight and which has none. The credible evidence led by both parties is thereafter weighed on an imaginary judicial scale by the trial Court in order to see which party’s evidence has more weight or preponderates and it is that party who succeeds in the case. The instant case, is a case for declaration of title whereupon the Plaintiff/Appellant must succeed on the strength of his case and not rely on the weakness in the evidence of the Defendant/Respondent. The Plaintiff/Appellant has the onus of adducing credible and acceptable evidence in support of his case for declaration of title. Woluchem v. Gudi (1981) 5 SC pg 291 Odutola v. Aileru (1985) 1 NWLR pt 1 pg 92 Magaji v. Odofin (1978) 4 SC 91 Balogun v. Akanji (1988) 1 NWLR pt 70 pg 301 Elias v. Omo Bare (1982) 5 SC 25 Odulaja v. Haddad (1973) 11 SC pg 357 Akibu v. Opaleye (1974) 11 SC pg 139.”
Per ADEKEYE, J.S.C ( Pp. 38-39, paras. C-A )
A Claimant is expected to succeed on the strength of its case and not rely on the weakness of the defence, see ASHIRU V. OLUKOYA (2006) LPELR-580(SC) where it was held thus:
“The law is that in a claim for declaration of title the plaintiff must succeed on the strength of her own case and not on the weakness of the defendant’s case. See Coker v. Ayoade (1966) NMLR 81. In other words, the plaintiff must succeed on the totality of the evidence properly adduced in Court. Which in effect means that if the evidence does not prove his case, he will not succeed merely because the defendant’s case is even weaker. What is important, it is contended, is that the evidence has been properly admitted in evidence and once it is properly admitted then either party could apply it in support of his case. Reliance was placed on the following two cases to exemplify this point, viz. 1. Piaro v. Tenalo (1976) 10 NSCC 700; (1976) 12 SC 31 where Obaseki, Ag. JSC said:- “It is settled law that a plaintiff in a claim for a declaration of title must succeed on the strength of his case and not on the weakness of the defence (i.e his opponent’s case) See Kodilinye v. Mbanefo Odu (1935) 2 WACA 226, Nwanko Udegbe & Ors v. Anachuna Nwokafor & 2 Ors (1963) 1All NLR 418. A plaintiff is however entitled to take advantage of any evidence adduced by the defence which tends to establish his title and support his case. See Josiah Akinola v. Fatoyinbo Oluwo (1962) 1 All NLR 224 at 225.2. Odi v. Iyala (2004) 8 NWLR (Pt.875) 283 where Iguh, JSC said at page 315: “In the present appeal, the plaintiffs/appellants’ case before the trial Court failed in toto. In a claim for declaration of title, such as in the case in the present action, the onus is on the plaintiffs to satisfy the Court on the evidence produced by them that they are entitled to the declaration sought. To this end they must rely on the strength of their case and not on the weakness of the defendants’ case and if this onus is not discharged, the weakness of the defendants’ case will not help them and the proper judgment will be for the defendants. This general rule is subject to the important qualification that if the defendant’s case supports that of the plaintiff and contains evidence on which the plaintiff may rely on, the plaintiff is fully entitled to make use of such evidence – see too Okafor v. Idigo 15 NSCC 360/SCNLR 481; Frempong v. Brempong (1952) 14 WACA 13; Akinola v. Oluwo (1962) 1 All NLR (Pt.2) 224 at 225; (1962) 1 SCNLR 352.”
Per ONU ,J.S.C ( Pp. 17-19, paras. E-B). PER YARGATA BYENCHIT NIMPAR, J.C.A.

COMPETENCE OF COURT: WHETHER AN APPELLATE COURT MAY INTERFERE WITH THE FINDINGS OF THE TRIAL COURT

It is the law that the Appellate Court will not disturb the findings of facts drawn from credible evidence unless exceptional circumstances has been shown as stated in MR. PAT AGBACHI V. SAM AZUBUIKE (2010) LPELR-3646 (CA) 37; PATRICK GODDY EKWUNO & ORS V. BOSAH EKWUNO (2011) LPELR-9180(CA) 38 and MR. ISAH ABDULLAHI V. MR. JUSTIN AKPATA & ORS (2017) LPELR 42808 (CA) 16. In the instant case, no special or exceptional ground has been shown or any point brought to show that the finding is perverse. The Appellant argued that the trial Court did not make pronouncement on their counterclaim but the Court adopt a style that the grant of the Respondent’s claim amounts to an automatic refusal of the counter-claim as held in CHRISTOPHER UMUNNA NWANKWO V. JOSEPH OZOEMENA (2017) LPELR-41640 (CA) 30B. PER YARGATA BYENCHIT NIMPAR, J.C.A.

Before Our Lordships:

Peter Olabisi Ige Justice of the Court of Appeal

Yargata Byenchit Nimpar Justice of the Court of Appeal

Mohammed Mustapha Justice of the Court of Appeal

Between

CHIDI ONWUERINGO (FATHER CHIDI) APPELANT(S)

And

MRS. M. A. ADEDAPO RESPONDENT(S)

YARGATA BYENCHIT NIMPAR, J.C.A. (Delivering the Leading Judgment): This Appeal is against the decision of the High Court of the Federal Capital Territory sitting in Gwagwalada delivered by HON. JUSTICE M. BALAMI on the 28th April, 2016 wherein the Court below entered judgment against the Appellant over parcel of land. Dissatisfied with the said decision, the Appellant filed an Amended Notice of Appeal on the 9th October, 2020 donating 8 grounds of Appeal.

The facts leading to this appeal are amenable to brief summary, the Respondent by way of writ of summons initiated a claim before the trial Court and sought the following reliefs:
a. A declaration that the Plaintiff is the owner of that parcel of land, lying and situate at Angwan Dodo, along Lokoja/Kaduna Expressway, Gwagwalada-Abuja, measuring about 4336.073m2, having legally acquired same through the land agreement executed between her and former Aguma of Gwagwalada, H.R.H Alh. Muhammed Magaji through a letter of confirmation of Ownership of land dated 15th June, 2000.
b. A declaration that the Defendant is a trespasser.
c. An order of the Court compelling the defendant to remove his structure from the Plaintiff’s land.
d. An order of the Court, restraining the Defendant, his agents, privies, representatives or whosoever acting under his instruction from further encroaching on the Plaintiff’s parcel of land.
e. General damages N10 million.
f. N250,000 cost of instituting this suit.

Issues were joined by pleadings and the matter went to full trial with parties calling witnesses in proof of their respective pleading. After full consideration, the Court below entered judgment against the Appellant, thus the appeal.

Appellants’ brief settled by S. M. ATTAH, ESQ., is dated 28th day of September, 2020 filed on the 29th day of September, 2020 and deemed the 12th October, 2020 and distilled 5 issues for determination as follows:
1. Whether the Respondent can validly claim and be awarded title/ownership of land in Angwa-dodo Gwagwalada FCT Abuja having claimed to have derived title from the Aguma of Gwagwalada.
2. Whether it was proper for the trial Court to simply ignore and/or refused to say anything about the counter claim which the Appellant filed against the Respondent at the said Court.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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3. Whether the following acts exhibited by the trial Court did not amount to descent into the arena of the conflict and/or open bias against the Defendant (now Appellant).
a. Making a finding suo motu and reaching a conclusion thereon without asking the parties to address the Court on the issue.
b. Acting on unpleaded facts despite opposition from the Appellant (Defendant) at the trial Court.
c. Deliberately overlooking/down playing and/or out rightly ignoring very strong points canvassed for the Appellant (Defendant) at the trial Court.
4. Whether the trial Court was right in admitting clearly inadmissible documents despite strong objection from the Defendant (now Appellant)
5. Whether, from the totality of evidence before the trial Court it can be rightly said that Defendant (Appellant) did not challenge or controvert the evidence led by the Plaintiff (now Respondent) at the trial.

The Respondent’s Brief settled by NUREIRI JIMOH, ESQ. is dated 15th March, 2018 filed on the 23th March, 2018 and deemed the 12th October, 2020. It formulated 1 issue thus:
1. Whether the trial Court rightly granted the Plaintiff/Respondent’s entire claim while refusing to grant the counter-claim of the Appellant?

The Appellant in response to the Respondent’s brief filed a Reply Brief dated 28th September, 2020 and filed on the 5th October, 2020 deemed on the 12th October, 2020 and distilled 3 issues for determination as follows:
1.Whether it will be just or proper for the Appellant to be held liable for alleged failure to pay filing fees.
2. What is the effect of failure to file a defence to Counterclaim?
3. Are there special or exceptional circumstances that will warrant or compel the Court of Appeal to interfere with the finding/decision of the lower Court?

APPELLANT’S SUBMISSION
ISSUE ONE
The Appellant submission on issue one is that by virtue of Section 297(2) of the 1999 Constitution (as amended), the Respondent has no right to claim title to ownership of the plot in dispute since the title is derived from the Aguma of Gwagwalada. The import of Section 297(2) of the 1999 Constitution (as amended) is that only the Minister of FCT has the authority to validly allocate a plot. The Aguma and the Respondent’s alleged land are properties of the Federal Government and there are no exceptions to this provision of law. The land in dispute is situate at Angwa-dodo Gwagwalada-Abuja which falls within the area in Federal Capital Territory, Abuja. He cited Section 18 of the Federal Capital Territory (FCT) Act, Cap 503 Laws of the Federation of Nigeria, 1990; ENGR. YAKUBU IBRAHIM V. SIMON OBAJE (2005) 8 WRN 75 and ONA V. ATENDA (2000) 5 NWLR (PT. 656) 244 (CA) to support his submission that all lands in FCT are vested in the Minister of FCT and not on any other person.

The Appellant also submits that the Respondent argued she has Customary Right of Occupancy granted to her by Aguma of Gwagwalada, however, Customary Right of Occupancy is not recognized in the Federal Capital Territory as held in ENGR. YAKUBU IBRAHIM V. SIMON OBAJE (supra). Hence, all the Exhibits tendered by the Respondent in relation to title land are inapplicable in FCT-Abuja as all lands in the FCT belong to the Federal Government of Nigeria. The trial Court’s award of title/ownership of the plot in issue to the Respondent in its judgment in P.325 of record is misconceived and misplaced in view of the above stated statutes and judicial pronouncements. Therefore, the confirmation of allocation of papers and other documents emanating from the Aguma of Gwagwalada and not from the Minister of FCT are completely null and void and of no effect any longer in FCT-Abuja. See GRACE MADU V. DR. BETRAM MADU (2008) ALL FWLR (PT. 1604) 1627 where the Supreme Court held same.

The Appellant further submits that the allocation of land purportedly granted to the Respondent by the Aguma at best confers Customary Right which is unable to grant good title in FCT-Abuja as per IBRAHIM V. OBAJE (supra). The Appellant urged this Honourable to uphold issue one and set aside the judgment of trial Court with all the reliefs therein.

ISSUE TWO
The Appellant submits that the Respondent filed and served the Appellant with her Writ of Summon which the Appellant responded by filing Statement of Defence and Counter-claim but the Respondent failed to react to the Counter-claim. The Appellant then asked the for judgment in respect of the Counter-claim but the trial Court failed/refused to make any pronouncement on the issue thereby treating same as if it was never presented to it (Page 13-29 of the records). He also submitted that it is the duty of the Courts to consider and determine any issue brought to it as held in OKONJI V. NJOKANMA (1999) 14 NWLR (PT. 638) 250, BRAWAL SHIPPING NIGERIA LTD V. ONWADIKE (2000) 11 NWLR (PT. 678) 387 and DUZU V. YUNUSA (2010) 10 NWLR (PT. 1201) 80. By failing and/or refusing to consider and determine the counter-claim brought to it, the trial Court is in breach of a sacred duty imposed on it by law, referred to DABUP V. KOLO (1993) 12 SCNJ 1. The Appellant urged this Honourable Court to enter judgment for the Appellant in respect of his Counter-claim.

ISSUE THREE
Whether the following acts exhibited by the trial Court did not amount to descent into the arena of the conflict and/or open bias against the Defendant (now Appellant).

The Appellant considered the issue under the following heads:
a. Making a finding suo motu and reaching a conclusion thereon without asking the parties to address the Court on the issue.
b. Acting on unpleaded facts despite opposition from the Appellant (Defendant) at the trial Court.
c. Deliberately overlooking/down playing and/or out rightly ignoring very strong points canvassed for the Appellant(Defendant) at the trial Court.

The Appellant submits that in the Respondent’s statement of claim and witness statement on oath, she claimed a portion of land alleged measuring 4000square meters and tendered Exhibit A2 to support such claim. When the trial Court visit locus in quo, the Respondent claimed the fallen trees on the land were planted by her when she acquired the land which the trial Court based its judgment on when it held that “in the olden days, the practice was not to measure land but to trees round the land to denote boundary and size”. The Respondent never made such case for herself as it is not contained in any of her pleadings, it was the trial Court’s findings suo motu and never called parties to address it on the issue and the trial Court based its decision on this finding when it held that “the trees that the Plaintiff purportedly planted was proof that the Plaintiff is the owner of the disputed land”. The failure of the trial Court to ask parties to address it on the finding it made suo motu and basing its decision on it are tantamount to descent into the arena of the conflict. It is not the business of the Court to make case or help a party to strengthen its case.

Continuing his submission, the Appellant contended that the act of descending to the arena by the trial Court is a flagrant violation of the sacred principle of neutrality which every Court is expected to uphold, citing UBA PLC V. EFFIONG (2011) 16 NWLR (PT. 1272) 84. The act of descending to the arena by the trial Court made its decision perverse and this occasioned a gross miscarriage of Justice. See NJABA LOCAL GOVT COUNCIL V. CHIGOZIE (2010) 16 NWLR (PT. 1218) 166 and OLADIPO V. MOBA LOCAL GOVT AUTHORITY (2010) 5 NWLR (PT. 1186) 117. The fact that in the olden days trees were planted to denote size and boundary is a matter which the trial Court ought not to have taken into consideration. The Appellant urged the Court to invalidate the finding that planting trees are proof of ownership of the said land, referred to FEDERAL REPUBLIC OF NIGERIA V. OKEY NWOSU & ORS (UNREPORTED) but see SCI 74/2014; SC 73/2014 and UNITED BANK FOR AFRICA PLC V. EFFIONG (supra).

Finally, the Appellant submits that the finding of the trial Court is in violation of a party’s right to fair hearing and void ab initio, the Appellant urge the Court to hold that the proceedings leading up to this finding and the finding itself are void ab initio.

The Appellant submits that the trial Court went further to state that at the locus, the Respondent was able to show the Court trees she planted round the land and this is proof that the land in dispute belongs to the Respondent. He also submits that the issue of planting trees was neither pleaded nor was any evidence led on it. The Appellant urge the Court to hold that facts not pleaded goes to no issue. The Appellant further submits that the trial Court ignored his submission and went on to pronounce judgment in favour of the Respondent based on unpleaded facts. The failure or refusal of the trial Court to act on pleaded facts is a violation of settled principle of law in DUZU V. YUNUSA (supra). The Appellant urged the Court to so hold and to invalidate the findings of the trial Court.

Continuing his submission, the Appellant states that the purpose of paying a visit to the locus in quo is not to raise new issues but to confirm what the Court heard in open Court. In the instant case, the Respondent went to the locus to raise issues that were never part of her case and the closed its eyes to the flagrant breach of settled principles of law and also based its decision on it. The Appellant urge the Court to hold that the attitude of the trial Court was unbecoming as it led a gross miscarriage of Justice and not to allow injustice to stand. He referred to LADIPO V. MOBA LOCAL GOVT AUTHORITY (Supra).

The Appellant accused the trial Court also descend into the arena when it overlooked, downplayed and out rightly ignoring very strong points canvassed by him and made a case for the Respondent in order to help to strengthen her case. The Appellant request the Court to note how the trial Court helped the Respondent to strengthen her case. Firstly, the trial Court’s act of completely ignoring very strong points canvassed by the Appellant on the issue of title document. The Respondent argued that the Appellant did not tender any document of title to prove his ownership of the land. The Appellant submits that there are five recognized ways of proving ownership of land.

These include, but are not limited to production of documents of title as well as proof of possession and quite enjoyment of the disputed land. He cited NRUAMA V. EBUZOEME (2006) 9 NWLR (PT. 985) 217. He further argued that a party is not required to prove all the five ways but to plead and effectively prove just one of the five ways. He relied on DIVINE IDEAS LTD V. UMORU (2007) AFWLR 1468 (RATIO 22).

Continuing his submission, the Appellant state that he pleaded and proved acts of possession and ownership which includes selling, leasing, renting all or portion of it over a sufficient length of time to warrant the inference of exclusive ownership of the land and acts of long possession and enjoyment of the land. The evidence led was neither challenged or controverted by the Respondent’s counsel and the trial Court too ignored their submission by saying nothing about it but went on to agree with the Respondent’s argument that the Appellant did not produce any document to link him to the land in dispute. The Appellant urged the Court to hold that the failure of the trial Court to make pronouncement on their argument is a flagrant breach of the settled principle of law as held in OKONJI V. NJOKANMA (supra) and UBA PLC V. EFFIONG (Supra). The trial Court neither stood aloof nor detached. The Appellant also submits that in the trial Court’s judgment, the Court observed that the Appellant had exercised acts of ownership on the disputed land for over 15 years without being challenged by the Respondent but the Court did not see this fact as basis to declare the Appellant the owner of the land in dispute. Secondly, the trial Court did not record the proceedings at the locus in quo, apparently, the trial Court had resolved the controversy surrounding the disputed land by the Court call on DW2 (Garba Idanu) to identify the land belonging to the Respondent and Appellant because DW2 is a signatory to the agreement evidencing the sale of the land to the Respondent.

The Appellant further argued that DW2 made it abundantly clear that the Appellant’s land does not exceed the spot where she built her hotel and also pointed out the demarcation. The Appellant states that this piece of evidence is contained in the amended statement of defence (Page 127 and 128 of the record). The evidence of DW2 at the locus was so cogent direct, unequivocal and enough to resolve the issue in controversy in this suit that the Appellant’s counsel decided not to call any other witness and closed his case. However, that the trial Court in its judgment completely failed and/or neglected to analyze what transpired at the locus particularly DW2’s evidence which was clearly favourable to the Appellant, that the failure led to a miscarriage of justice and the urge the Court to hold so and to resolve issue 3 in favour of the Appellant.

ISSUE FOUR
The Appellant submits that during trial, the Respondent testified as PW1, she tendered two documents which the trial Court admitted and marked as Exhibit A1 which is a land agreement dated 25th February, 1975 and Exhibit A2 which a so called Confirmation of Ownership of Land dated 14/6/2000. The Appellant objected to the admission of both evidence on the grounds that they are not admissible under Section 15(3) of the Land Registration Act of the FCT having not been registered (Page 256-258 of Records). In his ruling, the trial Court overruled the Appellant’s objection and held that as at 1975 FCT was not created, so the land instrument Registration Act of the FCT cannot affect an agreement made in 1975. On Exhibit A2, the Court held that it is document made to confirm what was done in 1975. Both documents were admitted in evidence but it admission was not hinged on any known law. The Appellant also submit that in their final written address (Page 234-251 of record), he urged the trial Court to expunge these documents from it record as they were admitted and that as at 1975 when that agreement was made, the land instrument Registration Act was not only in existence but also fully in force. He cited AKINDURO V. ALAYA (2007) 15 NWLR (PT. 1057) 312 and Section 15 of the Land Instrument Registration Law Cap 58 Laws of Northern Nigeria.

Continuing his submission, the Appellant submits that the case of AKINDURO V. ALAYA (supra) is on all fours with the instant case. The purported agreement governing the transaction in AKINDURO V. ALAYA (supra) is unregistered and the Supreme Court held that: “By virtue of Section 15 of the Land Instrument Registration Law, an unregistered document affecting land must not be pleaded and is not admissible in evidence…Even where the unregistered document is mistakenly admitted should be expunge for reasons of lacking evidential value”. For this reason, the Appellant urge the Court to expunge them from the record. See also the case of DIVINE IDEAS LTD V. UMORU (Supra). The Appellant also states that even when a document is relevant to the enquiry being conducted by the Court, it must still meet other conditions stipulated for admissibility in Section 1 and 1(b) of the Evidence Act, 2011 and the case of OKONJI V. NJOKANMA (1999) 14 NWLR (PT. 638) 250 where the Supreme Court stipulated three conditions for admissibility of every document which are, it must be pleaded, relevant and admissible in law. In the instant case, the two documents Exhibit A1 and A2 are specifically forbidden from being admitted in evidence by Section 15(3) of the Land Registration Act of the FCT and their admission therefore is a gross violation of this law. Also Exhibit A2 is an illegal document as there is no law which empowers the Aguma of Gwagwalada to issue confirmation in respect of land in the Federal Capital Territory Abuja.

The Appellant further submits that in Section 2 of the Land Instrument Registration Law defines instrument. Also in the Appellant’s Statement on Oath this allegation was made but never denied by the Respondent. The Appellant urged the Court to treat this as a case of unchallenged or uncontroverted evidence. He cited the Supreme Court decision in NWAKONOBI V. UDEORA (2013) 1 NWLR (PT. 1354) 499. The Appellant also states that once Exhibit A2 is expunge from the record for all the above reason, the Court will see that the mendacious claim of the Respondent was not proved, referred to Section 131(1) of the Evidence Act, 2011 and the case of IYERE V. BFFM LTD (2001) FWLR (PT. 37) 1166.

Finally, the Appellant submits that the only credible evidence left is that of the Appellant which is to the effect that the Respondent’s land did not exceed the spot where she built her hotel which is the same evidence given by DW2 at the locus in quo when the trial Court invited him to show the Court the exact portion of the Plaintiff’s land and this evidence was not challenged nor controverted.

ISSUE FIVE
The Appellant submits that the trial Court in its judgment held that the evidence led by the Respondent at the trial was not challenged or contradicted by the Appellant but from the record of the Court, this Court will agree that nothing can be farther from the truth. The Appellant also states that from the Respondent Statement of Claim the following are her claims:
1. That the Plaintiff is the owner of a piece of land measuring over 4033sqm.2. That the Plaintiff has been enjoying quiet over the entire piece of land.
3. That the Defendant suddenly built on a portion of the Plaintiff’s land.
4. That when the Plaintiff protested, the Defendant pulled down a portion of his building and pleaded to be given more time to pull down the rest.
5. That the Plaintiff gave the Defendant one week to pull down the rest of the building.
6. That the Defendant later reneged on his promise to pull down the rest of the building.

The Appellant submits that in his statement of defence and witness statement on oath debunked the Respondent’s false claims. On the claim of being the owner of the land measuring over 4033sq, the Appellant debunked it by making the Respondent re-measure the land after which she started brandishing Exhibit A2 issued to her by the present Aguma of Gwagwalada. The Appellant submits that the Respondent only had quiet enjoyment on the portion where she built her hotel (May-May Guest House) and also in this suit she restricted herself to the spot where her hotel is. The Respondent alleged that the Appellant came from nowhere and built on her land but the Appellant challenged this allegation by showing he had been in peaceful possession of the said land for over 15 year before the Respondent brought her suit. The Appellant also states that he exercised acts of ownership such as building shops, renting out open space and ejecting tenants, it is not true that when the Respondent protested, the Appellant pulled down the shops and asked for time to pull down the rest and failed to honour his promise.

Continuing his submission, the Appellant states after he built his last set of shops, the Respondent made a complain to the Aguma of Gwagwalada that the shops blocked her place of business thereby making it difficult for passerby and other potential customer to have a clear view of the place. The Aguma (Royal father) visited the contentious spot and pleaded with the Appellant to pull down the shops to allow peace to reign, which he did in deference to the Aguma. From the records of the Court, the Appellant averments in his statement of claim were either challenged or controverted by the Respondent.

The Appellant submits that in CHABASAYA V. ANWASI (2010) 10 NWLR (PT. 1201) 163, the Supreme Court held that evidence that is relevant to the issue in controversy that is not challenged, contradicted and discredited is good and reliable and which ought to influence the Court in the determination of the case before it. And the case of NWAKONOBI V. UDEORAH (2013) 7 NWLR (PT. 1354) 499.

Finally, the Appellant urge the Court that in the light of the Supreme Court decision to discountenance the finding of the trial Court, to set aside its judgment and to resolve all issues in favour of the Appellant.

RESPONDENT’S SUBMISSION
ISSUE ONE
The Respondent submits that this issue borders on declaration of title to land where both parties claim and counterclaim for the same parcel of land situate at Angwan Dodo, along Lokoja/Kaduna expressway, Gwagwalada, Abuja.

The Respondent’s claim is premised on the grant dated 23rd February, 1975 from one Mallam Na-Bala Bassa, the then Aguma of Gwagwalada. Her title was further confirmed by the current Aguma of Gwagwalada, HRH Alh. Muhammad Magaji by the letter of confirmation of ownership dated 15th June, 2000. The Respondent being the sole witness tendered Exhibit A1 and A2 which were admitted in evidence as contained in pages 255-266 of the record. Even under cross-examination, her evidences were not challenged.

The Respondent also states that on the part of the Appellant, he filed a statement of defence and counter claim as contained in pages 115-133 of record but on the face of their counterclaim there is no evidence of payment of filing fees and no evidence of assessment or payment for same is shown at all. The Appellant called four witness and did not tender any title document save some rent receipts issued to some tenants in respect of two shops on the land in dispute for a short period of time between 2009 and 2013 when the case was pending and quit notice for only the year 2001. Under cross-examination, DW2 testified that the property in dispute belongs to the Respondent (Page 278 of record). All attempt to declare him a hostile witness failed. The learned trial Judge after due consideration of evidence held that “the Respondent has satisfied the requirement of the law…” (Page 324-325 of the record).

Continuing her submission, the Respondent states that it is the law that the Plaintiff cannot rely on the weakness of the defence but on the strength of his case. The trial Court did not rely on the weakness of the defence at all in its findings but the Appellant argued that the trial Court relied on unpleaded evidence and also descended into the arena of the conflict to help the Respondent. From the records, the real reason of the Court was not challenged on appeal. The Respondent evidence is in line with the pleadings. The Respondent further submits that there are five ways to prove claim for declaration of title to land as stated in the case of ORIANZI V. A.G. RIVERS STATE (2017) SC. The Respondent pleaded, testified and proved by the production of document of title, positive acts of ownership and acts of long possession and enjoyment of the land (Page 5-6, 255 of the record). The pleading was equally supported with title documents admitted in evidence as Exhibit A1 and A2 which the appellant did not displace it.

The Respondent further submits that the trial Court rightly relied on the pleading and admissible evidence in evaluation of the facts and evidence before it. It is the law that the Appellate Court will not disturb the findings of facts drawn from credible evidence unless exceptional circumstances has been shown as stated in MR. PAT AGBACHI V. SAM AZUBUIKE (2010) LPELR-3646 (CA) 37; PATRICK GODDY EKWUNO & ORS V. BOSAH EKWUNO (2011) LPELR-9180(CA) 38 and MR. ISAH ABDULLAHI V. MR. JUSTIN AKPATA & ORS (2017) LPELR 42808 (CA) 16. In the instant case, no special or exceptional ground has been shown or any point brought to show that the finding is perverse. The Appellant argued that the trial Court did not make pronouncement on their counterclaim but the Court adopt a style that the grant of the Respondent’s claim amounts to an automatic refusal of the counter-claim as held in CHRISTOPHER UMUNNA NWANKWO V. JOSEPH OZOEMENA (2017) LPELR-41640 (CA) 30B. Therefore it is correct for the trial Court to ignore or refused the Appellant’s Counterclaim.

Furthermore, the Respondent submits that she pleaded and stated the measurement of her land in dispute and was not cross-examination on the point at all even at visited locus in quo, the size was not in issue. It is unfair for the Appellant who failed to prove his counterclaim to accuse the trial Court of “open bias” when the findings of the Court is proper, valid and within the limits of the law. It is obvious that Exhibit A1 was made in 1975 before the Land instrument Registration Act of the Federal Capital Territory. The Respondent urged the Court to affirm the findings of the trial Court and to dismiss this appeal.

APPELLANT’S REPLY BRIEF
ISSUE ONE
The Appellant submits that he cannot be held liable for his alleged failure to pay filing fees as this will not only be unfair but a violation of settled principles of law. The Appellant’s counsel submitted the processes to the Registrar of the Court for assessment and made payment. The Appellant’s counsel is not in the position to determine appropriate filing fees, therefore, punishing the Appellant for alleged failure to pay filing fees will be tantamount to visiting the sin or negligence of the Registry on the litigant as held in OKOLO V. UNION BANK OF NIG. LTD (1998) 2 NWLR (PT. 539) 618. The Appellant urged the Court to resolve this issue in favour of the Appellant.

ISSUE TWO
The Appellant submits that it is law that once a party files a counterclaim, the other party should file his defence as failure to do so means that all the claims are admitted. See DABUP V. KOLO (1993) 12 SCNJ 1. He urge the Court to reject the Respondent’s position that the grant of her claim amounts to an automatic rejection of the counterclaim because no Court has the power to automatically reject a claim properly brought before it without the litigant being heard as held in OKONJI V. NJOKANMA (1991) 9-10 SCNJ 27 and offends the doctrine of fair hearing guaranteed under Section 36(1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended). It is also a strange doctrine and unknown to law.

The Appellant submits that the law is anything done by a Court in breach of party’s right to fair hearing vitiates the entire proceedings as stated in UBA V. EFFIONG (2011) 16 NWLR (PT.1272) 84. A Court cannot adopt a style that violates the principles of law. That style the trial Court adopts by ignoring the Appellant’s counterclaim breaches Section 36(1) of Constitution and the principle in DUZU V. YUNUSA (2010) 10 NWLR (PT.1201) 80. The authority cited by the Respondent’s counsel in support of his style theory viz CHRISTOPHER UMUNNA NWANKWO V. JOSEPH OZOEMENA (2017) LPELR-4164 30B is not applicable to this case. The Respondent claims that her claim and the Appellant’s counterclaim are on the same disputed land but from the records, the Appellant made it clear that the Respondent’s land does not exceed where she built her hotel. The Appellant’s counterclaim is based on the fact that as soon as hostilities started, the Respondent quickly erected a wall on the Appellant’s land which the Appellant is praying the Court to mandate her to remove it. The erection of the wall is an act of trespass. The Respondent did not file a defence even where the main claim and the counterclaim are totally different. The Appellant urge the Court to give judgment on the Counterclaim based on the decision in DABUP V. KOLO (Supra).

ISSUE THREE
The Appellant submits that the Respondent argued that the Appellate Court will not interfere with finding of the lower Court unless special or exceptional circumstances are shown. The Appellant submits that there are no such special or exceptional circumstances that exist to deprive the Court from interfering. The Respondent also argued that the trial court acted on pleaded facts but from the records, there is nowhere the Respondent pleaded trees except when the visit to locus in quo was done that she raised this issue. Also the Respondent never pleaded the olden day ways of proving owner by planting trees to show the particular portion but these are the facts that the trial Court relied upon to hold that the Respondent proved her case. The Appellant urge the court to hold that the above facts constitutes special or exceptional circumstances that will compel the Court to interfere.

The Appellant submits that in the Respondent’s Statement of Claim she pleaded a survey plan that measure the land to about 4336.073m2 but in the Appellant’s statement of defence, he argued that the Survey Plan is a worthless piece of paper recently procured for the purpose of prosecuting this case. The Respondent never tendered the survey plan in evidence which he address in his final written address as contain in pages 235-236 of the records. The survey plan was not signed neither did it contain the name of the surveyor. The Respondent did not tender the survey plan in evidence to afford the Appellant opportunity to cross examined it but turned round to emphasize the fact that he did not cross examined it. The Respondent counsel did not react to the issue of survey plan in her written address, the trial Court also ignored his submission contained in pages 235-236 of record and held that “even with the survey plan, it will not affect the claim of the Plaintiff over the said land, the Plaintiff bought the land under customary ownership of land and demarcated the boundary by planting trees as seen when visited the locus in quo” (P.323 of Record). The trial Court failed to pronounce on the issue of survey plan which occasion miscarriage of justice and breached settled principles of law as held in DUZU V. YUNUSA (Supra) and OKONJI V. NJOKANMA (Supra).

If the trial Court had expunged the Survey Plan from the record the trial Court would have discovered that the claim that the land measures 4033.07m2 on the survey plan would not have been proved.

The Appellant also submits that the trial Court made the case for the Respondent when it based its decision on trees planted by the Respondent which she never pleaded. He relied on CHABASAYA V. ANWASI (2010) 10 NWLR (PT. 1201) 163, UDO V. CROSS RIVER STATE NEWSPAPER CORPORATION (2001) 14 NWLR (PT. 732) 116 and ABBAS V. SOLOMON (2001) 15 NWLR (PT.135) 144. The Appellant urge the Court to nullify the finding and decision of the Lower Court based on the above facts. He also states that the trial Court ignored the testimony of DW2 and the same facts stated in their pleadings. Also failure of the person to sign and write his name on the document is a gross violation of Section 2 and 3(1) (b) of the Survey Act Cap 553 Laws of the Federation of Nigeria, 2004. If the survey plan is expunged, the claim of the Respondent that the land measures 4033.073m2 which was never proved will collapsed.

The Appellant submits that the Respondent argued and trial Court held that the Appellant did not tender title documents save some rent receipts quit notice as such the Respondent has a better title to the land. The Appellant states that he exercised acts of ownership over his portion of land for over 15 years without being challenged by the Respondent, the rent receipt is to show that the Appellant has been collecting rent on the land since 1998 and the notice to quit which the Appellant issued to tenants on the land without hindrance. The Respondent did not challenge the said evidence in anyway which the trial Court acknowledge in its judgment at page 325 of record. Where was the Respondent for the past 15year when the Appellant was building his shops and collecting rents? Why did she show up in 2011 to claim that the land belongs to her? In ACHIAKPA V. NDUKE (2001) 14 NWLR (PT. 734) 632, the Supreme Court enunciated principles on acts on ownership which the Appellant met. The Appellant in contesting the evidence tendered by the Respondent, he stated that the Admission of Exhibit A2 without hinging its admissibility on any known law is bias, the effect given to survey plan without admitting it in evidence is injustice perpetration by the trial Court and on Exhibit A1 the trial Court held the agreement was made before the FCT was created and the Land Instrument Registration Act cannot operate while it ignored Section 7 of Land Instrument Registration Act which requires all instruments made before the Act came in to force to be registered. The Appellant further submits that the Respondent did not respondent to his issue 2 and 3 which is deem to have conceded as held in OLLEY V. TUNJI (2013) 10 NWLR (PT.1362) 275.

The Appellant urge the Court to resolve all the issues raised in his favour and uphold his submission and allow the appeal.

RESOLUTION
I have considered the Notice of Appeal, the Records of Appeal and the respective briefs of both learned counsel for the parties and I am inclined to adopt issues formulated by the Appellant for resolution in this appeal being the initiator and the party with complaint against the judgment of the lower Court and that way all areas of complaint would be addressed.

In doing so, I will resolve the issues all at once because the issues involves evaluation of evidence and therefore it is better to do so at once to avoid repetition.

The claims before the lower Court were for declarations that the Respondent (being the Claimant) is the owner of the land situate at Angwan Dodo along Lokoja/Kaduna express way, Gwagwalada; that the Appellant (the Defendant) was a trespasser; that the Appellant be ordered to remove his structures from the land; an order restraining the Appellant and damages.

The trial Judge found for the Respondent. It is settled that there are 5 ways of establishing title to land, see NWABUOKU & ORS V. ONWORDI & ORS (2006) LPELR-2082(SC) where the apex Court held thus:
“In Idundun v. Okumagba (1976) 9-10 S.C. (Reprint) 140; (1976) 9-10 SC 227; this Court held that there are five ways in which title or ownership of land could be proved. They are (1) By traditional evidence. (2) By production of documents of title duty authenticated and executed. (3) By acts of ownership extending over a sufficient length of time, numerous and positive enough as to warrant the inference of true ownership (4) By acts of possession and enjoyment. (5) Proof of possession of connected or adjacent land in circumstances rendering it probable that the owner of such connected or adjacent land would, in addition, be the owner of the land in dispute. See also Omoregbe v. Idugiemwanya (1985) 2 NWLR (Pt.5) 41; Mogaji v. Cadbury (Nigeria) Ltd. (1985) 2 NWLR (Pt.7) 393; Ezeoke v. Nwagbo (1988) 1 NWLR (Pt.72) 616; Fasoro v. Beyioku (1988) 2 NWLR (Pt.76) 263; Okpuruwa v. Chief Okpokam (1988) 4 NWLR (Pt.90) 554. A plaintiff need not prove all the five ways to succeed in an action of title to land. He can succeed if he proves even one of the ways. In other words, the five ways enumerated in Okumagba are not cumulative but concurrent.”
Per TOBI ,J.S.C ( Pp. 13-14, paras. D-B )
See also the case of AIGBOBAHI & ORS V. ALFUWA & ORS (2006) LPELR-267 (SC).

These are settled principles that apply in a claim for interest in land, some of which are whether the interest is equitable of statutory. Another principle that raised its head here is where a party presents a contradictory case in establishing its case. The Appellant contended that the Respondent cannot derive title from the Aguma of Gwagwalada because all land in the FCT belongs to the Federal Government as per Section 297(2) of the 1999 Constitution (as Amended), it says:
“(2) The ownership of all lands comprised in the Federal Capital Territory, Abuja shall vest in the Government of the Federal Republic of Nigeria.”
The reasoning of the trial Judge was that when the Aguma sold the piece of land to the Respondent, at the time the FCT was not created. The FCT was only created in 1976 after the Respondent had acquired equitable interest in the land. Long before the Appellant’s alleged acquisition and therefore the FCT Act cannot have a retroactive effect on the transaction completed act. This was attested by the Appellant’s witness and the Constitution of Nigeria vested ownership of land in the FCT on the Minister of the FCT. It then means that just as it was in States from which the FCT was curved from, the Land law applicable recognized customary and equitable ownership of land. Even the Land Use Act recognizes customary land ownership which is deemed by the Act. However, every statutory right over a land in the FCT must be issued by the Minister, however, the issue here is not statutory right over the said land in contest.
In fact, the argument of the Appellant is against his interest because it also means he also cannot lay claim to any piece of land since he did not tender any certificate from the Minister of the Federal Capital Territory. The land in contention here was given before the Minister was invested with authority over land in the Federal Capital Territory. Exhibit A2 is evidence that the Aguma gave that piece land to the Respondent in the presence of witnesses. On the contention that the said exhibit is an instrument of land and therefore must have been registered to be relied upon by the Court, citing Section 15 (3) of the Land Instrument Registration Act and since it was not registered as required by the Land Instrument Law, the Court below is wrong to have countenanced it. The position has since changed as held by the apex Court in the case of ANAGBADO V FARUK (2018) LPELR-44909(SC) which held as follows:
“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.” Per EKO ,J.S.C
Furthermore, the apex Court held that such a document can be tendered to establish equitable title that can only be defeated by a person with a legal interest, see MOHAMMED V FARMERS SUPPLY CO. (KDS)LTD (2019) LPELR-49388(SC) wherein it held thusly:
“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!” Per ABBA AJI, J.C.A.
See also the case of MADU V MADU (2008) LPELR-1806(SC) where the Court held thus:

LAND LAW – STATUTORY RIGHT OF OCCUPANCY- Who has the power to issue statutory right of occupancy in the Federal Capital Territory;
“Be it noted that it is well settled that the ownership of the land comprised in the Federal Capital Territory, Abuja is absolutely vested in the Federal Government of Nigeria vide Ona v. Atenda (2000) 5 NWLR (Part 656) page 244 at page 267 paragraphs C – D. See also Section 297(1) (2) of the Constitution of the Federal Republic of Nigeria, Section 236 of the Constitution of the Federal Republic of Nigeria, 1979 and Section 1(3) Federal Capital Territory, Act 1976. Section 18 of the Federal Capital Territory Act, Cap. 503 Laws of the Federation of Nigeria, 1990 vests power in the Minister for the FCT to grant statutory rights of occupancy over lands situate in the Federal Capital Territory to any person. By this law, ownership of land within the FCT vests in the Federal Government of Nigeria who through the Minister of FCT vest same to every citizen individually upon application. Thus without an allocation or grant by the Hon. Minister of the FCT. There is no way any person including the respondent could acquire land in the FCT.” Per ONU, J.S.C The Appellant has escalated the claim of the Respondent to that of a statutory right of occupancy which is far from the claim so the case of MADU V MADU (supra) is not applicable even though a valid statement of law. The evidence of land allocation to the Respondent gives an equitable title and therefore issue one is resolved against the Appellant.

On issue two, the Appellant contends that the Court ignored the counterclaim. The Appellant in the statement of defence to the claim also added a counterclaim where he claimed as follows:
“ WHEREOF the defendant counter claims from the plaintiff as follows:
(a) A declaration that the defendant is the rightful owner of the piece or parcel of land situate along Kaduna/Lokoja express way opposite Himma Filling Station.
(b) A declaration that the erection of a wall on the plaintiff’s land constitutes an act of trespass by the plaintiff.
(c) An order of the Hon. Court compelling the plaintiff to pull down the wall she illegally erected on the defendant’s land
(d) Perpetual injunction restraining the plaintiff, her servants, agents, privies and assigns from ever again trespassing into defendant’s land
(e) The sum of N20,000,000.00 (Twenty Million Naira) only being general damages for Trespass.
(f) The sum of N50, 000 (Fifty Thousand Naira) only being cost of this action.”

The judgment of the trial Court at pages 16-18 reviewed the counterclaim but unfortunately made no findings on the counterclaim thus leaving it hanging. The Court is duty bound to consider and make a pronouncement on all issues presented for determination by the parties, see HONEYWELL FLOUR MILLS PLC V. ECOBANK (2018) LPELR-45127(SC) where the apex Court held as follows:
“There is every necessity for a Tribunal to make findings and pronounce on material and fundamental issues canvassed before it by the parties because failure to do so may result in a miscarriage of justice. See page 1257 of Vol. iii of the record. See also the case of Usman v Umaru (1992) 7 NWLR (Pt. 254) 377 at 398-399 paras. F-A, where this Court held thus: “It is now settled that under the doctrine of stare decisis, the Court below as an intermediate Court of Appeal between the Court below it and this Court as final appellate Court, is bound by its own decisions……” For a fact, the Court below did neither consider nor pronounced on certain material and fundamental issues canvassed before it by the parties which issues he despatched as follows:- “With the resolution of the said issue, a further discourse on issues 5, 6 and 7 will amount to an unnecessary academic exercise having become moot…… On the whole, this appeal succeeds and its accordingly allowed.” It is now a settled matter that once issues are presented before a Court, it has to attend to each and every one of them save for when any aspect is subsumed in the already considered issue that it can be taken as settled. In this, I call in aid the following dicta. NTA v Babatope (1996) 4 NWLR (Pt. 440) 75 at 89, Pats – Acholonu JCA (as he then was) held that:- “In considering the case put forward by the parties, I note with regret that the learned trial judge did not seem to have applied his mind analytically to the two sides of the case, i.e., the address of both counsel. It does not matter what his conclusions would have been, but a judgment which when viewed from all parameters, seems to be based pointedly on the case or submission of one party, does not quite reflect the orthodox method of adjudication. Even if the other parties is talking legal nonsense, he should make a finding of that nonsense.” In Okonji v Njokanma (1991) 7 NWLR (Pt. 202) 131 at 150 paras, G-H, the Supreme Court per Uwais JSC held as follows:- “It is the duty of the Court, whether of first instance or appellate to consider all the issues that have been joined by parties and raised before it for determination. If the Court fails to do so without a valid reason, then it has certainly failed in its duty, for in our judicial system, it is a fundamental principle of administration of justice that every Court has a duty to hear, determine and resolve such question.” The material points raised in the issues 5, 6 and 7 unattended being so salient, it is necessary that the Court below do the needful and consider and resolve them in the interest of fair hearing which was clearly breached for that failure. The natural conclusion therefore ensuring is to send this case back to the Court below for it to deal with all the issues before it including those of 5, 6, and 7.”
Per PETER-ODILI ,J.S.C ( Pp. 26-28, paras. C-E) It amounts to breach of fair hearing when a Court fails to determine a claim like it was done here. The failure is redeemable by virtue of Section 15 of the Court of Appeal Act, the Appellate Court can now consider the counter claim and pronounce on it, see TITILOYE V OLUPO & ORS (1991) LPELR-3250(SC) which held thusly:
”…In effect where a lower Court failed to consider or pronounce on an issue placed before it and a resolution of other issues by the appellate Court, this Court in this case, will determine the issues not considered or pronounced upon by the lower Court, it will be unnecessary to remit the issue to the lower Court for consideration and determination.” Per AKPATA ,J.S.C.

The Court shall now consider the counterclaim. The reliefs sought were reproduced above. The evidence led by the Counterclaimant came through 4 witnesses. The trial Judge who observed the witnesses in the witness box reviewed their evidence at pages 306-307 of the record of appeal. My duty is to apply the evidence to the counterclaim. The evaluation of the evidence presented by the Counterclaimant as done by the trial Court at pages 323-324 of the record of appeal says thus:
“The Hon. Court is of the view and hold there are material contradictions in the evidence of the defendant witnesses before the Hon. Court and the Hon. Court finds it difficult which to believe and which not to believe in that DW1 in his evidence before the Hon. Court particularly under cross examination states that he did sign his statement on Oath in his house, which by law is not a usual witness for the defence.
The Hon. Court now hold that the Plaintiff is by way of consistent cogent, reliable and credible evidence before the Hon. Court has satisfied the requirement of the law, having discharged the burden of proof as her claim and who is entitled to judgment and hold that it the law that its case and not on the weakness of the defence, which the plaintiff has done and the Honourable Court enter judgment in favour of the plaintiff as per writ of summons/statement of claim…”

Though a separate claim, the evidence before the Court is considered in determining the counterclaim. The essential thing is proof. The fact that the Claimant/Defendant to counterclaim did not file a defence would not automatically result in giving the counterclaimant judgment except the counterclaim is proved. The argument of the counterclaimant that the Defendant to counter claim did not present any evidence specifically directed to the counterclaim, in the same vein, the Appellant did not present evidence specifically targeted to the counterclaim. In a case where a counterclaim was filed, it is the totality of evidence before the Court that is used for both the main claim and the counterclaim. DW3 gave evidence in favour of the Defendant to counterclaim. DW4 statement was rejected because it was not made according to law. DW1 as counterclaimant told the Court he does not know the size of the land, did not know when the land was sold to Alhaji Masaudu Jibrin by the late Sarkin Power Borno but was told (hearsay) that Alhaji Masaudu sold the land to Chief Okada but could not recollect the year. That the transaction took place between the two but the land was sold to three different people. DW2 told the trial Court that the land belongs to the Plaintiff/Defendant to counterclaim.

The counter-claimant did not call the three people who are the root of his title.

Having found the Appellant’s case to be contradictory, the evidence cannot be relied upon to give the Appellant judgment. Furthermore, it is the same land that judgment had been entered for the defendant to counterclaim in the main claim, it cannot be given to the counterclaimant. A claimant ordinarily must succeed on the strength of his evidence. In view of the contradictory evidence, the counterclaim cannot succeed. Flowing from above, I resolve issue 2 partially against the Appellant.

Next is issue 3, it alleged that certain acts of the trial Judge amounts to bias against the Appellant. He listed the acts at pages 9 of the Appellants brief. The first allegation is that the Judge made a finding suo motu and reaching a conclusion without asking parties to address the Court on the issue. On this, the Appellant submitted that the Respondent claimed that the size of the land is 4000sq meters but on visit to locus in quo, she pointed to felled trees she claimed to have planted when she acquired the land and that she never said such in her statement on oath but the trial Judge relied on the custom of planting trees to mark boundaries. This, the Appellant considers is bias against him. The rule is that a Court could raise an issue suo motu but must call on parties to address him before the issue is resolved, seeEFFIOM & ORS V. CROSIEC & ANOR (2010) LPELR-1027(SC) where the Court held that:
“On the issue of whether it was proper for the Court below to raise the issue of locus standi of the Appellants suo motu and determine same without hearing from the parties, it has long been settled that no Court is entitled to do so. The elementary principle is that it is wrong for a Court to raise any issue of fact suo motu and decide upon it, without giving the parties an opportunity to be heard on it. This is so because the Court is bound by and therefore confined to the issues raised by the parties. Where however the Court raises all issue suo motu which it considers material for the proper determination of the case, it must give parties, particularly the party likely to be adversely affected by the issue, to be heard. See AJUWON vs AKANNI (1993) 9 NWLR (Part 316) 182 at 190; AJAO vs ASHIRU (1973) 11 S.C. 23 at 39-40, ATANDA vs AKANMI(1974) 3 S.C. 109; KUTI vs JIBOWU (1972) 1 ALL N LR (Part 11) 180; R.T.E.A.N vs N.U.R.T.W (1992) 2 NWLR (Part 224) 381; FINNIH vs IMADE (1992) 1 NWLR (Part 219) 511 at 537. While the Court has a duty to give the parties the opportunity to be heard on any issue it raises suo motu a failure to do so does not necessarily lead to a reversal of its decision. To warrant an appellate Court’s reversal of the decision, the Appellant must go further to show that the failure to hear him on the point occasioned some miscarriage of justice. See IMAH vs OKOGBE (1993) 9 N.W.L.R (Part 316) 159 at 178; OLUBODE vs SALAMI (1985) 2 N.W.L.R (Part 7) 282. As I indicated above this principle that the Court ought not to raise an issue suo motu and decide upon it without hearing from the parties applies and so the Court’s deliberation on it was an exercise in futility. It is not mainly to issues of fact. In some special circumstances, the Court can raise an issue of law or jurisdiction suo motu and without hearing the parties decide upon it. TUKUR vs GOVERNMENT of GONGOLA STATE (1989) 4 N.W.L.R (Part 117) 517 is instructive on this point. In that case although the issue of venue was not raised and argued by the parties in their briefs, it being an issue of jurisdiction was taken by the Court.”
Per TABAI ,J.S.C ( Pp. 31-33, paras. B-A )
However, there are exceptions to the rule. See OMINIYI V. ALABI (2015) LPELR-24399(SC) where the Court held thus:
“The settled position of the law, as correctly stated by learned counsel on both sides is that a Court is not entitled to raise an issue suo motu and decide on it without affording the parties an opportunity to be heard. This is because in doing so the Court is seen to leave its exalted position as impartial arbiter and descend into the arena of conflict. See: Kuti v. Balogun (1978) 1 SC 53 @ 60; Obawole v. Williams (1996) 10 NWLR (pt. 477) 146; Stirling Civil Eng. (Nig.) Ltd. v. Yahaya (2005) 11 NWLR (pt. 935) 181; Omokuwajo V. F.R.N. (2013) 9 NWLR (R.1359) 300. There are a few exceptions to this general rule. In the case ofEffiom V. C.R.S.I.E.C. (2010) 14 NWLR (Pt. 1213) 106, relied upon by learned counsel for the respondent, this Court reiterated the general principle stated above. His Lordship, Tabai, JSC, who wrote the lead judgment went on to state at page 133 – 134 H – A (supra): “As I indicated above this principle that the Court ought not to raise an issue suo motu and decide upon it without hearing from the parties applies mainly to issues of fact. In some special circumstances, the Court can raise an issue of law or jurisdiction suo motu and without hearing the parties decide upon it. Tukur V. Government of Gongola State (1989) 4 NWLR (pt. 117) 517 is instructive on this point. In that case, although the issue of venue was not raised and argued by the parties in their briefs, it being an issue of jurisdiction, was taken by the Court.”
Per KEKERE-EKUN, J.S.C ( Pp. 23-24, para. A)

However, authorities have shown that the failure to observe this principle would result into a misdirection which will be over-turned only if there has been a substantial miscarriage of justice as held Per OGUNBIYI, JSC in DICKSON OGUNSEINDE VIRYA FARMS LTD V. SOCIETE GENERALE BANK LTD & ORS (2018) LPELR- 43710(SC).

The question is whether the Appellant has shown the miscarriage of justice occasioned him by the application of the old customary practice of planting trees to demarcate boundaries. And assuming that piece of evidence is discountenanced, would the Appellant succeed? Certainly not, and with the contradictory and shallow evidence presented by the Appellant, his case is unsupportable and must fail. The Appellant also alleged that the trial Judge acted on unpleaded facts, to wit: the fact that the Respondent told the Court that she planted trees on the land was not pleaded but the Court relied on it. I have reviewed the statement of claim and indeed the issue of Respondent planting trees on the land to demarcate boundaries was not pleaded and evidence cannot be led on unpleaded facts, see EMEGOKWUE V. OKADIGBO (1973) LPELR-1124(SC) where the apex Court state thus:

“It is trite law, and we have repeated it on many occasions, that parties are bound by their pleadings and that any evidence which is at variance with the averments in the pleadings goes to no issue and should be disregarded by the Court. The reason for this rigid rule of pleadings and of evidence has been clearly stated by this Court in George and Ors. v. Dominion Flour Mills Ltd. [1963] 1 All N.L.R. 71 at p. 77 as follows: “The fairness of a trial can be tested by the maxim audi alteram 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.” In National Investment & Properties Co. Ltd. v. Thompson Organisation Ltd. & Ors. (1969) N.M.L.R. 99 at page 104, we again observed as follows:

“A plaintiff must call evidence to support his pleadings, and evidence which is in fact adduced which is contrary to his pleadings should never be admitted. It makes no difference, as Chief Akin-Olugbade suggested, that the other side did not object to the evidence or that the judge did not reject it. It is, of course, the duty of counsel to object to inadmissible evidence and the duty of the trial Court any way to refuse to admit inadmissible evidence, but if notwithstanding this evidence is still through an oversight or otherwise admitted, then it is the duty of the Court when it comes to give judgment to treat the inadmissible evidence as if it had never been admitted.” Other views along the same lines were expressed in Idahosa v. Oronsaye (1959) 4 F.S.C. 166 at p. 171; Bada v. The Chairman L.E.D.B., SC. 501/65 of 23rd June, 1967; Erinle v. Adelaja, SC. 332/1966 of 6th June, 1969; and Chief Sule Limbo & Ors. v. Aminu Sanni & Ors. SC. 373/67 of 13th March, 1970. Another recent case on the point is Ferdinand George v. The United Bank for Africa Ltd., SC. 209/1971 of 29th September, 1972 reported in (1972) 8/9 SC. 264 at page 275 in which we referred with approval to our decision in Ogboda v. Adulugba SC. 31/70 of 12th February, 1971, where we emphasised the same point as follows-: “We have pointed out numbers of time that the evidence in respect of matters not pleaded really goes to no issue at the trial and the Court should not have allowed such evidence to be given (see Chief Sule limbo & Ors v. Aminu Asani & Ors. SC. 373/67 dated the 13th March, 1970). Even when such evidence had been wrongly allowed, the trial Court should disregard it as irrelevant to the issues properly raised by the pleadings.”
Per FATAYI-WILLIAMS ,J.S.C ( Pp. 5-7, paras. E-D)
Consequently, that piece of evidence is hereby discountenanced. That is of no help to the case of the Appellant because the admissible evidence relied upon to arrive at judgment appealed against cannot be disturbed even if that evidence is expunged.

The third point alleged against the trial Judge is neither here nor there. The Appellant alleged that the trial Court ignored or down played strong evidence in his favour, though not directly stated it amounts to failure to evaluate evidence and when such a complaint is an appeal, the Appellant must specifically identify the piece of evidence not evaluated, see the case of ATUYEYE & ORS V. ASHAMU (1987) LPELR-638(SC) where the Court held thus:
“The trial Court has a legal duty to properly evaluate the evidence led on both sides before coming to a decision, which decision must inevitably be based on the totality of the evidence thus properly appraised or evaluated. If it fails in this duty it commits an error of law. The party aggrieved can then appeal on the ground of error in law giving as his particulars of error the failure to properly assess or evaluate or appraise the evidence led by and on his behalf.”
Per OPUTA ,J.S.C ( P. 29, paras. D-F)

One aspect is the issue of documents not tendered by the Appellant. Undoubtedly, the record does not show that Appellant tendered any document. So why accuse and blame the Judge for stating the obvious? Indeed there are 5 ways of proving title to land and production of title documents is one which the Respondent utilized. Admittedly, a claimant is required to adopt just one method in establishing his claim to title, see NRUAMAH & ORS V. EBUZOEME & ORS (2013) LPELR-19771(SC) where the Court held thus:
“However, a plaintiff or claimant is not required to prove all the above five methods or ways to establish his claim for declaration of title. The methods are not conjunctive. It is sufficient if one of the five ways is proved. This will suffice to entitle the claimant to the declaration. See; Peter Ojoh vs. Owuala Kamalu & 3 Ors. (2005) 12 SCM 332, (2005) 12 SCNJ 236 at 261; (2005) 18 NWLR (pt 958) 523 at 574-575. But the claim of the Plaintiff and the facts and circumstances of each case will be dependent on the particular way or method being sought to be proved to establish his claim to title. See; Mogaji vs. Cadbury (Nig.) Limited (2004) 23 WRN 54; (1985) 2 NWLR (pt. 7) 393; Omoregie vs. Idugiemwanye (1985) 2 NWLR (pt 5) 41; Fasoro vs. Beyioku (1988) 2 NWLR (pt 76) 263. Fagge vs. Uba Adakawa & Anor (2006) 46 WRN 162 at 186-187.”
Per ARIWOOLA, J.S.C ( P. 17, paras. A-F).

The Appellant pleaded acts of possession and acts of long possession and enjoyment of land. Pleading is one thing and evidence to support pleaded facts is a different issue. Going by the evidence before the Court, the Appellant by his own showing, he did not know when the land was sold to him through the three people he claimed. He failed to call all the three people. DW2 testified against the Appellant. Acts of ownership through which he built shops but had to demolish when the Respondent complained, these presupposes that he met the Respondent on the land. Evaluation of evidence that does not favour a party cannot translate into bias and I totally disagree with the Appellant in this regard.

The Appellant also failed to appreciate the principle of evidential burden in civil claims which oscillates and is not a crystallized in criminal cases, see IROAGBARA V. UFOMADU (2009) LPELR-1538(SC) where the Court held thus:
“In civil cases, the like of the one under consideration, on the burden of proof on the pleadings, the rule is that the burden of proof rests on the party (whether plaintiff or defendant), who substantially asserts the affirmative of the issue. When it is said that onus of proof shifts from Plaintiff to Defendant and vice versa from time to time as the case progresses, it means no more than the burden of proof may shift depending on how the scale of evidence preponderates. However, subject to the scale of evidence preponderating, the burden of proof rests squarely on the party who would fail if no evidence at all, or no more evidence as the case may be, were given on either side. However, let me quickly say that if a Plaintiff on whom always rests the onus of proving that affirmative of what he asserts, no burden shifts to the Defendant unless he has counter-claimed.”
Per ADEREMI ,J.S.C ( Pp. 13-14, paras. E-B).

The trial Judge who observed DW2 held that his evidence supported the Respondent’s case. Since the Appellant alleged that evidence was not taken at the locus in quo, then on what basis would the Court now consider what is not in the record of the Court? It is trite that all Courts are Court of record and every aspect of the appeal must be rooted in the record of appeal. There is no basis for delving into counsel’s record as record Court since the record in this case was not even challenged. I therefore find for the Appellant under issue 3.

Issue four challenges the two documents admitted by the trial Court as Exhibit A1 and A2, these are land agreement dated 25th February, 1975 between the Respondent and the Aguma of Gwagwalada and the late Mallam Naballa Bassa and a confirmation of ownership of land dated 14/6/2000 issued to the Plaintiff (Respondent) by the present Aguma of Gwagwalada Alhaji Mohammed Magaji.

The quarrel is that the trial Judge held that there is no Land Instrument Registration Law for the FCT and therefore the documents are not caught by the requirement to register. I have resolved some aspect of this issue earlier where I relied on Supreme Court authorities to find that documentary evidence being governed by the Evidence Act on the exclusive Legislative list cannot be controlled by a legislation made by a State House of Assembly. And the documents are therefore admissible. The cases relied upon by the Appellant are no longer the law and therefore discountenanced. Issue four is resolved against the Appellant.

Now to the last issue which is whether the learned trial Judge was right to find that the case of the Respondent was not challenged or contradicted. The standard of proof in civil matters is on the preponderance of evidence or what is called weight of evidence. Meaning of weight of evidence is thus:
Weight of evidence is the persuasiveness of some evidence in comparison with other evidence – Black’s Law Dictionary 9th Ed.
The trial Judge weighed the evidence on each side and came to the conclusion that the weight on the Respondent’s side was heavier that the Appellant’s evidence. No matter the manner it was expressed by the trial Judge, it cannot change the weight of evidence. The Appellant submits he had a better case but it was not put forward in a manner that can attract the required weight for judgment in his favour. The mere fact that a witness called by the Appellant testified against his interest makes his case contradictory, because within his case, there cannot be contradictions and the Court cannot discard the contradictory evidence on behalf of the Appellant and rely on the aspect favourable to him. Therefore during evaluation, the toxic part of the evidence pollutes the good part to make the case of the bad and unsupportable. The law was reiterated in the case of ZAKIRAI V. MUHAMMED & ORS (2017) LPELR-42349 (SC) wherein the Apex Court held thus:
“The law insist that where there are material contradictions in the evidence adduced by a party, the Court is enjoined to reject the entire evidence as it cannot pick and choose which of the conflicting version to follow.”
PER AUGIE J.S.C (Pp 70-71, paras F-A)
And also EKWEOZOR & ORS V. THE REGISTERED TRUSTEES OF SAVIOURS APOSTOLIC CHURCH OF NIGERIA (2014) LPELR-23572(CA) where the Court held thus:
“Where a witness gives contradictory evidence on the same issue, the Court is not in a position to choose one and reject the other, the two pieces of evidence must be rejected and such a witness is not capable of being believed.”
Per BOLAJI-YUSUFF ,J.C.A ( Pp. 59-60, paras. F-A)
The fact that the Appellant pulled down some of his buildings when confronted over his encroachment is a sign of admission that the Respondent possession was earlier in time and she testified that the Appellant reneged and refused to pull down his building. DW2 also told the Court, he came to the land when the Appellant encroached. I agree with the Appellant that evidence not challenged or discredited is good and reliable. See OMOREGBE V. LAWANI (1980) LPELR-2655(SC).
In the light of the foregoing, I resolve this issue against the Appellant.

In the light of the foregoing, even though some issues were partially resolved in favour of the Appellant, the appeal still lacks merit and is hereby dismissed. The judgment of the trial Court is affirmed.
I make no order as to cost.

PETER OLABISI IGE, J.C.A. I agree.

MOHAMMED MUSTAPHA, J.C.A.: I have had the privilege of reading before now the lead judgment of my learned brother, Yargata Byenchit Nimpar, JCA.

I agree with the reasoning and conclusion reached therein. I too agree that this judgment be dismissed for lacking merit. I abide by the orders as to cost.

Appearances:

S.M. ATTAH with him, B. O. ASANYA For Appellant(s)

NUREUIMI JIMOH with him, D. A. SULAYMAN, H. GBOLAFADE, C. E. MADWEKE and AHMED LAMBE For Respondent(s)