CHIEF OYEBOLA BALOGUN v. SAKIRATU YUSUFF (2010)

CHIEF OYEBOLA BALOGUN v. SAKIRATU YUSUFF

(2010)LCN/3571(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 16th day of February, 2010

CA/I/263/2003

RATIO

ACTION: WHETHER A COUNTER-CLAIM WILL FAIL BECAUSE THE MAIN CLAIM OF THE OPPOSITE PARTY SUCCEEDED

A Counter-claim does not fail merely because, the main claim by the opposite party has succeeded. See:- Jeric Nigeria Limited Vs. Union Bank of Nigeria Plc. (2000) 12 S.C.N.J. 184 at 201; also, Kalio Vs. Braid (1926) 6 N.L.R. 126. PER SIDI DAUDA BAGE, J.C.A

LAND LAW: PRINCIPLES OF TRADITIONAL HISTORY OR EVIDENCE IN RESPECT OF LAND

“Traditional evidence or history in respect of ownership of land is evidence albeit admissible hearsay as to the rights alleged to have existed beyond the time of living memory proved by members of the family or community who claimed the land, subject of dispute as their own. It can equally be described as ancient history, thus, the principles of traditional history are:-

(a) Where the line of succession is not satisfactorily traced in an action for declaration of ownership of land or title and the line of succession has gaps and mysterious or embarrassing linkages which are not explained or established, such line of succession would be rejected.

(b) Once a party pleads and traces the root of the title to a particular person or family, he must establish how that person came to have title vested in him. He cannot ignore proof of his overlord’s title and rely on long possession.

(c) Where there are conflicts in the evidence given by witnesses called by the same party, the trial Court is duly bound to find which of the two conflicting histories is more probable by testing it against the other evidence. It is only when it can neither find any of the two histories probable or conclusive that it would declare both inconclusive and proceed to decide the case on the basis of numerous and positive acts of possession or actual user. See:- Magaji Vs. Cadbury (Nig.) Ltd. (1985) 2 NWLR(Part 7) 393; Kojo II Vs. Bonsie (1957) 1 WLR 1223; Thomas Vs. Holder (1946) 12 WACA 78; Oil Costa Vs. Ikomi (1968) 1 All NLR 394; Owoade Vs. Omitola (1988) 2 NWLR (Part 77) 413.’ PER SIDI DAUDA BAGE, J.C.A

EVIDENCE: EFFECT OF ADMITTED FACTS

The law is already trite that, anything admitted, need no further proof. See:- Nigerian Bottling Company Plc. Vs. Stephen Oboh (2000)9 WRN 114. PER SIDI DAUDA BAGE, J.C.A

ACTION: WHAT CONSTITUTES A COUNTER-CLAIM

JUSTICES

STANLEY SHENKO ALAGOA Justice of The Court of Appeal of Nigeria

KUDIRAT M. O. KEKERE-EKUN Justice of The Court of Appeal of Nigeria

SIDI DAUDA BAGE Justice of The Court of Appeal of Nigeria

Between

CHIEF OYEBOLA BALOGUN Appellant(s)

AND

SAKIRATU YUSUFF Respondent(s)

SIDI DAUDA BAGE, J.C.A (Delivering the Leading Judgment): The appeal arose from the judgment of the High Court of Oyo State, sitting at Ibadan (hereinafter called ‘The trial Court’), delivered by Honourable Justice J. O. Ige on 12th April 2002, wherein the claim of the Respondent to set aside execution by the Appellant of a judgment of a Court of concurrent jurisdiction was granted and the Appellant’s Counterclaim was dismissed.

Being dissatisfied with the judgment of the trial Court, the Appellant filed a Notice of Appeal of Seven (7) Grounds at Pages 109, 110 and 111 of the records dated 19-04-2002. The background facts are as stated hereunder:-
The Respondent was the Plaintiff in the lower Court, and the Appellant was the Defendant/Counter-claimant. The Appellant had obtained judgment in Suit No. I/411/93 against certain Defendants for trespass and injunction in respect of a parcel of land. The Defendants in that suit did not include the Respondent in this case. It was contended on behalf of the Respondent that the execution of that judgment was wrongly levied against her own houses on Plots 75 and 76, Akoredele Layout.
The lower Court upheld the Respondent’s claim and set aside the execution of the judgment on two distinct grounds. Firstly, that a person who is not made a party to a suit, is not bound by the decision in the suit, particularly, as the Respondent did not derive title from any of the named Defendants in the suit. Secondly, the Appellant failed to establish that Respondent’s houses fell within the parcel of land in respect of which judgment in Suit No. 1/411/93 was delivered. The Appellant had counter-claimed for damages for trespass and perpetual injunction against the Respondent, but this claim was rejected and dismissed by the lower Court.
In the judgment delivered on the 12th of April, 2002, the claims of the – Respondent in the summons were granted.

This appeal is against the judgment. The Appellant formulated Six (6) Issues for determination. The Issues are:-
(1) Whether the Respondent got the legal ownership when there was evidence oral documentary, that the Late Alhaji Lasisi Keshinro, predecessor in title of the Respondent, negotiated for the grant of a parcel of land from the Arigbede Family and which was not completed, having regard to the fact that the purchase price was not paid in full and possession given to the Late Alhaji Lasisi Keshinro, in the presence of the witnesses – (Ground 1).
(2) Whether the identity of the land in dispute is uncertain when no issues were joined in the pleadings or even at the trial, and when the parties, the witnesses and their Learned Counsel were ad idem on the identity of the land in dispute. (Ground 2).
(3) Whether the success of the main claim defeats a Counter-claim which is an independent claim and when it was properly proved but was never considered. (Ground 3).
(4) Whether the Counter-claim was properly dismissed when the Appellant pleaded/three recognized methods of proving title and gave evidence accordingly. (Ground 4).
(5) Whether it was proper for the Court below to have acted on the facts not pleaded and issues joined upon and held that the defence of long possession applied to the Counter-claim- (Ground 5).
(6) Whether it was not a denial of a right of fair hearing, when the Court below acted on a letter for the Respondent’s Learned Counsel, containing authorities addressed to it, when a copy of the said letter was not endorsed to the Appellant for his reaction. (Ground 6).
The Respondent on her part, formulated Two (2) Issues for determination. The Issues are as follows:-
(1) Whether Plots 75 and 76, Akoredele Layout, which are occupied by the Respondent are within the area covered by the Appellant purchase agreement with Arigbede Family, that is, Exhibit ‘E/F?
(2) If question 1 is answered in the negative, whether the Appellant has a better title to Plots 75 and 76, Akoredele Layout than the Respondent?
By the Appellant’s Brief of Argument filed on the 17th November, 2003, the Learned Counsel to the Appellant had identified Six (6) Issues for determination. In arguing his first issue, reference was made to Suit No. I/411/93 – Chief Oyelakin Balogun Vs. Alhaji E. A. Adeleke and 9 Others, the Appellant successfully sued the Defendants as was pleaded by the Respondent. The property in issue in this case, is within the Survey Plan No. KESH/Y/020041 of the 24th January, 1994 (Exhibit ‘M’). It was argued that, to acquire an interest in land under customary law by purchase, there must be a valid sale, payment of money in the presence of witness and delivery of possession of the land to the Purchaser in the presence of witnesses. See:- Folarin Vs. Durojaiye (1988) 1 NWLR (Part 70) 351 At 361, also Cole Vs. Folami 1 FSC 66.

Learned Counsel to the Appellant further argued that, in order to transfer legal title under English Law by purchase, there must be a valid sale, payment of money accompanied by acknowledgment of receipt and execution of a Deed of Conveyance in favour of the Purchaser. Learned Counsel to the Appellant further argued that Exhibit ‘G’ shows that, Alhaji Lasisi Keshinro, the pre-decessor in title of the Respondent, only made a part payment and was not given any possession, therefore, acquired no title which he could pass to any grantee since one cannot grant what he does not own. See:- Komolafe Vs. Omole (1982) 4 OY.S.H.C. (Part 111) 591 at 594. Also, Adelakun Vs. Ishola (1975) 1 W.S.C.A.174 At 184-185. Learned Counsel to the Appellant submitted further that the Appellant acquired a legal ownership of the large parcel of land shown on Exhibit ‘F’ and of which the parcel of land in dispute, forms only a small portion. See:- Lydia Vs. Owokoniran (1965) N.M.L.R. 479 At 487 and Cole Vs. Folami (Supra).
Learned Counsel to the Appellant further submitted that, there is evidence on record that, Appellant got his grant in 1976. See: Exhibit ‘F’. It was the case of the Respondent by pleading the evidence that-she obtained her grant from Alhaji Lasisi Keshinro. However, Exhibit ‘G’ was better than Exhibit ‘F’. By the doctrine of priority, the grant to the Appellant predates that of the predecessor in title to the Respondent. See: Buta Vs. Ibe (2003) 7 S.C.N.J. 159 At 170.

In arguing his Issue Two (2), the Learned Appellant’s Counsel submitted that, the identity of the land in dispute is never in doubt. It is known to the parties, their witnesses and their Learned Counsel. A short reference to the pleadings, pieces of evidence of the parties and witnesses and exhibits admitted at the trial, will show the identity of the land in dispute, is never in doubt. There is no ambiguity. The identity is certain to all and sundry. Further, that the identity of the land will be an issue only and only if the parties joined issue in their respective pleadings. In this case, issues were never joined by the parties in their respective pleading. In fact, it is submitted that the pleadings and pieces of evidence, referred to supra, show that the parties and their Learned Counsel are ad idem on the identity of the land in dispute. See:-
(1) Ezendu Vs. Obiagwu (1986) NWLR (Part 21) 208 at 220,
(2) Igwe Vs. Alozienwa (1990) 3 NWLR (Part 141) 735. at 745, Paragraph G-H and 747 Paragraph A-B 750 Paragraph E;
(3) Onwuka Vs. Ediale (1989) 3 NWLR (Part 96) 182 At 198 Paragraph E;
(4) Makanjuola Vs. Balogun (1989) 3 NWLR (part 108) 192 at 204 Paragraph F Lines 3-6;
(5) Adenle Vs. Olude (2002) 18 (part 799) NWLR 413 at 433-434 Paragraph F Lines 3-6 and 20
(6) Goni Kyari Vs. Ciroma Alkali and Others (2001) 5S.C.N.J. 421 At 440.
Further, this Court is urged to allow this appeal on this issue, since parties did not join any issue on identity of the land in their respective pleadings and to hold that, no composite plan is necessary, since having regard to the above submissions of facts and law, regulating when the identity of land will be an issue in a case, the parties never joined an issue with the view to disputing the land in dispute.
In arguing Issue Three (3), Learned Counsel to the Appellant submitted that, a counter-claim constitutes a separate independent and distinct action wherein Counter-claimant needs to prove his claim against the opposite party, against whom the claims in the counter-claim is made.

See also, the recent unreported case – Onabolu Vs. Onabolu in Suit No. I/893WD/2000 delivered on the 19th of March, 2003. Also, Otti Vs. Otti (1992) 7 NWLR (Part 252) 187 At 212 B-C.; Erbaron Vs. Erbaron (1997) 6 NWLR (Part 510) 667 At 685 A-C; Gowon Vs. Ike-Okongwu (2003) 1 SC (Part 111) 57 At Page 63 Lines 1-5; Elliot Sville & Co. Vs. Lansari (1957) N.W.L.R. 165. Learned Counsel to the Appellant submitted that, this Court can decide on the counter-claim in the interest of justice, having regard to the provisions of Section 33 (1) of the Constitution of the Federal Republic of Nigeria (1999) and Section 16 of the Court of Appeal Act (1976) without sending the case back to the High Court for retrial.
In respect of the Appellant’s Issue Four (4), it is submitted that in Paragraphs 14 and 15 of Defence and Counter Claim, it was pleaded that, Arigbede was a warrior, farmer and hunter and settled on a large parcel of land after the Gbanamu War and was in exclusive possession, performing various acts of ownership before his death many years ago.
After Arigbede’s death, his large parcel of land became Arigbede family property likewise exercised maximum acts of ownerships without challenge from anybody.
It was further submitted that the Respondent pleaded no traditional history and gave none. On that score alone, the Court had no other alternative or discretion than to give judgment for the Defendant/Counter-claimant, now the Appellant. See: Agagu Vs. Dawodu 7 (1990) N.W.L.R (Part 160) 56 At 69 – 70. It was further submitted that, the traditional history pleaded by the Defendant/Counter-claimant was cogent enough and unchallenged. See:-
(i) Idundun Vs. Okumagba (1976) NWLR 200 At 210.
(ii) Fashoro Vs. Bevioku (1988) 12 NWLR (Part 76) 263 at 273.
(iii) Akanbi Vs. Salawu (2003) 6 S.C.N.J. 246.
(iv) Are Vs. Ipaye (1990) 2 NWLR (Part 132) 298.

It was further submitted that, the Appellant by Exhibits, has shown acts of ownership. Exhibit ‘F’ was prepared in November 1979, judgment in Exhibit ‘J’ in Suit No. I/411/93:- Chief Oyelakin Balogun Vs. Alhaji E. A. Adeleke and 9 Others, Exhibit ‘F’- acknowledgement for the purchase-price paid in 1976. Exhibit ‘M’ – Survey Plan of the land dispute in 1/411/93, Exhibit ‘N’ is a Survey Plan of the land dispute in Suit No. I/590/98, Exhibit ‘F’- Survey Plan Kesh/Y/Kesh/Y/10005A and Kesh/Y/100058 dated 19/02/81 attached to the Exhibits ‘C’ and ‘D’ respectively. These are numerous and positive acts of ownership exercised by the Defendant/Counter-Claimant/Appellant which entitles him to judgment.
In respect of the Appellant’s Issue Five (5), it was submitted that, parties are bound by their pleadings. The issue of long possession was introduced into the proceedings at the address stage by the Learned Counsel to the Respondent and the Appellant countered this belated issue in his address. See:- Allied Bank Ltd Vs. Alesbuose (1997) 6 SCNJ 116 At 130-131; National Investment and Properties Co. Ltd Vs. Thompson Organisation Ltd. (1969) N.M.L.R. 99 At 104; Akin Folarin Vs. Akinola (1994) 4 SCNJ 30 At 50-51; Ebueku Vs. Amole (1988) 2 NWLR (Part 75) 128 At 154; Nwakobi Vs. Nzekwu (1961) 1 A.N.L.R. 445. It was further submitted that the Respondent having got no title to the parcel of land in dispute, all acts of performance by her and her predecessor in title on the land in dispute, are acts of trespass ab initio and she cannot acquire possession by her acts of trespass. See:- Ezekwesili Vs. Agbaraowa (Supra).

In respect of the Appellant’s Issue Six (6), it was submitted that, the letter written by the Respondent’s Counsel with reference ‘Our Ref. No. HBC/AY/08/1/2002 of 11th March, 2002 to the Court, where two (2) authorities cited appeared in the judgment, deemed the Appellant the right to fair hearing in accordance with the provision of Section 33 (1) of the Constitution of the Federal Republic of Nigeria 1999 as the letter was never copied to the Appellant”.
Finally, it was submitted that this Court should consider and determine the Counter-Claim and grant the entire relief claimed in the Counter-Claim and allow this appeal.
On his part, Learned Counsel to the Respondent submitted that, the Appellant is correct when he submitted that, a Counter-claim filed by a Defendant, is a separate and distinct action from an action originally filed by a Plaintiff. It is indeed a cross action with the Plaintiff becoming a Defendant to the Counter-claim. See:- Ogbomo Vs. Attorney General (Imo State) (1992)1 NWLR 647 at 675. It is further submitted that, the onus is on the Counter-claimant to prove facts which together entitle him to the claim sought on his pleadings. The Appellant’s claim as per the Counter-claim is for damages for trespass and injunction restraining the Respondent from entering Plots 75 and 76, Akoredele Layout. To sustain this claim, the Appellant must prove that he has been in possession of Plots 75 and 76, Akoredele Layout. It is not enough to show that he had successfully litigated in respect of the land in Suits Nos. 1/175/97 and 1/411/93. The Appellant contended that, Plots 75 and 76 were actually occupied by one Madam Oluwajuyigbe which claims, the Respondent denies, and produced in evidence, approved Building Plans registered by her predecessor in title, and relied on having constructed a building on the land of which they have been in quiet physical occupation for over 20 years.

It was further submitted that, where there is dispute as to which of the two persons have pleaded and given evidence of possession of a land, the presumption is that, the person having title to the land, is in lawful possession. See:- Mogaji Vs. Odofin (1978) 4 SC 91. Also, Godwin Egwuh Vs. Duro Ogunkehin (Unreported) in SC 529/66, decided on the 28th February, 1969. It is submitted further that, the foregoing authority, is in all fours with the facts of this case in that, for the Appellant to succeed on his claim against a Respondent in physical possession, he must prove a good title to Plots 75 and 76. The only relevant evidence put forward by the Appellant as proof of his title, are the testimonies of DW2 and that of DW4, the Appellant’s Surveyor. The first onus for the Appellant to discharge is that, the physical location of Plots falls within the area covered by his purchase of Land Agreement. The Appellant failed to discharge this onus.
It is further submitted, even with the evidence of DW2, DW4, the Appellant failed to prove that Plots 75 and 76 are located within the land sold to him under Exhibits ‘E’ of ‘F18’. The Appellant also failed to prove that, the Plots 75 and 76 are within Exhibit ‘N’ Survey Plan in Suit I/411/93. The Respondent on the other hand, successfully proved that they had been in physical occupation of the land for over 20 years.
On Issue Two (2), Learned Counsel to the Respondent submitted that, the contention by the Appellant that the sale by the Arigbede Family to Alhaji Keshinro was invalid and there has been no transfer to Alhaji Keshinro; consequently, the latter has no title to the land in dispute and none could be passed on to the Respondent. Since the Appellant has failed to prove that Plots 75 and 76 are within his land, he has no title whatsoever to those plots. The issue of better title only arises if he could prove some title. See:- Mogaji Vs. Odofin (Supra) on the other hand, the Respondent was able to prove possession and actual occupation.

It is further submitted that, there were acts of possession since 1983 and PW3, a tenant to the Respondent, also gave evidence of quiet occupation of the houses on the land in dispute having occupied the house for about 13 years. The Appellant cannot rely on the weakness of the Respondent’s case, but on the strength of his own title, and no title has been shown. See:- Oduola Vs. Coker (1981) 12 NSCC 180 At 190. It is finally submitted that, the Respondent acquired valid title to the land vide Exhibit ‘G’ The Respondent’s predecessor in title had the right to possession of Plots 75 and 76. The Appellant’s contention is therefore fundamentally flawed.
The Appellant filed a reply to the Respondent’s brief and Notice of Intention to rely on other grounds dated the 8th of February, 2005, but filed on the 14th of February, 2005. Learned Counsel to the Appellant, in reply, submitted that, it was averred at paragraph one (1) , page 6, lines 3-5 of the Respondent’s Brief that, Appellant’s Issue Four (4) does not really help the Court in determining this dispute, because, both parties traced their title to the same vendor. It was not the case of the Respondent at the Court below that her grantor, Alhaji Lasisi Keshinro, obtained a grant from the Arigbede Family. See:- Page 30 Paragraphs 19 – 21 of the Records. The Appellant had treated this issue in Paragraphs 5.14 – 5.15 of his Brief.

Learned Appellant’s Counsel further submitted that, the Appellant is right to base his case on three recognized methods of proving title as is contained in Issue Four (4). On the Notice of Intention to rely on other grounds, it is submitted that the Ground One (1) is covered by Issue One (1) Paragraphs 5.03 – 5.05 of the Appellant’s Brief. Also, the Ground Two (2) is covered by Issue One (1) Paragraphs 5.07, 5.12 and 5.13 of the Appellant’s Brief.

On the part of the Court, it is trite law that this Court has a wide and unfettered discretionary power to formulate its own issues in the interest of justice, provided they relate to the grounds of appeal and flow therefrom. In other words, an appellate Court can formulate its own issues where in its opinion the issues formulated by the parties would not justly or equitably dispose of the appeal before it. Further still, an appeal Court can also in the same manner, prefer or adopt the issue or issues formulated by any of the parties to an appeal where same would enable it do justice to the appeal. Relevant and in support is the case of Agboreh & Another Vs. Mimra & Others (2008) 2 SCM 55 at 71 wherein the apex Court said thus:-
‘Finally, an appellate Court can, prefer an issue or issues formulated by any of the parties and can, itself and on its own, formulate an issue or issues which in its considered view is/are germane to and is or are pertinent in the determination of the matter in controversy. See: the Cases: of Musa Sha Jnr. & Another Vs. Da Rap Kwan & 4 Others (2000) 5 SCNJ 101; Legbile Vs. The Registered Trustees of Cherubim & Seraphim Church of Zion of Nigeria Ugbebia & 3 Others (2003) 1 SCNJ 463 at 479 And Emeka Nwana Vs. Federal Capital Development Authority & 5 Others (2004) 13 NWLR (Part 889) 128 At 142 -143; (2004) 7 SCNJ 90 At 99.

Looking at Issues formulated by the parties in this appeal, they are substantially identical. Although, the Respondent on its part, had considered the issues for determination to two as against the six by the Appellant. It should be noticed that the Two (2) Issues of the Respondent’s Brief of Argument has encompassed all the Six (6) Issues formulated by the Appellant in his Brief of Argument which become conterminous in all respect, they raised the same question as to the validity of title of Appellant or Respondent to the land in dispute. The two sets of issues emanated from the grounds of appeal and the judgment in this matter. That being the case, I have opted to be guided by the issues as raised by the Respondent. The Respondent’s first issue covered the Appellant’s Issues One (1), Two (2) and Three (3) whether Plots 75 and 76, Akoredele Layout which are occupied by the Respondent are within the area covered by the Appellant’s purchase agreement with the Arigbede Family, Le. Exhibit ‘E/F18’.
The issue of title to land and the proof thereto, had the starting point from the decision in Kodilinye Vs. Odu 2 WACA 336, and re-affirmed in subsequent cases like Aromire Vs. Awovemi (1972) 1 All NLR 101; Adebakin Vs. Odujebe (1972) 6SC 208. The dictum of Webber C.J. in Kodinlinye’s Case at Pages 337-8:-
‘The onus lies on the Plaintiff to satisfy the Court that he is entitled on the evidence brought by him to a declaration of title.
The Plaintiff must rely on the strength of his own case and not the weakness of the Defendant’s case. If the onus is not discharged, the weakness of the Defendant’s case will not help him and the proper judgment is for the Defendant. Such a judgment decrees no title to the Defendant he not having sought the declaration’.
The Plaintiff in a case of declaration of title to land, thus has the onus of satisfying the Court that he is entitled to judgment based on the evidence adduced by him in connection with the declaration sought by him. In proving his title, he can only rely on his own evidence alone and not on the weakness of the Defendant’s case. This position was re-stated by the Supreme Court in Aromire Vs. Awoyemi (Supra) at Pages 112-113 where it said:-
”The Plaintiff claimed that they were trespassers, but assuming that they were indeed the Plaintiff in order to evict them must show a better title and cannot succeed in doing so by canvassing a title which itself was demonstrated to be defective. The learned trial Judge observed in a number of passages that the Appellants had not proved their title, or that, the land in dispute fall within Exhibit ‘E’. On the strength of the authorities, the Plaintiff’s title must first be considered and decided upon before a consideration of the title of the Defendants arises’. The instant matter before this Court had a chequered history. The Respondent before this Court, was the Plaintiff in the lower Court and the Appellant herein, was the Defendant/Counter-claimant. The Respondent’s suit at the lower Court arises out a claim to set aside execution by the Appellant of a judgment of a Court of concurrent jurisdiction. The Appellant had obtained judgment in Suit No. I/411/93 against certain Defendants for trespass and injunction in respect of a parcel of land. The Defendants in that suit did not include the Respondent in this case. Consequently, it was contended on behalf of the Respondent that execution was wrongly levied against her own houses located on Plots 75 and 76, Akoredele Layout. The contention of the Appellant is that, the Survey Plans attached to Exhibits ‘C’ and ‘D’ fall within the Appellant’s Survey Plan No. Kesh/Y/1646 dated 26th November, 1979, tendered and admitted as Exhibit ‘P’. The Appellant therefore maintained that, Plots 75 and 76 in dispute are adjacent to the remaining Appellant’s parcel of land in dispute and contained in the Exhibits ‘P’, ‘M’, ‘N’ and ‘O’.

This contention is denied by the Respondent whose defence is that, they do occupy Plots 75 and 76, Akoredele Layout and that, her predecessor in title, had occupied same for over 20 years. The Respondent maintains that, she is entitled to occupy the land in dispute, because, she had title to the land. It is pertinent to note that, both parties trace their root of title to one vendor – the Arigbede Family. The Appellant had entered into possession of the land by virtue of a purchase from the family by one Alhaji Lasisi Keshinro. In proof of his title, the Appellant at the lower Court relied on the evidence of DW2 and DW4. DW2 was Chief Adeleke Adegoke Arigbede. At Page 39 of the records, in his evidence in chief, stated:-
‘Sometime in 1976, family sold part of the land to the Defendant. The purchase price was paid on the land. After payment, the Defendant was given possession. We signed an agreement for him and it was witnessed by boundary men. …I know Alhaji Keshinro of Oluwonran Compound… Late Keshinro bought land from our family, but paid half of the purchase price. He did not complete payment. The one sold to Chief Balogun (Defendant), is not the same land sold to Keshinro’.
DW4 – Alhaji Yekini Olayiwola Keshinro, a Registered Surveyor, at Page 49 of the records under cross – examination stated:-
‘The parcel of land shown on the Survey Plans attached to Exhibits ‘C’ and ‘D’ are not part of the area in dispute in Exhibit ‘N’. I now say that, the two areas verged yellow, which is the area in dispute in I/411/93 – Exhibit ‘N’. I did not prepare Exhibit ‘N’. It was prepared by Late Surveyor Koiki. The name of the owner of building, Exhibit ‘D’, is Madam Raliatu Amoke Layiwola. She is not part of the Defendants in Exhibit ‘N’, I can see Exhibit ‘D’ ‘- the Survey Plan used in 1/175/97. The parties are Chief Oyelakin Balogun Vs. Pastor Moses Olu Afolayan. I prepared the Plan. The two parcels of land on the Survey Plan, attached to Exhibits ‘C’ and ‘D’, are not shown on Exhibit ‘O’ which I prepared.’
The evidence of the two defence Witnesses- DW2 and DW4, have not strengthened, but rather have weakened the case for the Appellant. For the Appellant to rely on Folarin Vs. Durojaiye (988) 1 NWLR (Part 70) 351 At 361 wherein the Supreme Court held:-
‘To acquire an interest in land under Customary law by purchase, there must be a valid sale, payment of money in the presence of witness and delivery of possession of the land to the Purchaser in the presence of witnesses. Also, the evidence of DW2 and Exhibit ‘G’ show that, Alhaji Lasisi Keshinro, the predecessor in title to the Respondent, only made a part payment. Agreement was executed but he did not complete the payment. He therefore acquired no title which he could pass to any grantee, since one cannot grant what he does not own. The Appellant sought refuge on the decisions of Komolafe Vs. Omole and Adekunle Vs. Ishola (Supra)’.
Upon examination of the argument of the Appellant on his Issue One (1), it is very easy to say the argument cannot avail the Appellant to establish a valid title to Plots 75 and 76, Akoredele Layout, claimed by the Respondent. The Appellant is not a member of Arigbede Family that originally owned Plots 75 and 76. He was not in any respect, given a part of the agreement between the Arigbede Family and Alhaji Lasisi Kesbinro.
The Appellant therefore lacks the capacity to use that agreement in proof of his valid title to the land in dispute. It is only the Arigbede Family that enjoys the capacity to act on that agreement.

On traditional history or evidence, see:- Olaoluwa Fayemi Vs. Sir L. S. Awe (2009) 13 NWLR (Part 1164) 315 At 319 Ratio 5 This Court in the case of Olaoluwa Fayemi Vs. Sir L. S. Awe (Supra), on traditional evidence or history in respect of land stated:-
“Traditional evidence or history in respect of ownership of land is evidence albeit admissible hearsay as to the rights alleged to have existed beyond the time of living memory proved by members of the family or community who claimed the land, subject of dispute as their own. It can equally be described as ancient history, thus, the principles of traditional history are:-
(a) Where the line of succession is not satisfactorily traced in an action for declaration of ownership of land or title and the line of succession has gaps and mysterious or embarrassing linkages which are not explained or established, such line of succession would be rejected.
(b) Once a party pleads and traces the root of the title to a particular person or family, he must establish how that person came to have title vested in him. He cannot ignore proof of his overlord’s title and rely on long possession.
(c) Where there are conflicts in the evidence given by witnesses called by the same party, the trial Court is duly bound to find which of the two conflicting histories is more probable by testing it against the other evidence. It is only when it can neither find any of the two histories probable or conclusive that it would declare both inconclusive and proceed to decide the case on the basis of numerous and positive acts of possession or actual user. See:- Magaji Vs. Cadbury (Nig.) Ltd. (1985) 2 NWLR(Part 7) 393; Kojo II Vs. Bonsie (1957) 1 WLR 1223; Thomas Vs. Holder (1946) 12 WACA 78; Oil Costa Vs. Ikomi (1968) 1 All NLR 394; Owoade Vs. Omitola (1988) 2 NWLR (Part 77) 413.’
On the score of lack of capacity, the arguments proffered by the Appellant on Issue One (1) cannot hold and thus, Issue One (1) of the Appellant’s Brief of Argument is resolved in favour of the Respondent.
Issue Two (2) of the Appellant’s Brief of Argument on the composite plan of his parcel of land, Exhibit ‘F’ and the Plans attached to Building Plans- Exhibits ‘C’ and ‘D’ have also been effectually decided by the evidence of the Appellant’s witnesses in the lower Court. DW2 was a witness called by the Appellant at the lower Court. He was a prominent member of the Arigbede Family from which the Appellant derives his title. He confirmed in his evidence in chief that, -the one sold to Chief Balogun (the Appellant) is not the same land sold to Keshinro’. Also, the Appellant’s DW4, his own Surveyor, in cross-examination at the lower Court, stated:-
‘I prepared the Plan. The two parcels of land on the Survey attached to Exhibits ‘C’ and ‘D’ are not shown on Exhibit ‘O’ which I prepared’.
The above facts are admitted by the Appellant’s witnesses.

The law is already trite that, anything admitted, need no further proof. See:- Nigerian Bottling Company Plc. Vs. Stephen Oboh (2000)9 WRN 114.
Issue Two (2) is resolved in favour of the Respondent.
Issue Three (3) – Counter-claim by the Appellant for trespass and damages against the Respondent then Plaintiff at the lower Court. The Appellant’s Counter-claim was never heard by the lower Court. The trial Court at Page 107 Lines 36-40 of the records stated:-
‘In my view, the Counter-claim is a subtle attempt to regularize what has been found to be irregular. To grant the reliefs claimed in the Counterclaim will tantamount to validating what this Court has invalidated’.

I agree with the submission of the Learned Counsel to the Appellant at Page 9 of his Brief of Argument that a Counter-claim constitutes a separate, independent and distinct action wherein Counter-claimant needs to prove his claim against the opposite party, that is, against whom the claims in the Counter-claim is made. Counter-claim does not fail merely because; the main claim by the opposite party has succeeded. See:- Jeric Nigeria Limited Vs. Union Bank of Nigeria (Supra) and also Kalio Vs. Braid (Supra). From the above authorities of the apex Court, it cannot be right for the trial Court to refuse to hear the Counter-claim of the Appellant. This Court would have simply remitted back the Counter-claim for hearing before the trial Court or another Court of concurrent jurisdiction. However, the Appellant himself, had prayed not. He rather applied to this Court to invoke the provision of Section 15 of the Court of Appeal Act, 2007, to determine the Counter-claim. The Appellant’s Counter-claim is for trespass and damages against the Respondent.

The scope of power of Court of Appeal Act under Section 16 of the Court of Appeal Act, 2002, now Section 15 of the Court of Appeal Act, 2007, was examined by this Court in the case of Usman Vs. Kaduna State House of Assembly & Others (2007) 11 NWLR (Part 1044) 148 At 161 Ratio 12, per Ba’Aba, JCA:-
‘By virtue of Section 15, Court of Appeal Act, the Court of Appeal may from time to time, make any order necessary for determining the real question in controversy in the appeal, and may amend any defect or error in the record of appeal, and may direct the Court below to inquire into and certify its finding on any question which the Court of Appeal thinks fit to determine before final judgment in the appeal and may make an interim order or grant any injunction which the Court below is authorized to make or grant and may direct any necessary inquires or accounts to be made or taken and generally shall have full jurisdiction over the whole proceedings as if the proceedings had been instituted in the Court of Appeal of first instance and may rehear the case in whole or in part or may remit it to the Court below for the purpose of such re-hearing, or may give such other directions as to the manner in which Court shall deal with the case in accordance with the power of that Court, or, in the case of an appeal from the Court below in that Court’s appellate jurisdiction, order the case to be re-heard by a Court of competent jurisdiction. In the instant case, the learned trial Judge did not utilize the opportunity of the evaluation of evidence and ascription of probative value to the evidence adduced in this case. Thus, the Court of Appeal could exercise the discretion of the trial Court by virtue of the provision of Section 16 (now 15) of the Court of Appeal Act. See:- Balogun Vs. Agboola (1974) 1 All NLH (Part 11) 66; Omoregie Vs. Idugremwanve (1985) 3 NWLR (Part 5) 41; Nzekwu Vs. Nzekwu (1989) 2 NWLH (Part 104) 373.’

The Appellant has urged this Court in the exercise of its powers under Section 15 of the Court of Appeal Act, 2007, to determine the Counter-claim as a whole, since all the materials in the case, are before this Court. At this point, it is pertinent to mention the principal claim of the Appellant in his Counter-claim, which is based on trespass against the Respondent. In the determination of title to the land in dispute, this Court had earlier resolved Issue Two (2) of the Appellant’s Brief of Argument against the Appellant. The categorical admission, especially of the DW2, a prominent member of the Arigbede Family, who mentioned the land sold to the Appellant by the family is different from the one sold to Alhaji Lasisi Keshinro, the predecessor in title to the Respondent. To my mind, this piece of evidence, has settled all the controversy in this dispute, including the appeal before us. The Appellant derives his own title from the Arigbede Family. This is what the Arigbede family stated. Nothing can be more factual than this. Moreso, DW2 was a witness called by the Appellant at the lower Court. The evidence of DW4 in cross-examination (the Surveyor to the Appellant), at the lower Court, also showed that the Respondent’s land – Plots 75 and 76, Akoredele Layout, are not part of the parcel of land he had surveyed for the Appellant. I cannot see how the Respondent can be held for trespass over the land that the Appellant himself is unable to establish title over.
Lord Denning M. R. of blessed memory in the case of U.A.C. Vs. Maor (1961) 3 All ER 1169 At 172, stated:-
‘If an act is void, then, it is in law, a nullity. It is not only bad, but incurably bad …And every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse’.
The Appellant has not established title to Plots 75 and 76, Akoredele Layout for any trespass to take place. The Appellant wants to put something on nothing and it cannot stay. It will collapse. -See:- Skenconsult Vs. Ukey (1981) 1SC 6; also, Bello Vs. Usman (1999) 4 NWLR (Part 599) 380, Madukolu Vs. Nkemdilim (1962) NSCC 374 At 379-380. On the whole, Issue Three (3) of the Appellant’s Brief is also resolved in favour of the Respondent. The Appellant’s Counterclaim is hereby dismissed by this Court.
The Respondent’s Issue Two (2) covers Appellant’s Issues 4, 5 and 6 and is based on the traditional evidence. The Appellant strenuously traced the history of the ownership of the entire land belonging to the Arigbede Family. The history of his own title must begin and end with the purchase agreement executed between him and the Arigbede Family from where he derives his title. The ancestral history belongs to only Arigbede Family to tell and not the Appellant. The Appellant has no capacity to state the ancestral history of the Arigbede Family traditional ownership of their entire land. I agree with the submission of the Learned Counsel to the Respondent that the Appellant’s issue four (4) is really peripheral point of courtesy at the bar and not a point of substantive law. Issue Four (4) is resolved in favour of the Respondent.
The other Issue in the Appellant’s Brief is already overtaken by the resolution of this Court on Issue One (1) of the Respondent’s Brief. Since the Appellant could not establish his title over Plots 75 and 76, Akoredele Layout, there was no trespass on same by the Respondent. It thus becomes unnecessary for the Respondent to be called upon to establish long possession over Plots 75 and 76, Akoredele Layout.
The Learned Counsel to the Respondent cited two additional authorities (cases) which were also cited in the judgment. The Appellant and not his Counsel appeared in Court in person and was not given a copy of that letter which amounted to denial of fair hearing under Section 33(1) of the Constitution 1999. To my mind, evidence on the case had closed before the address stage. Although, it cannot be right on the part of the Court not to make a copy of such letter to the Appellant, that in itself has not affected the main substance of the Appellant’s claim before the Court. The Appellant from the record was given equal opportunity to call all his witnesses, tender any exhibit he had desired, cross-examine and vice versa. There was substantially no denial of fair hearing against the Appellant. I cannot see denial of Appellant’s fundamental right from the conduct of this case from the record of appeal.
I am totally in agreement with the finding of the learned trial Judge that the Appellant is unable to establish that, Plots 75 and 76, Akoredele Layout, is part of the land he acquired from Arigbede Family. I disagree that the Respondent was ever a trespasser to Plots 75 and 76, Akoredele Layout, to entitle the Appellant to possession of same, or any form of damages. Issue Two (2) of the Respondent’s Brief which covers Issues 4, 5 and 6 of the Appellant’s Brief, is resolved in favour of the Respondent. In the final analysis, having resolved all Issues in favour of the Respondent, I hold the considered view that, the appeal is without merit and is consequently dismissed with N30,000.00 (Thirty Thousand Naira) Costs in favour of the Respondent. Judgment of lower Co affirmed.

STANLEY SHENKO ALAGOA, J.C.A.: I have had the privilege of reading before now the draft judgment of my learned brother, Bage, J.C.A. just delivered. I agree with his reasonings and conclusion that the appeal is unmeritorious and should be dismissed. I dismiss same and affirm the judgment of the lower court and also abide by the order on costs contained in the lead judgment.

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A: I have had the privilege of reading in draft the judgment of my learned brother, Bage, JCA just delivered. I agree with him that the appeal lacks merit and should be dismissed.
My comments are in respect of the counter-claim. By his counter-claim at page 21 of the record, the Appellant claimed N100,000 as damages for trespass on plots 75 & 76 Akoredele Layout occupied by the Respondent and an order of perpetual injunction. In the main suit, the Respondent had succeeded in her claims for a declaration that the execution of a warrant of possession on plots 75 & 76 Akoredele Layout, Molete, Ibadan occupied by her, pursuant to a judgment obtained by the Appellant in suit No. I/411/93 in respect of which she was not a party was unlawful, irregular, null and void. The execution was set aside and an Order made restoring her to possession of the premises.
The main issue in contention in the counter-claim was whether plots 75 and 76 Akoredele Layout fell within the parcel of land in respect of which the Appellant obtained judgment in suit No. I/411/93 and/or whether the said plots fell within the land covered by the agreement executed between him and the Arigbede family (his vendors) in Exh. F18.
The Appellant’s witness (DW2) a member of the Arigbede family only gave evidence to the effect that his family sold part of their land to the Appellant as well as to late Alhaji Keshiro, the Respondent’s vendor. He stated that the land sold to the Appellant was not the same as that sold to Alhaji Keshiro but he was unable to show that plots 75 and 76 Akoredele Layout formed part of the land sold to the Appellant. He also did not know the acreage of the land sold to the Appellant.
DW4 the Appellant’s Surveyor gave confusing and contradictory evidence regarding the various survey plans which he prepared. He also stated under cross-examination that the parcels of land shown on the survey plans attached to Exhibits C & D (the building plans for plots 75 & 76 Akorede Layout – belonging to the Respondent’s predecessors in title) did not form part of the area in dispute in Exhibit N (the plan relied on in suit No. I/411/93 and upon which the claim for trespass and injunction was based). He however later changed his testimony and stated that the plans attached to Exhibits C & D formed part of the area in dispute in Suit No. I/411/93. (see pages 48-49 of the record). As correctly submitted by learned counsel for the Appellant, a counter-claim is a separate and substantive action, which must be proved to the satisfaction of the court on the balance of probabilities. See Obasi Bros. C. Ltd. Vs. M.B.A.S. Ltd. (2005) 9 NWLR (929) 117 at 143 E; the burden of proof of the counter-claim rests on the Defendant. See NSEFIK vs. MUNA (2007) 10 NWLR 502 at 513 D-E; NPA VS. C.C.F.L.S. (1974) 12 sc 81; also Sections 135 and 136 of the Evidence Act.
In the instant case, the Appellant was unable to show that the plots of land occupied by the Respondents form part of the land in dispute in Suit No. I/411/93 in respect of which he obtained judgment. He therefore failed to prove his entitlement to an order for damages for trespass and injunction.
I agree with my learned brother in the lead judgment that the Appellant failed to prove his counter-claim on the balance of probabilities or upon a preponderance of evidence.
For these and the more detailed reasons contained in the lead judgment, I also find no merit in this appeal. I accordingly dismiss it. I abide by the orders contained in the lead judgment including the order on costs.

Appearances

Appellant is absent.For Appellant

AND

Olayode Delano Esquire with O. Abodunrin (Miss)For Respondent