ABDULHAMID MUHAMMED V. DUDU BORMU & ANOR (2012)

ABDULHAMID MUHAMMED V. DUDU BORMU & ANOR

(2012)LCN/5756(CA)

In The Court of Appeal of Nigeria

On Monday, the 17th day of December, 2012

CA/YL/2/2012

RATIO

APPEAL: PRINCIPLE GUIDING THE NEED TO SEEK LEAVE OF COURT TO RAISE FRESH ISSUES

EVIDENCE: BURDEN OF PROOF IN CRIMINAL MATTERS

LAND LAW: ON WHOM LIES THE BURDEN TO PROVE IN A DECLARATION OF TITLE

In attempting to resolve this issue I must agree with the submissions of learned Counsel to the respective parties as was long settled in the celebrated case of Kodilinye V. Odu (1935) 2 WACA 996 per Webber, CJ; which principle has been adopted in a litany of cases by this Court and the apex Court that the onus lies on the party who seeks for a declaration of title to land to satisfy the Court that he deserves from the preponderance of evidence adduced by him, the declaration sought. It is also trite that, the Plaintiff must in the discharge of this burden/onus rely on the strength of his case and not on the weakness of the Defendant’s case. If the onus is not discharged the weakness of the Defendant’s case ordinarily will not assist his case and the proper order to make in the circumstance is to dismiss the Plaintiff’s case. See Kaiyejola V. Egunla (1974) 12 S.C. 55; Enigwe V. Akaigwe (1992) 8 LRCN 486; Adeyeri V. Okoli (1997) 51 LRCN 1529, Adeniran and Usman V. Joda (1998) 13 NWLR (pt.581) at 383 – 394.
Again the Supreme Court in the recent case of Nwokorobia V. Nwogu & 2 ors (2009) 4 – S.C. (pt.11) 145 at 185 (2009) 38 NSCQR 142; INEC v. Oshiomhole (2009) 4 NWLR (pt.1132) 607 at 662 paras. A – D per Katsina Alu, JC (as he then was), Onijaodu & Anor V. Elewuju (2006) 13 NWLR (pt. 998) 529 -530 paras. A – B Per Tabai and Fayemi V. Oni (2009) 7 NWLR (pt.1140) 223 at 269 paras. B – H it has also been established that in land matters like the one in this Appeal, which is for declaration of title and where the Respondents also Counter-Claimed; the parties were expected to establish with concrete evidence the declaratory Reliefs they claimed. However, although each of the parties was expected to depend and succeed on the strength of his case, each of the parties can rely on the evidence of the other that supports his case in line with the concept of admission against interest. PER IGNATIUS IGWE AGUBE, J.C.A.
LAND LAW: DUTY OF A PARTY SEEKING DECLARATION OF TITLE

Furthermore, as was held in Ekpemupolo V. Edremodo (2009) 1 NWLR (pt.1142) 166 at 187 – 188 paras. H – B. (S.C.), (2009) Vol. 176 LRCN 235 at 256 ZEE, Per Tabai, JSC; the settled principle of law is that a Court of law can only decree title to a piece or parcel of land in favour of a party, if the accurate boundaries of the land are pleaded and described/proved, to the satisfaction of the Court. In this vein, parties as in this case, who sought injunctive reliefs against each other, ought to have proved with definitive certainty the area they expect the declarations and injunctive orders to be tied. See Okedare V. Adebara (1994) 6 NWLR (pt.349) 157 Agbonifo V. Aiwenobo (1989) 1 NWLR (pt.70) 325; Onwuka V. Ediala (1989) 1 NWLR (pt.96) 182; Kwadzo V. Adjei (19M) WACA 274 and Araba V. Asanlu (1980) 5-7 SC 78.The above authorities cited and the principles of law enunciated are sometimes misinterpreted to mean that at all times site plans or sketch maps of the disputed land is necessary to establish the boundaries and precise area to which the declaration should be tied. The Supreme Court also following a long line of cases (see Kwadzo v. Adjei (supra) Okeke v. Oga (1962) 1 ALL NLR 482 at 484 (JSC); Osho v. Ape (1998) 6 SCNJ 139 at 154; and in particular the dictum of Kalgo, JSC; in Emiri & Ors V. Imieyeh & Anor (1999) 4 NWLR (pt. 599) 2 at 453 paras. F – G; has also laid it down that where there is some clear description of the land to the extent that it is ascertainable and where there is no difficulty in identifying the extent of the land in dispute or the parties have agreed that an identifiable portion of land is in dispute, a declaration of title can be made.
In this wise, a plan is not of utmost necessity where parties know the area of land in dispute but a plan is indispensable in certain cases and the usual test is whether a Surveyor armed with the Record of proceedings of the lower Court can produce an accurate plan without even going into the disputed land upon consideration of description given by the Appellant and Respondents. See Babalola V. Aladejana (2001) FWLR (pt.61) 1670 at 1680 para. H and Owhonda V. Ekpenechi (2003) FWLR (pt.181) 1582 at 1582 paras. C -D. PER IGNATIUS IGWE AGUBE, J.C.A.

LAND LAW: WAYS OF PROVING TITLE TO LAND

JUSTICES

SOTONYE DENTON WEST Justice of The Court of Appeal of Nigeria

IGNATIUS IGWE AGUBE Justice of The Court of Appeal of Nigeria

ABUBAKAR ALKALI ABBA Justice of The Court of Appeal of Nigeria

Between

ABDULHAMID MUHAMMED Appellant(s)

AND

1. DUDU BORMU
2. CHIYARE BORMU Respondent(s)

IGNATIUS IGWE AGUBE, J.C.A. (Delivering the Leading Judgment): In the High Court of Justice Taraba State, in the Gembu Judicial Division, the Plaintiff (now Appellant) took out a writ of Summons and in both the Endorsement on the writ dated and filed on the 25th day of March, 2008 and accompanying Statement of Claim of the same date, sought for the following Reliefs:-
“1. A declaration that the Plaintiff haven inherited the land from his late father Alh. Hommadu Jibbo is the bonafide owner and holder of all the Right, title and interest over all that parcel of land for mixed farming with an area of 333.46 hectares and covered by a Right of Occupancy No.GS/7369 dated 15th day of July, 1987 and that any encroachment or entering into any part of the said parcel of the land by the Defendants or any unauthorized persons is wrongful, illegal and is tantamount to trespass.
“2. An order of perpetual injunction restraining the Defendants by themselves their privies/representatives or whomsoever and howsoever acting on their behalf from either trespassing or encroachment into any part of the said land or doing anything that might in any way prejudice the Right, interest and Ownership of the said land.
“3. General damages of N500,000.00.00
“4. Cost of Litigation.”
Upon being served with the Originating processes of the Plaintiff/Appellant, the Defendants/Respondents filed their Joint Statement of Defence/Counter-Claim dated 27th day of June, 2008, wherein they Counter-Claimed as follows:-
“i. A declaration of title in favour of the Defendants/Counter-Claimants and their relations over their inherited lands which comprises of the old settlement, their later settlement and their farmlands now in dispute, OR in the alternative that the Defendants/Counter-claimants are entitled to right of occupancy over the land in question.
“ii. An order of perpetual injunction restraining the Plaintiff and his privies whosoever and howsoever from further acts of trespass on the Defendants’ inherited lands.
‘iii. General damages for trespass in the sum of Five Hundred Thousand Naira (only).
iv General damages for the suffering and inconvenience caused to the Defendants and their relations by the acts of the Plaintiff in the sum of Five Hundred Thousand Naira.
“v. Cost of this suit.”
Having been served with the Defendants’ Joint Statement of Defence and Counter-Claim, the Plaintiff/Appellant further filed A Reply To Statement Of Defence And Counter-Claim, and called upon the Court below to dismiss the case of the Defendants/Respondents. At the hearing of the case, the parties called three witnesses each and tendered a host of documentary Exhibits. Learned Counsel for the parties also filed their respective Written Addresses after the close of their respective cases which they adopted culminating in the Judgment of the Learned Trial Judge delivered on the 29tn July, 2011.
Dissatisfied with that Judgment, the Plaintiff (now Appellant) has appealed to this Court by a Notice of Appeal with Four (4) Grounds dated 15th of October, 2011 and filed on 18th October, 2011. Upon transmission of the Record of Appeal hereto, Briefs of Argument were duly exchanged by the Parties. In the Brief Settled by A. Umar Esq. of I. T. El-Sudi & Associates Chambers on behalf of the Appellants, four issues were distilled for determination couched in the following terms:-
“1. Whether the Statement of Defence and Counter-Claim of the Defendants/Counter-Claimants was competent when it was not signed by a person known to law to enable the trial Court assume jurisdiction?
“2. Whether from the pleadings and evidence proffered by the Respondent of the trial Court, the Criminal allegation of connivance to unlawfully increase the dimension of the land granted to the Plaintiffs father was pleaded and proved beyond reasonable doubt to warrant the trial Court to so hold?
“3. Whether the trial Court was right to hold that the Plaintiff has failed to show that he is entitled to a declaration of title covering an area of 333.46 hectares but only proved his entitlement of 67.99 hectares?
“4. Having regard to the Counter- Claim before the Court whether the trial Court was right to hold that the Defendants/Counter-Claimants were entitled to Right of Occupancy over their old Settlement farmlands, when the old settlement and farmlands cannot be ascertained with certainty?”
On the other hand, G. I. Obomeile Esq. who settled the Brief of the Respondents also distilled four (4) Issues as calling for determination in the Appeal, which he identified as follows:-
“1. Whether the issue that the Statement of Defence and Counter-Claim was not signed by a person known to law is competent before this Honourable Court; if yes, whether the slip/omission or defect is such that will rob the Court below of its jurisdiction in the circumstances of this case?
“2. Whether the trial judge was right in relying on circumstantial evidence in arriving of the conclusion that there was fraud and/or connivance in the issuance of Exhibits “C & E”?
“3. Whether from the evidence before the Court the judge of the Court below was right in holding that the Plaintiff/Appellant was only entitled to an Area of 61.99 and not 333.46 Hectares as claimed?
“4. Whether the Defendants/Respondents proved their Counter-Claim as required by law to entitle them to Judgment?”
It would be recalled that on the 5th of April, 2012, the learned Counsel for the Appellant also filed a Reply Brief on points of law dated 4th April, 2012, in response to the Arguments of the Respondents. The facts of this case as can be gathered from the pleadings are on the part of the Plaintiff that his father late Alhaji Hammadu Jibo acquired a large piece of land for mixed farming in the 1940’s on which he settled and was farming and rearing his animals and in the 1950’s gave one Kaka man named Dogo Poman a piece of farmland near his residence on which Poman also farmed until he died in the late 1950’s. The land was said to be vacant for some time until one Bormu who was an acquaintance of the Plaintiff/Appellant’s father, migrated from Vakkude through Chabbal Peeluwaaji on his way to Mayo Njidduga in Cameroun in search of suitable place to farm.
In the course of Bormu’s sojourn, he stopped over at the Appellant’s father’s residence about 30 kilometres North West of Gorofi Town and upon explaining the object of his mission, Alhaji Hammadu Jibbo (the Appellant’s Father) accommodated Bormu in his residence and subsequently gave Bormu the same farmland he had given to late Poman after which Bormu brought his wife and a daughter by name Dudu (now the 1st Respondent). Having lived with the Appellant’s father for some time and considering his untoward disposition of eating of dead cows, the Appellant’s father relocated Bormu to a room built at the farm site for storing maize and other farm produce. At that farm site, the late Bormu and Appellant’s father had planted pear and banana trees and that the Plaintiff and his brother and sister were born and brought up on the land covered with the Right of Occupancy where they are still living and the father lived until the demise of Bormu in 1999.
It is also the case of the Appellant that before the death of Bormu in 1999, his two daughters Dudu Bormu and Chiyare Bormu had married and Bormu’s son had moved to Cameroon. According to the Appellant, in 1984, his father applied for Customary Certificate of Occupancy for the entire land to the knowledge of Bormu and same was granted the said Appellant’s father. In 1985, the Customary Right of Occupancy was converted to Statutory Right of Occupancy No. G. S.7359 with the letter of consent which he pleaded together with the survey plan of the land consisting of 333.45 square hectares with the boundaries which are delineated and verged red therein.
Subsequently, his said father paid for preparation and Execution fee, Survey fee, Rent fee and Registration of the Certificate of Occupancy, the Receipt whereof which he also pleaded. The Appellant maintained that they have been paying ground rent on the land till the disputes arose, the Receipts whereof he relied upon. The parties continued to live together even after Bormu’s death in 1999 until 2001/2002 when there was crisis in Mambilla Plateau leading to loss of lives and property and the complete burning down of Appellant’s father’s and his children’s houses and they migrated to Cameroon with their families.
On their return however, after the crisis, they found out that Bormu’s wife and other people were farming on his father’s grazing area thus leading to destruction of crops by cattle which led to negotiation by all the settlers with his father for compensation after which the settlers vacated the land including late Bormu’s wife. According to the Appellant, after the crisis of 2002 his father and his children lived on that land until 2003 when the said father died leaving him as the eldest son to inherit the land.
The Appellant also claimed that the Defendant sometime in 2006 started demanding for the partitioning of the land in dispute which demand they (Appellant’s family) resisted and reported the matter to Gembu Ministry of Land and Survey Area Office and letters which they sought to rely upon at the hearing were written to those concerned with reminders dated 2/2/2006, 14/8/2006 and 12/9/2006 respectively. He also wrote a letter to the Divisional Police Officer Gembu in 2005 stating the historical antecedent of the land in dispute and the relationship between Respondents’ father and his (Appellant’s) father. After the above complaints, the Respondents never trespassed on the land until January, 2008 when the Respondents and their People came and started partitioning it to their people after which a letter was written to his (Appellant’s) brother Abdulkarim Ahmadu by the Sarduana Local Government that the piece of land which formed part of the entire land covered by the Right of Occupancy No.GS/7369, was given to the 1st Respondent.
Following this development, the Appellant directed his said brother to institute an action in the Area Court, Dorofi which he did and while the matter was pending in that Court, the Local Government sent a letter to the Honourable Court and his brother was also invited. Pursuant to the invitation of his said brother at the Local Government Council a Deed of Settlement was prepared by the Local Government to be signed by his brother to the effect that he (the Appellant’s brother), had apportioned part of the land to the Defendants/Respondents but his said brother refused to sign the document. The Appellant also claimed that when justice could not prevail, he petitioned the State Security Service for investigation. Finally, it was his case that the land trespassed upon by the Respondents is a portion at the Southern part which formed part of the entire land granted to Alhaji Hammadu Jibbo, hence his claim as per the writ of summons. The case of the Defendants/Respondents on the other hand, after denying most of the averments of the Appellant and as can be gleaned from their Counter-Claim is that their ancestor by name Baguru was the first settler on the disputed land upon whose demise his son Kuryur inherited the disputed land, then Bormu, and now the Defendants/Respondents. According to them, their late father Bormu was born on the disputed land and was never given a place to stay or farm by Alhaji Hammadu Jibbo and that the Defendants/ Respondents’ father and Dudu were already on the land before the arrival of the Appellant’s father from Cameroun Republic to that area.
It is their further case that the banana, pear, eucalyptus and other economic trees found on the land were planted there on by their ancestors. They admitted that their father and Appellant’s father had lived in peace in that area but not on the land in dispute until the crisis of 2002. They claimed that they and their father as well as the Appellant and his father lived in their respective pieces and portions of land and that they (Respondents) had no knowledge of the acquisition of a Certificate of Occupancy over their land by the Plaintiff/Appellant until the Appellant started the dispute.
As regards the allegation that their brother Buba Bormu relocated to Cameroun, the Respondents denied and claimed that he only left the land for safety during the Mambilla/Fulani crisis, but had since returned to Dorofi and now stays at the Church Quarters as the Appellant and his relations had prevented him from going back to their former settlement/land. They pleaded a copy of a complaint written to the Sarduana Local Government Caretaker-Chairman dated 26/1/2003.
They insisted that the Appellant’s father could not have obtained any certificate of occupancy over their (Respondent’s) portion of inherited land which does not belong to the Appellant adding that the customary Right Occupancy which was purportedly converted to Statutory Right of Occupancy as in Exhibits A, C and E; only came to their knowledge in the course of their dispute that the Appellant had Certificate of Occupancy covering their (Appellants’) land which included their (Respondents’) inherited lands. They hinted that they shall contend at the trial that the Appellant was wrong and acted fraudulently by including their old settlement and their present settlement/farmlands.
ARGUMENTS OF COUNSEL:
In the determination of this Appeal, I propose to adopt the Four Issues formulated for resolution by the Learned Counsel for the Appellant; which I believe have incorporated the Four Issues also formulated by the Learned Counsel for the Respondents.
ISSUE NUMBER 1(ONE) OF THE APPELLANT; “WHETHER THE STATEMENT OF DEFENCE AND COUNTERCLAIM OF DEFENDANT WAS COMPETENT WHEN IT WAS SIGNED BY A PERSON NOT KNOWN TO LAW TO ENABLE THE TRIAL COURT ASSUME JURISDICTION?’ A. Umar Esq. the learned Counsel for the Appellant in his argument on this issue answered the question in the negative as according to him the Defendants/Counter-Claimants/Respondents’ Statement of Defence and Counter-Claim as contained in pages 10 – 16 of the Record of Proceedings was incompetent and the Court below ought not to have assumed jurisdiction to hear it. He placed reliance on Madukolu V. Nkemdilim (1962) 1 ALL NLR 589; Okereke V. Yar’Adua & 34 Ors (2009) Vol. 68 LRCN 234 and Ibeanu V. Ogbeide (1994) 7 NWLR (pt. 357) 697 at 700 – 701; on the import and essence of jurisdiction in the adjudicatory process and competence of a Court to determine a suit before it.
Learned Counsel also distinguished between a Statement of Defence and Counter-Claim and contended that where a Counter-Claim is not initiated by due process of law or upon fulfilment of any condition precedent, the Court is incompetent and lacks jurisdiction to entertain the Counter-Claim. In this case, he further observed, the statement of Defence and Counter-Claim were not signed by any person known or recognised by law as can be gleaned from page 15 of the Record of proceedings. Since it was signed by a Law Firm “Peoples Chambers” without the names of Defendants/Respondents or the Legal Practitioner representing them, he further observed, the Statement of Defence/Counter-Claim is incompetent, fundamentally defective and null and void for the Court to assume jurisdiction. The authorities of N.B.B. Plc V. Denclag Ltd (2005) 4 NWLR (Pt. 916) 549 at 573 -583, section 2(1) of the Legal Practitioners Act, 2004, Continental Shipyard Ltd V. Eliogoli Ship Ltd. (2010) 1 WRN 138 at 142; Okafor V. Okeke (2007) 10 NWLR (pt. 1043) 521 at 523 – 525 and Oketade V. Adewumi (2010) 8 NWLR (pt.1195) 63 at 74 paras. A. – G; were he cited to buttress his submission.
Finally on this issue, Learned Counsel anchored his position on the case of NCC V. NTM (2006) 38 WRN 48 at 58 and Madukolu V. Nkemdilim (supra); submitting that where a Court has no jurisdiction to hear a matter before it any step taken in relation to the matter is a nullity and void and where the incompetent Counter-Claim was heard by the Court below, the proceeding is a nullity.
Reacting to the submissions of learned Counsel for the Appellant on the issue of jurisdiction, Mr. Obameile, the learned Counsel for the Respondents relied on Onyemaizu V. Ojiako (2010) 47 NSCQR (pt.1) 159 at 785; Ojiogu V. Ojiogu (2010) 45 NSCQR (pt.11) 1291 at 1315 and Agboola V. U.B.A. (2011) 45 NSCQR (pt.335) at 362; to submit that the law is now settled that any issue not raised before the trial Court or Court below cannot be raised before the Appellate Court without leave as such issue will be incompetent.
He conceded that the name of the person who signed the Statement of Defence/Counter-Claim is not indicated thereon as the signature is ascribed against the Office Address of Respondent’s Counsel. Learned Counsel for the Respondents however posited that the issue of incompetence of the Statement of Defence and Counter-Claim was never raised in the lower Court and no leave was sought and obtained before this Honourable Court by the Appellant to raise same herein and accordingly, the learned Counsel urged us to strike out the issue for being incompetent. In the alternative, the learned Counsel for the Respondents argued that the slip or omission of the Respondents Counsel to indicate the name of the signatory is an irregularity which is not substantial enough to rob the Court of competence and jurisdiction to entertain the Counter-Claim.
Still on this issue, he referred as to the provisions of order 2 Rules 1 & 2 of the old Taraba State, High Court (Civil Procedure) Rules CAP. 63, 1997 and the cases of Anyanwoko V. Okoye (2010) 41 (pt.1) 45 at 67 – 68 and 72; Oketade V. Adewumi (2010) 41 NSCQR (pt.11) 1258 at 1273; and contended that the Plaintiff/Appellant filed a Reply and Defence to the Statement of Defence and Counter-Claim (page 17-19 of the Records referred) and therefore acquiesced to the proceedings at the Court below. Adeogun V. Fashogbon (2011) 45 NSCQR (pt.1) 594 at 631 -632; was further relied upon in support of the above contention.
He then posed the question as to whether if the Claim of the Appellant had succeeded fully in the lower Court, the Appellant could have complained of the omission to indicate the name of the signatory of the process in issue, which question he answered in the negative adding that the complaint of the Appellant herein is an afterthought. Relying again on order 24 Rule 28 of Taraba State (High Court (Civil Procedure) Rules and Famfa Oil Ltd V. A. G. Federation (2003) 16 NSCQR 390 at 407 – 408; it was further submitted that Issue 1 of the Appellant is a technical issue which should not be allowed to defeat the course of justice. Learned Counsel then urged us to look at the totality of the processes filed in order to determine whether the signature in issue belongs to a person known to law or a person entitled to practice in accordance with Legal Practitioners Act, 2004.
References were further made to pages 16, 20 and 40 of the Records to call on us to compare the signature on the Statement of Defence and Counter-Claim and other processes filed by the learned Counsel for a determination of whether the signatory is a Legal Practitioner or a person known to law. He cited again the case of Nuhu V. Ogele (2003) 16 NSCQR 390 at 407 – 408; to urge us to look outside the Record of Proceedings to ascertain the veracity or otherwise of the Claim/Complaint of the parties in the overall interest of justice. Learned Counsel distinguished the cases of Oketade V. Odewunmi and Continental Shipyard Ltd. V. Eliogoli Shhip Ltd (supra) and the present case to argue that the slip of Mr. Godwin I. E. Obomeile/Counter-Claimant is not fatal to the Counter-Claim of the Respondents and the Court below properly exercised jurisdiction over same.
Concluding his submission on this issue, the learned Counsel was of the view that even if the Defendant’s/Respondents’ Statement of Defence/Counter-Claim is fundamentally defective, such defect does not rob the Court below of jurisdiction as the Plaintiff/Appellant’s Claim which is on Declaration of title stands or falls on its own.
RESOLUTION OF ISSUE NUMBER 1 (ONE):- I have carefully considered the submissions of the respective learned Counsel and the legal authorities cited by each of them to support their respective positions on this vexed issue of jurisdiction and competence of the Court to entertain the Counter-Claim of the Respondents. The law is trite on settled authorities too numerous to mention that jurisdiction is the life- blood, the threshold and foundational source of adjudication without which proceedings no matter how brilliantly conducted would tantamount to nothing and an exercise in futility. See the locus classicus of Madukolu V. Nkemdilim (1962) 1 ALL NLR 589 and Okereke & Ors V. Yar’Adua (2009) Vol. 168 LRCN 234 and Ibeanu v. Ogbeide (1994) 7 NWLR (pt.357) 697 at 700 -701; ably cited by learned Counsel for the Appellant.

In Madukolu V. Nkemdilim (supra) which has been followed by the Apex Court and this Honourable in an avalanche of decided cases, the Supreme Court spelt out the parameters for the determination of the question as to whether a Court is seised with jurisdiction to entertain a suit thus:-
1. That the Court is properly constituted as regards members and qualifications of the members of the bench and no member is disqualified for one reason or another;
2. The subject matter of the case is within its jurisdiction and there is no feature of the case which prevents the Court from exercising its jurisdiction;
3. The case comes before the Court initiated by due process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction. See Kalio V. Daniel (1979) 12 S. C. 175; Osafile V. Odi (1990) 3 NWLR (pt.137) 130.

Ordinarily, the learned Counsel for the Respondents was on very sound pedestal when he cited the recent cases of Onyemaizu V. Ojiako (2010) 41 NSCQR (pt.1) 15 at 185; Ojiogu V. Ojiogu (2010) 45 NSCQR (pt.11) 1291 at 1315 and Agboola V. UBA (2011) 45 NSCQR 335 at 362; to contend that any issue not raised in the lower Court cannot be raised on appeal without leave of this Court. This is no doubt the general rule as was earlier on laid down by the Supreme Court in Bankole V. Pelu (1991) 8 NWLR (pt.211) 523 SC; Onwugbufor V. Okoye (1996) 1 NWLR (pt. 424) 252; Koya V. UBA Ltd (1997) 1 NWLR (pt.481) 251 and Owie V. Ighiwi (2005) 5 NWLR (pt.481) 184 S. C.
Thus, an Appellate Court like ours, will not allow a party to raise an issue which was not raised, tried and considered by the trial Court or intermediate Court unless such question raises substantial points of law whether substantive or procedural, and is manifest from the Records that no further evidence can be adduced which will affect the decision on the fresh issue(s) so raised on Appeal. See further Shonekan V. Smith (1964) 1 ALL NLR 168 at 173; Obikoya V. Registrar of Companies & Anor. (1975) 4 S.C. 31 at 34. The rationale behind this principle of our jurisprudence is to obviate the stealing of a match or springing up elements of surprise against an opponent and miscarriage of justice to parties. Going by the above authorities, the pith and substance of the Appellant’s Complaint is on the issue of jurisdiction and competence of the trial Court to entertain the Defendants/Respondents’ Statement of Defence/Counter-Claim which was not signed by a person known to law. In this respect, the learned Counsel for the Appellant has referred us to page 16 of the record of Appeal where it is apparent therein that the Names and Address of the Respondents is written thus:-
“Defendants/Counter-Claimants
Peoples Chambers,
No. 6, Kiba Street,
Behind L. G. Secretariat,
Fadawa L. G. Secretariat
Fadawa Quarters,
Gembu.”
A signature is appended across the Defendant/Counter-Claimants and Lawyers’ Chambers without any identifiable name. In the recent case of Oketade V. Olayinka Adewunmi (2010) 8 NWLR (pt. 1195) 63; Tobi, JSC, delivering the lead Judgment of the Supreme Court, interpreted Sections 2(1) and 24 of the Legal practitioners Act where the Appellant’s Counsel wrote only the corporate names and Address of their Law Firm of Olujinmi and Akerodolu without their personal names as Legal Practitioners as appear on the Roll of the Legal Practitioners in all the processes filed including the Brief of Argument, and relying on authorities like S.P.D.C. (Nig) Plc V. Dino (2007) 2 NWLR (pt.1019) 438 at 462; N.B.A. v. Chukwumeife and Okafor V. Nweke (supra) held thus at page 74 lines F – H.
“It is clear that Olujimi and Akeredolu is not a name of Legal Practitioners in Nigeria. I say this because there is no such name in the roll of legal practitioners and that violates Sections 2(1) and 24 of the Legal Practitioners Act. By section 2(1) of the Act; the only person in the profession wearing his professional name to practice law in Nigeria is a legal practitioner and the definition of the Legal Practitioner in section 24 of the Act does not include Olujimi and Akeredolu. This, to me, is not mere technicality that can be brushed aside. It is fundamental to the judicial process as it directly affects the legal processes that brought this case on appeal. I am in entire agreement with Counsel for the respondent that as the processes which brought the appeals are incompetent, the appeal itself is incompetent. He has correctly invoked the cases of Macfoy V. U.A.C. (2006) 16 WRN 185 and N.N.B. Plc v. Denclag Ltd (2005) 4 NWLR (pt. 916) 549 at 573. In the light of the above, the appeal has no props to stand and do not have the option than to dismiss the appeal and I dismiss it.”
From the foregoing authority and in line with the doctrine of judicial precedent or stare decisis, this Court is bound to follow the decision of the Supreme Court and the Respondent’s Statement of Defence/Counter-Claim ought to be struck out. In so holding, I derive inspiration from the fact that the issue of incompetence of the originating processes touches on the bed rock of the case jurisdictional competence of the Court below) in that even though the subject-matter is within the jurisdiction of the trial Court it being a case for declaration of title; there is a feature in the case that ought to prevent the Court from exercising jurisdiction in that the case came before the Court below and by extension this Court not initiated by due process and upon fulfilment of a condition precedent to the exercise of jurisdiction.
Accordingly, in line with the decisions in Madukolu V. Nkemdilim (supra); Kalio V. Daniel (supra), Odofin V. Agu (1992) 3 NWLR (pt.229) 350; Osafile V. Odi (No.1) (1990) 3 NWLR (pt. 137) 730 Per Nanemeka -Agu, JSC; the Counter-Claim not being signed by a Legal Practitioner or the Defendants/Counter-Claimants, prima facie, had a jurisdictional virus preventing the lower Court from hearing same. Thus, whereas in this case, the Appellant challenges the jurisdiction of the lower Court, he can raise the issue herein or even in the Supreme Court for first time. See Ifabiyi V. Adeniyi (2000) 5 S.C. 31 at 42, Durwode V. The State (2001) 7 WRN 50 S. Q, the celebrated cases of Skensconsult V. Ukey (1981) 1 S. C. 6 at 18; Akpena v. Barclays Bank Nig, Ltd & Anor. (1977) 1 S. C. 47; and Abinabina V. Enyimadu (7953) A. C. 209 and 210.
The above decisions notwithstanding, the learned Counsel for the Respondents, has raised a very salient point when he submitted that no miscarriage of justice had been occasioned by the slip in writing the Legal Practitioners or Respondents names particularly when the Appellant and his Counsel filed a Reply To The Statement of Defence and Counter-Claim and partook in the hearing of the case apart from calling all his witnesses and addressed the Court before Judgment was delivered. He has also posed the question as to whether if the Appellant had won in its entirety he would have complained of the defect in the process.
I am of the candid view that this position of the learned Counsel for the Respondents ought to have held water particularly as the defect was the result of learned Counsel’s blunders which (see Nneli V. Chukwu & Ors. (1988) NSCC Vol.19 (pt.1) 115; Ajike V. Moladun (1967) NSCC vol. 5 at 264; Bello V. A. G. Oyo State (1986) 5 NWLR (pt. 55) 828 at 831 – 837; State V. Gwonto (1983) 1 SCNLR 142 at 176 per Kayode Eso, JSC (now of blessed memory); which cases had long established the current de-emphasis on technicality rather than doing substantial justice by Courts.
Be the above decisions as they may, it is trite law that parties cannot by their consent, acquiescence or otherwise confer jurisdiction on a Court where such a Court has for any reason been divested of its jurisdiction. See Ukpong v. Commissioner for Finance and Economic Development (2007) ALL FWLR (pt.350) 1246 S. C. Moreover, the Supreme Court has recently held in the Oketade V. Adewunmi’s case that the defect in the process with which the Respondents initiated their Statement of Defence and Counter-Claim is not merely a procedural defect in which case this Court would have brushed same aside as technical but a fundamental and substantial defect which strikes at the substratum of the case (the jurisdiction of the Court below to entertain the suit).The only remedy to the submission of the Respondent’s case is the distinction between Oketade’s case and the instant case. In the former case, all the processes including the Briefs of the Appellants were signed in the name of the Law Firm of Olujimi and Akeredolu but in this case, apart from the Statement of Defence and Counter-Claim, all other processes had the name and signatures of Learned Counsel for the Respondent appended therein. For the avoidance of doubt, a look at page 20 of the Records for instance, would reveal that the motion for enlargement of time within which to file the Respondents’ Written Address as well as page 40 the last page of the Written Address both have the names and identical signatures with the signature appearing on the Counter-Claimants’ Column. I am therefore of the considered view that neither the Appellant nor his Counsel was misled and having partaken fully in the proceedings they cannot approbate and reprobate at the same time.
It is for the above reason and the fact that even if the Respondent’s Statement of Defence/Counter-Claim were to be fundamentally defective in which case it ought to be struck out, this case being one for declaration of title, the plaintiff/Respondent was expected to elicit evidence to establish and rely on the strength of his case and not on the weakness of the Defendants/Respondents’ case assuming the Respondents did not file any process to defend the suit. Accordingly, I shall resolve the issue against the Appellant and hold that the Court below had jurisdiction to hear the Counter-Claim of the Respondents.
ISSUE NUMBER TWO (2) “WHETHER FROM THE PLEADINGS AND EVIDENCE PROFFERED BY THE RESPONDENTS AT THE TRIAL COURT, THE CRIMINAL ALLEGATION OF CONNIVANCE TO UNLAWFULLY INCREASE THE DIMENSION OF THE LAND GRANTED TO THE PLAINTIFF’S FATHER WAS PLEADED AND PROVED BEYOND REASONABLE DOUBT TO WARRANT THE TRIAL COURT TO SO HOLD”.
Arguing this issue, the learned Counsel for the Appellant submitted that the allegation of connivance must be proved beyond reasonable doubt. According to him, throughout the Respondents’ Statement of Defence/Counter-Claim, the Respondents never pleaded connivance with the staff of the then Gongola State Ministry of Lands and Survey to unlawfully increase the dimension of land granted Appellant’s father, neither was any evidence led to that effect. Learned Counsel added that the law is settled that allegation of Criminal nature in Civil Proceedings must be proved beyond reasonable doubt. Anyanwu v. Uzowuaka (2009) Vol. 177 LRCN 204 at 232 para. P, and Section 135(1) and (2), of the Evidence Act, 2011; Onoh V. Nwobodo (1984) 1 S.C. 1 and Buhari V. INEC (2008) 4 NWLR (pt.1078) 546 at 654; were relied upon in support of the above submissions. Citing again Abubakar V. Yar’Adua (2009) ALL FWLR (pt.531) 1578; Lawal V. Eleko (2010) 3 WRN 64 at 67; Bamgbegbin V. Oriake (2010) Vol. 178 LRCN 87 at 97 Ratio 11, it was further submitted that a Court of law can only pronounce judgment in the light of evidence proved before it and cannot go outside such evidence or embark on voyage of discovery in favour of a party or set up a case different from the one fought by the parties.
Furthermore, in his view, the holding of the trial Court was not anchored on any pleadings, facts or evidence and it is not permissible for Counsel to give evidence through his address. Citing again Alao V. Akano (2005) 126 LRCN 837, Lawal V. Eleko (supra) and Niger Construction Ltd. V. Okugbeni (1997) 4 NWLR (pt.67) 787 at 792 per Oputa, JSC; on fair hearing and the need for Courts not to do cloistered justice, he insisted that the Respondents did not plead or adduce evidence on connivance and that no amount of brilliance of Counsel’s speech can make up for lack of evidence to establish or demolish points in issue. In concluding his argument on this issue, the learned Counsel found solace in Ohida V. Military Administrator of Kogi State (2000) FWLR (pt.12) 2107 at 2126 per Musdapher, JCA (as he was); Habib Bank Nig. Ltd V. Gifts Unique Nig. Ltd. (2005) ALL FWLR (pt. 241) per Salami, JCA (as he then was) at 253.
On his part, the learned Counsel for the Respondents referred us to page 107 of the Records to answer the question posed by issue No. 2, in the affirmative as according to him, the learned trial Judge was right in so holding that there was such connivance between the Appellant’s father and Gongola State Ministry of Lands and Surveys, in the issuance of Exhibits C & E. He conceded that allegation of crime ought to be proved beyond reasonable doubt but countered that such prove is not limited to direct and/or oral evidence only, as circumstantial evidence which is unequivocal and conclusive can sustain an allegation of offence, even if capital. John Peter V. The State (1997) 48 LRCN 556 at 576 -577; Godwin Ijabele V. The State (2005) 1 N.C.C. 59 at 75; Ogundele V. Shittu Agiri (2009) 40 NSCQR 427 at 467 – 468 and Black’s Law Dictionary Ninth Edition at page 636; were all relied upon in submitting that there are averments in the Respondent’s pleadings and evidence on record supporting the allegation of fraud.
On this score, he alluded to Page 13 – 16 of the Statement of Defence (paragraph 19 thereof); pages 12, 13, 14, & 15 of the Statement of Claim and the evidence of PW3 at pages 54-56 which proved that the entire land of the Appellant’s father was covered with Customary Right of Occupancy with an Area of 61.99 Hectares but he converted same to a new dimension of an Area of 333.46 Hectares by Exhibit E and that both Exhibit C & E and other processes are products of the staff of the Ministry of Lands and Survey who were not called as witnesses, as to the increased hectares.
Learned Counsel also pointed out that there was admission on the part of the Appellant that the Settlement and Farmlands of the Respondent’s father were included in Exhibits C & E at page 66 line 28 and page 67 line 1 of the Records. He finally referred us to Governor of Imo State V. Chief B. A. E. Nwauwa (1997) 47 LRCN 377 at 412; to urge that the judgment of the Court below would not have been different without proof of fraud and/or connivance as the allegation was not the issue before the Court and the Principle of severance will therefore apply.
RESOLUTION OF ISSUE NUMBER TWO (2),
In the resolution of this issue, I must hasten to remark herein that it is now trite that by the elementary rules of pleadings, fraud is a serious offence particularly now in this Country and that unless a party specifically pleads same against an opponent; no evidence can be led on such allegation nor can the issue be raised at the trial. Fabunmi V. Agbe (1985) 5 S. C. 28 at 76; per Obaseki JSC; Usen V. Bank of West Africa Ltd (1965) 1 ALL NWLR 244 at 247 refers. See also the cases of Anyanwu V. Uzowuoko (2009) Vol.177 LRCN 204 at 232 para, P; Onoh V. Nwobodo (1984) 1 S.C.1 and Buhari V. INEC (2008) 4 NWLR (pt.1078) 546 at 664; ably cited by the Learned Counsel for the Appellant.
Accordingly, where fraud is not so specifically pleaded against an opponent such an allegation cannot be sustained by the Court (Temakloe V. Basset Trading Co. Ltd. (1940) 6 WACA 231). It has also been held that “such an allegation must be pleaded with utmost particularity and distinctively proved.” See further (Usenfowokan V. Idowu & Bros. & Anor (1969) 1 NWLR 77 and Olufunmise V. Falana (1990) 3 NWLR at 16), where the term was defined from Stroud’s Judicial Dictionary 4th Edition Vol. 2 and it was held that in pleadings, it is not necessary to use the word “fraud” but to set out the misconduct in question.
Before rounding up on these preambles, it necessary to recall the Statement of the law as espoused by Obaseki, JSC; which is in tandem with the submission of the learned Counsel for the Appellant that the rationale behind the assertion that fraud must be pleaded by the party that alleges it, stems from the provision of Section 138(2) now Section 135(2) of the Evidence Act 2011, on the burden of proof in criminal cases. Now, Section 135(1) of the Evidence Act stipulates in mandatory terms that: “lf the commission of a crime by any party to any proceeding is directly in issue in any proceeding Civil or Criminal, it must be proved beyond reasonable doubt”.

By subsection (2) thereof: “(2)The burden of proving that any person has been guilty of any crime or wrongful act is, subject to section 139 of this Act, on the person who asserts it whether the commission of such act is or is not directly in issue in the action.” See the cases of Alonge v. I.G.P. (1959) SCNLR 516; IGP v. Oguniade (1971) 2 ALL NLR 11; Lori V. State (1980) 8 SC 81 Karimu V. The State (1989) 1 NWLR 124 and Abubakar V. Yar’Adua (2008) 19 NWLR (pt.1120) 1 at 143 – 144 Paras H – B.From the above provisions of the Evidence Act and the authorities cited, it is clear that it is the party who alleges fraud who has the burden to prove same and before doing so he must plead fraud in his Statement of Claim or Defence nay Counter-Claim. In the case at hand, the contention of the Appellant is that neither did the Respondents plead the connivance of the Officials of Ministry of Lands and Surveys Gongola State with the Appellant’s father nor was any iota of evidence led in this respect and that the learned Counsel for the Respondents raised the issue suo motu in his Written Address.
The Court below has also been accused of doing cloistered justice by deciding on an issue which was not pleaded or before him. The learned trial Judge has also been accused of setting up a different case from the one fought by the parties and outside the evidence adduced before the Court. There is no doubt as was decided by the cases of Abubakar V. Yar’Adua (supra); Anyonwu V. Uzowuaka (supra); Nwobodo V. Onoh (supra); Buhari V, INEC (supra); Lawal V. Eleko (supra), and Bamgbegbin V. Oriore (supra), that it is not the duty of a trial Court to embark on voyage of discovery and investigation to ferret or scout for evidence to prop up a party’s case which otherwise has not been proved but that its adjudicatory powers stop at deciding on the evidence presented by the parties before it and subjected to empirical analysis, otherwise, the Court could be accused of doing cloistered justice.
Fair enough, the learned Counsel for the Respondents had referred us to specific pages of the Records and documentary Exhibits from which the Court could infer by circumstantial evidence that the trial Court was right to have held that the Officials of the Ministry of Lands and Surveys, Gongola State; connived with the Appellant’s father to increase the dimension of the land initially granted him from 61.99 Hectares to 333.46 Hectares. Now, a careful perusal of the following paragraphs of the originating processes would reveal as follows:
(1) In paragraph 8 at page 11 of the Records containing the Respondents Statement of Defence, the Respondents pleaded that: “The defendants further deny knowledge of the acquisition of a Certificate of Occupancy over their land”.
(2) In Para. 11 of the Statement of Defence at page 11 of the Record they also averred that: “In further response to paragraphs 12, 13, 14, 15, 17, of the Statement of Claim, the Defendants aver that neither their father nor themselves were aware when the Plaintiffs father purportedly applied and obtained a Certificate of Occupancy over the disputed land.”
(3) In Paragraph 12 they further pleaded thus: “The Defendants shall contend at the trial in further response to paragraphs 12, 13, 14, 15, 16 and 17; that the Plaintiff’s father cannot lawfully obtain, a certificate of Occupancy over their own portion of inherited land which does not belong to him” See page 12 of the records.
Finally in paragraph 19 of the Counter-Claim (page 16 of the Records), the Respondents specifically pleaded thus:- “The Defendants/Counter-Claimants over that it is only now in the course of their dispute they are hearing from the plaintiff that he has a Certificate of Occupancy covering their land including their (Defendants’) inherited lands. The Defendants shall contend at the hearing of this Suit that the plaintiff was wrong and acted fraudulently by including their old settlement and their present settlement/farmlands in this Certificate of Occupancy.”
With the foregoing averments of the Respondents, the learned Counsel for the Appellant cannot seriously contend that throughout the Statement of Defence and Counter- Claim, the Defendants/Counter-Claimants never pleaded unlawful connivance. As rightly submitted by the learned Counsel for the Respondents, whereas a look at Exhibit A the Sarduana Local Government Land Use Act (Customary Right of Occupancy) Customary Certificate of Occupancy No. 256 registered at page 33 in volume 111 dated 1/2/85 issued in favour of Alhaji Hammadu Jibbo of Dorofi Ardoate; the Appellant’s father was said to be entitled to Customary Certificate of Occupancy in and upon a plot with a dimension of 6.99 Hectares in the area known as Dorofi for a term of 99 years commencing from 1st day of July, 1985; Exhibit C- the Approval Letter for Grant of Statutory Right of Occupancy in respect of the land the subject of the prior Customary Right then expanded to 375 Hectares as the correct description of the land for mixed farming. In the Certificate of Occupancy Number GS/7369 dated 1st December, 1987 issued following the application for conversion of the Customary Right of Occupancy earlier acquired, the dimension of the land rather metamorphosed to 333.46 Hectares.
A careful perusal of the back of Exhibit C also has it that: “8. The grant of this Right of Occupancy is being made in evidence of the Applicant’s Customary Title over the area and improvements thereon and the provisions of section 34 subsection (1) (2) and (3) of the Land Use Decree, 1978.” Even without much ado, any discerning mind can infer fraud in view of the dimensional discrepancies/disparities in the documents tendered by the Appellant as conferring him with title to the land in dispute. It is pertinent to observe that in paragraphs 12, 13, 14, 15 (pages 4- 8 particularly at pages 5 and 6 of the Records), the Appellant pleaded in respect of this issue as follows:-
“12 The plaintiff (sic) aver that sometime in 1984 his father late Ath. Hammadu Jibbo applied for a Customary Certificate of Occupancy for the entire land with the knowledge of Bormu and some was granted the Customary Certificate of Occupancy is hereby pleaded and will be relied upon at the trial.
“13 The Plaintiff avers that in 1985 late Alh. Hammadu Jibbo (sic) apply for consent to convert the customary Right of Occupancy to a Statutory Right of Occupancy and same was granted, the letter of consent is hereby pleaded and shall be relied upon at the trial.
“14 The Plaintiff (sic) over that (sic) base on the facts in paragraph 13 above his father applied for grant of Rights of Occupancy and the application letter is hereby pleaded.
“15 The Plaintiff avers that after the fact in paragraphs 13 & 14 above his father’s Customary Right of Occupancy was converted to a Statutory Right of Occupancy. The Statutory Right of Occupancy No.GS/7359 granted to Alh. Hammadu Jibbo and the Survey Plan accompanying it consisting of 333.46 hectares, the boundaries of which are delineated by red verged lines is thereby pleaded.”
In his evidence at pages 54- 56 in respect of the Customary Right and Statutory Right of Occupancy, he reiterated what he had pleaded in respect of his documents of title. It would be recalled that when questioned about the discrepancies in the title documents tendered as Exhibits ‘A’, ‘C’ and ‘E’; he stated at page 66 lines 23 – 26 and page 67 line 1 thus:
“I am aware that before a Certificate of Occupancy is issued to a person a site plan of the area to be covered by the Certificate of Occupancy must be produced. There was site plan when the Customary Certificate of Occupancy was issued to my father. It is true that all the processes for issuance of the two Certificates of Occupancy were undertaken by my father. I am aware that the Certificate of Occupancy (sic) is covered the area where Bormu settled and also where he was farming.”
In his evaluation of the evidence of the PW3 in respect disparity in the extents of land in the said Exhibits A, C and E of the Customary Certificate and Statutory rights of Occupancy, the learned trial Judge after quoting the averments in paragraphs 13, 14 and 15 of the Appellant’s Statement of Claim; in my view, unassailably came to the inevitable conclusion that he agreed with the learned Counsel for the Respondents that there was a connivance with some staff of the then Gongola State Ministry of Land and Survey to unlawfully increase the dimension of the land granted to the Plaintiff’s father in Exhibit A.
For instance where the Court below found as I have also done herein because this is not a question of credibility of witnesses but the one of inferences that can be drawn from admitted documentary Exhibits that:-
1. from paragraphs 13 – 15 of the Statement of Claim and the evidence of PW3 elicited in pages 54 -56, 65 lines 28 and 67 of the Records which have been reproduced earlier on, that the Statutory Right of Occupancy i.e. Exhibit “E” is a conversion of the Customary Right of Occupancy i.e. Exhibit “A”;
2. however, while Exhibit “A” granted to the Plaintiffs father an area of 61.99 hectares, Exhibit “E” on the other hand purports to grant to him an area of 333.46 hectares. See page 106 of the Record;
3. the Appellant admitted that the Customary Right of Occupancy ought to have been granted upon tendering of the site plan of the area/portion of the land it covers and indeed there was such a site plan before his father was granted the Customary Right of Occupancy but no such site plan was tendered and no explanation was offered for the absence of the original site plan for the land the subject of the customary Certificate of Occupancy nor the maker of the said plan called;
4. the learned trial Judge had earlier held at page 105 of the Records that none of the Officers involved in surveying, demarcating and plotting the land in dispute leading to the issuance of Exhibit ‘A’ was called;
5. he had held that the inference here is that if the site plan had been tendered or the maker called or any other officer of the land survey Department of Gongola State Ministry was called, their evidence under section 149(d) of the Evidence Act would be unfavourable to the Appellant;
6. the Appellant admitted at page 66-67 line 1 that: “I am aware that the Certificate of Occupancy (sic) is covered the area where Bormu settled also where he was farming”; then the contention of the learned Counsel that the learned trial Judge set up a different case from the one fought by the parties or that he embarked on a voyage of discovery for evidence in favour of the Respondents, can never stand.
Even the contention that the Court based its decision on this issue from the submission of Counsel to the Respondent is erroneous and unfounded. Rather it was the PW3 and his witnesses who could not explain away the discrepancies in Exhibits A, C and E as regards the dimension of the hectares of land granted the Appellant’s father and the learned Counsel for the Appellant attempted to explain this away at page 27 lines 20 – 24 of the Record of Appeal (Plaintiffs Closing Address at page 5 thereof) inter alia:-
“We submit that these are either errors or mistake emanating from of the staff of the office concerned and not the fault of the Plaintiff. My Lord this could account for why the Bureau for Lands and Surveys recognise only measurement carried out by their staff and not that of the Local Governments (or mai-anguwa”).
At pages 106 and 107, the learned trial Judge after a careful analysis of the evidence of the parties and the submissions of learned Counsel then drew an analogy which formed the basis of the remark that the Officers of the Lands Department connived with the Appellant’s father to increase the hectares of the land granted him from 51.99 to 333.46 Hectares. The learned trial Judge in my humble view, was in firma terra when he observed that by the submission of the learned Counsel for the Appellant, he (learned Counsel) was unwittingly contending that the plaintiff was relying on documents that are products of errors and mistakes or documents made by inefficient and incompetent staff. In other words, learned Counsel for the Appellant was indirectly challenging the competence and correctness of documents produced by his client (the Appellant) upon which they relied to establish the Appellant’s case thus allying with the contention of the learned Counsel for the Respondent who also challenged the legality of the said documents particularly Exhibit E the Certificate of Occupancy.
His Lordship then noted that: “Exhibit “A” is the foundation upon which Exhibit “E” was built. No builder will build a foundation of two bed-room flat and attempt to erect a four bed-room apartment on it and expect it to stand. It will not. That is what the plaintiff has attempted to do with regards to Exhibits “A” and “E”. I agree with the learned Counsel to the Defendants that Exhibit “E” must conform with Exhibit “A” and cannot derogate from it.”
On the further basis for agreeing with learned Counsel for the Defendants/Respondents that there was a connivance with some staff of the Gongola State Ministry of Land and Survey to unlawfully increase the dimension of the land granted to the Plaintiff’s father in Exhibit “A’, His lordship further observed:
‘Exhibit “C’ by the way, is the right of occupancy which gave birth to Exhibit “E” Statutory Certificate of Occupancy. In Exhibit “C” the area granted to the Plaintiff’s father is said to be about 375 hectares while in Exhibit “E” the area is 333.46 hectares. Exhibit ‘C” and “E” do not conform with Exhibit “A” the Customary Certificate of Occupancy. The Certificate of Occupancy cannot, for the reasons stated above be allowed to stand.”
It would also be recalled that apart from pleading in paragraph 19 of the Counter-Claim, the DW1 testified at page 70 of the Records that her husband was not aware of the Certificate of Occupancy and that the said husband did not assist the Surveyors who measured the land. DW2 also testified in page 77 that she was not aware that the Plaintiffs father has obtained a Certificate of Occupancy covering their old settlement and that she was only aware in Court. Also, her father was not aware of the Certificate and did not participate in the process of beaconing the land. Further at page 79 under cross examination she reiterated that she was not aware that the Plaintiffs father obtained certificates of Occupancy in respect of their land now in dispute with the knowledge of their DW2’s father. According to her, if her father was aware she would have so been informed. As for the beacons on the disputed land, she stated that she was only aware of the beacons planted on the boundary between Appellant’s father’s land and her father’s and these beacons were planted before the demise of her father who did not complain then even though he was aware because the beacons were never planted on her said father’s land. See page 79 of the Records. Further at page 80, the witness also stated on further-cross examination that it is not true that the beacons surrounded the entire land including where they are claiming unless the beacons were planted recently if not their land is not enclosed in the beacons.
From all these pieces of evidence, even though the Respondent did not plead specifically that the Appellant’s father connived with the Officials of the Ministry of Lands and Surveys Gongola State and considering the fact that the Certificate of Occupancy in question was obtained from the Officials of the said Ministry, the learned trial Judge was right to have come to the conclusion that those Officials must have so connived with the Appellant’s father to increase the hectares of the land covered in the Customary Certificate of Occupancy which was converted to Statutory Right of Occupancy. In line with the dictum of Fabiyi, JSC; in Ogundele V. Agiri (2009) 40 NSCQR 427 citing Nasiru V. The State (1999) 1 SCNJ 83; Safiu Amusa & Ors. V. The State (1986) 3 NWLR (pt.30) 536, when the whole gamut of circumstantial evidence in respect of the surrounding events in this case is carefully considered, some elements of fraud can safely be inferred in the acquisition of the certificate of occupancy (Exhibit E).
I agree therefore with the learned Counsel for the Respondents that even without proving fraud, by the doctrine of severance of pleadings, the decision of the Court below could still have been the same as shall be demonstrated anon. On the whole, this lssue is resolved against the Appellant.
ISSUE NUMBER 3 “WHETHER THE TRIAL COURT WAS RIGHT TO HOLD THAT THE PLAINTIFF HAS FAILED TO SHOW THAT HE IS ENTITLED TO A DECLARATION OF TITLE COVERING AN AREA OF 333.46 HECTARES BUT ONLY PROVED ENTITLEMENT OF 61.99 HECTARES?”
The learned Counsel to the Appellant has on this issue submitted in the first instance that the claim of the Plaintiff/Appellant was for all the parcel of land for mixed farming with an area of 333.46 Hectares and covered by Right of Occupancy No. GS/7369 dated 15th day of July, 1987. Relying on Idundun V. Okumagba (2002) 20 WRN 127; he enumerated the five ways by which a party seeking declaration of title to land may prove same by any of these ways, and contended further that apart from the traditional evidence as proffered by the Plaintiff/Appellant being eloquent, a barrage of documentary Exhibits were in evidence to prove ownership and long possession ranging from Certificate of Occupancy and payment of ground rent uninterrupted from 1985 up to 2009. The learned Counsel alluded to the evidence of DW1/1st Defendant/Respondent/Counter-Claimant under cross-examination at page 79; which amounted to admission that beacon stones as contained in the Survey Plan accompanying Exhibit E surround the land which extent is 333.46 hectares as pleaded by the Appellant and the Defendant/Counter-Claimant/Respondent did not deny but acknowledged that the Appellant’s father had land on which the Appellant and family members are living and which their (Appellant’s) father planted eucalyptus trees on the other part of the land.
He also referred to the evidence of Mrs. Freda Bormu the 1st Respondent at page 72 which admitted that the Appellant’s father’s residence is close to where they (Respondents) are living and that the Appellant’s father planted eucalyptus trees on the grazing land which part of that land is not in dispute. From the evidence of the 1st and 2nd Respondents, he concluded, they have admitted that the father of the Appellant has a grazing area with eucalyptus plantation and beacon as contained in Exhibit E. He finally submitted on this issue that there is neither evidence before the Court of the extent of the Land the Counter-Claimants are claiming, nor of the land warranting the judgment of the lower Court. Accordingly, he urged us to hold that by the evidence before the Court, the Appellant has proved his case.
Reacting to the above submissions, the question posed by the issue in the affirmative learned Counsel answered the and citing Adewuyi V. Odukwe (2005) 23 NSCQR 39 at 55 – 56; submitted that it is trite that a Claimant for declaration of title to land has the onus of proving the title he claims on the strength of his case and on the preponderance of evidence which burden never shifts. On the contention by the learned Counsel for the Appellant that the Appellant tendered barrage of documents which established their entitlement to 333.45 hectares of land covered by Exhibit ‘E’, he countered that it is trite that presentation of document(s) or instrument of grant of land does not automatically entitle the Appellant to declaration of title to the land in dispute as the Court before declaring title, would require a number of conditions which he enumerated as decided in the case of Michael Romaine V. Christopher Romaine (1992) 4 NWLR (pt.238) 650 of 662. In his view conditions a, c-e as so enumerated are against the Appellant’s Claim.
Learned Counsel to the Respondent then submitted that the Statement of Claim of the Appellant and his viva voce in Court established the Appellant’s entitlement to the extent of land in the Customary Certificate of Occupancy, an Area of 61.99 Hectares (Exhibit A) and not 333.46 Hectares (Exhibit E) as claimed by the Appellant. To buttress the above submission we were referred to pages 5 and 6 paragraphs L3, L4, and L5 and the evidence of the PW3 at pages 55 – 56 particularly page 56 lines 12 – 24 in further contending that the conversion of Customary Certificate to Statutory Certificate is only a conversion or elevation of the status of the Certificate which does not necessarily affect the extent of the dimension of the land covered by the grant. He added that any increment or reduction in the latter instrument of grant must be with acceptable reasons, facts and evidence.
The learned Counsel for the Respondent then argued that the Appellant having failed to explain or prove how 61.99 Hectares metamorphosed into 333.46 Hectares, the Court below was right in holding that the Appellant was entitled to 61.99 Hectares and not 333.45 Hectares. He maintained that the Court was also right to hold that Exhibits “c & E” cannot derogate from Exhibit A as buttressed from the address of learned Counsel for the Appellant that the discrepancies in Exhibits C & E as against Exhibit “A” are “either errors or mistakes from inefficiencies or incompetence of staff of the office concerned and not the fault of the Plaintiff. Accordingly he submitted finally on this issue that the Appellant cannot benefit from such supposed errors.
RESOLUTION OF ISSUE NUMBER 3(THREE):
In attempting to resolve this issue I must agree with the submissions of learned Counsel to the respective parties as was long settled in the celebrated case of Kodilinye V. Odu (1935) 2 WACA 996 per Webber, CJ; which principle has been adopted in a litany of cases by this Court and the apex Court that the onus lies on the party who seeks for a declaration of title to land to satisfy the Court that he deserves from the preponderance of evidence adduced by him, the declaration sought. It is also trite that, the Plaintiff must in the discharge of this burden/onus rely on the strength of his case and not on the weakness of the Defendant’s case. If the onus is not discharged the weakness of the Defendant’s case ordinarily will not assist his case and the proper order to make in the circumstance is to dismiss the Plaintiff’s case. See Kaiyejola V. Egunla (1974) 12 S.C. 55; Enigwe V. Akaigwe (1992) 8 LRCN 486; Adeyeri V. Okoli (1997) 51 LRCN 1529, Adeniran and Usman V. Joda (1998) 13 NWLR (pt.581) at 383 – 394.
Again the Supreme Court in the recent case of Nwokorobia V. Nwogu & 2 ors (2009) 4 – S.C. (pt.11) 145 at 185 (2009) 38 NSCQR 142; INEC v. Oshiomhole (2009) 4 NWLR (pt.1132) 607 at 662 paras. A – D per Katsina Alu, JC (as he then was), Onijaodu & Anor V. Elewuju (2006) 13 NWLR (pt. 998) 529 -530 paras. A – B Per Tabai and Fayemi V. Oni (2009) 7 NWLR (pt.1140) 223 at 269 paras. B – H it has also been established that in land matters like the one in this Appeal, which is for declaration of title and where the Respondents also Counter-Claimed; the parties were expected to establish with concrete evidence the declaratory Reliefs they claimed. However, although each of the parties was expected to depend and succeed on the strength of his case, each of the parties can rely on the evidence of the other that supports his case in line with the concept of admission against interest.
Furthermore, as was held in Ekpemupolo V. Edremodo (2009) 1 NWLR (pt.1142) 166 at 187 – 188 paras. H – B. (S.C.), (2009) Vol. 176 LRCN 235 at 256 ZEE, Per Tabai, JSC; the settled principle of law is that a Court of law can only decree title to a piece or parcel of land in favour of a party, if the accurate boundaries of the land are pleaded and described/proved, to the satisfaction of the Court. In this vein, parties as in this case, who sought injunctive reliefs against each other, ought to have proved with definitive certainty the area they expect the declarations and injunctive orders to be tied. See Okedare V. Adebara (1994) 6 NWLR (pt.349) 157 Agbonifo V. Aiwenobo (1989) 1 NWLR (pt.70) 325; Onwuka V. Ediala (1989) 1 NWLR (pt.96) 182; Kwadzo V. Adjei (19M) WACA 274 and Araba V. Asanlu (1980) 5-7 SC 78.The above authorities cited and the principles of law enunciated are sometimes misinterpreted to mean that at all times site plans or sketch maps of the disputed land is necessary to establish the boundaries and precise area to which the declaration should be tied. The Supreme Court also following a long line of cases (see Kwadzo v. Adjei (supra) Okeke v. Oga (1962) 1 ALL NLR 482 at 484 (JSC); Osho v. Ape (1998) 6 SCNJ 139 at 154; and in particular the dictum of Kalgo, JSC; in Emiri & Ors V. Imieyeh & Anor (1999) 4 NWLR (pt. 599) 2 at 453 paras. F – G; has also laid it down that where there is some clear description of the land to the extent that it is ascertainable and where there is no difficulty in identifying the extent of the land in dispute or the parties have agreed that an identifiable portion of land is in dispute, a declaration of title can be made.
In this wise, a plan is not of utmost necessity where parties know the area of land in dispute but a plan is indispensable in certain cases and the usual test is whether a Surveyor armed with the Record of proceedings of the lower Court can produce an accurate plan without even going into the disputed land upon consideration of description given by the Appellant and Respondents. See Babalola V. Aladejana (2001) FWLR (pt.61) 1670 at 1680 para. H and Owhonda V. Ekpenechi (2003) FWLR (pt.181) 1582 at 1582 paras. C -D.

The learned Counsel to the Appellant has rightly cited the locus classicus case of Idundun v. Okumagba (1976) 1 N.M.L.R. 200 (1976) NSCC (vol.10) 445 at 455 and the oft-quoted dictum of Fatayi Williams, JSC (as he then was); that there are five ways of proving title to land namely:-
1. By traditional evidence;
2. By production of title documents;
3. By acts of person(s) claiming the land such as selling, leasing or renting out all or part of the land, or farming on it or on a portion of it extending over sufficient length of time numerous and positive enough to warrant the inference that the person is the true owner (Ekpo V. Ita 11 NLR 68);
4. By Acts of possession and enjoyment of the land;
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.He has relied on the above cited case to argue that apart from traditional evidence as proffered, by the Appellant which according to the learned Counsel is eloquent, the Appellant has tendered a barrage of documents to establish his claim of ownership and possession. Let us assume that from the pleadings of the Appellant he seemed to have anchored his claim on all the five ways enunciated by Fatayi – Williams JSC in the Idundun v. Okumagbe case.
For instance as regards Traditional root of his title, paragraph 3 of the Statement of Claim avers that his late father Alhaji Hammadu Jibbo acquired a large piece of land for mixed farming in the 1940’s which he settled and was farming and rearing animals. He did not however plead how the said father acquired the land whether by (Gift, Conquest, Purchase, deforestation and so on). He did not plead or narrate the historical antecedents of the land like the genealogical tree from its original owner, the ancestor who founded the land, in what manner it was founded and the circumstances leading to it, and the successive persons to whom the land devolved through an unbroken chain of succession in such a way that there is no gap in the chain of devolution that cannot be explained. see Odi v. Iyala (2004) 8 NWLR (pt.875) 283 SC, Ewo v. Ani (2004) 3 NWLR (pt.861) at 610 SC, Ezeokonkwo V. Okeke (2002) 11 NWLR (pt.77) 1 and recent. See Ayanwale V. Odusani (2001) 18 NWLR (pt.1278) 328 at 342 para. E per Rhodes-Vivour:
However, from paragraphs 4, 5 – 25 of the Statement of Claim it would appear that the Appellant has pleaded acts of possession numerous and positive enough to warrant the inference that the land belongs to his father and he inherited some after his father’s demise in 2003. He has also pleaded that the Respondent’s father Bormu and by extension his siblings (now the Respondents) are Customary tenants to the Appellant’s father who harboured their (Respondent’s father) upon migrating from Vakhude through Chabbal peeluwaaji on his way to Mayo Njidduga in Cameroun for farming. In other words, the Plaintiff/Appellant was a first settler in the land in dispute.
Put together, the pleadings of the Appellant are to the effect that he has been in long possession and enjoyment of the land by establishing his cattle ranches which have almost hedged in the land claimed by the Respondents (as admitted) by the Respondents, and accordingly he has shown that the adjacent lands with eucalyptus trees on other parts of the land adjacent to the land in dispute are also his. However, even upon admission by the DW1 and DW2 (which is not the case) that beacons stones demarcated the lands the subject of dispute the pertinent question to be answered in this case is the extent of the land for which the Appellant’s declaration of title is sought?
This is where method two of proving ownership by production of documents of title, comes in handy as the Appellant has pleaded in paragraphs 12, 13, 14, 15 – 17 (the first four paragraphs) which have been reproduced together with the evidence led in proof or against those averments of the claim; that Appellant’s father applied and obtained Exhibit A the customary certificate of occupancy No.256 dated 1st day of July, 1985 from the Sarduana Local Government for a piece of land which dimension is given as 61.99 Hectares. Exhibit c on the other hand which is the letter of grant of statutory Right of occupancy in respect of the land the subject of the customary Right of occupancy, rather has the following inscription:
“I am directed to inform you of a grant/re-grant of a Right of Occupancy to you in respect of “The correct description of the land is A piece of land for mixed Farming an area of about 375 Hectores, situated about 3kms NW. Of Dorofi Town as on Topo Sheet 295. Survey will be necessary on approval”.
As said earlier, item number 8 (which is one of the terms and conditions of the grant) in the Approval letter as is contained at the back of Exhibit ‘E’ also has it that:
“8. The grant of this Right of Occupancy is being made in evidence of the Appellant’s customary title over the Area and improvements thereon, and the provisions of S. 34 subsection (1) (2) and (3) of the Land Use Act.” To worsen matters, in Exhibit ‘E’ the purported Certificate of Occupancy No. GS/7369 dated 15th July, 1987, the Schedule thereto describes the land for which the certificate is issued as:- “All that piece of land situated at Dorofi Village in Mambilla District of Sarduana Local Government Area, Gongola State consisting of 333.46 hectares.”
From the contents of Exhibits A, C, and E, it is clear that there are discrepancies in the area covered by the Customary Right of Occupancy, the Letter of Grant and the Certificate of occupancy which is supposed to be a conversion of the Customary Right to Statutory Right. The Appellant did not offer any explanation as to why 51.99 Hectares should metamorphose to 375 Hectares and subsequently to 333.46 Hectares. I adopt my reasoning and conclusion on issue Number 2 and agree with the decision of the Learned trial Judge that Exhibits C and E cannot derogate from Exhibit A more particularly when the learned Counsel for the Appellant has admitted that the documents tendered in proof of the Appellant’s title and the discrepancies in the dimensions of the land claimed are fraught with “either errors or mistakes emanating from the inefficiencies or incompetence of the staff of the office (of the ministry of land and survey Gongola State) concerned and not the fault of the plaintiff.”
In the recent case of Ayanwale V. Odusami (2011) 18 NWLR 328 at 348 – 349, Adekeye, JSC supporting the lead Judgment of Rhodes-Vivour, JSC; held thus;
“Production of a deed of conveyance or document of title is one of the five ways of acquiring ownership, of title to land. Even then production of a deed of conveyance or any document of title does not automatically entitle a party to a claim in declaration. Before the document of title is admitted as sufficient proof of ownership, the Court must satisfy itself that:
(a) The document is genuine or valid,
(b) It has been duly executed, stamped and registered.
(c) The grantor has authority and capacity to make the grant.
(d) The grantor has in fact what he proposes to grant.
(e) That the grant has the effect claimed by the holder of the instrument.
Romaine V. Romaine (1992) 4 NWLR (pt.238) pg 650; Kyari V. Alkali (2001) FWLR (pt. 60) 1481 (2001) 11 NWLR (pt.724) 412 and Dabo V. Abdullahi (2005) 29 WRN 11 (2005) 7 NWLR (pt. 923) pg. 81.”In the instant Appeal, the only seemingly authentic and genuine document tendered by the Appellant is Exhibit A (the Customary Right of Occupancy (if at all), notwithstanding the fact that the plan which was admittedly attached to it before its issuance, was not tendered. As the learned trial Judge had rightly held, the presumption is that if it were tendered it would have been detrimental to the case of the Appellant in the face of the discrepancies inherent in the dimensions of the land converted from Customary Right to Statutory Right of Occupancy as contained in Exhibits C and E. Moreover, whoever granted land in excess of what was converted from the Customary Right of Occupancy had no authority and capacity to so do as it has been confirmed by the learned counsel for the Appellant that the staff of the Ministry of Land and Surveys who purportedly issued Exhibits C & E were incompetent and accordingly the grant was ultra vires their powers and therefore null and void. See Adole V. Gwar (2008) 11 NWLR (pt. 1099) 562 at 580 paras. D – E; 605 paras. C – G, and pages 618 – 619 paras. E – G and in particular the dictum of Ogbuagu JSC at page 609 paras D – E;
Finally, since the Ministry or the Officials did not have what the granted or was proposed to be granted and the Certificate of Occupancy does not have the effect claimed by the holder, I agree into to with the learned Counsel for the Respondents and indeed the learned trial Judge, that (the Appellant), on the authorities above cited, cannot benefit from such errors, mistakes, inefficiencies and incompetence of officials of the Ministry of Justice, Gongola State.
On the whole, the learned trial judge after carrying out a discrete and dispassionate evaluation of the evidence elicited by the parties, declared Exhibits C and E void and of no effect. He went on to decree that the Plaintiff (now Appellant) is entitled only to the parcel of land measuring 61.99 hectares in Dorofi, Ardorate granted his father by the Sardauna Local Government via Exhibit ‘A’ and I agree completely with his findings and conclusion in this respect. In Agbimo Obioma & Ors V. Lawrence Emenye Otomu & Ors. (1978) 3 SC 1 at 9; the Supreme Court held in accord with established principles of our law on declaration of title, that even where a Plaintiff succeeds in establishing his title to a smaller area than claimed, the Court may grant him the declaration in respect of that smaller area. See Sobanjo V. Adesino Oke & Anor (1954) 14 WACA 573; Okon Owon V. Eto Ndon & ors 12 WACA 71; Chinwendu V. Mbamali & Anor (1980) 3-4 SC 31 at 69 – 70 per Obaseki and Arabe v. Asanlu (1980) 5-7 SC 78 at 85.
It is on the foregoing authorities and facts as can be gathered from the Record of Proceedings that I agree with the learned trial Judge that the Plaintiff/Respondent proved that he was entitled only to a Declaration of title and injunction on the 61.99 Hectares of land granted him by the Sardauna Local Government as reflected in the Customary Right of Occupancy /Exhibit A, no more no less. This issue is also resolved against the Appellant.
ISSUE NUMBER 4
“WHETHER HAVING REGARD TO THE COUNTER-CLAIM BEFORE THE COURT THE TRIAL COURT WAS RIGHT TO HOLD THAT THE DEFENDANTS/COUNTERCLAMANTS WERE ENTITLED TO THE RIGHT OVER THEIR OLD SETTLEMENT/FARMLANDS, WHEN THE OLD SETTLEMENT AND FARMLANDS CANNOT BE ASCERTAINED?’
This issue ought to be answered without asking in the affirmative in view of our resolution of Issue Number 3 against the Appellant. Nevertheless, the learned Counsel to the Respondent has repeated his earlier contention that the Statement of Defence and Counter-Claim of the Respondents was incompetent before the trial Court. In the alternative, it was submitted that the Court below could not have granted declaration of title to land the boundaries which are uncertain and obscured. Reference was then made to the Counter-Claim at page 16 of the Records to maintain that from the above Counter-Claim and the pleadings of the Respondents, the old settlement farmland is not defined and ascertained where there is evidence that the Plaintiffs father’s house is 250 metres from the Defendant’s house and admission by the Defendants that the Appellant’s father planted Eucalyptus trees scattered all over the grazing area.
Citing Nwokidu V. Okamu (2010) 26 WRN 23 at 32 and Makanjuola V. Balogun (1989) 2 NWLR (pt. 108) 192; he submitted that if the Respondents failed to prove the boundaries and the area to which the declaration of title relates, the proper order by the Court below would have been that of a dismissal. Furthermore, he argued that the mere mention of the land without stating clearly the area of the land to which the declaration relates, is not enough description. Nwokidu V. Okamu (supra) per Adekeye JSC at 54 line 15; was cited in support of the above submission and to finally urge us to allow the Appeal as it is meritorious, set aside the counter- claim of the Respondents and enter judgment for the Appellant under Section 15 of the Court of Appeal Act 2011 (as amended).
Reacting to the above submissions, the learned Counsel to the Respondents conceded that it is the law that a claimant for declaration of title to land must describe the land to which his claim relates. However, he referred us to Emmanuel Ilona v. Sunday Idakwo (2003) 14 NSCQR (pt. 11) 1011 at 1033 – 1034 and Taiwo Kari ogun V. Moliki AkinyeLu (2005) 123 LRCN 96 at 117; and argued that where the land in dispute is known to parties and the identity is not in issue, there is no burden on the claimant to describe the land. Moreover, he further argued, it is the Defendant that will put the identity of the land in dispute in issue.
In respect of the land in issue herein, learned Counsel to the Respondents contended that the identity of the Settlement and Farmlands was not in issue as the parties were ad idem that they lived together peacefully for decades till their fathers died, and in their respective Settlements and farming and grazing lands. References were then made to the statement of claim, statement of Defence and Counter-Claim and the Reply thereto; page 54 of the Records; the evidence of the PW3 and further at pages 58, 66 line 28 and page 67 lines 1-2, the evidence of the Appellant under-cross examination and page 55 lines 2 – 8 of the Records which contains evidence of visit to the locus inquo as applied for by Umar Esq. the learned Counsel to the Appellants all which he asserted, go to show that the identity of the land as claimed by the parties was never in doubt.
On the authority of Nwokorobia V. Nwogha (2009) 38 NSCQR (pt.142) at 177; he maintained that the location of the land is not an issue even where the parties refer to the land by different names. He pointed out that the Respondents were consistent that the land is situated at Tunji between Nguli and Dorofi Villages. The evidence of DW1 at page 69 lines 1-4, that of DW2 at page 74 lines 14 -15 and DW3 at page 81 line 25, page 82 lines 1-2 and PW3 at page 55 lines 11 – 12; where further alluded to in so submitting. Finally learned Counsel for the Respondents posited that the Court below was right in declaring title to the Respondents to the extent of the land in excess of 61.99 Hectares which the Appellant is entitled. We were in conclusion urged to dismiss the Appeal for the reasons stated in paragraph 8.01 of the Respondents’ Brief and affirm the judgment of the lower Court.
RESOLUTION OF ISSUE NUMBER FOUR (4)
I have carefully considered the submissions of the learned Counsel to the respective parties and the authorities cited in support of each other’s disparate positions on this issue. Suffice it to say as I had earlier held and the learned Counsel for the respective parties are ad idem that since the Appellant claimed and the Respondent Counter-Claimed each of the parties was expected to rely on the relative strength of his/her case and not on the weakness of the other’s, although where any of the parties elicited evidence which the other could capitalize on to shore up his/her respective case he/she could take advantage of same under the principle of admission against interest.
In the instant case, the Respondents were suppose to prove with definitive certainty the boundaries and extent of the land to which their claim would be tied. As was rightly observed by learned Counsel for the Respondents the identity of the land, the subject matter of the claim was not in doubt more so as the Court through the application of the learned Counsel to the Appellant Umar Esq, visited the focus. The Defendants had pleaded in paragraphs 1 – 11 that they are bonafide owners of the old settlement and farm lands situate at Nguli Dorofi now in dispute and traced their ownership of the old settlements and farmlands through inheritance from their father (Bormu). They also gave the genealogical pedigree of the old settlement and farms from Bormu their father who inherited from Kuryur who inherited same from Baguru who dis-virgined the land by being the first settler thereon, built his house and cultivated the surrounding farmlands. The Respondents also pleaded that Kuyur, Bormu and themselves were born on the land and had lived there peacefully until the death of their father around 1999 and Baba Bormu the only surviving son his wife and aged mother were on the land until the crisis of 2002 when they fled for safety and on their return after normalcy was restored, they were chased away from their houses by the Appellant and his relations with the aid of soldiers stationed at Dorofi.
Their houses which were on the land after the crisis were set ablaze all in an effort to prevent them from returning to their old settlement. They further pleaded as to the origin of the Appellant’s father Alhaji Hammadu, when he came to the area having migrated from Cameroun Republic and met Bormu thereon and it was Bormu who initially gave Alhaji Hammadu a place to settle and rear his cattle. As at when Hammadu arrived, Bormu and his ancestors already had their settlements and farms which also contain economic trees such as bamboo forest, pear, bananas, eucalyptus trees etc and that throughout the life times of the Respondents’ and Appellant’s fathers, they never had any problem as to their respective pieces of land. However, in the course of their stay the Plaintiffs father and his children including the Appellant started encroaching into other pieces of land not originally given to them by placing their cattle/ranches on different portions of the land but because of the cordial relationship between Bormu and Alhaji Hammadu, Bormu did not prevent them.
In paragraphs 12 – 19, the Respondents pleaded that in the course of their expansion, the Plaintiff/Appellant and his relations placed their cattle/ranches around defendant’s Settlement and farms to the extent that their land is almost now hedged in by Plaintiff/Respondents and his relations. It was also their case that the first settlement of their ancestors on the disputed land was at the hill close to the house of the Alhaji Hammadu Jibbo, and same is marked by some traditional trees as Bol and Liya and from that spot Bormu (the Respondents’ predecessor-in-title) shifted to their present location near the valley when Hammadu’s cattle started encroaching into these premises/house.
Furthermore, after the 2002 crisis the Defendants lodged a complaint to the Sardauna Local Government Council over the attitude of the Appellant and his relations in preventing them from returning to their inherited land – a copy of the lodged by the Respondents before the Local Government Council. The matter was Advisory Committee and a peace said complaint dated 26/1/2003 which was pleaded. Pursuant to the complaint, the Sardauna Local Government Council investigated same and found for the Respondents and ordered that they should return to their inherited land.
Notwithstanding this order, the Appellant still prevented the Respondents and relations from going back to the disputed land and further complaints were lodged by the Respondents before the Local Government Council. The matter was subsequently reported to the Land Allocation Advisory Committee and a Peace Committee which investigated the matter and still resolved that the Respondents and relations should return and occupy their inherited disputed land. Copies of the Resolutions of the Land Allocation Advisory Committee and Peace Committee were pleaded. Following the resolutions of the Committees, the Respondents attempted to return but the Appellant’s younger brother Abdulkarim sued the Respondents before the Dorofi Area Court and Police Station which suit was caused to be withdrawn by the Sardauna Local Government council.
As regards the claim by the Appellant that his father obtained Customary Right occupancy which was converted to Statutory Right of Occupancy as in Exhibits A, C and E; the Respondents averred that it was only in the course of their dispute that they heard from the Appellant that he (Appellant) had Certificate of Occupancy covering their land including their (Respondents’) inherited lands. They hinted that they shall contend at the trial that the Appellant was wrong and acted fraudulently by including their old settlement and their present settlement/farmlands. Whereof the Respondents Counter-Claimed against the Appellant as reproduced earlier at pages 2 and 3 of this Judgment.
Now, from what can be gathered in the pleadings of the Counter-Claimants, they anchored their case on traditional history and some documents which were the result of arbitrations by the Sardauna Local Government and subsequently the Land Use and Allocation and Peace Committees all which found for the Respondents. We shall come to the consequences of the outcomes of these Committees on the parties. Suffice it to say as I posited earlier, that the Appellants had claimed that their father acquired the land in the 1940’s but the mode of acquisition was not pleaded.
As regards evidence of the description and location of the land the Respondents claimed and testified that the land the subject matter of this dispute is situate at Nguli Dorofi which they share common boundary with the Appellant’s father. As for the Appellant the land is situated 3 Kilometres North West of Dorofi Town. Alhaji Gomse the 78 year old man who testified as PW5 stated under cross-examination at page 45 thus: “The land which the Defendants are claiming is located at Nguli”. That witness also testified as to the features on the land and admitted that Fulani which he is do not plant bamboo trees only Mambillas and Kakas plant then although some bamboos grow wild. At page 54 of the Record of proceedings and as pleaded by the Appellant in paragraph 12, he testified that sometime in 1984 his father applied for Customary Certificate of Occupancy in respect of the entire land including the disputed land. To further buttress the fact that the identity of the land the subject matter of the suit was not in issue. The witness testified under cross-examination at page 58 that:
“My father died at his own compound at Nauli. In the year 2006 the Defendants come to the land of my father including the land in dispute and demarcated same into portions and started giving out to people. The disputed land and other parts of the grazing land they are demarcating to be partitioned to others are covered by Exhibit ‘E’ which is located very close to the land of Alhaji Hammodu Jibbo which is also situated in the heart of the land covered by Exhibit ‘E’.
Although the DW1 testified at page 59 of the Records that: “the land is situate of Tunji;” she testified further that ‘Tunji is near Nguli via Dorofi” see page 59 lines 1-4 of the Records. See further pages 70 – 71 of the Records where she testified under cross-examination; “Tunji is near Nguli. Since we have been living at Tunji only our family and the family of the Plaintiff lived at Tunji. There is no any other Mambilla family there. Where the Plaintiffs family settled is not far from where we are settled. It is true that the residence of the Plaintiff’s fathnmer is up the hill while our own residence is in the valley. This is because we hove bamboo trees which we were tapping down the valley.”
As for Dudu Bormu the DW2, the evidence in this respect (see page 74) is that the land in dispute is situate at Tunji is situate between Dorofi and Nguli. She also testified on the features on their land thus: “When my father was alive we have pears, guava farms, Bamboo forest, eucalyptus trees, Kola Mango and houses on the land. My father told me that it was his grandfather Baguru who planted the bamboo forest and his father Kuyur who inherited the forest also planted some bamboo forest. My father who inherited same also planted some of the forest. I was born on the land in dispute.”
Under cross-examination she buttressed the evidence of her mother that:
“The land in dispute is between Nguli and Dorofi. Nguli is not very far from the land in dispute. Anybody going from Nguli to Dorofi must pass through the land.”
If there is any controversy as to the identity of the land apart from the visit to the locus inquo by the trial court, the evidence of the DW3 Mahmud Barde a Civil Servant who was a staff of Sardauna Local Government with Kabri Development Area which jurisdiction encompasses the land in dispute should have cleared this doubt as to the land being claimed by the Counter-Claimants. He testified how he was detailed by the Jauro of Kabri Hamma-fulde Zubairu upon the complaint of Abdulkarim Jibbo the junior brother to the Appellant against the 1st Respondent who allegedly, “entered their land situate at Tunji between Nguli and Dorofi”, to go along with the complainants, Ardo Ibrahim A. Guduba (since the complainant was a grazier), the Agric Officer Musa Sojiya to mediate between the parties.
On their arrival at the locus inquo, in the presence of the parties, the complainant Abdulkarim showed them the area he was complaining about, the witness further testified:
“On our inspection we found old settlement which 1st Defendant alleged belonged to her as she inherited same from her late father Bormu. We found broken walls of building, pear trees eucalyptus trees banana plants old farm land, raffia forest (bamboo forest?) The 1st Defendant further told us that she was born there on the land and his father had stayed on the land for over 60 years and that the father died and her mother and her brother had been staying on the land until the crisis. That it was on the day of the crisis that his mother left the place and fled to Dorofi that after the crises when her mother and brother tried to come to their old settlement Abdulkarim threatened them and asked them not to come back there. When we asked Abdulakrim whether he refused the mother and brother of the 1st Defendant from going back to their old settlement he admitted it and said the land belonged to him as he inherited some from his father and they have a Certificate of occupancy over the land. We then gave them a date for our decision. Finally the committee resolved that the 1st Defendant and her mother should go back to their old settlement and maintain their raffia forest and erect their building and maintain their old form white Abdulkarim should maintain their own part where they were using for grazing purposes.
All the parties agreed and wrote a Deed of Settlement which I signed the Agric Officer and Jauro signed Ardo Ibrahim A. Guduba signed Abdulkarim also signed. I was the Secretary of the Committee”. See pages 81 – 82 of the Records. The Deed of Settlement was tendered and marked Exhibit L. See his answers to cross-examination at page 83 – 84 of the Records. Apart from Exhibit L which states that the disputed land is in Dorofi, Exhibits M1 from the Office of the Chairman of Sardauna Local Government Council which is a forwarding letter of Comprehensive Resolution of the Local Government Land Allocation Advisory Committee held in the office of the Secretary to the Council in 2006, has attached the summary of minutes of the Land Allocation And Advisory Committee and at page 7 includes:
“KABRI AREA”
“CASE NO. 13: A CASE BETWEEN DUD BORMU AND ABDULKARIMU,” wherein it was resolved:
“A after hearing from the disputed parties, the Jauro of Kabri area and Ardo Njeri of Kabri area, the committee resolved on 18th day December, 2006 as follows:
1. That Dudu Bormu should go and occupy her late father compound
2. That she is the right ownership of all her father’s farms forest and the land in questioned.
3. This is in cognition of justice, peace and harmony”.
Exhibit M2 a letter referenced LGS/LRD/S.16/vol.1 of the 10th January, 2008 from the Sardauna Local Government Secretariat Gembu, Mambilla Plateau, P.M.B. 001, Taraba state, addressed to Dudu Bormu and Abdulkarimu Ahmadu is captioned: ‘RE-DUDU BORMU……………….. COMPLAINANT vs. ABDULKARIMU AHMADU…………DEFENDANT ON A PIECE OF LAND AT DOROFI (NGULI)” and also shows clearly that the land in dispute is in Nguli. Exhibit I is a replica of the above document as copied Abdulkarimu Ahmadu the brother of the Appellant.
From the contents of these documents, apart from the fact that all arbitrations prior to the institution of the action in the Area and High Courts, were in favour of the Respondents, the land in dispute was identified by the parties from the onset and the question of identity of the land as canvassed by the learned Counsel for the Appellant is neither here nor there. Where at page 66 line 28 and page 67 lines 1 -2 the Appellants testified that his spurious Certificate of Occupancy covered the Area where Bormu settled and also where he is farming which portions of land had been earlier adjudged by the Ardo of Kabri who was the supposed overlord of the Appellants by custom and the Sardauna Local Government the Custodians of the lands in Kabri Development Area by virtue of sections 2(2)(b) and 6(1)(a) and(b) of the Land Use Act, 1978; the Appellant ought to have known that the game was up and there was no amount of belligerence and connivance with officials of the Ministry of Land and Survey Gongola State would have saved his case.
In any case, the learned trial Judge brilliantly settled this issue of identity of the land and certainty of the area claimed by the Respondents as canvassed by the learned counsel to the Appellant when His Lordship held at page 109 – 110 of the Records, after citing the case of union Bank of Nigeria Plc v. Ishola (2002) FWLR (pt.100) 1253 at 1280; on the nature of Counter-claim and the position of the law as I had earlier stated, held that the Defendant being in the position of a plaintiff had the burden of proving his case in order to be entitled to Judgment there on inter alia:-
‘The law is settled that a Plaintiff (and also a Counter-Claimant) seeking a declaration of title has the initial and primary burden of proving clearly and unequivocally the precise area to which the claim relates. But this burden will not exist where the identity of the land is not in dispute and was never a question in issue. The question of identity of the land as an issue will only arise where the Defendant raises it in his Statement of Defence or his testimony see Mr. Taiwo Kari Ogun v. Mr. Moliki Akinyelu (2005) 123 LRCN 96 at 117.
Neither in the Reply to the Defendants Statement of Defence and Counter-Claim nor in the evidence did the Plaintiff deny the identity and/or area of the land being claimed by the Defendants. The position of the Plaintiff, however, is that these portions of land were given to the Defendants’ father late Bormu by his late father Hammadu Jibbo. This become clearer when the Court visited the land in dispute the area of the land being claimed by the Defendants is therefore well known to the parties.”
I cannot but agree more with the learned trial Judge in his lucid and expository analysis of the law on this vexed issue as is amply supported by a plethora of decided authorities in both the apex Court and this Court. See Momoh v. Umoru (2011) 15 NWLR (pt.1270) 217 at 247 para. E; Briggs V. Briggs (1992) 3 NWLR (pt.228) 128 at 287 paras. D -F; Kwadzo V. Adjei (1944) 10 WACA 274 followed in Eze Okeke V. Oga (1962) 1 ALL WLR 492 at 484 (FSC); Osho v. Ape (1998) 5 SCNJ 139 at 154 and in particular the dictum of Kalgo JSC in Emiri & Ors. V. Imieyeh & Anor (1999) 4 NWLR (pt. 599) 422at 463 paras. F-G. who held thus:-
“Where there is no difficulty in identifying the extent of the land in dispute or the parties have agreed that an identifiable piece of land is in dispute between them, even if they refer to the land with different names, a declaration of title to the land can be made without any plan.”
The position of the Appellant is even more precarious when his Counsel applied and was granted leave for the Court to visit the locus inquo. No objection has been raised about the findings of the Court at the locus and in any case the parties identified the portions of the land in dispute. I have also had a perusal of the Reply to the Statement of Claim and Counter-Claim and not seen where the Plaintiff put the issue of the identity of the land and the area claimed in issue. Accordingly, I agree completely with the submission of the learned Counsel of the Respondents and the holding of the Court below that there was no doubt as to the certainty of the land claimed by the Respondents and if there were any doubt, the visit to the locus would have cleared same. See Briggs V. Briggs (supra) Akosile V. Adeyeye (2011) 17 NWLR (pt.1267) per Uwa, JCA.
In the last cited case my learned brother Uwa, JCA, who read the lead Judgment of Ibadan Division of this Honourable Court ably explained the purpose of visit to locus inquo while relying on Odiche V. Chibogwu (1994) 7 NWLR (pt.354) 78; which I adopt completely as mine that the essence of such exercise by the Court in land matters includes location of the disputed land, the extent, boundaries and boundary neighbour(s) and physical features on the land. It is also to afford the Court the opportunity of visualize objects and places referred to in the evidence physically and to clear any lingering doubts arising about physical objects on the land and boundaries.
I am not oblivious of all the cases cited by learned Counsel for the Appellant in the articulation of his argument on this issue but I beg to hold that these authorities are not relevant to the peculiar facts and circumstances of this case.
On the whole, I must commend the erudite and well reasoned Judgment of the Honourable Justice J. F. Agya of the Gembu High Court which to me is a product of unparalleled hard work, painstaking and dispassionate evaluation of the totality of the oral and documentary evidence placed before him as well as the submissions of learned Counsel on both sides. There is no justifiable reason why this Honourable Court should intervene to set aside that Judgment.
Accordingly, this issue is also resolved in favour of the Respondent. This Appeal is therefore unmeritorious and is hereby dismissed in its entirety. The Judgment of the High Court of Justice, Gembu Judicial Division of Taraba State, in Suit No. TRG /4/2008, per J. F. Agya, J. is hereby affirmed in all its ramifications. Parties shall however bear their respective costs in this Court in the interest of peaceful co-existence.

SOTONYE DENTON WEST, J.C.A.: The Judgment just delivered by learned brother Ignatius Igwe Agube JCA, has been seen and digested by me.
I am in tandem or agreement with his reasoning and conclusions in the said Judgment and therefore I have nothing more to add.
I abide by the Orders made in this appeal in the same manner and to the same effect that “The appeal is dismissed in its entirety and the judgment of the lower Court in Suit No. TRG/4/2008; per J. F. Agya, J. of the Gembu, Judicial Division of Taraba State, affirmed in all its ramifications. Parties shall however bear their respective costs in this Court in the interest of their peaceful co-existence.”

ABUBAKAR ALKALI ABBA, J.C.A.: I agree.

Appearances

A. Umar Esq.For Appellant

AND

G. I. Obomeile Esq.For Respondent