ALHAJI ATANDA BODUNRIN SERIKI & ANOR V. MR. JONAH TOGUN O. ADURALERE (2011)

ALHAJI ATANDA BODUNRIN SERIKI & ANOR V. MR. JONAH TOGUN O. ADURALERE

(2011)LCN/4293(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 16th day of February, 2011

CA/IL/ M.9/ 2009

RATIO

A REPLY BRIEF: WHAT IS A REPLY BRIEF

A Reply-Brief as the name suggests is a reply to new or fresh issues raised in a respondent’s brief. It is not an avenue through which or by which an appellant should canvass or proffer further or repeat arguments in support of an appeal on the pretext of replying on points of law. PER TIJJANI ABDULLAHI, J.C.A.

COUNTER-CLAIM: WHETHER A REPLY IS NOT NECESSARY, WHERE A COUNTER-CLAIM HAS NOT RAISED A FRESH OR NEW ISSUE FROM THOSE ALREADY COVERED BY THE STATEMENT OF CLAIM

Now, it is settled law that a Counter-Claim raises a fresh or new issue. Where the Counter-Claim has not raised a fresh or new issue, a reply is not necessary. In other words, where the issues raised in the Counter-Claim are already covered by the Statement of claim, a reply is otiose See Usman vs. Garke (2003) 14 NWLR (Pt. 840) 261. PER TIJJANI ABDULLAHI, J.C.A.

COUNTER-CLAIM: DUTY OF THE COURT WHERE A DEFENDANT MAKES A COUNTER-CLAIM

PROOF OF TITLE TO OR OWNERSHIP OF LAND: WAYS BY WHICH OWNERSHIP OF LAND MAY BE PROVED; WHETHER PROOF OF OWNERSHIP OF ONE OF THE FIVE WAYS IS SUFFICIENT PROOF OF OWNERSHIP

Now, in considering this issue, the question to be asked from the onset is, how can a claimant establish his claim as to title to land or ownership of land? Let me answer this question by saying that there are five ways of proving or establishing title to or ownership of land. These are, needless to say, by traditional evidence; production of documents of title duly authenticated in the sense that their due execution must be proved; by positive acts of ownership extending over a sufficient length of time; by proof of possession of connected or adjacent land in circumstances rendering it probable that the owner of such connected or adjacent land, would in addition be the owner of the land in dispute. Let me also say that the law is that proof of ownership of one of the five ways is sufficient proof of ownership. See the cases of Ndukaba vs. Izundu (2007) 1 NWLR (Pt. 1016) 432; Adanyi vs. Anwase (2006) 12 NWLR (Pt. 993) 183 and Adesanya vs. Aderounmu (2000) 6 S.C. (Pt. 11) 18. PER TIJJANI ABDULLAHI, J.C.A.

JUSTICES

TIJJANI ABDULLAHI Justice of The Court of Appeal of Nigeria

SOTONYE DENTON-WEST Justice of The Court of Appeal of Nigeria

IGNATIUS IGWE AGUBE Justice of The Court of Appeal of Nigeria

Between

1. ALHAJI ATANDA BODUNRIN SERIKI

2. ISSA BAYO Appellant(s)

AND

MR. JONAH TOGUN O. ADURALERE Respondent(s)

TIJJANI ABDULLAHI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Kwara State High Court of Justice, in Suit KWS/109/99, Coram M. O. Adewara (J) delivered on the 30th day of April, 2008.
The appellants were the defendants whilst the Respondent was the claimant/plaintiff in the lower Court. The Respondent by his writ of Summons dated 17th day of September, 1999 and filed on 30th day of September, 1999 sued the Appellants herein and claimed the following reliefs:
“(1) A declaration that the plaintiff is the only one entitled to the statutory Right of occupancy on a piece or parcel of Land situate at Aduralere Street, Amilegbe Area, Ilorin, Kwara State.
(2) A sum of N20, 000.00 only being damages for trespass to and wanton destruction plaintiff’s of the rand and arable crops such as plantain, banana, mango and orange trees by the Defendants.
(3) Injunction restraining the Defendants either by themselves, agents, servants, privies or through any person(s) however from further trespassing on and destroying the plaintiff’s land and arable crops.”
The appellants as defendants filed their statement of defence consisting of 24 paragraphs and counter-claimed thus:
“WHEREOF the 1st defendant prays:
(a) That all the claims of the plaintiff the (sic) dismissed.
(b) The 1st defendant also counter-claims for an order against the plaintiff to declare as the (sic) illegal the alleged approval of the application for permission to alienate the land in dispute and the alleged sale agreement in paragraph 5 and 15 of the statement of the (sic) claim respectively because they are fraud against the Serike Family.”
The case proceeded to hearing wherein the respondent as plaintiff gave evidence and tendered 4 documents as exhibits 1, 2, 3 and 4. He did not call any witness to testify for him.
In response, the defendants gave evidence in their defence and called one witness. They however did not tender any document as exhibit.
In a reserved judgment delivered on the 30th day of September, 1999 the learned trial judge found for the respondent and held thus:
“Finally, having regard to the evidence adduced and the exhibits tendered in this case, I am satisfied that the claimant has proved his case on the preponderance of evidence and I so hold.
I therefore hold that there is merit in the plaintiff’s suit. Accordingly, I hereby enter judgment in favour of the claimant.
On the contrary, I hold that the defendant’s counterclaim is lacking in merit. Accordingly, it fails and it is hereby dismissed.”

Aggrieved by the decision of the learned trial judge, the appellants approached this Court and filed a notice of appeal containing six grounds and with the leave of the Court granted on 28th day of May, 2009, additional four grounds were filed.

In a brief settled by A. A. Ibraheem, Esq, learned counsel for the appellants distilled three issues for determination from the nine grounds of appeal. The three issues are as follows:
“1. Whether the respondent/claimant has shown valid evidence of grant of the land in dispute by the Seriki Family to warrant the judgment in his favour?
2. If the 1st issue is resolved against the Respondent, whether he can set up adverse title owing to long possession of the land in dispute?
3. Whether the 1st appellant is not entitled to the order of Revocation of 100 ft by 100 ft intended to be transferred to the claimant having failed to pay the consideration for same?
For his port, in a brief settled by Akin Akintoye II, learned counsel adopted the three issues formulated by the appellants but reframes them thus:

“ISSUE ONE
Whether the claimant/Respondent has shown valid evidence of grant of the land in dispute to him by the 1st Appellant’s family to warrant judgment in his favour. (Grounds 1, 2 and 3 of the original notice of appeal and Grounds 1 of the additional grounds of appeal).

ISSUE TWO
Whether the claimant/Respondent’s claim to long possession on the land in dispute has been established. (Ground 4 of the original Notice of Appear and Grounds 2 and 3 of the additional Grounds).

ISSUE THREE
Whether the dismissal of the Appellants, counter claim of a declaratory order of Revocation of the purported 100 feet by 100 feet piece of rand transferred to the claimant is justified. (Grounds 5 and the Notice of Appeal and Ground 4 of additional Ground).”

On the 23rd day of November, 2010, when the appear came before us for hearing, learned counsel for the appellant, Mr. A. A. Ibrahim adopted his brief of argument dated 11th day of May, 2009 but was deemed properly filed and served by order of this Court granted on the 28th May, 2009 as well as his reply brief filed on 27th October, 2009. Learned Counsel urged us to allow the appeal and set aside the judgment of the lower Court.
Learned Counsel for the respondent, Mr. Akintoye II also adopted his brief dated 20th October, 2009, but was deemed filed by the order of the Court on the 21st of October, 2009. He urged us to dismiss the appeal in its entirety for lack of merit.

Let me, at this juncture, before delving into the issues for determination make a few comments on the Reply-Brief filed by the appellants’ Counsel.
A Reply-Brief as the name suggests is a reply to new or fresh issues raised in a respondent’s brief. It is not an avenue through which or by which an appellant should canvass or proffer further or repeat arguments in support of an appeal on the pre of replying on points of law. A cursory look at the Reply-Brief filed by the appellant would reveal the fact that this is exactly what the learned Counsel for the appellants has done in his Reply-Brief spanning over six pages. This is contrary to Order 17 Rule 5 of the Rules of this Court. See also the cases of Popoola vs. Adeyemi (1992) 8 NWLR (Part 239) p. 933 and Adebiyi vs. Sorinmade (2004) All FWLR (Part 239) p. 933. For the foregoing reasons, the Reply-Brief of the learned Counsel will not be given any consideration in this judgment.

Issue No. 1 is whether the respondent/claimant has shown valid evidence of grant of the land in dispute by the Seriki family to warrant the judgment in his favour. In arguing this issue, learned Counsel referred to paragraphs 4, 5 and 16 of the Statement of Claim and contended that by the said paragraphs, the respondent relied on grant as his root of title to the land in dispute and this evidence of title, learned Counsel went on, and must be clearly established in accordance with the law. He must first of all establish the fact that the land was actually granted to him by the original owner in accordance with the law, learned Counsel further contended.
It is the contention of the learned Counsel that the only root of evidence of grant relied upon by the claimant is exhibit 4. Learned Counsel argued that, that exhibit cannot confer title on the claimant because of the followings:
(1) It was not signed by the head of the family of the original owner of the land in dispute.
(2) The signatures of the original family were denied by the appellants and their witnesses.
Whilst being cross-examined, the respondent in his answers stated inter-alia as follows:
“(a) It was him (Bodunrin) Seriki that I went to meet along with his co-brothers. See page 101 lines 4 to 6 of the record of proceedings.
(b) Bodunrin Seriki, the defendant’s father was the eldest member of Seriki Family in 1973. See pages 101 lines 22 – 24 of the record of proceeding and page 104 lines B and 9 and 27 to 28.”

Learned Counsel canvassed the point that the respondent/claimant did not file reply to the statement of defence and counter-claim to controvert the averments in paragraphs 9, 10, 11, 12, 13, 14, 15, 16, 18, 20, 21 and 24 (b) (i, ii, iii, iv and v) of the Statement of defence and Counter-claim. Learned Counsel contended that it is trite law that averment in a pleading not controverted by the other party is deemed admitted. For this contention, learned Counsel relied on the cases of Egesimba vs. Onuzuruike (2002) 9 – 10 SC 1 at 8 and Cappa and D’Alberto Ltd. vs. Deji Akintilo (2003) 4 S.C. (Pt. II) p. 1 at p. 12.
It is the submission of the learned Counsel that the undiscredited evidence of the appellants and their witnesses go to show that ownership of the land in dispute and who was entitled to transfer same were in issue and the Respondent has a duty to establish before the court below, whether it is the family of Seriki that has the authority to transfer the land in dispute, since the trial court has held that exhibits 2 and 4 are incurably bad. The Respondent must call witnesses to corroborate his assertion in the statement of claim on grant or sale of land in dispute.
Learned Counsel further submitted that the uncredible evidence of the respondent alone is not enough to prove evidence of grant of the land in dispute more so that the appellants did not admit the respondent’s claim.

It is the contention of the learned counsel that the respondent was not laying his claim on the land in dispute through customary law, but under English land law and through a conveyance or an agreement dated 13th day of May, 1973, i.e. exhibit 4 which was prepared by a legal practitioner. Learned Counsel further contended that in view of the foregoing, the learned trial judge misdirected himself in law to have resolved to consider the claim of the respondent under customary law. The case of Adedeji vs. Oloso and Anor (2007) 1- 2 S.C. 76 at 100 – 101 is not applicable since the case was decided on a claim of land under customary and native law of Ijesa, learned Counsel further contended.

Assuming but not conceding to the application of customary law in this suit, learned Counsel submitted that the respondent has failed to prove sale of the land in dispute under customary law, because by the authority of the case of Adedeji vs. Oloso and Anor (supra) the respondent must establish the followings:
1. There must be payment of money or agreed consideration.
2. The transaction must be witnessed by witnesses.
3. The actual handing over of the land must be done in the presence of the same witnesses.
It is the contention of the learned Counsel that the respondent did not establish any of the conditions listed supra as such the holdings of the learned trial judge has occasioned urged miscarriage of justice. We were to allow this appeal on this issue alone.
Learned counsel submitted that though a claimant can succeed on any of the five ways of proving title to land in case where the claimant relies on grant as means of title to the land in dispute, he must succeed on establishment of valid grant and where he fails, can not rely on the evidence of possession to claim ownership no matter the number of years he used on the land in dispute.
Learned counsel further submitted that, since the respondent has failed to prove valid grant he cannot rely on evidence of possession to claim ownership on the land in dispute. For this submission, learned Counsel relied on the cases of Oyedare vs. Keji (2006) 2 W.R.N. 1 at 19 and Ukaegbu vs. Nwololo, 3 NWLR (pt. 112 7) 194 at 220 – 221. We were urged to resolve this issue in favour of the appellant.
On the other hand, learned counsel for the respondent took view that the trial judge was guided by the five acceptable ways of proving title to land enunciated in Idundun vs. Okumagba (1979) 10 S.C. 227. The learned counsel went on to say that the learned trial judge right found that the claimant hinged his claim on three of the five ways to
1. Production of the documents
2. Exercise of acts of ownership extending over a sufficient length of time.
3. Acts of long possession and enjoyment.
Learned Counsel contended that though the trial judge invalidated Exhibit 4 on the ground that it was not validly executed by the parties, particularly Bodunrin Sereki, the 1st defendant’s father who did not sign the agreement, the learned trial judge, Counsel went on, was quick to rightly apply the principles of the law to the case when he stated thus:
“Perhaps, it is necessary to state here that in order to succeed in an action of title to land, a Plaintiff need (sic) not prove all the five ways of proving title to land. A Plaintiff can succeed if he proves even one of the ways … See Ojoh vs. Kamalu (2006) 6 WRN 110 @ 127.”
Learned Counsel further submitted that the learned trial judge appraised the evidence before him by using the testimonies of the 1st and 2nd defendants under cross-examination together with Exhibit 1 to find in favour of the claimant/respondent that there was a valid grant of the land in dispute to him.
Learned Counsel referred to the brief of the Appellants’ Counsel wherein they argued that the claimant relied on exhibit 4 as his only root of title. Learned Counsel for the respondent took the view that they (Counsel for the appellants) are not right, for before the lower Court, there is the evidence of the two defendants confirming the grant of land to the claimant. Corroborating this evidence, learned Counsel went on, are exhibits 1 and 3. Learned Counsel then submitted that the law is now trite that, a plaintiff can rely on the evidence of the defendant to strengthen his own case. For this submission, learned Counsel relied on the case of Lawson vs. Afani Continental (2002) FWLR (Pt. 109) p. 1736 at p. 1765 paras.A-B.
It is the contention of the learned Counsel that, the defendants (appellants) by their own admission orally during cross-examination buttressed the claimant’s claims of grant of the land in dispute to him by the Seriki family through Bodunrin Seriki the 1st defendant’s father.

Learned Counsel submitted that this piece of evidence constitutes solemn admission on the part of the defendants which is against their interest. He relied on the case of Adeyeye vs. Ajiboye (1978) 1 SCNJ to buttress his submission on this point.
Learned Counsel argued that evidence abound that the father of the 1st defendant granted the land in dispute to the claimant in the presence of the 1st and 2nd defendants in 1973 that being so, learned Counsel went on, the grant under customary law has been established. This being the case, learned Counsel went on, the size and scope of what was granted is a different issue and in fact a none issue, he further stressed.
As to the size of the land in dispute, learned Counsel, argued that paragraph 1 of the statement of claim has admitted the dimensions of the land pleaded in paragraphs 4 and 6 of the statement of claim. This learned Counsel further contended is evident in Exhibit 3. He then submitted that it is trite that, what has been admitted need no further prove.
On the assertation of the appellants that the grant of the land to the claimant cannot be valid because the land in dispute was not jointly owned by the Seriki family but by the 1st defendant’s father by reason of petition and that, the said Seriki family has no right to transfer the land, learned Counsel submitted that the said assertation is completely devoid of any substance because, according to the learned counsel, the defendants have by inference admitted the source of grant of the land by the seriki family to the claimant when in their paragraph 1 of their defence admitted paragraph 6 of the statement of claim which incorporates paragraph 4. The law is trite that what is deemed admitted need no further prove, learned Counsel further submitted.
Now, in considering this issue, the question to be asked from the onset is, how can a claimant establish his claim as to title to land or ownership of land? Let me answer this question by saying that there are five ways of proving or establishing title to or ownership of land. These are, needless to say, by traditional evidence; production of documents of title duly authenticated in the sense that their due execution must be proved; by positive acts of ownership extending over a sufficient length of time; by proof of possession of connected or adjacent land in circumstances rendering it probable that the owner of such connected or adjacent land, would in addition be the owner of the land in dispute. Let me also say that the law is that proof of ownership of one of the five ways is sufficient proof of ownership. See the cases of Ndukaba vs. Izundu (2007) 1 NWLR (Pt. 1016) 432; Adanyi vs. Anwase (2006) 12 NWLR (Pt. 993) 183 and Adesanya vs. Aderounmu (2000) 6 S.C. (Pt. 11) 18.

The next question to be asked is, whether in the light of the evidence adduced by the claimant/plaintiff, it can be said that, he has established his title to the land in dispute by one of the five ways adumbrated above to entitle him to get judgment as adjudged by the learned trial judge in the case under consideration. To answer this question, recourse had to be made to what transpired in the lower Court as can be gleaned from the record.
As can be seen from page 111 of the record, the learned trial judge found as fact that the claimant anchored his claims on three of the five ways of proving title to land, namely:
(1) Production of title documents
(2) Exercise of acts of ownership extending over a sufficient length of time and
(3) Acts of long possession and enjoyment.
It is instructive to note that the learned trial judge in his judgment has nullified exhibit 4, on the ground that same was not signed by 1st defendant’s father but on the other two ways stated supra, the learned trial judge in a-well-considered judgment held inter alia thus:
“The plaintiff has shown by his pleadings and Deposition on oath that he has been on the disputed land since 1973, and that it was not until sometimes in 1996 that he started noticing same strange face later to be identified as 1st defendant’s men.
This evidence of long possession does not stand alone uncorroborated. The 2nd Defendant Musa Bayo under cross-examination said:
The Claimant has been coming unto the land before he built his house on the land. It was a long time. I cannot remember.

In a similar vein the 1st Defendant, Alh Atanda Bodunrin also has this to say under cross-examination;
I know the claimant when he was coming to my father to request for land. My father eventually gave him the land. I was the one who begged my father to allocate the land to him. The land in question is at Aduralere. The claimant started living at Aduralere only after my father died. He started to live in the house at Aduralere about a year after the death of my father.
The evidence of long possession of the claimant is further reinforced by Exhibit 1 which is government’s approval for numbering and naming of the main street in the area where the disputed land situates as “Aduralere Street” after the plaintiff’s name.
The fact that an approval was given by Ilorin Town Council for naming and numbering of the main street in the disputed area as “Aduralere street” apparently after the Plaintiff’s name is no doubt of great significance. The inference to be drawn is obvious.”
A close look at the evidence adduced by the parties, would reveal the fact that the 1st defendant whilst being cross-examined, admitted that he knew the claimant the year before his father (Bodunrin) died and his father died in 1974, This, to my mind, means that the claimant’s presence on the disputed land has been since 1973.

It is noteworthy to observe at this stage that the consideration and appraisal of evidence by the learned trial judge as adumbrated above which led to the findings and holdings in favour of the claimant are commendable and an excellent application of the law to the facts and circumstances of the case in hand.
Again, it can be seen from the evidence adduced by the parties that the two defendants gave evidence confirming the grant of land to the claimant when they testified as follows:
“1st Defendant’s witness. Moslem, sworn on Holy Koran speaks Yoruba. I am Alhaji Yahay Baba seriki of Ile Gambari Compound, Ilorin. On 11/5/06, I remember deposing a statement on oath in respect of this case. I seek to adopt the written statement on oath as my evidence in this case.
Xx – Examination by Mr. Akintoye II:
The land in dispute in this case is at Aduralere area Ilorin. The place has become known as Aduralere since around 1974. I am now 58 years old.
I know the Claimant in this case. I don’t know this claimant as Aduralere.
I know somebody called Akano Seriki, Akanbi Seriki and Oba Seriki. I also know one Bodunrin Seriki. The above mentioned people are my uncles. We are of the same blood.
I know the Claimant when during the life time of our father, he used to come to our father (Baba Bodunrin). That was around 1969 – 1970.
The Claimant has no land at Aduralere area. The claimant lives at Aduralere. He is the owner of the building where he lives at Aduralere.
The 1st defendant is the first son of Alh. Bodunrin Seriki. I know that Bodunrin Seriki, Akano Seriki and Oba Seriki are brothers. They are all dead now.
I can not remember in which order they died. The eldest of them was Alh. Bodunrin Seriki.
Re-Examination:
2nd Defendant
Moslem, sworn on Holy Koran. Speaks Yoruba.
I am Alhaji Musa Bayo the 2nd Defendant in this case. I live at Baboko. On 11/05/2006, I deposed to a written statement on oath concerning this case. I can identify the written statement if seen. I seek to adopt the statement as my evidence in this case.
Xx -Examination by Mr. Akintoye II.
I am about 60 years old. The disputed land is situated in a place called Dumo in those days. But it is now known as Aduralere. The place has been called since about 20 years ago. I don’t know that the name Aduralere is an official name recognized by the Local Government.
I know the Claimant in this case. I have known him for about 30 years now. He is a Carpenter and I am a driver. He lives at Aduralere. He is the owner of the house where he lives. I can not know when he started occupying the house.
I know Alh. Bodunrin Seriki . He is my father. I am not from Seriki family. I am a tenant on the land of Seriki family. I have been on that land for the past 60 years. We excavate sand on the land. I have no building on the land.
Alh. Bodunrin Seriki is the father of the 1st defendant. Akano seriki, Akanbi Seriki and Oba Seriki are all brothers to Alh. Bodunrin Seriki.
I know the land in dispute. The land is not up to 5 plots of land.

The Claimant has been coming into the land before he built his house on the land. It was a long time, I can not remember. I pay tribute annually to seriki family for making use of their land. I am the person in charge of sand evacuation on the land. We use to evacuate sand at the back of Asa River.
The place where we evacuated sand in those years is still the same up till today.
Re-Examination by Mr. A. A. Ibrahim”
A close look at the testimonies of the appellants as defendants in the lower Court have no doubt corroborated exhibits 1 and 3, i.e. application for numbering and naming a street after the name of the claimant and the site plan of the land in dispute tendered and admitted in evidence in the lower Court. It is settled beyond dispute that a plaintiff can rely on the evidence of the defendant to strengthen his own case. See the case of Lawson vs. Afaru continental (2000) FWLR (Pt. 109) p. 17261.

Learned Counsel for the appellants vigorously canvassed the position of his clients that what was granted to the claimant is 100 ft by 100 ft which the claimant has not paid yet and not 2752 ft by 400 ft by 520 ft by 201 ft; this to my mind is an afterthought and infact, if I may say so did not remove the fact of the grant. At any rate, assuming though not conceding that the position is otherwise, the onus lies with the appellants to prove that the land which their father – Bodunrin Seriki granted the plaintiff in 1973 is limited to 100 ft by 100 ft and not as claimed by the claimant. This onus, I dare say has not been discharged by the appellants. I am strengthened in this view by the provision of Section 146 of the Evidence Act and the cases of Idundun vs. Okumagba (1976) 9 – 10 S.C. 277 and Lawal vs. Ijale (1967) NMLR 155.
In the case of Okechukwu vs. Okafor (1961) 1 All WLR p. 685 at 691, it was held thus:
“Where the land in dispute is in the midst of and is entirely surrounded by other lands belonging to the plaintiff this is enough to decree title in favour of the plaintiff.”
It is pertinent to state, once more that the fact that the claimant has been in possession and built his house therein since 1974 on the land is not in dispute and this being the case, I am of the considered view that the appellants’ assertion that the grant of land to the claimant is limited to 100 ft by 100 ft is very much an afterthought.
Let me also ask, why did the appellants/defendants have to wait till 1994, 21 years after, as they claimed to challenge the propriety of the grant on the ground of a purported none payment of consideration? What consideration and how much, it was not pleaded and claimed. The sum of N2000 only came up in the 1st Defendant’s Statement on Oath. The law is that evidence of facts not pleaded is irrelevant, not admissible and goes to no issue. See Adimula vs. Ajufo (1988) 6 SCNI 38.

Learned Counsel for the appellants made heavy weather of the fact that, the claimant’s claim and title to the land in dispute is invalid because it was not jointly owned by the Seriki family but by the defendant’s father by reason of partition, but with due respect to the learned Counsel what amounts to partition of the family land is a matter of facts which must consist of copious averments in the pleadings about the alleged partition and cogent and positive evidence of partition must be adduced to buttress the averment. See the case of Adeyori vs. Adeniran (2001) FWLR (Pt. 76) 694.
In the light of the foregoing reasons, I am of the considered view that the learned trial judge was right to have held thus:
“In the instant case, apart from the averment in paragraph 3 of the defendant’s statement of defence and paragraph 2 – 3 of the 1st defendant’s deposition on oath, that the disputed land has been partitioned to late Bodunrin Seriki, there is no cogent and positive evidence of partition adduced before the court ….. The onus is therefore on the defendant who alleges partition of the Seriki family to give details of the alleged partition showing:
(a) The alleged partition
(b) Which branch of the family got what portion of the land?
(c) The branch or individuals that became owners of the land in dispute.
See Adeyori vs. Adeniran (supra). I am of the view that none of these has been established by the defendants in this case. I therefore hold that the defendant’s claim of partitioning of the land has not been proved.”

Again, let me also state that since Bodunrin Seriki was the eldest and head of the family, his grant of portion of land to the claimant in 1973 is valid either in that capacity as head or as the owner of the land to whom same was purportedly partitioned. His none signing or execution of Exhibits 2 and 4 cannot water down or erode the clear evidence/admission of the defendants that Bodunrin Seriki and/or the Seriki family granted portion of land to the Claimant. The oral evidence of the Claimant under oath also buttresses this point.
On proof of sale of the land to the respondent, looking closely at the evidence adduced by the parties would reveal the fact that the appellants have again supplied the needed evidence during their cross-examination. For instance, they admitted during cross-examination that they took the claimant (respondent) and showed him the land. On this issue (sale of the land) I am of the considered opinion that their grouse on the lack of consideration is spurious. In the first place, the amount was not stated by them and secondly, the purported claim was made 21 years after the transaction was concluded. In addition, the respondent said emphatically during cross-examination that he paid for the land in dispute. The respondent testified inter-alia thus:
“It is true that I once applied for a loan from the Ministry of Trade and Industry. I never applied for the loan to pay for the land. I have already gotten the money for the land with me before I bought the land … I have paid for the land in dispute. It was the money that the defendant used in building the mosque”. (Underlining supplied for emphasis).

It is noteworthy to observe that this piece of evidence of the respondent adumbrated above, clearly clarifies the issues of none payment of consideration for the land. The appellants who allege it have not proved the contrary. The money, needless to say, is not meant for them but for their father, and their father was not said to have complained payment of none of consideration if any or given the appellant (defendant) authority to collect same before he died.

In the fight of the foregoing reasons, this issue is resolved in favour of the respondent and against the appellants.

The next issue for determination is issue No. 2 which reads thus: “If the 1st issue is resolved against the respondent whether he can set up adverse title owing to long possession of the rand in dispute.” But for the penultimate status of the court, one can rightly say that this issue is no longer a live issue for I have resolved the first issue in favour of the respondent not against him. Be that as it may, consideration will be given to this issue anon.
In arguing this issue, learned counsel began with the well-known principle of law which is to the effect that, it is well settled beyond peradventure that where the pleaded title to land has not been proved it would be unnecessary to consider acts of ownership and possession which acts are no longer of possession but acts of trespass. It is the submission of the learned counsel that once a claimant has failed to prove valid grant of the land in dispute’ he can not rely on acts of ownership and possession. The learned trial judge, learned counsel went on to submit, was wrong to have held thus:
“With the abundant evidence before me to the fact that the plaintiff has been on the land in dispute exercising act of ownership unchallenged for about 25 tears (1973 – 1996), I have no difficult whatsoever to hold that the plaintiff has established his ownership and possession to the land in dispute.”
For this submission, learned Counsel relied on the cases of Oyadare vs. Keji (2009) 2 W.R.N. 1 at 19 and Ukaegbu vs. Nwololo (2009) 3 NWLR (Pt. 1127) 194 at 221.

On this point again, learned Counsel submitted that where title of a claimant is defective like the respondents in this case, he can not rely on acts of long possession even if he occupies the land in dispute for a period of 200 years as was decided in the case of Kojo vs. Wusu (1938) 4 W.A.C.A. 96 at 100.
It is the contention of the learned Counsel for the appellant that, respondent has not adduced evidence be it oral or documentary to show that evidence of exercising right of ownership of the land in dispute apart from where he built a house on the piece of land 100 ft by 100 ft sold on credit to him. All these, learned Counsel went on, cannot mature to be a lawful possession for a long time as held by the trial judge. The holding of the learned trial judge on long possession of the land in dispute, learned Counsel further contended, has occasioned miscarriage of justice. For this submission, learned Counsel relied on the case of Mafimisebi and Anor vs. Ehuwa and Another (2007) 1 S.C. (Pt. 11) 73 at 122 – 123.
Again, learned Counsel submitted that the act of possession alleged by the respondent in paragraphs 10 and 11 of the Statement of defence were not proved. This is not because the respondent has failed to call any of the persons he sold the alleged 10 plots of land to or tender any document relating to the alleged transfer nor did he adduce any evidence with regard to arable and cash crops alleged to have been destroyed, learned Counsel further submitted.
Learned Counsel contended that the holding of the learned trial judge on long possession was based on exhibits which learned trial judge has held to be invalidly executed and amounted to an incurable defect to re-enforce the act of long possession by the respondent. This somersault of the trial judge, learned Counsel further contended, has occasioned miscarriage of justice. He urged us to resolve this issue in favour of the appellants.
For his part, learned Counsel began his consideration of this issue which he reframed to read; whether the claimant/respondent claim to long possession on the land in dispute has been established, by contending that it is trite that acts of long possession and enjoyment is one of the ways of proving title to land. For this contention learned Counsel relied on the case of Idundun vs. Okumagba (1979) 9/10 5.C.227 at 246 – 250.
Learned Counsel is of the view that, it is not in dispute that the claimant came to own and live on the land in question since 1973 by purchase/grant from the 1st defendant’s Seriki family through his father – Bodunrin Seriki. What seems to be in dispute, learned Counsel contended, is the extent of the land, i.e. whether it exceeds 100 ft by 100 ft (2 plots) claimed by the appellants or up to 2752 feet by 400 ft by 520 feet by 201 ft (45 plots) as claimed by the respondent.

In proof of the extent of the land, learned Counsel contended that the claimant/respondent tendered four documents which were admitted as exhibits 1, 2, 3 and 4. Though Exhibits 4 and 2 were held to be invalid, same cannot be said of exhibits 1 and 3; Exhibit 1 is an approval from the Local Council naming the area and scope of the land after the name of the claimant/respondent – Aduralere and Exhibit 3 which is the site plan indicating the dimension of the land together. The two exhibits learned Counsel went on, supplied the evidence of the pleaded facts in paragraph 4 of the Statement of Claim and impliedly admitted in paragraph 1 of the Statement of Defence.
Now, it is noteworthy to observe that evidence abound and in fact it is not in dispute that the presence of the respondent on and possession of the land whether 100 ft by 100 ft or more has been noticeable since 1973. It is also noteworthy to observe that he cannot be physically present on the whole expanse of land (45 plots) at the same time. The question to be asked at this stage is, if the respondent does not own and possess the expanse of the land in dispute would the area be named after him by the town Council? The answer to this question must be in the negative. That is to say if not because he owns the land and is in possession of it, the area Council would definitely not have named the area after his name. I am of the further view that if he (appellant) does not possess it (land) the appellants and their family would not have slept over it since 1973 to 1994 before they purportedly challenged him in the Upper Area Court.

Again, it is instructive to note that the record of proceedings of this purported Upper Area Court action was not tendered in evidence by the appellants to prove the fact that in the year 1994, they in fact challenged the possession of the respondent. One cannot but agree with the respondent that it was only in 1996 that he started noticing the presence of strange people on the property, a period of over twenty-three years since he came in possession of the land.
I am of the firm view that the holding of the learned trial judge on long possession of the land in dispute by the claimant is good, unshaken and commendable as well. They (holdings) represent the true position of the law, well applied to the fact of the case in hand. I am also of the further view that no miscarriage of justice has been occasioned. The holdings if I may so are well justified in the light of the evidence and circumstances of the case as encapsulated in the record of proceedings.

That aside, the testimonies of 1st and 2nd appellants in the lower Court, as adumbrated elsewhere in this judgment actively and greatly contributed to the findings of the trial Court on the issue of ownership and long possession and this alone is enough to disallow this appeal as was decided in the case of Sokwo vs. Kpongbo (2008) 2 SCNJ, 36, where the appellant, like the appellants in this case, under cross-examination admitted the fact that the Aguma chieftaincy was in fact the creation of colonial government.
In the light of all that has been said, this issue like the previous issue is resolved in favour of the respondent and against the appellants.

Last but not the least issue for determination is issue No. 3, which is whether the 1st appellant is not entitled to the order of Revocation of 100 ft by 100 ft intended to be transferred to the claimant having failed to pay the consideration for same. This issue is not dissimilar to the third issue as reframed by the learned Counsel for the respondent.
Learned Counsel for the appellants argued that the 1st appellant by paragraphs 3, 9, 10, 11, 12, 13, 14 and 15 of the Statement of defence and Counter-claim averred that the respondent was only allowed on the land measuring 100 ft by 100 ft on credit. Learned Counsel further argued that the appellants in their testimonies corroborated the averments in the Statement of defence and Counter-claim and further called one witness who is a member of Seriki Gambari family. The 2nd person called by the appellants though he died in the course of the proceedings, his depositions on oath can be found at page 54 to 55 of the record of proceedings. Learned Counsel further argued that the respondent did not file reply to the averments in the paragraphs referred above and did not cross-examine the appellants and their witness on the point.

Learned Counsel conceded the point that the defendants Counter-claiming also has a burden to prove their Counter-claim but he contended that the evidence before the Court as contained in the record of proceedings are enough to sustain the granting of the Counter-claim. For this contention, learned Counsel relied on the evidence of the appellants’ statement on oath at pages 48, 49, 50, 51 and 52 of the record of proceedings and the evidence of DW 1, Mr. Yahaya Baba Seriki, a member of Seriki Gambari Family at pges 103 to 104 of the record of proceedings.
It is the submission of the learned Counsel that failure of the respondent to controvert all the averments in respect of the paragraphs referred to above, left the 1st appellant with only minimal proof. Learned Counsel further submitted that the evidence of the appellants both in the main case and the Counter-claim remained uncontroverted and unchallenged by the respondent and the trial judge has no option but to rely upon such evidence. In support of this submission, learned Counsel relied on the cases of Amayo vs. Erinmingbovo (2006) 5 S.C. (Pt. 1) 1 at 15 and Iyere vs. Bendel Feed and Flour Mills, (2008) 7 – 12 S.C. 151 at 187.

Learned Counsel contended that the trial judge did not evaluate all the material evidence of partitioning and he also refused to consider paragraph 10 of the 2nd defendant/appellant and the testimony of the D.W 1 at pages 5 – 57 of the record of proceedings particularly paragraphs 3 and 4 of the Statement on oath of the witness. It is his further contention that the trial judge also lost sight of the fact that the issue of the partitioning is not between members of the Seriki family and in view of this, learned Counsel went on, there is no need for the respondent to know the extent of the land partitioned to the 1st defendnt’s father or the date when it was partitioned and for this, the case of Adeyori vs. Adeniran (2001) FWLR (Pt. 76) 694 is not on all fours with the facts of the case in hand and is therefore not applicable.

It is also the submission of the learned Counsel that the cases of Christian Okeke vs. A. G. Anambra State and others (1992) 1 NWLR (Pt. 237) and Muhammed vs. Nwobodo (2000) FWLR (Pt. 15) 2546 at 2548 are not applicable to the facts of the case in hand because the 1st appellant and their witness gave evidence in support of the Counter-claim and has satisfied the requirement of proof of his Counter-claim. We were urged to resolve this issue in favour of the appellants.

On the other hand, learned Counsel for the respondent argued per contra and submitted that it is trite that a defendant who files a Counter-Claim is like a plaintiff in the main suit, and as such has the onus of proving his Counter-claim. For this submission, learned Counsel relied on the case of Cornellius Anjorin Lelile vs. Registered Trustees of C and S (2003) 1 SCNJ 463 to buttress his submission.
Again, learned Counsel further submitted that it is also trite that the fact that a plaintiff filed no defence or reply to a Counter-claim does not mean that the Counter-claim will be taken as established, He relied on the cases of Okeke vs. A.G. Anambra state and Muhammed vs. Nwobodo (supra) in support of his submission.

It is also settled that where the defendant makes a Counter-Claim, the Counter-Clam must be adequately considered in the judgment of the trial Court and the trial Court must either uphold or dismiss it depending on the facts and circumstances and law applicable to the particular case. See the case of Musa vs. Yusuf (2006) 6 NWLR (Pt. 977) p. 454.
Again, in the case of Mohammed vs. Nwobodo supra, it was held ad follows:
“Since the claim in the Counter-claim includes a declaratory right, the Respondent still had to satisfy the court that he is entitled to the declaration sought regardless of the failure of the Appellant to file a defence…. The fact that the Appellant filed no reply to the counter-claim, therefore is of no moment”
Having stated the law and all that on this issue, it is appropriate at this juncture to delve into the record of proceedings with a view to finding out whether the learned trial judge has adequately considered the Counter-claim of the appellants as raised in their statement of defence.
A careful and meticulous examination of the record of proceedings of the trial Court would reveal the fact that it is true that the respondent did not file a defence or reply to the appellants’ Counter-claim. That however is not the end of the matter. It can clearly be seen that the learned trial judge however took his time to carefully consider the facts of the case before him and the position of the law as enumerated above before coming to the conclusion that the Counter-claim is lacking in merit. Hear the learned trial judge:
“In this case, apart from the depositions in the defendants’ statement of defence, there is no credible evidence in support of the Counter-claim.”
See p. 118 of the Record.
Let me say that I cannot agree more with the views expressed by the learned trial judge supra. I am also of the view that this is a true picture of the case at the Court below. This being the case, I am of the further view that the respondent is under no obligation to respond to the Counterclaims that lack substance and credible evidence.
That aside, the allegations of forgery and fraud of Exhibits 2 and 4 were not proved at all. In the same vein, the allegation of failure of the Claimant to pay consideration of a land purchased in 1973 which is now a subject of Revocation 25 years thereafter was strange to the learned trial judge. And indeed will be strange to any right thinking person. The learned trial judge found as follows:
“The 1st defendant under cross-examination stated that he knew the Claimant about one year before his father died in 1974.
He also stated that he knew the Claimant when he was coming to his father, late Alh. Bodunrin Seriki requesting for land which land, he said, his father eventually gave to the Claimant.
He however said that the Claimant has up till now (sic) paid for the land which was why he said he instituted an action at the Upper Area Court against Claimant. The 1st defendant however did not tender the proceeding of the Upper Area Court.
… Besides, it is hard to believe that the 2 plots of land could be sold to claimant following whom he was led into possession since 1973 without him paying the required consideration”.

See page 118 of the Record.
It is note worthy to observe that the learned trial judge was right to hold that the appellants have not proved their Counter-claim, and there is nothing in the said Counter-claim that warrants filing a defence or reply. I am of the considered view that claims are not granted on a platter of gold. They must be proved.
I pause at this stage to say that, in another breadth, it can be said from the judgment of the lower Court, that when Exhibit 4 the Sale Agreement was declared invalid on grounds of non-execution, a part of the Appellants’ counter-claim paragraph 24(b) has been taken care of. Even though this was not specifically stated in the judgment, it can be inferred. The Appellants have not suffered any miscarriage of justice on this court.
This issue, like the previous two issues before it, is resolved in favour of the respondent and against the appellants.
In conclusion, all the issues having been resolved in favour of the respondent, this appeal fails. It is completely devoid of any merit and same is hereby dismissed with N50,000.00 costs in favour of the respondent and against the appellants’

SOTONYE DENTON WEST, J.C.A.: I have read the lead judgment of My Noble Lord TIJJANI ABDULLAHI, JCA, I am in complete agreement with his reasoning’s and conclusion that this appeal is completely devoid of any merit and is hereby dismissed.
My Lord has ably done justice to all the issues that arose for determination in this case, I have nothing more to add than to abide by his reasoning’s and conclusion made therein.

HON. IGNATIUS IGWE AGUBE, J.C.A.: I have read in advance the erudite Judgment of my Lord the P.J and I cannot but agree more with him that this Appeal lacks merit and should be dismissed. My Lord has characteristically delved into the issues raised by the parties in detail and I have nothing more to add than to say that the learned trial Judge who had the singular opportunity of hearing and watching the demeanour of witnesses at the trial Court, had adjudged the Plaintiff/Respondent as the owner of the land in dispute having met the necessary criteria of proving declaration of title to land as laid down in the celebrated case of Idundun v. Okumagba (1979) 10 SC 227. See also Balogun v. Labiran (1988) 6 SCNJ 71; Olubodun v. Lawal (2005) 35 NSCQR 570; Eze & Ors v. Atasie (2000) 6 SCNJ 209; Olohunde & Anor v. Professor S. K. Adeyoiu (2000) 6 SCNJ 290 and Elema & Anor v. Princess Christy A. Akenzua (2000) 6 SCNJ 226.

As for the counter-claim of the Defendant/Appellant, I also agree with the conclusion of my Learned Lord and brother that the learned trial Judge carefully evaluated the totality of the evidence elicited by the respective parties particularly those of the Defendant/Appellant and found the counter-claim not proven. In the circumstance, the counter-claim was rightly dismissed and I lend my voice in dismissing the Appeal with N50,000.00 costs in favour of Respondent.

Appearances

1. Akin Akintoye II
2. Ishmael Mustapher, Josiah AdebayoFor Appellant

AND

1. AKin Akintoye II
2. Ishmael Mustapher, Josiah AdebayoFor Respondent