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ALI & ORS v. MATHEW & ORS (2022)

ALI & ORS v. MATHEW & ORS

(2022)LCN/16186(CA)

In the Court of Appeal

(KADUNA JUDICIAL DIVISION)

On Thursday, June 30, 2022

CA/K/312/2020

Before Our Lordships:

Mojeed Adekunle Owoade Justice of the Court of Appeal

Amina Audi Wambai Justice of the Court of Appeal

Bitrus Gyarazama Sanga Justice of the Court of Appeal

Between

1. IBRAHIM ALI 2. HABIBA DOGARA 3. BATURE MACHU 4. IRIMIYA DOGO APPELANT(S)

And

1. GORA M. MATHEW 2. IBRAHIM SANAKA 3. ISHAYA B. SANAKA 4. KAURA YARO RESPONDENT(S)

 

RATIO

WHETHER OR NOT A PARTY CAN RELITIGATE A MATTER WHICH HAD BEEN A SUBJECT OF LITIGATION AND DETERMINED BY A COMPETENT COURT

It is a principle of law now well settled that a party is estopped from relitigating a matter which had been a subject of litigation and finally determined by a competent Court of law. By the operation of estoppel per rem judicatam, parties are precluded from relitigating the very issue that had been finally determined by a Court of competent jurisdiction. See AFOLABI & ORS V. GOV. OF OSUN STATE & ORS (2003) 13 NWLR (Pt. 836) 119 DZUNGWE V. GBISHE & ANR (1985) 2 NWLR (Pt. 8) 528.
Estoppel per rem judicatam otherwise known as estoppel by record arises where an issue of fact has been judicially determined in a final manner between the parties by a Court or a Tribunal having jurisdiction, concurrent or exclusive in the matter and the same issue comes directly in question in subsequent proceedings between the parties or their privies. The parties affected are stopped from bringing a fresh action before any Court on the same case and on the same issue already pronounced upon by the Court in a previous action.
Therefore, where a competent Court has determined an issue and entered judgment thereon neither of the parties to the proceedings may relitigate that issue by formulating a fresh claim since the matter in the circumstance, will be said to be res judicata.
PER WAMBAI, J.C.A.

THE ESSENCE OF A PLEA OF ESTOPPEL
A plea of estoppel by its very essence connotes a bar against an action. It prevents a party from asserting a claim or right that contradicts what he has said or done before or what has been legally established as true. It is a bar that prevents relitigation of issue. See Black’s Law Dictionary 8th Edition, page 589.
A plea of res judicata strips the Court of its jurisdiction prohibiting it from enquiring into a matter already adjudicated upon. It therefore ousts the jurisdiction of the Court. ODADHE V. OKUJENI (1973) 11 SC 343 at 353. It is not only good law but a matter of public policy that a party should not be permitted to endlessly litigate the same issue/matter to the annoyance, irritation, or vexation of the adverse party and the interference of the administration of justice for there must be an end to litigation.

However, for the plea which is used as a shield and not as a sword to succeed, the party relying on same must establish the following facts – a. That the parties or their privies involved in the previous and the proceedings in which the plea is raised are the same. b. That the claim or issue in dispute in both proceedings are the same. c. That the Res or the subject matter of the litigation in the two cases is the same. d. That the decision relied upon to support the plea is valid, subsisting and final. e. That the Court that gave the previous decision relied upon to sustain the plea was a Court of competent jurisdiction.
It must also be emphasized that the burden is on the party who sets up such a defence of estoppel per rem judicatam to establish the listed pre-conditions conclusively. Dagaci of Dere V. Dagaci of Ebwa (2006) 7 NWLR (Pt. 979) pg. 382.

​Now, in determining whether the issues, the subject matter of the two cases and the parties are the same, it is imperative to study the pleadings of the parties and the judgment in the previous proceedings, these being questions of fact and not of law. See MAKUN  V. FUT, MINNA & ORS (2011) LPELR–15514 (SC).
PER WAMBAI, J.C.A.

WHETHER OR NOT A PARTY CAN APPROBATE AND REPROBATE AT THE SAME TIME ON THE SAME ISSUE

A party cannot be allowed to approbate and reprobate at the same time on the same point or issue ADEOSUN V. GOV. OF EKITI STATE (2012) LPELR 7843 (SC). He must be consistent in the manner he builds his case and in proving same. He cannot be permitted on appeal to depart from the foundation of his case either at pleadings or at the lower Court. At all times the party must be consistent in stating his case and consistent in proving it from the trial Court to the Appellate Court. The apex Court deprecated this attitude of inconsistency in the case of GARKUWA PINA V. JAPABA MAI-ANGWA (2018) 15 NWLR (Pt. 1043) 431 at 442, B–C. par Galinje JSC in these words:-
“It is against natural justice and fairness for a person to approbate and reprobate when comforted with similar issue at two or more for a man who is a gentleman should be bound by the words uttered by him”.
PER WAMBAI, J.C.A.

WHETHER OR NOT BEFORE A DECLARATION OF TITLE TO LAND CAN BE GRANTED, THE LAND TO WHICH THE CLAIM RELATES MUST BE IDENTIFIED WITH CERTAINTY 

It is now a common verse and legal truism that before a declaration of title to land can be granted, the land to which the claim relates must be identified with certainty and ascertained with accuracy. This is the first and crucial duty of a party seeking a declaration of title to land. He must prove the exact area or location of the land over which he lays his claims in his Writ of summons or statement of claim with certainty, preciseness, or exactitude. See UDEZE V. CHIDEBE (1990) 1 NWLR (Pt. 125) 41 at 91, ODUMOSU V. OLUWOLE (2004) FWLR (Pt. 191) 1628 at 1649–1650 Paras H-B; DABUP V. KOLO (1993) 9 NWLR (Pt. 317) 254.
Where the land is not properly ascertained, the plaintiff’s claim must fail. See OGBU V. WOKOMA (2005) LPELR-2293 (SC). ATANDA V. ILIAJU (2013) 6 NWLR (Pt. 1357) 529.
​Therefore, the primacy of proof of identity of the land in dispute in a claim for declaration of title or interest in land cannot be over-emphasized as it is a pre-condition or simply a condition precedent to the grant of the relief sought. This onus is on the Plaintiff or any person seeking the declaration. This is so as no Court will grant a declaration that cannot be placed on a defined or an ascertained piece or parcel of land. UMESIE V. ONUAGULUCHI (1995) 9 NWLR (Pt. 421) 515. ODOFIN V. ONI (2001) 3 NWLR (Pt. 701) 488; ONUWAJE V. OGBEIDE (1991) 3 NWLR (178)147. In effect, no matter the quality or quantity of evidence proffered in support of the root of title once the party fails to prove the identity of the land in dispute whose identity is in issue, the evidence on the root of title goes to naught.  PER WAMBAI, J.C.A.

THE POSITION OF LAW WHERE THE IDENTITY OF THE LAND IS NOT IN ISSUE BETWEEN THE PARTIES

However, where the identity of the land is not in issue between the parties, that fact not being an issue for determination between the parties in the suit. See Atolagbe V. Shorun (1985) 1 NWLR (part 2) 360 at 365 or (b) Where the land in dispute is known to both parties or can be easily ascertained, or (c) Where there is cogent evidence of or from which the Court can infer the identity of the land. See GBADAMOSI V. DAIRO (2007) 3 NWLR (PT. 1021) 282; AREMU V. ADETORO (2007) 16 NWLR (PT. 1060) 244, the need to prove the identity of the land in dispute would not arise. No onus lies on the party to prove the identity of the land which is not in issue or is known to parties.
It follows that what is necessary in each case is for the Court to determine whether the parties have agreed or are deemed to have agreed on or conceded the identity of the land in dispute or the land is easily identifiable, or on the other hand, the identity of the land is an issue in contention between the parties.  PER WAMBAI, J.C.A.

THE POSITION OF THE LAW WHERE THE IDENTITY OF THE LAND IS AN ISSUE

The identity of the land in dispute will be an issue only if the Defendant in his statement of defence makes it so by specifically disputing either the area or size covered or the location as shown in the plaintiff’s plan, if there is a plan, or as described in the statement of claim.

​Where the identity is an issue, then the Court proceeds to determine whether the party on whom lies the onus of proof has creditably discharged the burden by proving the exact area or location of the disputed land with some degree of certainty and exactitude such that any surveyor acting on such description could produce a plan of the land in dispute. See JOSEPH OLUSANMI V. DAYO OSHASONA (1992) LPELR 2629 SC per Ogundere, JSC at pages 7–8.  PER WAMBAI, J.C.A.

AMINA AUDI WAMBAI, J.C.A. (Delivering the Leading Judgment): This appeal arose from the judgment of Hon. Justice Luka D. Aba of the Kaduna State High Court Kafanchan, in suit No KDH/KAF/81/2013 delivered on the 23rd day of May, 2019 which entered judgment in favour of the Respondents and dismissed the counter–claim of the Appellants.

The claims of the Respondents as plaintiffs by their Further Amended Statement of Claim against the Appellants as defendants before the lower Court were for:-
i. A declaration that the land in dispute between the plaintiffs and defendants form part of the land granted to plaintiffs in suit No. KDH/KAF/29/2006. Alternatively, a declaration that the plaintiffs are the owners of the present land in dispute between the parties.
ii. The sum of five hundred thousand naira only (N500,000.00) damages for trespass.
iii. An order of perpetual injunction restraining the defendants, their agents, privies, assigns, servants or whomsoever from trespassing or howsoever tempering with plaintiffs land described in paragraph 5 of the statement of claim.
iv. Cost of this action.

On the other hand, the Appellants prayed for the following reliefs in their counter-claim, to wit:
(1) A declaration that the defendants are the owners of their respective pieces of land described in paragraphs 16 (i), (ii) and (iii) respectively.
(2) A declaration that all land situate at Gindin Dutse belongs to the inhabitants of that area to the exclusion of the plaintiffs and their privies and agents.
(3) An order of perpetual injunction to restrain the plaintiffs by themselves, their agents, assigns, successor, whatsoever from further interfering with the defendants’ peaceful possession and enjoyments of their respective pieces of lands and/or claiming ownership of any piece of land at Gindin Dutse.

In proof of their case, the Respondents called three witnesses and tendered some exhibits. The Appellants also called three witnesses in defence of the case and support of their counter-claim. At the end of trial, the lower Court found that the Respondents failed to prove their main relief but found the alternative prayer proved and accordingly entered judgment for them in terms of the alternative relief. The Appellants’ counter-claim was dismissed.

Dissatisfied with the decision, the Appellants sought and obtained leave of this Court on 11/11/2020 to appeal the decision. They filed a Notice of Appeal on 24/11/2020 which was by leave of this Court amended on 29/06/2021. The amended Notice of appeal contains nine grounds.

The Appellants’ brief of argument settled by Panshek K. Audu Esq and filed on 16/11/2021 but deemed properly filed on 8/2/2022 identified 3 issues for determination to wit: –
(i) Whether the trial High Court had jurisdiction to have re-litigated over suit No. KDH/KAF/29/2006 to declare title twice in favour of the Respondents over the same piece of land. (Grounds 3 & 4).
(ii) Whether the Respondents proved their case to have entitled them to the relief sought (Grounds 1, 6, 7, 8 and 9).
(iii) Whether the Appellants proved their counter-claim. (Ground 5).

Ben A. Abugu Esq. who settled the Respondents’ brief of argument filed on 7/2/2022 but deemed on 8/2/22 distilled two issues for determination, namely:
i. Whether Appellants who counter-claimed title of the disputed land can complain that Respondents did not prove the identity/boundaries of the disputed land (Grounds 4 & 8).
ii. Whether declaratory relief to wit – title to land can be granted on admission if any, and failure to file defence to counter-claim and if the answer to this poser is in the negative, whether Appellants proved a better title to the disputed land than the Respondents, (Grounds 1, 5, 6, 7 & 9).
The Appellant filed a reply brief on 21/2/2022

ISSUES FOR DETERMINATION
Having regards to the issues nominated by both Counsel and the argument canvassed thereon, two issues as crafted below will determine this appeal. The issues are:
(1) WHETHER THE LEARNED TRIAL JUDGE HAD JURISDICTION TO ENTERTAIN THE PRESENT SUIT IN VIEW OF SUIT NO KDH/KAF/29/2006 EARLIER DETERMINED BY THE COURT
(2) WHETHER HAVING REGARDS TO THE EVIDENCE ON RECORD THE LEARNED TRIAL JUDGE WAS RIGHT IN GRANTING THE RESPONDENTS’ RELIEFS AND DISMISSING THE APPELLANT’S COUNTER-CLAIM

ISSUE NO 1
(1) WHETHER THE LEARNED TRIAL JUDGE HAD JURISDICTION TO ENTERTAIN THE PRESENT SUIT IN VIEW OF SUIT NO KDH/KAF/29/2006 EARLIER DETERMINED BY THE COURT.
It is the contention of the learned Counsel for the Appellant on this issue that the lower Court having heard and determined Suit No KDH/KAF/81/2013, it wrongly assumed jurisdiction over the present suit leading to this appeal in that the trial Court held that the land in dispute is covered by the map in the previous suit and that the Defendant’s claim over the land, encroached on the plaintiffs land as captured in the map. Thus, re-litigating the same case for which only the same or similar order it had made in the previous suit would be made thereby constituting the present suit as an abuse of Court process in respect of which the lower Court ought to have declined jurisdiction. He cited the cases of ARUBO V. AIYELERU (1993) 3 NWLR (Pt. 280) 126 at 142, AGBOGUNLERI V. DEPO (2008) 1 SCNJ 5SS urging us to allow the appeal on this ground and set aside the judgment of the lower Court

RESPONDENT’S SUBMISSION
Responding, the learned Counsel to the Respondents submitted that the Appellants whose case at trial Court was that the land in dispute does not form part of the larger land awarded to the Respondents in Suit KDH/KAF/29/2006 are only approbating and reprobating by contending otherwise in this appeal, an attitude which the law frowns at and prohibits. That the law requires a party to be consistent in stating his case and in proving it but the Appellants’ position is inconsistent with their earlier position in the previous suit. The cases of BOYE V. ADEYEYE (2012) 12 NWLR (Pt. 1314) 357, 389–390 and AJIDE V. KELANI (1985) 3 NWLR (Pt. 12) 248 were cited.

Learned Counsel explained that for the avoidance of doubt, it was not the case of the Respondents at the trial Court that the entire land in respect of which title was declared in their favour in suit KDH/KAF/29/2006 was in dispute between them and the Appellants but that the Appellants who were aware of suit No KDH/KAD/29/2006 and did nothing to be joined yet decided to encroach and trespass into part of the land declared in favour of the Respondents in the previous suit. He referred to paragraph 4 of statement of defence which averred that the judgment in the previous suit does not relate to the land in dispute in the instant case. That they were aware of the previous suit but their interest was not affected. He submitted that assuming but not conceding that the land trespassed into by the Appellants does not form part of the land granted to the Respondents, the present dispute in dispute belongs to them (the Respondents). He reproduced paragraphs 8 and 18 (a) of the Further Amended Statement of Claim to drive home his argument.

It was further submitted that the Respondents had raised a similar question of law for determination during pre-trial conference, to wit:– “whether the disputed land does not form part of the land awarded to the plaintiffs (Respondents) in suit KDH/KAF/29/2006” aimed at stopping the Appellants joining issues of title with the Respondents, title to the larger land comprising the land in dispute having been determined in favour of the Respondents, but Appellants’ Counsel argued to the contrary. That in its considered ruling of 17/12/2014 the trial Court ruled that the Respondents had not at that stage established that the disputed land form part of the land granted to the Respondents in 2006 (the previous suit) and then proceeded to hear the case.

​Additionally, it was submitted that the implication of the Appellants’ argument on absence of the Court’s jurisdiction to entertain the present suit and the Court being functus officio are:
(1) If the Court is functus officio and the trial Court had no jurisdiction it means that the present appeal has nothing to stand on MACFOY V. U.A.C (1962) A. C. 150 and
(2) If the land in dispute is part of the land already awarded to the Respondents then the appellants have no case at all in respect of the disputed land same having been declared to be that of the Respondents by a competent Court.
We were urged to resolve the issue in favour of the Respondents and against the Appellants.

In reply, while admitting that the Appellants denied the fact that their respective portions of the land form part of the land described and pleaded by the Respondents predicated upon the discountenanced certificate of the 2006 judgment, Counsel for the Appellants submitted that the Respondents did not have any other description of land different from the discountenanced map and they failed to file a reply and defence to Appellants’ statement of defence and counter-claim.

RESOLUTION OF ISSUE I
The contention of the Appellants’ Counsel is that the same land is being relitigated before the lower Court in that the disputed land in the suit leading to this appeal is to the knowledge of the learned trial Judge the same land covered by the survey map in suit No. KDH/KAF/29/2006 earlier heard and determined by the lower Court.

It is a principle of law now well settled that a party is estopped from relitigating a matter which had been a subject of litigation and finally determined by a competent Court of law. By the operation of estoppel per rem judicatam, parties are precluded from relitigating the very issue that had been finally determined by a Court of competent jurisdiction. See AFOLABI & ORS V. GOV. OF OSUN STATE & ORS (2003) 13 NWLR (Pt. 836) 119 DZUNGWE V. GBISHE & ANR (1985) 2 NWLR (Pt. 8) 528.
Estoppel per rem judicatam otherwise known as estoppel by record arises where an issue of fact has been judicially determined in a final manner between the parties by a Court or a Tribunal having jurisdiction, concurrent or exclusive in the matter and the same issue comes directly in question in subsequent proceedings between the parties or their privies. The parties affected are stopped from bringing a fresh action before any Court on the same case and on the same issue already pronounced upon by the Court in a previous action.
Therefore, where a competent Court has determined an issue and entered judgment thereon neither of the parties to the proceedings may relitigate that issue by formulating a fresh claim since the matter in the circumstance, will be said to be res judicata.
A plea of estoppel by its very essence connotes a bar against an action. It prevents a party from asserting a claim or right that contradicts what he has said or done before or what has been legally established as true. It is a bar that prevents relitigation of issue. See Black’s Law Dictionary 8th Edition, page 589.
A plea of res judicata strips the Court of its jurisdiction prohibiting it from enquiring into a matter already adjudicated upon. It therefore ousts the jurisdiction of the Court. ODADHE V. OKUJENI (1973) 11 SC 343 at 353. It is not only good law but a matter of public policy that a party should not be permitted to endlessly litigate the same issue/matter to the annoyance, irritation, or vexation of the adverse party and the interference of the administration of justice for there must be an end to litigation.

However, for the plea which is used as a shield and not as a sword to succeed, the party relying on same must establish the following facts – a. That the parties or their privies involved in the previous and the proceedings in which the plea is raised are the same. b. That the claim or issue in dispute in both proceedings are the same. c. That the Res or the subject matter of the litigation in the two cases is the same. d. That the decision relied upon to support the plea is valid, subsisting and final. e. That the Court that gave the previous decision relied upon to sustain the plea was a Court of competent jurisdiction.
It must also be emphasized that the burden is on the party who sets up such a defence of estoppel per rem judicatam to establish the listed pre-conditions conclusively. Dagaci of Dere V. Dagaci of Ebwa (2006) 7 NWLR (Pt. 979) pg. 382.

​Now, in determining whether the issues, the subject matter of the two cases and the parties are the same, it is imperative to study the pleadings of the parties and the judgment in the previous proceedings, these being questions of fact and not of law. See MAKUN  V. FUT, MINNA & ORS (2011) LPELR–15514 (SC).

The land claimed by the Plaintiffs/Respondents as described at paragraph 5 of their Further Amended Statement of Claim title to which was declared in their favour by virtue of High Court judgment in Suit Number KAD/KAF/29/2006, is as covered in Survey Map (Exhibit C) used in the said Suit Number KAD/KAF/29/2006. Suit No. KAD/KAF/29/2006 was between Samaila Amos and 2 ORS (for themselves and on behalf of Ninzon Community of Jagindi Tasha) and the Plaintiffs/Respondents herein as defendants/counter-claimants for themselves and on behalf of Gwandara Community of Kogun Dutse.

They also pleaded that the Appellants who have always been in Gindin Dutse before, during and after the determination of Suit KAD/KAF/29/2006 were aware of the suit against the Respondents by the Ninzon Community (in Suit KAD/KAF/29/2006) the 1st defendant/Appellant even filed a witness deposition to testify against the Appellant in the said suit but did not testify (paragraphs 6 and 7).

At paragraph 8, the Respondents pleaded
“That the portion of the land currently encroached upon by the defendants (Appellants) form part of the land awarded to (the plaintiffs in the suit mentioned above but assuming but not conceding it does not form part of the land awarded to the plaintiffs in the previous suit, Gwandara Community people of Kogon Dutse who are the indigenes of that place as against the Defendants who are settlers) are the bona fide owners of the portion of land being disputed between the plaintiffs and defendants”.

In reaction to the said averments, the Defendants/Appellants in their Amended Statement of defence and counter-claim averred at paragraphs 5, 6 as follows:-
1. The defendants deny the averments in paragraph 5 of the claim and state in reply that the judgment in the case mentioned therein does not relate to the lands in dispute in the instant suit. The defendants own their individual lands and have no joint inheritance with either one another or the plaintiffs.
2. It is averred in further denial of paragraph 5 of the claim that they were aware of the suit mentioned therein and that their respective lands were not included in that case. The description of the land relates only to the land in the case mentioned therein and the survey plan was made for the purpose of that case only which cannot be used in the instant case. The parties in that case are completely different from the parties in the instant case”.

It is clear that the Appellants as defendants before the lower Court unequivocally denied that the land in dispute is the same with the land in the previous suit No. KAD/KAF/29/2006 (hereinafter simply referred to as the previous suit or the 2006 suit), which was covered by the survey Plan (Exhibit c). They also denied that the parties in the previous suit are the same with the parties before the lower Court. Furthermore, they affirmed that though they were aware of the previous suit between the plaintiffs/Respondents (herein) and the Ninzom Community, they did not seek to be joined because their land was not affected (see paragraph 8 of the amended statement of defence at p. 160).

​It is crystal from the pleadings that two of the vital conditions for the applicability of estoppel per rem judicatam are fatally absent from the pleadings of the parties namely, the parties in the previous suit KDH/KAD/29/2006 are not the same with the parties in the proceedings (suit KDH/KAD/81/2013) leading to this appeal. Similarly, the res or the subject matter in the previous suit is not the same with the present suit.

It is therefore most shocking that the learned Counsel to the Appellants would take a twist to this position on appeal to argue the contrary. It is really not in the nature or feature of law to approbate and reprobate. A party cannot be allowed to approbate and reprobate at the same time on the same point or issue ADEOSUN V. GOV. OF EKITI STATE (2012) LPELR 7843 (SC). He must be consistent in the manner he builds his case and in proving same. He cannot be permitted on appeal to depart from the foundation of his case either at pleadings or at the lower Court. At all times the party must be consistent in stating his case and consistent in proving it from the trial Court to the Appellate Court. The apex Court deprecated this attitude of inconsistency in the case of GARKUWA PINA V. JAPABA MAI-ANGWA (2018) 15 NWLR (Pt. 1043) 431 at 442, B–C. par Galinje JSC in these words:-
“It is against natural justice and fairness for a person to approbate and reprobate when comforted with similar issue at two or more for a man who is a gentleman should be bound by the words uttered by him”.

It is therefore wrong for the Appellants’ Counsel to contend on appeal for the purpose of arguing that the Respondents’ case is an abuse of Court process, that the land in the previous suit KAD KAF/29/2006 is the same land relitigated in the present suit at the lower Court. He cannot with all seriousness be heard in such argument.

It is also instructive that at the end of trial, the learned trial Judge held that the plaintiffs/Respondents failed to prove that the land in dispute formed part of the land granted in suit No KAD/KAF/29/2006.

Therefore, without any further ado, there is no basis to hold the Respondents’ case at the lower Court an abuse of process. I resolve the issue against the Appellant ands in favour of the Respondents.

ISSUE 2
“WHETHER THE LEARNED TRIAL JUDGE HAD JURISDICTION TO ENTERTAIN THE PRESENT SUIT IN VIEW OF SUIT NO KDH/KAF/29/2006 EARLIER DETERMINED BY THE COURT.”

APPELLANT’S SUBMISSION
Arguing this issue, learned Counsel restated the law that a party seeking declaration of title must prove his title by any of the 5 ways and must succeed on the strength of his case without relying on the defendants’ case. AYORINDE V. SOGUNRO (2012) 11 NWLR (PT. 1312) 460.

​He submitted that the Respondents’ case is for a declaration that the land in dispute between the plaintiffs and the defendants forms part of the land granted to the plaintiffs in suit No. KDH/KAF/29/2006. Alternatively, a declaration that the plaintiffs are the owners of the present land in dispute between the parties, which said land is covered by the judgment in the said Suit No KDH/KAF/29/2006 as described at paragraph 5 of their Further Amended Statement of Claim, but that the Respondents are doubtful and unassured of the various pieces of lands allegedly being encroached by the Appellants to warrant the alternative prayer of being declared owners of the doubtful present land in dispute. He pointed out that the Respondents ought in compliance with the law, to have proved the identity of the land in dispute in respect of which they seek a declaration by showing and demonstrating the size and measurement of the land encroached upon but their averment at paragraph 8 only shows their lack of knowledge of the disputed land. This, he argued, is compounded by the fact that the learned trial Judge not only discountenanced the judgment in the previous suit as well as the survey map covering the only land identified by them (Exhibits A & C) thereby weakening their case, but also adjudged that they (Respondents) failed to prove that the land in dispute formed part of the land granted to them in the previous suit.

It was thus submitted that the learned trial Judge goofed when he entered judgment for the Respondents on their alternative relief on the ground that the Respondents proved title by traditional history and proof of ownership of connected or adjacent land which is contrary to the pleadings, the issue of ownership of connected or adjacent land having not been pleaded but raised suo motu by the lower Court thereby descending into the arena and making a case for the Respondents outside the pleadings. OSOKOYA V. ONIGEMO (2018) ALL FWLR (Pt. 942) 424 at 455 ADEBIYI V. UMAR (2012) 9 NWLR (Pt. 1305) 279, 302 B – C.

​Premised on this, he submitted that the lower Court misdirected itself by relying on the unpleaded evidence of DW1 in cross-examination that the Respondents are “the owners of the lands next to the one in dispute” as evidence, extracted in cross-examination on unpleaded fact goes to no issue. MBANI V. BOSI (2006) 3 FWLR (Pt. 330) 5334 at 5345, OLANIYI V. ELERO (2007) 8 NWLR (Pt. 1037) 532 C–D and OKWEJIMINOR V. GBAKEJI (2008) 1 SCN 495.

Moreover, he argued, the Court having held that Respondents failed to prove the principal relief, it ought to have dismissed the alternative relief having no pedestal to stand on. TRANSOCEAN S. S NIG LTD V. OMELIME (2016) ALL FWLR (Pt. 927)89 at 108, NEW BREED ORGANISATION LTD V. ERHOMOSELE (2006) 5 NWLR (Pt. 974) 544.

​He submitted further that should the Court not find favour with the preceding submission, the Respondents would still not be entitled to judgment because their pleadings at paragraphs 8 & 9 relied upon in granting the alternative relief falls short of proof for declaration of title to land in that while paragraph 9 pleaded that the land in dispute was founded by four persons, Jero, Magaji, Koto & Salihu which land extends to the land trespassed into by the Appellants, the traditional history left a big gap as only the 3rd Respondent, gave a rendition of birth history of his ancestors, from Jero to himself but without connecting the history to the land. Worse still, he submitted, it is the law that a person relying on traditional history in proof of title must not only plead and prove who founded the land, and the manner of founding the land but also an unbroken chain of successive devolution of the land to himself, OKOLO V. DAKOLO (2006) 14 NWLR (Pt. 1000) 401, EWO V. ANI (2004) 4 MJSC 199 at 136, but that only one of the five Respondents gave birth history of his ancestors, which does not amount to devolution of title.

Additionally, learned Counsel pointed out that there are material contradictions in the evidence of the Respondents’ witnesses. That while the third Respondent as PW1 in cross-examination stated that the 1st person to deforest the land is one Kanwai, a Kataf man, PW2 stated that one Sanaka first deforested the land, thereby discrediting the earlier purported history given which no Court of law ought to believe in reaching a decision but that the learned trial Judge unfortunately relied upon the evidence as unchallenged and corroborating, in holding that the Respondents established title to the land by traditional history. He cited the case of WACHUKWU V. OWUNWANNE (2011) 14 NWLR (Pt. 1266) 8 at 23 A-B

On their counter-claim, while contending that the Appellants as opposed to the Respondents’ proved the counter-claim, it was submitted that each of the Appellants individually did not only plead and prove that their separate pieces of land did not form part of the land covered by Exhibit C, hence, they were not joined to the said suit KDH/KAF/29/2006, but also traced their separate roots of title vide traditional history from their ancestors to themselves.

That the 1st Appellant pleaded and testified unchallenged that he deforested his portion of the land in 1953 and gave a portion of it to the 3rd Appellant and described the boundaries of the land. That the 2nd Appellant also pleaded and led evidence that he inherited his portion of the land from his father, Dogara Shamang who was the founder of the land which he farmed unchallenged until his death in 1990. He also described the land giving its boundaries. That the 3rd Appellant led evidence that he was given his portion of the land by the 1st Appellant which he deforested and farmed unchallenged until the present challenge by the Respondents leading to this appeal and that he also gave the boundaries of the land.

The learned trial Judge Counsel argued, ought to and was bound to accept the evidence led by the Appellants the Respondents case having by their failure or neglect to file a reply to the Statement of defence or a defence to the counter-claim collapsed and been deemed to have admitted the Appellants’ case N.N.B. PLC. V. DENCLAG LTD. (2005) 4 NWLR (Pt. 916) 549 at 598, ARABAMBI V. BEVERAGES IND. LTD. (2005) 19 NWLR (Pt. 959) 9 at 33. Thus only minimal proof was required in support of the counter-claim NEWBREED ORG. LTD. V. ERHOMOSELE (SUPRA) PAGE 499 F–C and that the trial Court was therefore in error to have refused the Appellants’ case as presented and occasioned a miscarriage of justice in dismissing the counter-claim, urging us to resolve the issue in favour of the Appellant.

RESPONDENTS’ SUBMISSION
Arguing his issue No.2 and in response to the question of the identity of the land in dispute, learned Counsel submitted that a defendant who counter-claims in an action for a declaration of title to land cannot assert that he does not know the identity of the land for which he is sued and in this case, the land in dispute being the land between Gindi Dutse settlement and the land awarded to the Respondents in 2006 suit ANYANWU V. UZOWUAKA (2009) 13 NWLR (Pt. 1159) 445, and that this is notwithstanding that different names have been ascribed by parties to the same areas of land in dispute. NWOKOROBIA V. NWOGU (2009) NSCQR 145 at 161. Reference was made to paragraphs 5 and 8 of the further amended statement of claim whereat Respondents averred that the land awarded to them in Exhibit A in suit KDH/KAF/29/2006 is bounded to the South by Gindin-Dutse (Appellants’ settlement) and it is towards the Southern part that Appellants encroached upon the land in dispute claiming title to the same land when confronted, which led the Respondents to join issue of title with the Appellants. He denied that the identity of the land was in issue. This he submitted, is supported by the evidence of DW1 (2nd Appellant) in cross-examination who stated that the Respondents own the land next to the one in dispute and that the land counter-claimed shares common boundaries.

Similarly DW3 (the 1st Appellant) also testified in cross-examination that they share boundaries with the land in Kogun Dutse disputed between the Respondents and the Ninzo people which go to show that parties are in agreement that the land in dispute is the land in between the Respondents land awarded in suit No KDH/KAF/29/2006 and Gindin Dutse settlement as differently described by the Appellants in paragraph 10 A-C of the 1st, 2nd and 3rd defendant’s Statement of defence urging us to discountenance the submission of the Appellant’s Counsel to the contrary as well as the submission that the evidence of DW1 and DW3 are not borne out of the pleadings in that; firstly, the pleadings at paragraphs 5 and 8 means that the land adjoins and bounds the earlier land awarded to Respondents towards the Gindin Dutse settlement and; secondly, a party is allowed to rely on evidence elicited in cross-examination if same is pleaded by the opposite party BELLO V. GOVERNOR OF GOMBE STATE (2016) 8 NWLR (Pt. 1514) 270.

​He argued that parties having joined issue on the title to the disputed land whose respective boundaries the Appellants as counter-claimants described in their oral testimony as having boundaries with and adjoining the Respondents land earlier awarded in 2006, the evidence of DW1–DW3 cannot be said to be unpleaded since Respondents can take advantage of the Appellants pieces of evidence. The learned trial Judge; learned Respondents’ Counsel submitted, was right to have held that the Respondents also proved ownership of the disputed land by proving ownership of contiguous and adjoining land IDUNDUN V. OKUMAGBA (1976) 9–10 SC, 227.

On their issue 3 which addresses the question of the effect of failure to file a reply to the statement of defence or defence to the counter-claim in an action for declaration of title to land and whether Respondents proved better title, Counsel submitted that the non-filing of defence to counter-claim does not obviate the burden on the Appellants to prove their counter-claim. ONOFOWOKAN V. SHOPITAN (2009) WRN, (VOL. 1) 142, at 168–169. That the Appellants who must succeed on the strength of their case did not prove title to the disputed land by any of the 5 ways of proving title in Nigeria.

He referred to the testimony of DW1 in cross-examination when he testified that he does not know how his father got the land in dispute in contradistinction to his pleadings at paragraph 10B. Similarly, that while the 3rd Appellant (DW2) pleaded that his portion of the land was given to him by the 1st Appellant, in cross-examination he stated that it was one Ali whose surname he could not remember but now deceased who loaned the land to him. Also, that DW3 (1st Appellant) admitted that he sought and obtained permission from the Respondents’ chief (chief of Kogum) to settle at Gindin-Dutse. These pieces of evidence learned Counsel argued, fell short of proving title by traditional history restating what a party relying on traditional history must plead and prove to succeed in his claim as pronounced upon in the cases of ANYAWU V. MBABA (1992) 6 SCNJ (Pt. 1) 22 at 51, IROAGBARA V. UFOMADU (2009) 11 NWLR (Pt. 1153) 587, EWO V. ANI (2004) 1 SC (Pt. 11) 115 and others. Counsel insisted that the Appellants’ unproved pleadings in this regard are at best contemporary history (which is not one of the recognised ways of proving title) and not traditional history.

While admitting that the evidence of PW1 in cross-examination that Kanwai was the 1st person to deforest the land is at variance with the pleadings, he argued that the discrepancy does not materially affect the Respondents’ case having regards to the credible, cogent and reliable evidence of PW2 and DW1–DW3, urging us to resolve the issues in favour of the Respondents against the Appellants and dismiss the appeal as lacking in merit.

In his reply to the Respondents’ submission that the Appellants are precluded from challenging the identity/boundaries of the land in dispute, Counsel for the Appellants submitted that it is not in all cases that a counter-claim must relate to the same subject matter in dispute, the Appellants having denied that their respective portions of land form part of the land described and pleaded by the Respondents, predicated on the discountenanced certificate of judgment in exhibit A. LEWIS V. UBA PLC (2006) 1 NWLR (Pt. 962) 546 at 566 C – D.

​On the attempt to connect the purported evidence elicited in cross-examination as a link to the land pleaded and the counter-claim, it was submitted that evidence elicited on unpleaded fact goes to no issue MTN V. CORPORATE COMMUNICATION INVESTMENT (2019) LPELR–47042 (SC) and that the argument that paragraphs 5 and 8 of the Further Amended Statement of Claim joined issues with the Appellants’ counter-claim is misconceived because an issue for trial arises when a material averment by a party is positively denied by the other party.

On the contention that the Respondents proved a better title, it was submitted that there are no material contradictions in the Appellants’ case as alleged by the Respondents but only minor discrepancies.

RESOLUTION OF ISSUE 2
This issue questions the propriety of the learned trial Judge entering judgment for the Respondents on the alternative relief and for dismissing the Appellants’ counter-claim.

The contention of the learned Counsel for the Appellants is that the Respondents did not prove the doubtful identity of the land in dispute; that the learned trial Judge having found that the Respondents failed to prove the main relief it was wrong to have relied on the evidence of DW1 in granting the Respondents’ alternative relief on the ground that the Respondents proved ownership of adjacent/connected land to the one in dispute which was not pleaded by the Respondents and that the Judge erred in dismissing the counter-claim which was unchallenged thereby occasioning a miscarriage of justice.

It is now a common verse and legal truism that before a declaration of title to land can be granted, the land to which the claim relates must be identified with certainty and ascertained with accuracy. This is the first and crucial duty of a party seeking a declaration of title to land. He must prove the exact area or location of the land over which he lays his claims in his Writ of summons or statement of claim with certainty, preciseness, or exactitude. See UDEZE V. CHIDEBE (1990) 1 NWLR (Pt. 125) 41 at 91, ODUMOSU V. OLUWOLE (2004) FWLR (Pt. 191) 1628 at 1649–1650 Paras H-B; DABUP V. KOLO (1993) 9 NWLR (Pt. 317) 254.
Where the land is not properly ascertained, the plaintiff’s claim must fail. See OGBU V. WOKOMA (2005) LPELR-2293 (SC). ATANDA V. ILIAJU (2013) 6 NWLR (Pt. 1357) 529.
​Therefore, the primacy of proof of identity of the land in dispute in a claim for declaration of title or interest in land cannot be over-emphasized as it is a pre-condition or simply a condition precedent to the grant of the relief sought. This onus is on the Plaintiff or any person seeking the declaration. This is so as no Court will grant a declaration that cannot be placed on a defined or an ascertained piece or parcel of land. UMESIE V. ONUAGULUCHI (1995) 9 NWLR (Pt. 421) 515. ODOFIN V. ONI (2001) 3 NWLR (Pt. 701) 488; ONUWAJE V. OGBEIDE (1991) 3 NWLR (178)147. In effect, no matter the quality or quantity of evidence proffered in support of the root of title once the party fails to prove the identity of the land in dispute whose identity is in issue, the evidence on the root of title goes to naught.

However, where the identity of the land is not in issue between the parties, that fact not being an issue for determination between the parties in the suit. See Atolagbe V. Shorun (1985) 1 NWLR (part 2) 360 at 365 or (b) Where the land in dispute is known to both parties or can be easily ascertained, or (c) Where there is cogent evidence of or from which the Court can infer the identity of the land. See GBADAMOSI V. DAIRO (2007) 3 NWLR (PT. 1021) 282; AREMU V. ADETORO (2007) 16 NWLR (PT. 1060) 244, the need to prove the identity of the land in dispute would not arise. No onus lies on the party to prove the identity of the land which is not in issue or is known to parties.
It follows that what is necessary in each case is for the Court to determine whether the parties have agreed or are deemed to have agreed on or conceded the identity of the land in dispute or the land is easily identifiable, or on the other hand, the identity of the land is an issue in contention between the parties.

The identity of the land in dispute will be an issue only if the Defendant in his statement of defence makes it so by specifically disputing either the area or size covered or the location as shown in the plaintiff’s plan, if there is a plan, or as described in the statement of claim.

​Where the identity is an issue, then the Court proceeds to determine whether the party on whom lies the onus of proof has creditably discharged the burden by proving the exact area or location of the disputed land with some degree of certainty and exactitude such that any surveyor acting on such description could produce a plan of the land in dispute. See JOSEPH OLUSANMI V. DAYO OSHASONA (1992) LPELR 2629 SC per Ogundere, JSC at pages 7–8.

In the instant case, the pleadings and the facts of the case make it crystal clear that the identity of the land in dispute is not in issue. By paragraph 5 of the amended statement of defence in denial to paragraph 5 of the further amended statement of claim the Appellants only denied the land in the previous suit being the same with the land in dispute in the present suit. Such a denial cannot be said to question the identity of the land in dispute in the present case.

The fact that the land in the present suit was later adjudged not to form part of the land in the previous suit (KDH/KAF/29/2006) does not mean that the identity of the land being disputed in the present suit was in doubt.

​Furthermore, it is settled law that a defendant in an action for declaration of title to land who counter-claims is disabled and legally incapacitated from challenging the identity of the land in dispute or arguing that he does not know the identity of the land in respect of which he counter-claims for title. Such an assertion is self-contradictory and incongruent to his counter-claim. In ANYANWU V. UZOWUAKA (2009) 13 NWLR (Pt. 1159) 455, the apex Court per Tabai JSC succinctly captured the law.
” … it is my firm view that defendants in a land matter, as in this case, who counter-claimed cannot turn round to argue that the identity of the land was not established. In my view, the very argument is a contradiction to their counter-claim, because they cannot counter-claim over a piece of land which identity they do not know. “

Furthermore, in the case at hand a locus in quo (visit to the land) was conducted by the lower Court whereat all the parties were in attendance and showed the land in dispute with the respective boundaries. Can the Appellants with all honesty turn round to contend that the identity of the land in dispute is doubtful? Methinks not. The identity of the land in dispute title to which the Appellants counter-claimed was well known to both parties and therefore require no further proof by the Respondents. The argument of the Appellants’ counsel to the contrary is discountenanced.

​It is also noted that in denying the description and identity of the land as pleaded by the Respondents, the Appellants ascribed different boundary men to their lands pleaded at paragraphs 16 (i) (ii) & (iii) of their amended statement of defence. That notwithstanding, it cannot be too often said, the law being trite, that the ascription of different names by parties to the same piece or areas of land in dispute is immaterial as long as the parties are referring to the same parcel of land or the various names ascribed refer to or can be placed on the same parcel of land. The different names will have no effect on the identity of the land in dispute. See SALAMI V. GBODOOLU & ORS (1997) 4 NWLR (Pt.902) 227. In NWOKOBIA V. OWOGU (2009) NSC QR 145 at 161 (Supra) cited the apex Court held
“the ascription of different names by the parties to the same areas of land in dispute, even with alerting degress of imprecision is often not detrimental to the parties case or cases as the case may be”

​Significantly as stated earlier, the Appellants who filed a count-claim against the Respondents are precluded from challenging or denying knowledge of the identity of the land in respect of which they seek a declaration against the Respondents. The argument of the Appellants’ Counsel that a counter-claim does not have to relate to the same subject matter of the main claim does not and cannot apply to the facts of this case. On this note, I also agree with the Respondents’ counsel that the identity of the land in dispute was known to both parties. Thus, no onus lies on the Respondents to prove same.

Next to consider is whether the lower Court having held that the Respondents failed to prove their main relief, that the land in dispute in the present suit formed part of the large parcel of land granted to the Respondents in the 2006 suit, it had the vires to proceed to grant the alternative relief. In contending that the lower Court ought in the circumstance to have dismissed the alternative relief, learned Counsel for the Appellant relied on the case of TRANSOCEAN S. S. (NIG) LTD V. OMELIME (Supra). That authority however, does not support the Appellants’ position. The law as pronounced in that case is that a party in an action may include in his pleading two or more inconsistent set of material facts and claim reliefs-there-under in the alternative. But once one of them is granted, the other cannot be granted. Thus, where there is a claim in the alternative, the trial Court will first consider whether or not the principal claim ought to have succeeded. It is only after the Court may have found that it could not for any reason have granted the principal claim, that it would consider the alternative claim.
In the case at hand, the learned trial Judge first considered the principal relief and for the reasons stated among others that the record of proceedings of the previous Suit KDH/KAF/29/2006 that produced the Certificate of Judgment; Exhibit A, ought to have been produced before it; that survey plan, (exhibit C) had nothing to do with Exhibit A, came to the conclusion that the Respondents failed to prove that the land in dispute formed part of the land granted to the Respondents by the previous suit. That finding and conclusion by the lower Court contrary to the view of the Appellants’ Counsel has nothing to do with the alternative prayer. While the main/principal relief is for a declaration that the land in dispute between the plaintiffs/Respondents and Defendants/Appellants forms part of the land already granted to the plaintiffs/Respondents in suit No KDH/KAF/29/2006, the alternative relief is for a declaration (in the event that the land in dispute is adjudged not to form part of the land granted to them in the previous suit), that the plaintiffs/Respondents are the owners of the present land in dispute. The alternative relief stands on its own. It is not an ancillary relief but an alternative relief, so the failure of the main relief has nothing to do with the consideration of the alternative relief. What is prohibited and not permissible is that the Court grants both the main and the alternative reliefs. Permissible however, is that the Court may, depending on the evidence proffered by the party, grant either the main or the alternative relief.

The crux of the matter therefore is whether the Respondents proved the alternative relief, that is to say, that they are the owners of the land in dispute.

​The Respondents who instituted the action in a representative capacity for themselves and on behalf of the Gwandara Community of Kogun Dutse, and pleaded that the 1st plaintiff/Respondent is the Village Head of the plaintiffs, relied among others on traditional history and pleaded at paragraphs 9 and 10 their ancestors who cleared and deforested (founded) the land, as JERO, MAGAJI, KOTO and SALIHU. They pleaded that “Jero” one of the original founders of the lands as described, gave birth to Dogo, Dogo gave birth to Sanaka and Sanaka gave birth to Irimiya Sanaka, the 3rd Plaintiff.

They pleaded at paragraph 8 that the portion of the land currently encroached upon by the defendants/Appellants form part of the land awarded to them (the Respondents) but assuming though not conceding that it does not form part of that land granted to the Respondents by the previous suit, Gwandara people who are the indigenes of that place as against the Appellants who are settlers, are the bona fide owners of the land in dispute.

This was supported by the evidence of the 3rdPlaintiff/Respondent as PW1 and the 1st plaintiff/Respondent as PW2. The learned trial Judge assessed their evidence vis a vis the evidence adduced for the defendants/Appellants and held that
“if all the evidence of both sides are placed on the said scale the pendulum certainly swings in Plaintiffs’ favour”

Counsel for the Appellants has argued that the Respondents’ pleadings and evidence falls short of proof by traditional history in that:-
(i) The purported traditional history is merely a birth history and
(ii) Material contradictions exist in their evidence.

​On the 1st arm of the submission that the purported traditional history is a mere birth history, true as the state of the pleadings and evidence on record is, the submission is however not supported by the law. In other words, while on the facts the learned Counsel is right that the pleadings and evidence exclude the devolution of the land from the ancestors who founded the land to the present claimants/(Respondents), on the law, learned Counsel is wrong to argue that the absence of such pleadings (of devolution) renders the traditional history a mere birth history. The reason for this is simple. The general rule of pleadings requiring a party relying on traditional history in proof of his title to land to plead and prove not only the person(s) who founded the land, how he or they founded the land but also the successive devolution of the land to the present claimant does not apply where the land in question is a communal land. That general rule is exempted in a claim of title to community land. In other words, the pleading and proving of devolution of the land to the present claimant is not a sine quo non for the success of a claim of title to community land. Communal land by its nature is land that belongs to a vast family of which many are dead, few are living and countless members are unborn. Thus, communal land belongs to a community past, present and future and it is vested in the leaders of the community only as a sort of trustee. See SANNI V. ADEMILUYI (2003) 3 NWLR (Pt. 807) 381. In OGUNLEYE V. ONI (1990) 2 NWLR (Pt. 136) 745 Belgore, JSC (as he then was) held that communal land is land belonging to the community, village or family and never to an individual nor does it attach itself to a title. ​It is therefore sufficient if a party claiming ownership of communal land pleads the following:-

(a) Who founded the land or originally owned the land.
(b) That he or they are descendants of the founders.
(c) How the land became communal land. See ECHI V. NNAMANI (2000) 8 NWLR (Pt. 667) 1
The wisdom in this law is that since communal land belongs to the community even to the members yet unborn and it is only vested in the leader at any particular time, it is unnecessary to prove the devolution of same to the individuals. This was the question the Supreme Court had to settle with its stamp of authority in the case of SALISU V. MOBOLAJI (2016) 15 NWLR (Pt. 1535) 242 AT 276 B–D per Ogunbiyi JSC when the Court held
“as rightly submitted by the learned Counsel for the Respondents, herein, his clients are not obliged to plead a narration of the genealogical tree from the original owner down to the Respondents. Consequently, the rule which makes it mandatory on a party to plead successive persons to whom the land devolve before he could prove ownership by traditional history will not apply. This is premised on the fact that the land did not devolve on successive persons but remains as a communal land”.

I therefore discountenance that arm of the argument of the learned Appellants’ Counsel.

​On the 2nd arm that material contradiction exists in the evidence of the Respondents witness, precisely of PW1 who admitted in cross-examination that the 1st person to deforest the land was one Kanwai, a Kataf person, it is true that no witness who has given on oath two inconsistent evidence is entitled to the honour of credibility and should not be treated as a witness of truth. ABATAN V. AWUDU (2004) 17 NWLR (Pt. 92) 420. It thus means that PW1 having stated in cross-examination that the first person to deforest the land was one Kanwai, a kalaf man, in contradistinction to the pleadings and his evidence in chief that the land was founded by Jero, Magaji, Koto and Salihu, disentitles him to be believed. It is then for the Court to consider other pieces of evidence on record bearing in mind that when an issue of title to land arises in litigation, the Court is concerned only with the relative strengths of the titles proved by adverse parties in the litigation. Thus, if a party can prove a better title than the other party, the first party is entitled to succeed. See SALISU V. MOBOLAJI (SUPRA).


​In considering the strength of the plaintiff’s case, the principle that the plaintiff is to succeed on the strength of his own case and not on the weakness of the defence is subject to the qualification that the plaintiff can take advantage of those facts in the defendants’ case which supports his case.

In the instant case, Respondents’ by their pleadings at paragraphs 8 & 9 that assuming the land in dispute does not form part of the land granted to them in suit KDH/KAD/29/2006, the said land granted to them “extends” to where the defendants/Appellants are currently trespassing into, pleaded the ownership of the adjacent/connected land to the land in dispute contrary to the contention of the Appellants’ Counsel that such facts were not pleaded. In addition, the Respondents also took advantage of the facts in the Appellants’ pleadings and evidence which the lower Court relied upon to hold that the Appellants’ case supported the Respondents in proof of Respondents’ ownership of the land adjacent or connected to the land in dispute.

​In coming to that conclusion, the lower Court relied on the evidence of DW1 who testified in cross-examination that:
“It is true plaintiffs own the land next to the one in dispute”.

This evidence unquestionably supports the Respondents’ pleadings and case that the land granted to them in suit KDH/KAD/29/2006 shares boundary with and adjoins towards the South with Gindin-Dutse, the land in dispute. Appellants also pleaded one of the boundaries of the land in dispute as Gindin-Dutse. In essence, the Respondents’ case is that they are the owners of the land described at paragraph 5 of their further amended statement of claim by virtue of the judgment of the High Court in suit No KDH/KAD/29/2006 to which the land in dispute forms part of but assuming the disputed land does not form part of the land covered by the 2006 judgment, the land in dispute which they claim the Appellants are now encroaching and trespassing into shares boundary with and adjoins to the said land, also belongs to them. The learned trial Judge was therefore right to have invoked in favour of the Respondents, the 5th method of proof, which is that proof of ownership or possession of connected or adjacent land in circumstances rendering it probable that the owner of such land would, in addition, be the owner of the land in dispute in holding that the Respondents proved the title to the disputed land. See OKEREKE & ANOR V. NWANKWO & ANOR. (2003) 9 NWLR (Pt. 826) 592, IDUNDUN & ORS. V. OKUMAGBA (1976) NSCC 445.

This was in addition to the consistent evidence of PW2 which was not shaken in cross-examination.

On the counter-claim, the law is settled that a counter-claim is a separate and distinct claim and like the plaintiff’s claim must be proved by the counter-claimant and must succeed on its own strength and not on the weakness of the plaintiff’s case or the absence of a defence to the counter-claim. The non-filing of a defence to a counter-claim does not result in an automatic success of the counter-claim. The counter-claimant must lead satisfactory evidence in proof of the counter-claim to entitle him to judgment. See ONOFOWOKAN V. SHOPITAN (Supra).
Thus, the onus that lies on the plaintiff to prove his claim of title also lies on the counter claimant to prove his counter-claim irrespective of the failure of the plaintiff to prove his claim.

​In the case at hand the Appellants who also relied on traditional history in proof of their pleadings at paragraph 16 (i) (ii) and (iii) of their amended statement of defence and counter-claim that 1st defendant/Appellant is the founder of his own portion of the land situate at Gindin Dutse by personally deforesting and clearing same in 1953 and he exercised acts of ownership on the land, farming on it and giving a portion of it in 1961 to the 3rd Appellant.

However, in cross-examination the 1st Appellant testified as follows:
“… I am kataf by tribe, in kataf land, if a stranger desires settlement in any place therein, he first of all consult the traditional ruler of the area. In my instance case, I first introduced myself to the chief of Kogum who then allowed me to settle at Gindi Dutse.”
It is noted that the Respondent is the Chief (village Head) of Kogum.

The second Appellant on his part pleaded he inherited his portion of the land also situate at Gindin-Dutse from his father, Dogara Shemang who founded the land by being the first to deforest the land. That he farmed on the land unchallenged with his father until the latter’s demise in 1990.

​However, as DW1 the 2nd Appellant also testified in cross-examination.
“I do not know when my father first went to the land in dispute. I do not know as between father and 1st defendant who first went to the disputed land. I do not know how my father got the land.”

The 3rd Appellant as pleaded by 1st Appellant pleaded that he was given his portion by the 1st Appellant in 1961 and has been in absolute and quiet possession until the institution of this suit by the Respondents. In cross-examination, he stated that it was one Ali now deceased who loaned the land to him.

Clearly, the case of the Appellants was severely battered and shattered as a result of the excruciating cross-examination. The 1st Appellant who pleaded that he founded his portion of the land in 1953, bowed out in cross-examination to admit that he settled on the land at Gindan Dutse at the instance of the Chief of Kogum who gave him, as a settler, the permission to settle there.

​Similarly, PW2 who pleaded that his father Dogara founded the land, succumbed in cross-examination that he does not know how his father got the land or as between his father and the 1st defendant/Appellant who was 1st in time on the land.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>

Also, the 3rd Appellant whom the 1st Appellant said he gave his portion to yielded in cross-examination that it was one Ali now deceased whose surname he did not know that loaned him the land (Not the 1st Appellant who was in Court during 3rd Appellant’s testimony).

In the face of this evidence, the learned trial Judge was right in holding that if the evidence on both sides are placed on the said scale the pendulum certainly swings in plaintiffs’ favour and in concluding that the Appellants did not prove their counter-claim and in dismissing same. The Court was right in entering judgment for the Respondents on their alternative prayer and granting their reliefs. The lower Court cannot be faulted. In the circumstance, we resolve this issue against the Appellants and in favour of the Respondents. The appeal thus lacks merit and is accordingly dismissed. The judgment of the lower Court delivered on 23rd May, 2019 in Suit No KDH/KAF/81/2013 by Hon. Justice L. D. Aba is hereby affirmed.

MOJEED ADEKUNLE OWOADE, J.C.A.: I agree.

BITRUS GYARAZAMA SANGA, J.C.A.: I have the privilege of reading a draft of the judgment just delivered by my learned brother A. A. Wambai, JCA. My Lord reviewed the evidence adduced before the lower Court and reached the inevitable conclusion that this appeal lacks merit. I also adopt the said finding and conclusion as mine and dismiss this appeal for lacking in merit. I affirm the judgment by the lower Court in suit NO. KDH/KAF/81/2013 delivered on 23/5/2019.

Appearances:

Panshek K. Audu, Esq. For Appellant(s)

Ben A. Abugu, Esq. For Respondent(s)