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AMALE & ORS v. MUSTAPHA (2022)

AMALE & ORS v. MUSTAPHA

(2022)LCN/16207(CA)

In the Court of Appeal

(MAKURDI JUDICIAL DIVISION)

On Friday, February 25, 2022

CA/MK/23/2019

Before Our Lordships:

Ignatius Igwe Agube Justice of the Court of Appeal

Cordelia Ifeoma Jombo-Ofo Justice of the Court of Appeal

Yargata Byenchit Nimpar Justice of the Court of Appeal

Between

1. AUDU AMALE 2. BALA AMALE 3. USMAN AMALE 4. JOSEPH AMALE 5. SAMUEL DANJUMA 6. EZEKIEL AMALE 7. GIDEON AMALE (SUING FOR THEMSELVES AND THE ENTIRE AMALE KWAGBAGYIZEGYE ZHICHE FAMILY) APPELANT(S)

And

MR. UMARU MUSTAPHA RESPONDENT(S)

 

RATIO

WHETHER OR NOT AN APPELLANT CAN RAISE MORE ISSUES FROM DETERMINATION FROM A GROUND OF APPEAL

It is trite that there cannot be more issues for determination as in relation to the grounds of appeal. See ANIE & ORS V. UZORKA & ORS (1993) LPELR-490(SC) and DUWIN PHARMACEUTICAL & CHEMICAL CO. LTD V. BENEKS PHARMACEUTICAL & COSMETICS LTD & ORS (2008) LPELR-974(SC) wherein the apex Court held thusly:
“It has been pronounced in many cases by appellate Courts that issues formulated for determination must not out number the grounds of appeal, for each issue is supposed to have its base and source from a ground or grounds of appeal. See Oyekan v. Akinrinwa (1996) 7 NWLR (Pt. 459) page 128 and Angara v. Christmatel Shipping Co. Ltd. (2001) 8 NWLR (Pt. 716) page 685. Once issues exceed the grounds of appeal there is danger that some of the issues are outside the grounds of appeal, and therefore not related to each other. Grounds of appeal cannot be subsumed from main grounds to accommodate issues. That is why ideally an issue must be distilled from a ground or grounds of appeal. The position of the law is that an issue must derive its source from a ground of appeal, and an issue that does not so relate will not be tolerated. See Chime v. Chime (2001) 3 NWLR (Pt. 701) pg. 527; Western Steel Works v. Iron and Steel Workers (1987) 1 NWLR (Pt. 49) pg. 284; and Salami v. Mohammed (2000) 9 NWLR (Pt. 673) pg. 469. Whereas, the converse situation is allowed i.e. an issue can cover more than a ground of appeal the present situation has no place in our legal system. Proliferation of issues are discouraged. See Oyekan v. Akinrinwa (supra).” Per MUKHTAR, J.S.C.

The rule is that one ground of appeal can generate an issue for determination or a number of grounds can generate an issue of determination but to have more issues than the number of grounds is proliferation of issues and is not allowed, see NWEZE V. STATE (2017) LPELR-42344(SC) wherein the Supreme Court held thus:
“… In other words, there should be no proliferation of issues over and above the grounds of appeal raised. In support of this principle is the case of Orji v. State (2008) 4 SCJN 85 at 203, also the case of Amodu v. Police College Maiduguri, (2009)FWLR (Pt. 488) 195 at 196.” Per OGUNBIYI, J.S.C. PER NIMPAR, J.C.A.

THE POSITION OF LAW ON ROOT OF TITLE IN LAND MATTERS
There is what is called root of title in land matters, it was described in the case of YUNANA & ORS V TULA & ORS (2018) LPELR-44244 (CA) as follows:
“The term root of title simply connotes a process through which a party came to be the owner of the land in dispute. See Abidan Samuel V. Yahaya Waziri & Ors (supra); Chinyere Asika Vs. Henry N. Onyedike (2012) LPELR -94749(CA); Ofume V. Ngbeke (1994) 4 NWLR (Pt. 314) 746. Root of title is thus a factual situation which the plaintiff or claimant needed to trace, plead the facts and lead satisfactory evidence on those facts. See Lawal Vs. Olutowobi & Ors (1990) 12 SC NJ 376, 384.” Per HUSSAINI, J.C.A.
My Lord, Agim, JCA (As he then was) also had cause to describe it in its utmost brevity in the case of OKOYE V DUMEBI (2014) LPELR-24155(CA) as follows:
“The root of a person’s title to ownership of any right or interest in land is the source of that title or the fact whose existence originated the title.” Per AGIM, J.C.A.
PER NIMPAR, J.C.A.

WHETHER OR NOT A PARTY MUST ESTABLISH HIS ROOT OF TITLE ONCE IT IS UNEQUIVOCALLY RAISED

Once a party unequivocally names a root of his title, he must establish it, failing which he cannot proceed beyond that stage, the respondent pleaded purchase of family land, he must prove it, see ORUNENGIMO & ANOR V EGEBE & ORS (2007) 2779 (SC) where the apex Court said thusly:
“The requirements of the law regarding the proof of root of title to land pleaded by a party in claim for declaration of title arising from a grant, or a sale, is well settled. In Fasoro v. Beyioku (1988) 2 NWLR (Pt. 76) 263 at 271, it was stated as follows: “Where a party’s root of title is pleaded as, say – a grant, or sale or conquest etc., that root has to be established first, and any consequential acts following there from can then properly qualify as acts of ownership.” Per MOHAMMED, J.S.C. PER NIMPAR, J.C.A.

DEFINITION OF THE TERM “CONTRADICTION”

Contradiction is defined by Per AUGIE, J.S.C in ZAKIRAI V. MUHAMMAD & ORS (2017) LPELR-42349(SC) as:
“A piece of evidence is contradictory to another when it asserts or affirms the opposite of what that other asserts. Put another way, evidence contradicts evidence, when it says the opposite of what the other evidence says, not on just any point, but on a material point – Odunlami V. Nigerian Navy (2013) LPELR-20701(SC).PER NIMPAR, J.C.A.

YARGATA BYENCHIT NIMPAR, J.C.A. (Delivering the Leading Judgment): This appeal is against the decision of the Nasarawa State High Court sitting in Lafia and delivered by HON. JUSTICE SIMON O. ABOKI on the 30th November, 2018 wherein the lower Court entered judgment in favour of the Respondent by refusing the claims of the Appellants. The Appellant dissatisfied with the decision, filed a Notice of Appeal on the 21st day of January, 2019 setting out 8 grounds of Appeal.

Facts leading to this appeal are straight forward and amenable to brief summary. The Appellants commenced Suit No.: NSD/MG99/2017 by a Writ of Summons seeking the following reliefs namely:
a. A declaration that the Plaintiffs are the beneficial owners of that parcel of land consisting of and measuring 5.32 hectares (52 plots) extending to the seasonal stream in Kuchikau and have the legal title to same through inheritance from their ancestors.
​b. A declaration that the defendant’s building activities within the mentioned parcel of land amount to multiple acts of trespass.
​c. The sum of Two Hundred Million Naira (N200,000,000.00) only as general, exemplary and or punitive damages for multiple acts of trespass done by the defendant on the plaintiff’s parcel of land.
d. The sum of Seven Million Naira (N7,000,000.00) only as the cost of this action, including solicitor’s fees.
e. An order of perpetual injunction restraining the defendant by himself or through his agents, heirs or those deriving title from him however called from committing any further act or acts of trespass on the plaintiff’s land.

The Appellants’ case is that they are all natives or indigenes of Kuchikau town, in Karu Local Government Area of Nasarawa State from time immemorial, their ancestors have lived in Kuchikau and being farmers by profession, owned large expanse of land at different locations, in and around kuchikau town as beneficial owners. The Respondent claimed that before their father’s death in 2009, he had purchased the land in issue from their father but that he refuted the claim and vehemently insisted that he had no transaction in respect of the particular portion of land. The Appellants reported the issue to different traditional rulers who invited their late father and confronted him with the Respondent’s allegation but their late father maintained that he did not have any dealings with the Respondent touching that portion of the land. After the death of their father, in 2013, the Respondent encroached on the land by erecting structures on the land. The Appellants promptly called the Respondent and warned him of the consequences of his action. The Appellants further reported the Respondent’s act of trespass to some traditional rulers in their community who assured them that the matter would be addressed but while waiting for the traditional rulers to resolve the issue amicably, the Respondent continued with his acts of trespass on the Appellants’ land. The Respondent conceded that the land in dispute belong to the Appellants’ progenitor, late Mr. Amale kwagbagyi-Zegye-Zhiche but he maintained that the said late Mr. Amale kwagbagyi-Zegye-Zhiche had during his lifetime, sold the disputed land to him vide a sales agreement for the sum of One Hundred and Eighty Thousand Naira (N180,000.00) only. In prosecution of their case, the Appellants called 2 witnesses and tendered 2 Exhibits while the Respondent called 3 witnesses and tendered 6 Exhibits but 2 were rejected (the sale agreement written in Hausa and it English translation). However, the lower Court after hearing parties and having considered their closing addresses entered judgment in favour of the Respondent. The Appellants aggrieved with the said judgment brought the instant appeal.

Pursuant to the Rules of the Court, the parties filed and exchanged their briefs which were adopted at the hearing of the appeal. The Appellants’ brief was settled by PAUL B. ATAYI, ESQ., is dated 13th June, 2019 filed on 17th June, 2019 but deemed on the 2nd December, 2021. The Appellants distilled 7 issues for determination as follows:
1. Whether having rejected the Hausa and English version of the sales agreement in evidence, the learned trial Judge was right to hold that there was a valid transfer of land by Amale Kwagbagyi-Zegye-Zhiche, the Appellants’ forebears progenitor to the Respondent by purchase. (Distilled from ground 1).
2. Whether Exhibit C, D, E and F are valid documents of title and whether where a deed of conveyance or a certificate of statutory or customary right of occupancy is tendered in Court, it automatically proves that the land therein purportedly conveyed, granted or transferred by that instrument becomes the property of the grantee? (Distilled from ground2).
3. Whether where as in this case, the title in a land originally resides with a party, the burden of proving otherwise lies on the same party or the other party who claims that the party has divested himself of the title either by gift, pledge, mortgage or outright sale? (Distilled from ground 3).
4. Whether in the absence of valid title, the Respondents’ purported possession of the disputed land has not amounted to an act of trespass? (Distilled from grounds 4).
5. Whether where, as in this case, the act of trespass was continuous, the Appellants’ cause of action can be held to have been statute barred? (Distilled from ground5).
6. Whether statute of limitation and sale of land under customary law was pleaded by the Respondent and if not so, whether the learned trial Judge was not manifestly in error when he based his judgment in favour of the Respondent on unpleaded facts and speculations? (Distilled from ground 6).
7. Whether if the Court visit the locus in quo after close of plenary trial, his personal observation therefrom is part of the evidence and if not so, whether any such observation which have no foundation and support from the evidence can be the basis of any material findings or conclusion in the case. (Distilled from ground 7).

The Respondent’s brief was settled by SAMSON C. BALA, ESQ., filed on the 19th July, 2019 and deemed on the 2nd December, 2021. The Respondent distilled 8 issues for determination as follows:
a. Whether on the preponderance of evidence the Plaintiff discharged the burden of proof as required by law in the trial Court.
b. Whether in view of the documentary evidence available before the trial Court, namely Exhibits “C”, “D”, “E” and “F” the defendant did establish by virtue of uncontroverted evidence that there was a valid transaction between the Plaintiffs/Appellants’ forebear and himself.
c. What is the effect of the rejection of the Hausa and English versions of the traditional sale of land agreement (which in any case had been admitted for identification purposes) and based on which Exhibits “C”, “D”, “E” and “F” were produced?
d. What purpose is a visit to the Locus in quo supposed to serve?
e. Whether it is possible for a person (party) who has acquired a valid title through outright sale to him and has been in possession of same for over two decades to commit trespass in respect of his own property.
f. Whether the conduct of the Plaintiffs/Appellants by standing by since 1992 when the Defendant/Respondent acquired the parcel the subject matter of his suit does not amount to Laches and acquiescence.
g. Whether having admitted at the locus in quo that their forebear sold portions of the land which they were not contesting, they could now claim that 5.31 Hectares was not part of the 14.21 Hectares as contained in Exhibits “C”, “D” “E” and “F” thus contradicting their earlier claim that their forebear never alienated the parcel of land to the Defendant/Respondent or anyone else.
h. Whether under customary land tenure, a forebear, father/progenitor is under obligation to consult with his children before alienating his property when the same is not family property.

APPELLANTS’ SUBMISSION
ISSUE ONE
On this issue, the learned Counsel for the Appellants contended that having rejected the Hausa and English versions of the sales agreement in evidence, the learned trial Judge was in grave error to hold that there was a valid transfer of land by Amale Kwagbagyi-Zegye-Zhiche who is the Appellants’ progenitor to the Respondent because once a document is rejected, it cannot have probative value and the trial Court cannot rely on it to reach its decision. The Appellants’ Counsel relied on SEISMOGRAPH SERVICE (NIGERIA) LTD V. OGBENI (1979) 1 NMLR 290, HAMID V. HAMADU (2013) LPELR-22138 (CA), TERAB V. LAWAN (1992) 3 NWLR (PT. 231) CA, ATP AND JAS NIGERIA LIMITED V. DRAKE AND SKULL (NIGERIA) LTD (2000) 3 NWLR (PT. 649) 484, ADDISON UNITED NIGERIA LTD V. LION OF AFRICA INSURANCE LTD (2010) LPELR-3596 (CA) and SAMPSON IBEKWE V. UDO AZUBUIKE (2016) LPELR-40546(CA).

On the above, the learned Counsel for the Appellants submitted that the Respondent’s case was founded on purchase of the land which the conveyance document is necessary to substantiate what was alleged as it is trite law that when one is resting his root of title on purchase, he must produce and tender his deed of conveyance in order to succeed. He cited FOLARIN V. DUROJAIYE (1988) 1 NWLR (PT. 70) 351. Continuing, the learned Counsel to the Appellants submits that having rejected the instrument of conveyance i.e. the Hausa and English versions of the sales agreement in evidence, there was no basis to find that there was an alleged sale based on purchase. The learned Counsel to the Appellants urge the Court to so hold and resolved issue one in favour of the Appellants.

ISSUE TWO
Arguing this issue, the learned Counsel for the Appellants submitted that Exhibit C, D, E and F are not valid documents of title. Relying on ROMAIN V. ROMAIN (1992) 4 NWLR (PT. 239) 650, the learned Counsel argued that a deed of conveyance or a certificate of statutory or customary right of occupancy tendered in Court does not automatically prove that the land therein was conveyed, granted or transferred because they are not conclusive proof of title. He further cited KYARI V. ALKALI (2001) 5 SCNJ 421, OYENEYIN V. AKINKUGBE (2010) 14 NWLR (PT. 1184) 265, KAIGAMA V. NAMNAI (1997) 3 NWLR (PT. 495) 549. OLOHUNDE V. ADEYOJU (2000) 78 LRCN 2297 and MAJOR SHEHU IBRAHIM V. DR. JUNAID SALEH MOHAMMED (2003) 2 SC 127. Continuing, the learned Counsel for the Appellants contends that it is a common ground that the disputed land belongs to the Appellants’ progenitors, but the Respondent alleged that he acquired title to the disputed land from the Appellants’ progenitor by purchase and Exhibit E was predicated on the alleged transfer of title by purchase, however, the Hausa and English versions of the sales agreement were rejected in evidence and there is no basis to find that there was a sale based on purchase agreement. The learned Counsel further contends that Karu Local Government Certificate of Occupancy i.e. Exhibit E is null and void and the Respondent’s case cannot be sustained. He referred the Court to ALH JIMO AJADI SUU V. JOBAK NIG LTD (2012) LPELR-7932(CA).

Still on the same point, the learned Counsel for the Appellants argued that the certificate of occupancy which was flaunted by the Respondent can only be valid if his root of title is valid and originates from the customary owners of the property and where it is shown by evidence that another person had a better right to the grant, the Court will have no alternative but set aside the grant, if asked to do so or otherwise to ignore as held in OGUNLEYE V. ONI (1990) LPELR-2342 (SC), ADEBIYI V. WILLIAMS (1989) 1 NWLR (PT. 99) 611 and DZUNGWE V. GBISHE (1985) 2 NLWR (PT. 8) 528. Continuing, the learned Counsel for the Appellants submitted that the other documents tendered by the Respondent in this case are Exhibits C, D and F and the law is trite that the documents transferring title must be registered, however, failure to register same makes the document invalid and cannot transfer or confer title, therefore Exhibit C, D and F are not documents of title as they do not and cannot transfer or alienate interest in land. The learned Counsel referred the Court to OSSAI V. NWAJIDE (1976) 4 SC 148 and GBINIJIE V. ODJI (2011) 4 NWLR (PT. 1236) 103.

The learned Counsel for the Appellants reproduced the holding of the trial Court at page 275 to submit that the trial Judge was in grave error which occasioned miscarriage of justice. The learned Counsel urged the Court to resolve issue two in favour of the Appellants.

ISSUE THREE
The learned Counsel for the Appellants submits that where in this case, the title in a land originally resides with a party, the burden of proving otherwise does not lies on the same party but it lies on the other party who claims that the party has divested himself of the title as held in MOSALEWU THOMAS V. PRESTON HOLDER (1946) 12 W.A.C.A 78. And ORLU V. GOGO-ABITE (2010) LPELR-2769 (SC), therefore, the learned trial Judge was in grave error and which error has occasioned a miscarriage of justice. Also when he distilled the sole issue for determination in the case thus:
“Whether the Plaintiffs/Appellants have on preponderance of evidence established that their progenitor did not sell the disputed land to the Defendant/Respondent to warrant the acts of the Defendant/Respondent amounting to trespass, thereby entitling them to judgment in this suit.”

The learned trial Judge has by so doing erroneously placed the burden of proving the sale or otherwise of the Plaintiff/Appellants fathers’ land on the Plaintiff/Appellants and proceed to resolve the issues against the Plaintiff.

It was the submission of the learned Counsel for the Appellants wherein an action for declaration of title, issues are joined by both parties and the Plaintiff adduces prima facie evidence to prove his title, the onus shifts to the Defendant to prove to the Contrary as held in EFETIOROJE V. OKPALEFE (1991) 7 SCNJ (PT. 1) 85, ATUANYA V. ONYEJEKWE (1975) 3 SC, OROSANYE V. OSULA (1976) 6 SC 21, ADEWUYI V. ODUKWE (2005) 7 SC (PT. 11) 1 and MURANA ELEMO & FASASI OMOLADE & ORS (1968) NMLR 359. The learned Counsel argued that in the instant case, the Respondent admitted that the disputed land belong to the Appellants’ father but claimed ownership by purchase from the Appellants’ father in the sum of N180,000.00, therefore, the Appellants have challenged the sale and the onus is on the Respondent to establish valid sale by the Appellants father to him as held in the case of SAMUEL ADENLE (ATAOJA OF OSHOGBO) V. MICHAEL OYEGBADE (1967) NMLR 136, EZE V. IGILIAGBA & 5 ORS 14 WACA 61, OYOVBIARE V. OMAMURHOMU (1999) 10 NWLR (PT. 621) 23 and AFOLAYAN V. ARIYO & ANOR (2014) LPELR-22775 (CA).

The learned Counsel for the Appellant contends that the issue formulated by the learned trial Judge in this regard violates all known canons of evidential jurisprudence and urge the Court to resolve this issue in favour of the Appellants.

ISSUE FOUR
The learned Counsel for the Appellants answered this question in the affirmative that in the absence of valid title to the land in dispute, the Respondent’s purported possession of the land has amounted to an act of trespass and the Appellants who have title over a piece of land, though not in defector physical possession, are deemed to be the persons in possession because the law attaches possession to title and ascribed it to the person who has title as held in CARRENA & ORS V. AROWOLO & ORS (2008) LPELR-833 (SC) and ESO & ORS V. ADEYEMI & ANOR (1994) 4 NWLR (PT. 340) 558. Continuing, the learned Counsel argued that if the Respondent had adduced cogent and credible evidence of possession, he will still not be entitled to possession, having failed to first establish his alleged root of title to the said disputed land and acts of ownership does not confer title on a party where another traces his title to the true owner unless possession is of such a nature as to oust the title of the true owner as held in OWHONDA V. EKPECHI (2003) 17 NWLR (PT. 849) 326 and YIWA V. TATA (2018) LPELR-44669 (CA).

It was the argument of the learned Counsel for the Appellant that the position of the law is that a person cannot acquire possession by trespass and the Appellants having established a better title to the land in dispute than the Respondent, the Respondent became a trespasser thereon given the position of the law that a claim for damages for trespass lies at the suit of one on possession or entitled to possession. The learned Counsel relied on ANIMASHAUN V. OLOJO (1990) LPELR-491 (SC), OKHUAROBO V. AIGBE (2002) 3 S.C. (PT. 1) 141 and ODI V. OSAFILE (1987) 2 NWLR (PT. 57) 510. On the above, the learned counsel for the Appellants submitted that the Respondent having failed to prove ownership of the land in dispute, his acts of possession were merely acts of trespass as held in OKAFOR V. SAAKURA & ANOR (2018) LPELR-44138 (CA).

ISSUE FIVE
Arguing this issue, the learned Counsel for the Appellants submitted that where there are continuous acts of trespass, the Appellants’ cause of action cannot be held to have been statute barred and it is the feature of a continuous trespass that successive actions can be instituted from time to time in respect of its continuance, the learned Counsel referred the Court to ONAGORUWA V. AKINREMI (2001) 13 NWLR (PT. 729) 38, OBUEKE V. NNAMCHI (2012) 12 NWLR (PT. 1314) 327, ONIAH V. ONYIA (1989) 1 NWLR (PT. 99) 514 and NNPC V. ZARIA & ANOR (2014) LPELR-22362 (CA).

Continuing, the learned Counsel submits that the act of building on the Appellants’ land despite protest and report made against the Respondent to the traditional rulers constitutes a continuing trespass and therefore statute of limitation does not apply to the case. The learned Counsel for the Appellants cited the following authorities LIASU ADEPOJU V. RAJI OKE (1999) 3 NWLR (PT. 594) 154 and OKITO V. OBIORU (2007) ALL FWLR (PT. 365) 568.

According to the learned Counsel for the Appellants, the Appellants’ cause of action was founded on continuous trespass and this negates the application of any limitation law so long as the trespass continues, therefore, the contention of the Respondent and the holding of the trial Court that the action of the Appellants is statute barred is not meritorious. The learned Counsel relied on OYEBAMIJI V. LAWANSON (2008) 15 NWLR (PT. 1109) 122, OBUEKE V. NNAMCHI (SUPRA) and DOSUMU V. NIGERIA NATIONAL PETROLEUM CORPORATION (2014) 6 NWLR (PT. 1403) 282.

Therefore, the learned Counsel urge the Court to reject the holding of the trial and submission of the Respondent on statute barred, uphold his submission and resolve issue 5 in favour of the Appellants.

ISSUE SIX
On this issue, the learned Counsel for the Appellants answered the question in the negative and submits that statute of limitation and sale of land under customary law was not pleaded by the Respondent, hence, the learned trial Judge was manifestly in error when he based his judgment on un-pleaded facts and speculation. The learned Counsel argued that as a rule, a party is not allowed to raise and argue issues of fact not pleaded and no evidence should be given in proof of same furthermore, a Court will not depart from the case pleaded by the parties to rely on matters which are neither pleaded nor constitute issues as settled in the pleadings as held in N.D.I.C. V. ORANU (2001) FWLR (PT. 82) 1974. The learned Counsel relied on ISAAC V. IMASUEN (2016) LPELR-26066 (SC) and SHELL PET. DEV. CO. V. BURUTU L.G.C. (1998) 9 NWLR (PT. 565) 318 to submit that a Defendant is not entitled to rely upon a defence which is based upon a fact not pleaded in the statement of Defence and in this instant case, the Statement of Defence is bereft of any facts relating to statute of limitation. Continuing, the learned Counsel argued that since the parties did not join issues with respect to statute of limitation, the Respondent cannot raise and argue it in his final address before the trial Court as held in ISHOLA V. U.B.N LTD (2005) ALL FWLR (PT. 256) 1202, ADEBANJO HOUSING DEV. SOCIETY LTD V. MUMINI (1977) SC and G.S. PASCUTTO V. ADECENTRO NIG LTD (1997) 11 NWLR (PT. 529) 467.

Again, the learned Counsel for the Appellants submits that even if the sale of land was under customary law, it is trite that there are 3 requirements that must be met as held in ADEDEJI V. OLOSO (2007) SCNJ 411, ATANDA V. HON. COMMISSIONER FOR LANDS AND HOUSING, KWARA STATE & ANOR (2017) LPELR-42346(SC), MAMWAN V. ELISHA (2018) LPELR-46360 (CA), CHIEF ADEFIOYE ADEDEJI V. J.O. OLOSO & ANOR (2007) 1 SCNJ 397. FOLARIN V. DUROJAIYE (1988) 1 NWLR (PT. 70) 351 and ADENIJI V. ONAGORUWA (2000) 1 NWLR (PT. 639) 1.

Furthermore, the learned Counsel for the Appellants argued that the onus which fell on the Respondent was to prove sale of the land to him under customary law and in this respect, the Hausa and English version of the sale agreement is no assistance to him same having been rejected in evidence even if they were accepted, they would still carry no weight whatsoever, since the making and giving of receipts or agreement are unknown under Native Law and Custom. The learned Counsel relied on ABOYADE COLE V. FOLAMI (1956) F.S.C. 66 and OLUJINLE V. ADEAGBO (1988) LPELR-2622 (SC) and urged the Court to resolve issue 6 in favour of the Appellant.

ISSUE SEVEN
The learned Counsel for the Appellants argued that after the close of plenary trial, at the locus in quo, the personal observation of the trial Judge does not form part of the evidence, hence, any such observation which have no foundation and support from the evidence of the parties cannot be the basis of any material findings or conclusion in the case. The learned Counsel relied on Section 127 of the Evidence Act, 2011, ABOYEJI V. MOMOH (1994) LPELR-46, ENIGWE V. AKAIGWE (1992) LPELR-1145(SC) and IHEMEREMADU & ORS V. OKPECHI & ORS (2018) LPELR-44767 (CA) to state the required procedure to be followed in order to visit the locus in quo, however, in the instant case, the visit to the locus in quo was undertaken after trial had come to an end without any formal application made to the Court that the case be re-opened, this is invalid in the first place and lacks any jurisprudential basis.

On the above, the learned Counsel for the Appellants submitted that it is obvious that the procedure prescribed by Section 127 of the Evidence Act, 2011 was not followed by the trial Court and it appeared to have acted pursuant to Section 127 (2) (b) because it did not adjourn the proceedings to the place of inspection and rather attended the place, however, there is nothing on record to show that evidence of what transpired there was given in Court after the visit as required by Section 127(1) (b) of the Evidence Act, 2011, therefore the decision of the trial Court on the basis of the visit has no evidential foundation as it was not based on evidence of what transpired during the inspection as held in SHEKSE V. PLANKSHAK & ORS (SUPRA), OGUNDELE V. FASU (1999) 9 SC, OLUMOLU V. ISLAMIC TRUST OF NIGERIA (1996) 2 NWLR (PT. 430) 253, EBOADE & ANOR V. ATOMESI & ANOR (1997) 5 NWLR (PT. 506) 490 and EGBUCHE V. EGBUCHE (2013) LPELR-22512 (CA).

The learned Counsel for the Appellants urge the Court to resolve issue seven in favour of the Appellants and allow the appeal, set aside the judgment of the lower Court and grant reliefs sought in the statement of claim.

RESPONDENT’S SUBMISSION
ISSUE ONE
Arguing issue one, the learned Counsel for the Respondent submits that the Appellants in their testimonies through their witnesses stated that their progenitor denied ever alienating the parcel of land in dispute measuring 5.31 Hectares, however, at the locus in quo, the Appellants’ representative Mr. Audu Amale asserts that “our father sold portions which were all occupied with buildings to the Defendant which we are not contesting, but the portion we are contesting is 5.31 Hectares (52plots) with few houses on it as the Court can see”. 

See pages 233-255 of the record of appeal. Continuing, the learned Counsel for the Respondent further submits that the glaring contradictions in the testimonies of the Appellants both in Court and at the locus render their testimonies manifestly unreliable.

Predicated on the above, the learned Counsel argued that it is evident from Exhibits C, D, E and F that the Respondent validly and legitimately acquired 14.21 hectares inclusive of the disputed 5.31 hectares which the Appellants are laying claim to, from their father several years ago and all these evidence was uncontroverted hence the need for the case of the Appellants to suffer the fate it did at the trial Court. It was the learned Counsel’s submission that the Appellants failed to discharge the onus of proof on the preponderance of evidence as required of them by law by Section 134 of the Evidence Act, 2011 (as amended), the case of UBN V. AYODERE & 5 ORS (2007) 30 NSCQR and SUARA YUSUF V. ADEGOKE & ANOR (2007) 30 SCNQR 263.

According to the learned Counsel for the Respondent, the Appellants called two witnesses who were not the biological sons of the late Amale Kwagbagizegye Zhiche without calling themselves to testify which raised the presumption that they were hiding something from the Court below and being vital witnesses their testimonies were required to aid the Court below. Further, the learned Counsel argued that failure to testify even when present in Court was fatal to their case as held in U.B.N LTD V. AYODARE (2007) 30 NSQ. The learned Counsel for the Respondent urge the Court to resolve this issue in favour of the Respondent.

ISSUE TWO
On this issue, the learned Counsel for the Respondent argued that there was a valid transfer of title to the Respondent by the Appellant’s progenitor despite the rejection of ID 1 and ID 2 in view of the existence of Exhibits “C” and “D” duly signed by the relevant signatories namely the ward head, village head, district head, the technical officer, land officer and the paramount ruler who is the Chairman of land Use and Allocation Committee for the Local Government. Continuing, the learned Counsel contended that Karu Local Government’s C of O further confirmed the validity of the title which extinguished the rights of any party to the parcel of land in question including the Appellants and the issue of registration of these documents cannot invalidate the transaction between the Appellant’s forebear and the Respondent as the land instrument registration law does not apply to the registration of these documents.

It was the submission of the learned counsel for the Respondent that the Appellants’ argument that the non-registration of the documents is fatal to the transfer of title to the Respondent is therefore not only misconceived but is misplaced, misleading and absurd, consequently, there was valid transfer inspite of rejection of the traditional sale of land agreement which was only meant to be evidence that a transaction was consummated. The learned Counsel urge the Court to resolve this issue in favour of the Respondent.

ISSUE THREE
It was the argument of the learned Counsel for the Respondent that the rejection of Exhibits ID1 and ID2 which is the Hausa and English version of the sale agreement, evidenced that a transaction was consummated between the Appellants’ progenitor and the Respondent cannot be considered as fatal to the transfer of title to the Respondent because it was merely a receipt that money changed hands. On the above, the learned Counsel submits that Karu Local Government change of ownership and clearance forms cured the lacuna created by traditional sale of land agreement and the basis for the rejection of Exhibits ID1 and ID2 was based on the fact that those who signed the Hausa version were no more to sign the English version and the decision of the trial Court was based purely on whether on the preponderance of evidence available before the Court, the Plaintiffs had discharged the onus placed upon them as required by law. The learned Counsel urge the Court to hold that the Hausa version of the Traditional Sale of land agreement between the Plaintiffs’ forebear and the Defendant together with its attendant English version was wrongfully and unlawfully rejected the same being relevant and having been pleaded and tendered in evidence.

ISSUE FOUR
The learned Counsel for the Respondent submits that the trial Judge ordered for a visit to the locus in quo to ascertain what had transpired at the hearing. The learned Counsel reproduced the proceedings at the locus in quo as contained in 253 to 254 of the record of proceedings to submit that the Appellants admitted that their late father disposed of the property to the Respondent and what is admitted need no further proof as held in HILARY FARMS LTD V. M. V. MAHTRA (2007) 30 NSCQR 566.

ISSUE FIVE
Arguing this issue, the learned Counsel for the Respondent submits that the Respondent immediately after purchasing the parcel of land took over possession of same and has been in both actual and constructive possession of same over 2 decades in which he sold plots of the land to third parties who have fully developed their portions and are living there.

Continuing, the learned Counsel argued that having lawfully and legitimately acquired his title, it is not only absurd for the Appellants to assert that the Respondent committed acts of trespass on his own property rather the Appellants are the trespassers. The learned Counsel urge the Court to discountenance the allegations of trespass as mere wishful thinking and to dismiss same as there is uncontroverted evidence that the Appellants’ progenitor divested himself of title and all his rights to the parcel of land as held in HILARY FARMS LIMITED (SUPRA).

ISSUE SIX
It was the argument of the learned Counsel for the Respondent that even if the Appellants had any right to the parcel of land, the mere fact that they went into deep slumber from 1992 to date is enough to defeat their claim and even when they claim that they reported the matter to the traditional rulers who promise to intervene, yet none of the traditional rulers were called to confirm their assertions. Continuing, the learned Counsel urge the Court to hold that the conduct of the Appellants amount to laches and acquiescence and are therefore not entitled to the reliefs they are seeking as their hands are not clean. The learned Counsel further urge the Court to hold that their conduct is not only reprehensible but defeated their right if at all they ever had any and to resolve this issue in favour of the Respondent.

ISSUE SEVEN
On this issue, the learned Counsel for the Respondent adopted his submission in issue four wholly and further submit that by the admission by the Appellants at the locus in quo that their progenitor sold the land to the Respondent whom they had earlier denied weighs heavily against them and the law is trite that what is admitted needs no further proof because the best form of evidence is an admission by a party to a suit. The learned Counsel for the Respondent urge the Court to hold that the appeal lacks merit, dismiss the appeal and affirm the judgment of the trial Court.

RESOLUTION
After a careful consideration of the Notice of Appeal, the Record of Appeal and the briefs filed by Counsel on both sides, the Court observed that the Respondent distilled 8 issues for determination when there are only 7 grounds of Appeal. It is trite that there cannot be more issues for determination as in relation to the grounds of appeal. See ANIE & ORS V. UZORKA & ORS (1993) LPELR-490(SC) and DUWIN PHARMACEUTICAL & CHEMICAL CO. LTD V. BENEKS PHARMACEUTICAL & COSMETICS LTD & ORS (2008) LPELR-974(SC) wherein the apex Court held thusly:
“It has been pronounced in many cases by appellate Courts that issues formulated for determination must not out number the grounds of appeal, for each issue is supposed to have its base and source from a ground or grounds of appeal. See Oyekan v. Akinrinwa (1996) 7 NWLR (Pt. 459) page 128 and Angara v. Christmatel Shipping Co. Ltd. (2001) 8 NWLR (Pt. 716) page 685. Once issues exceed the grounds of appeal there is danger that some of the issues are outside the grounds of appeal, and therefore not related to each other. Grounds of appeal cannot be subsumed from main grounds to accommodate issues. That is why ideally an issue must be distilled from a ground or grounds of appeal. The position of the law is that an issue must derive its source from a ground of appeal, and an issue that does not so relate will not be tolerated. See Chime v. Chime (2001) 3 NWLR (Pt. 701) pg. 527; Western Steel Works v. Iron and Steel Workers (1987) 1 NWLR (Pt. 49) pg. 284; and Salami v. Mohammed (2000) 9 NWLR (Pt. 673) pg. 469. Whereas, the converse situation is allowed i.e. an issue can cover more than a ground of appeal the present situation has no place in our legal system. Proliferation of issues are discouraged. See Oyekan v. Akinrinwa (supra).” Per MUKHTAR, J.S.C.

The rule is that one ground of appeal can generate an issue for determination or a number of grounds can generate an issue of determination but to have more issues than the number of grounds is proliferation of issues and is not allowed, see NWEZE V. STATE (2017) LPELR-42344(SC) wherein the Supreme Court held thus:
“… In other words, there should be no proliferation of issues over and above the grounds of appeal raised. In support of this principle is the case of Orji v. State (2008) 4 SCJN 85 at 203, also the case of Amodu v. Police College Maiduguri, (2009)FWLR (Pt. 488) 195 @ 196.” Per OGUNBIYI, J.S.C.

Furthermore, the issues were not linked to the grounds from which they were distilled. If that were done the Respondent would have known that the issues he put forward exceeded the grounds of appeal and since he did not cross-appeal or filed a Respondent’s notice of intention to contend, he breached the rules. In the light of the fact that Respondent’s issues also took root from the Appellant’s grounds of appeal, he cannot distil more issues than the number of the grounds of appeal. Consequently, the issues donated by the Respondent are struck out due to proliferation. The Court shall adopt the issues formulated by the Appellant for determination in this appeal and shall do so seamlessly to avoid repetition and for expediency because evaluation of evidence runs through most of the issues for determination.

Starting from the first issue, it seeks to know the correctness of the findings made by the trial Judge on transfer of title in view of the absence of the sale agreement before the Court. The sale agreements in its original Hausa and English translations were rejected and therefore there was no sale agreement before the lower Court. This was the foundation for the documents or Exhibits C, D, E and F issued by the Local Government affirming that title was validly transferred to the Respondent. As argued by the Appellant, you cannot put something on nothing and expect it to stand. The sale agreement being the foundation or root and in its absence, no document, even if signed by the Governor it cannot stand. Those documents must fail for lack of foundation.

There is what is called root of title in land matters, it was described in the case of YUNANA & ORS V TULA & ORS (2018) LPELR-44244 (CA) as follows:
“The term root of title simply connotes a process through which a party came to be the owner of the land in dispute. See Abidan Samuel V. Yahaya Waziri & Ors (supra); Chinyere Asika Vs. Henry N. Onyedike (2012) LPELR -94749(CA); Ofume V. Ngbeke (1994) 4 NWLR (Pt. 314) 746. Root of title is thus a factual situation which the plaintiff or claimant needed to trace, plead the facts and lead satisfactory evidence on those facts. See Lawal Vs. Olutowobi & Ors (1990) 12 SC NJ 376, 384.” Per HUSSAINI, J.C.A.
My Lord, Agim, JCA (As he then was) also had cause to describe it in its utmost brevity in the case of OKOYE V DUMEBI (2014) LPELR-24155(CA) as follows:
“The root of a person’s title to ownership of any right or interest in land is the source of that title or the fact whose existence originated the title.” Per AGIM, J.C.A.

Once a party unequivocally names a root of his title, he must establish it, failing which he cannot proceed beyond that stage, the respondent pleaded purchase of family land, he must prove it, see ORUNENGIMO & ANOR V EGEBE & ORS (2007) 2779 (SC) where the apex Court said thusly:
“The requirements of the law regarding the proof of root of title to land pleaded by a party in claim for declaration of title arising from a grant, or a sale, is well settled. In Fasoro v. Beyioku (1988) 2 NWLR (Pt. 76) 263 at 271, it was stated as follows: “Where a party’s root of title is pleaded as, say – a grant, or sale or conquest etc., that root has to be established first, and any consequential acts following there from can then properly qualify as acts of ownership.” Per MOHAMMED, J.S.C.
Where the Claimant fails to pass the stage of his pleaded root of title, his claim is gone and nothing can be built towards to a declaration. The Appellants pleaded traditional history and proved it, to dislodge it the Respondent must prove his root of title. The Respondent failed to do so, the Court therefore erred in finding that he proved title.

First and foremost, in a declaration of title to land, the Claimant has 5 options to pick from to prove his title or claim as named in a plethora of cases and particularly, the case of MATANMI & ORS V. DADA & ANOR (SUPRA) wherein apex Court held that:
“It is now beyond argument, as it has been consistently held by this Court without any equivocation that there are five ways of proving title to land. A claimant may rely on more than one mode of proving title, if so desired. However, one mode of proving title will suffice, if properly established to the satisfaction of the Court. The five ways of proving title to land are:- (a) Traditional evidence. (b) Production of document of title. (c) Proof of acts of ownership extending over a sufficient length of time, numerous and positive enough as to warrant the inference that the persons exercising such acts are the true owners of the land. (d) Acts of long possession and enjoyment of the land. (e) By proof of possession of adjacent land in dispute in such circumstances which render it probable that the owner of the adjacent land is the owner of the land in dispute. The cases cited by both sides of the divide as recounted above are clearly in point. For further reinforcement, I need to also refer to Ogunnaike v. Oluyemi (1987) 3 SC 215 and Atanda v. Ajani (1959) 3 NWLR (Pt. 111) 511.” Per FABIYI, J.S.C.

In the case of the Appellants, they relied on traditional history and called 2 witnesses in proof while in rebuttal the Respondent relied on documents of title and the foundation is the rejected sale agreement. Therefore, having rejected the sale agreement which is the foundation, the trial Court cannot rely on subsequent documents to build a case for the Respondent without the sale agreement because the case of the Respondent was founded on documents of title which have no foundation. If there was no sale, there cannot be a transfer of title, sale agreement will go to show how the vendor divested himself of title, it was not proved.

It is also the law that a document of title cannot automatically inure title to the beneficiary without the said beneficiary establishing the root of the title as evinced by the title relied upon, see KAIGAMA V. NAMNAI (1997) 3 NWLR (Pt. 495) 549 where the Court said thus:
“A certificate of occupancy is prima facie evidence of title but it will give way to a better title. Furthermore, for certificate of occupancy to be valid, there must not be in existence, at the time it was issued, a customary owner who has not been divested of title.”

It is also the law that title documents founded on defective customary title is a nullity and is ineffective, void ab initio. See KYARI V. ALKALI (2001) NWLR (Pt. 724) 412 and MAJOR SHEHU IBRAHIM V. DR. JUNAID SALEH MOHAMMED (2003) 2 SC 127 at 137.

Even where the title is derived from State allocation, the root of how the State acquired the land is necessary as you cannot give what you do not have. The trial Judge erred in giving value to change of ownership and Local Government Certificate of Occupancy without the root of acquisition; the sale agreement having failed to be tendered in evidence. The argument that documents are not known to customary acquisition of land was a misapplication of the law. The absence of a document cannot invalidate a sale where those who witnessed the sale testify. In this case, one of the vendor’s witnesses gave inconsistent evidence which the trial Judge overlooked on the ground that the contradiction was not substantial as to affect the evidence.

Contradiction is defined by Per AUGIE, J.S.C in ZAKIRAI V. MUHAMMAD & ORS (2017) LPELR-42349(SC) as:
“A piece of evidence is contradictory to another when it asserts or affirms the opposite of what that other asserts. Put another way, evidence contradicts evidence, when it says the opposite of what the other evidence says, not on just any point, but on a material point – Odunlami V. Nigerian Navy (2013) LPELR-20701(SC).”

The trial Judge at page 271 of the record of appeal said thus:
“Under cross-examination, DW1, Taimako Y. Shada who in abid to confirm the sale of the disputed land to the Defendant said that Mr. Amale Kwagbagyi Zegye Ziche who sold the disputed land to the Defendant has the capacity to, but that the Plaintiffs were minors as at the time of sale which facts were contradicted under cross-examination to the effect that the 1st Plaintiff in particular is older than DW1. Also, DW3, Ali Plumber, who witnessed the transaction testified to be present when Mr. Amale Kwagbagyi Zegye Ziche divested his title on disputed land to the Defendant, but under cross-examination stated that he only signed the agreement between the Defendant and his vendor these in my view are not a major contradiction to hold that the Plaintiffs have proved their case.”

It is surprising that a younger person can give evidence as to the age of a person older than him in terms of what transpired in earlier years and the age of the other party. A witness testifies as to what he perceived by his senses and not what he was told (hearsay). So it must be something he witnessed personally. DW1 cannot be younger to the 1st Appellant and yet be able to testify on when the 1st Appellant was a minor. It is naturally not possible and it cannot be a minor contradiction that should be overlooked. The trial Judge erred in finding that it was inconsequential. It clearly discredited the evidence of the said witness.

Furthermore, the witness to the transaction who had said he was present during the sale turned round to say he merely signed the sale agreement. The sale agreement was no longer before the Court and since he did not witness the transaction when the forebear of the Appellants divested his title over the land, his evidence cannot be relevant to the sale. He admitted that he merely signed the agreement. Consequently, there was no witness of the said transaction before the Court and this was further compounded by the absence of the sale agreement.

Furthermore, the case of ROMAINE V. ROMAINE (1992) 4 NWLR (Pt. 239) 650 listed some basic questions that must be established when a party claims title through documents of title, they are:
“… (i) whether the document is genuine and valid; (ii) whether it has been duly executed, stamped and registered; (iii) whether the grantor had the authority and capacity to make the grant; (iv) whether the grantor had in fact what he purported to grant; and (v) whether it has the effect claimed by the holder of the instrument.” Per NNAEMEKA-AGU, J.S.C.

I agree with the Appellants’ Counsel that the conclusion made by the trial Judge couldn’t have been drawn from the evidence to lead to the conclusion at page 275 of the record that the purchase and transfer of title was duly done and therefore the Appellants have no claim.

The initial burden of proof in a civil claim lies on the Plaintiff or Claimant and after the initial burden, it shifts on the Defendant to present evidence to controvert same failing which what the plaintiff placed will hold sway, see EZEMBA V. IBENEME & ANOR (2004) LPELR-1205(SC) where the apex Court held thus:
“In civil cases, the phrase “burden of proof” has two distinct and frequently confused meanings. Firstly, it may mean the burden of proof as a matter of law and the pleadings usually referred to as the legal burden or the burden of establishing a case, secondly, the burden of proof in the sense of adducing evidence often referred to as the evidential burden. While the burden of proof in the first sense is always stable or static, the burden of proof in the second sense may shift constantly as one scale of evidence to or the other preponderates. As Aniagolu, J.S.C. correctly observed in the case of Felix O. Osawaru v. Simon Ezeiruka (1978) 6 & 7 SC 135 at 145: “In civil cases, while the burden of proof in the sense of establishing the case initially lies on the plaintiff Joseph Constantine Steam Line Ltd v. Imperial Smelting Corp. Ltd. (1942) AC 154, 174), the proof or rebuttal of issues which arise in the course of proceedings may shift from the plaintiff to the defendant and vice versa as the case progresses …” See the case of Odukwe v. Ogunbiyi (1998) 8 NWLR (Pt. 561) 339 at 353.” Per EDOZIE, J.S.C.

The trial Judge failed to adopt the procedure required in discharging evidential burden. The claim of the Appellants was simple and the size of the land claimed was clearly stated in the pleadings. The Respondent averred to a larger piece of land which at the visit to locus in quo, the Appellants showed the smaller piece which they claim and still asserted the size and admitted that part of the land claimed by the Respondent was earlier sold to the Respondent. The Court below could not have been unsure of the size of land the Appellants were claiming when they stated so in their pleadings. The fact of processing a title without the root or foundation cannot inure any benefit in favour of the Respondent. There is therefore nothing to challenge the portion of land which is less than what the Respondent is claiming, therefore, the claim for 5.3 hectares has been established by the Appellants.

The Appellants asked under issue three whether the burden of proving the negative rested on them or the Respondent who asserts the positive by saying he acquired title from the Appellants progenitor. The position of law is clear that the burden is on the who asserts the positive and here the Respondent is the one who asserts the positive. The Appellants had no burden of proving the negative, see ADEGOKE V ADIBI & 7 ANOR (1992) LPELR-95 (SC) where the apex Court said thusly: “The principle is that the burden of proof lies on he who asserts and not on he who asserts the negative of an issue. The whole concept of burden of proof in a civil case has been epitomized in Section 136(1) and (2) of the Evidence Act which provides as follows:
“(1) In civil cases, the burden of first proving the existence or non-existence of a fact lies on the party against whom the judgment of the Court would be given if no evidence were produced on either side, regard being had to any presumption that may arise on the pleadings. (2) If such party adduces evidence which ought reasonably to satisfy a jury that the fact sought to be proved is established, the burden lies on the party against whom judgment would be given if no more evidence were adduced; and so on successively, until all the issues in the pleadings have been dealt with.” Per KUTIGI, J.S.C.

One admitted fact is that the root of title rested with the said Mr. Amale Kwagbagyi Zegye Ziche and by Section 123 of the Evidence Act, if that fact is admitted then the burden of proving that the said original owner divested himself of title in the land is on the Respondent, see ORLU V. GOGO-ABITE (2010) LPELR-2769(SC) where the Court held that:

“It is settled law that once the original ownership of property is in a party, the burden of proving that the party, the burden of proving that the party has been divested of ownership rests on the other party.”

Furthermore, where a party also raises possession as an act of ownership, the law requires that the root of his title must be pleaded and duly established by cogent evidence, see the same case of ORLU V GOGO-ABITE (SUPRA) where the apex Court held as follows:
“Act of ownership can only properly be considered where root of title is pleaded and established by cogent and convincing evidence. Fasoro v. Beyioku (1988) 2 NWLR Pt. 76 pg. 263 Ibenye v. Agwu (1988) 11 NWLR Pt. 574 pg. 372.” Per ADEKEYE, J.S.C.
The trial Judge relied heavily on the Respondent’s assertion that he was in possession and therefore his claim that the land was sold to him is proved by those acts of possession. The Appellants admitted sale of part of the land except the portion they are challenging. Having admitted the part sold by the Appellants’ father, and in the light of the state of the law, pleadings and evidence before the Court, the Respondent failed to satisfy the requirements of the law in pushing back the burden of proof onto the Appellants as required, see UNION BANK V. RAVIH ABDUL & CO. LTD (2018) LPELR-46333(SC) wherein the apex Court held thusly:
“… The Respondent has the option of shifting the burden of proof by adducing cogent, concrete and credible evidence to contradict the content Exhibits D2, D2A, D2B and D3. This is because in civil suits, unlike criminal cases, the burden of proofs keeps oscillating among the parties. The Evidence Act 2011 says it all in Sections 131-134. …The law is that the burden of proof is on the party who would lose if no evidence were adduced. Generally, in civil proceedings the burden of proof though said not to be static, it is on the vulnerable party to lead credible evidence in proof to the contrary. See ADEGOKE VS ADIBI (Supra), ONWUAMA VS EZEOKOLI (Supra), OYOVBIARE VS OMAMURHOMU (Supra) and IKE VS UGBOAJA (Supra). See also ONOBRUCHERE VS ESEGINE (1986) 1 NWLR (Pt.19) 799; OJOMO VS IJEH (1987) 4 NWLR (Pt. 64) 216; ABIODUN VS ADEHIN (1962) 2 SCNLR 305; REYNOLDS CONSTRUCTION CO. LTD. VS OKWEJIMINOR (2001) 15 NWLR (Pt.735) 87.

The onus and burden of proof lie on the Respondent in this suit. Regrettably, the Respondent has done little to discharge the burden. We must apply law as it is.” Per BAGE, J.S.C.
The Appellants had the burden under law to establish its claim by preponderance of evidence and established its interest in the land, the burden shifted onto the Respondent. He failed to establish how the progenitor divested himself of title over the portion contested. The Respondent asserted positive acts which remained unproven. The law is that he who makes a negative assertion has no duty to prove.
Consequently, the trial Judge erred in dismissing the claim for the portion contested. The Respondent having failed to prove title over the portion contested, his alleged presence on that portion amounts to trespass because he is there without authorization and the Appellants having proved a better title, he is a trespasser having failed to prove his root of title. The law is settled that possession is an act of ownership, however, it is also trite that act of possession cannot stand alone in establishing title as the person alleging must first establish his root of title before relying on possession, it is an offshoot and not the root, see MOGAJI & ORS V. CADBURY (NIG) LTD (1985) LPELR-1889(SC) wherein the apex Court held as follows:
“…under Section 145 of the Evidence Act while possession may raise a presumption of ownership, it does not do more and cannot stand when another proves a good title (See Da Costa v. Ikomi (1968) 1 All NLR 394 at page 398).” Per NNAMANI, J.S.C.

On whether the claim was statute barred, this was a new issue considered by the trial Court at judgment stage because it was not pleaded by the Respondent. However, by recent decisions, superior Courts in considering the effect of when a matter is caught by statute of limitation, it held that it raises a jurisdictional issue. Issue 5 raised by the Appellants considered the findings of the trial Court that the matter was caught by Limitation law of Nasarawa State.

The law described statute barred actions in OSUN STATE GOVERNMENT V. DALAMI (2007) LPELR-2817(SC) thusly:
“The general principle of law is that where a statute provides for the institution of an action within a prescribed period, proceedings shall not be brought after the time prescribed by such statute. Any action that is commenced after the prescribed period is said to be statute-barred. See lbrahim v. J.S.C. (1998) 14 NWLR (Pt. 584) 1.” Per KATSINA-ALU, J.S.C.
And also ADEOSUN v. JIBESIN & ORS (2000) LPELR-10337(SC) wherein the Court held thusly:
“It is trite that a legal right to enforce an action is not a perpetual right – but a right generally limited by statute. After the date on which the applicable statute says legal proceedings cannot be taken any person having a right of action can no longer competently institute an action. In other words, a cause of action is statute-barred if legal proceedings cannot be commenced in respect of same because the period laid down by the limitation law or act had elapsed. See Egbe v. Adefarasin (1987) 1 NWLR (Pt. 47) pg 1; Obiefuna v. Okoye (1961) 1 All NLR 357. If a plaintiff’s action is statute-barred, it affects the legal competence or jurisdiction of the Court. The relevant applicable law in the instant appeal is Sections 4(1)(a) and Section 6(2) of the Limitation Law Cap. 61 Vol. III Laws of Ogun State 1978. Section 4(1)(a).” Per ADEKEYE, J.S.C.
When a matter is considered caught by the principle and said to be statute barred the apex Court in the case of UBA PLC V. BTL INDUSTRIES LTD (2006) LPELR-3404(SC) prescribed how to determine it as follows:
“…See also the views of Iguh, J.S.C. in Jallco Ltd. v. Owoniboys Technical Service Ltd. (1995) NWLR (Pt. 391) 534 at 547 where Mohammed, J.S.C. held thus: In considering whether an action is statute-barred, it is relevant to ask, ‘when does time begin to run’? This Court, in the case of Fadare & Ors v. Attorney General, Oyo State (1982) NSCC 52 at 60 referred to the case of Board of Trade v. Cayzer, Irvine Land Co. Ltd. (1927) A.C. 610 where it held that: ‘Time, therefore, begins to run when there is in existence a person who can sue and another who can be sued, and all facts have happened which are material to be proved to entitle the plaintiff to succeed.’ It is crystal clear from the facts of this case and that the respondent had not become aware of the wrong entries in his accounts until in 1980/81. That being the case, the right of action accrued when the respondent’s demand to have his account credited was denied and refused, and this happened in 1980/81.

The claim of the respondent is not therefore statute-barred.” Per ONU, J.S.C.

Going by the pleadings, the Appellants by their pleadings, particularly paragraph 10 (page 93 of the record of appeal) averred that the cause of action arose in 2013, it says thusly:
“10. That is the year 2013, the defendant started encroaching on the land surreptitiously trying to erect structures on the land.”

The time starts to run when the cause of action arose. Cause of action was defined in the case of RHEIN MASS UND SEE & ORS V. RIVWAY LINES LTD (1998) LPELR-2948(SC) as follows:
“The expression “cause of action” is not defined in the Act, it has, however, been judicially defined in a number of cases. In Savage v. Uwechia (1972) 3 S.C. 214, 232, (1972) ANLR 255, 261 Fatayi Williams JSC (as he then was) delivering the judgment of this Court, had this to say: A cause of action is defined in Stroud’s Judicial Dictionary as the entire set of circumstances giving rise to an enforceable claim. To our mind, it is, in effect, the fact or combination of facts which give rise to a right to sue and it consists of two elements – the wrongful act of the defendant which gives the plaintiff his cause of complaint and the consequent damage. As Lord Esher said in Cooke v. Gill (1873) L.R. 8C.P. 107 and later in Read v. Brown (1888) 22 Q.B.D. 128 (C.A.). It is every fact it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the Court. (See also Kusada v. Sokoto Native Authority, S.C. 131/68 delivered on 13th December, 1968, where the definition in Read v. Brown (supra) was referred to with approval.” See also Kusada v. Sokoto Native Authority (1968) 1 All NLR 377; (1968) ANLR 366; Aliu Bello & Ors v. Attorney-General Oyo State (1986) 5 NWLR (Pt.45) 828 where Karibi- Whyte JSC at p.876 observed: “I think a cause of action is constituted by the bundle or aggregate of facts which the law will recognise as giving the plaintiff a substantive right to make the claim against the relief or remedy being sought. Thus the factual situation on which the plaintiff relies to support his claim must be recognised by the law as giving rise to a substantive right capable of being claimed or enforced against the defendant. In other words, the factual situation relied upon must constitute the essential ingredients of an enforceable right or claim. See Trower & Sons Ltd. v. Ripstein (1944) A.C. 254 at P. 263; Read v. Brown 22 Q.B.D. 128; Cooke v. Gill (1873) L.R. 8 C.A. 107; Sugden v. Sugden (1957) All E.R. 300; Jackson v. Spittal (1870) L.R. 5 C.P. 542. Concisely stated, any act on the part of the defendant which gives to the plaintiff his cause of complaint is a cause of action.” See further: Tukur v. Government of Gongola State (1989) 4 NWLR (Pt. 117) 517; Thomas & Ors v. Olufosoye (1986) 1 NWLR (Pt. 18) 669.” Per OGUNDARE, J.S.C.

Therefore, taking from when the cause of action arose and when the suit was filed (May 2017), the time is four years and the Nasarawa State Limitation Law provides for 10 years. It therefore follows that the action was commenced within the time allowed by law and not statute barred. When a cause of action arose is not determined by the statement of defence or when the Respondent projects it arose. It is determined from the statement of claim, see the case of SHELL PETROLEUM DEVELOPMENT COMPANY NIGERIA LTD V. NWAWKA (2003) 1 S. C. (PT. II) 127 and IDACHABA & ORS V UNIVERSITY OF AGRICULTURE MAKURDI (2021) where my Lord ABBA-AJI, JSC held thusly:
“It is the law that the process filed by the Plaintiffs should be the mirror to look into in determining whether an action is caught by the statute of limitation or not. All that is required is for one to examine the writ of summons and the statement of claim alleging when the wrong was committed which gave the plaintiff a cause of action and comparing that date with the date on which the writ of summons was filed. If the time on the writ is beyond the period allowed by the limitation law, then the action is statute barred. See Per EDOZIE, JSC in AREMO II V. ADEKANYE & ORS (2004) LPELR-544(SC) (P. 18, PARAS. B-D).
The yardsticks to determine whether an action is statute-barred are: (a) The date when the cause of action accrued. (b) The date of commencement of the suit as indicated in the writ of summons. (c) Period of time prescribed to bringing an action to be ascertained from the statute in question. Time begins to run for the purposes of the limitation law from the date the cause of action accrues. See Per GALADIMA, JSC in INEC V. OGBADIBO LOCAL GOVT & ORS (2015) LPELR-24839(SC) (PP. 32- 33, PARA. A).”

Furthermore, the Respondent being in continuous trespass, the law is trite that time does not start to run against the Claimant due to the continuous trespass, the principle of continuous trespass was described in ONAGORUWA V. AKINREMI (2001) 13 NWLR (PT.729) 38 as follows:
“It can readily be concluded that the trespass here was continuous. A continuous trespass was considered and defined as follows: “It is a continuing trespass for a person to remain in another’s land without that other’s authority or consent so that barring defences properly raised and sustained which defeat the right of the owner of such land to complain of the continuing trespass, the land is always entitled to protection as appropriate.” Per ADEKEYE, J.S.C.
The Appellant by evidence made it clear in describing the Respondent’s acts of trespass when they stated that he built houses, is still constructing house and curved out plots of land from the land in dispute, the Limitation Law will therefore not apply against the Appellants. Continuous trespass suspends the operation of limitation law, see the case of CHRISTOPHER OBUEKE & ORS v. N. N. NNAMCHI & ORS (2012) 12 NWLR (PT 1314) P. 327 where Per Onnoghen, JSC had this to say:
“… Also settled is the principle of continuity of trespass or successive acts of trespass constituting separate and independent actionable wrongs in trespass. It follows that where there is continuity of acts of trespass, successive actions can be maintained by a Plaintiff from time to time in respect of the continuance of the trespass. See ADEPOJU v. OKE (1999) 2 NWLR (pt. 594) 154 at 169. It is from a combination of the above principles that emerged the doctrine of continuing trespass giving rise to action from day to day as long as the wrong lasts. In such a situation/circumstance an action for trespass cannot be defeated by a plea of limitation of time-in this case the assertion that the trespass has been on for more than six years.”
Therefore, the contention of the trial Judge that the claim was statute barred is erroneous and misconceived.

The Appellants in a subtle way by issue 6 challenged the issue of the suit being statute barred as found by the trial Judge. The Appellants’ contention is that statute of limitation is a special defence which should be pleaded, see the case of FUT MINNA & ORS V. OKOLI (2011) LPELR-9053(CA) wherein the Court held thusly:
“The law however is that a defence that an action is statute barred is a special defence like fraud, estoppel, res judicata, etc which must be pleaded specifically in either statement of defence or counter-affidavit as the case may be, by a defendant before it can be relied upon in any proceedings. See ANYAORAH v. ANYAORAH (2001) FWLR (73) 178, USMAN DANFODIO UNIVERSITY, SOKOTO v. BALOGUN  166 at 183.” Per GARBA, J.C.A.
That being the case, procedurally and as required by the rules of Court, it should be pleaded so as not to take the other side by surprise, see BAMIGBADE & ANOR V. ADEYERI & ORS (2012) LPELR-9852(CA) wherein the Court held as follows:
“… the law enjoined a defendant, as the Respondents, to specifically plead limitation as a special defence before he could raise and rely on it at the trial in order not to “take the opposite party by surprise”. The plaintiff has a right not to be taken by surprise. The duty of the defendant in this regard is rooted in audi alteram partem, one of the cardinal pillars of the principle of fair hearing enshrined in Section 36(1) of the Constitution. See AJILA V. LAWAL (2005) ALL FWLR (PT. 278) 1158. Over the years, the law has fossilized and it is now settled that, a party relying on special defence must plead it specifically before he can lead evidence in support thereof. See ODUMOSU V. A.C.B LTD (1976) 11 SC 55 A. – G ANAMBRA STATE V. ONUSELOGU ENT, (1987) 4 NWLR (PT. 66) 547 FCDA V. NOIBI (1990) 3 NWLR (PT. 138) 270.” Per EKO, J.S.C.
The plethora of authorities demand that facts necessary to show that the action is not maintainable because it is caught by limitation of time should so stated in clear terms in the statement of defence. The statement of defence is bereft of such facts in this case. 

The function of pleadings has been stated and restated in a plethora of authorities, one of such is the case of EGBUE V. ARAKA (1988) LPELR-1035(SC) wherein the apex Court held as follows:
“The principle of pleading under our adversary system should not be overstretched and in should be borne in mind that it is to facilitate understanding of the issues between parties. Except where it is going to materially alter the nature of the cause of action every statement of claim can be amended once the procedure is followed. No pleading should be a Trojan horse waiting in ambush for unsuspecting opponent, it is rather a guide to the other party to know what he has to meet. Clearly, the purport of pleading is what is contained in Order 16 Rule 4 of the Lagos State High Court Rules, to wit. Order 16 R.4: Every pleading shall contain, and contain only, a statement in a summary form of the material facts on which a party pleading relies for his claim or defence, as the case may be, but not the evidence by which they are to be proved and shall, when necessary, be divided into paragraphs, numbered consecutively.” Per BELGORE, J.S.C.

The parties and also the Court are bound by the pleadings upon which issues were joined, see the case of UDENGWU V. NZUEGBU & ORS (2003) LPELR-3293 wherein the apex Court held thusly:
“It is a fundamental principle that parties are bound by their pleadings. It is not only the parties but also the Courts are bound by the pleadings of the parties. In the case of African Continental Seaways Ltd. v. Nigeria Dredging Road and General Works Ltd (1977) 5 SC 235 at 250, this Court held: The Court itself is as much bound by the pleadings of the parties as they are by themselves. It is no part of the duty or function of the Court to enter upon any inquiry with the case before it other than to adjudicate upon the specific matters in dispute, which the parties themselves have raised by their pleadings. Indeed, the Court would be acting contrary to its own character and nature if it were to pronounce upon any claim or defence not made by the parties. A Court cannot and ought not evolve a case for either party and proceed to give judgment thereon contrary to the case of the parties before it. See Commissioner for Works, Benue State & Anor v. Devcon Development Consultants Ltd. and Anor (1988) 7 SC (Pt.1) 29; (1988) 3 NWLR (Pt. 83) 407; Ochonma v. Ashiri Unosi (1965) NMLR 322 at 323, Nigerian Housing Development Society Ltd. & Anor v. Yaya Mumuni (1977) 2 SC 57, A.C.B. Ltd. v. AG of Northern Nigeria (1967) NMLR 231.” Per EDOZIE, J.S.C.

In this case the issues of limitation were not pleaded nor were facts alluded to it during trial. It was only raised during closing addresses and the trial Judge agreed with the Respondent. Though it was not decided on the basis of its being a jurisdictional issue, the current state of the law leans towards that. The underlying issue is that the special defence of limitation is a point of law, see BUREMOH V. AKANDE (2017) LPELR-41565(SC) where it held as follows:
“The effect of the limitation law on the cause of action is that a Court lacks the jurisdiction to entertain the action. This can be raised at anytime even for the first time in the Supreme Court. See Salati v Shehu (1986) 1 NWLR (Pt 15) 198; A-G. Oyo State v. Fairlakes Hotel Ltd (1988) 5 NWLR (Pt. 92) 1; Management Enterprises Ltd v. Otusanya (1987) 2 NWLR {Pt.55} 179.” Per AKA’AHS, J.S.C.
However, the twist was introduced by the current view that the special defence of the application of limitation law or statute of limitation is a point of law and it raises a jurisdictional issue, see ADETULA V. AKINYOSOYE & ORS (2017) LPELR-42130 (CA) which held thus:
“Incontestably, the question of whether or not an action is caught by limitation law or statute – bar touches on the jurisdiction of a Court. A successful plea of limitation law makes a plaintiff, usually the initiator of a suit, to be destitute of the right of action and judicial relief. In other words, a plaintiff’s cause of action becomes banished. See Egbe. v. Adefarasin (No.2) (1987) 1 NWLR (Pt. 47) 1; Nasir v. C. S. C. Kano State (2010) 5 NWLR (pt. 1190) 253; Cotecna Int’l Ltd. v. Churchgate (Nig.) Ltd. (2010) 18 NWLR (PT. 1225) 346. In this regard, the Court ceases to be vested with the jurisdiction to entertain the action that offends the Limitation Law, see Owners of MV “Arabella” v. NAIC (2008) 10 NWLR (Pt.1097) 182; Olagunju v. PHCN Plc. (2011) 10 NWLR (Pt. 1254) 113; J. F. S. Inv. Ltd. v. Brawal Ltd. (2010) 18 NWLR (Pt. 1225) 495; Sylva v. INEC (2015) 16 NWLR (Pt. 1486) 576; INEC v. Ogbadibo LG. (2016) 3 NWLR (Pt. 1498) 167; Ibrahim v. Lawal (2015) 17 NWLR (Pt. 1489) 490 Obande F. Ogbuinya, Understanding The Concept of Jurisdiction in the Nigerian Legal System (Enugu: Snaap press Ltd., 2008) pages: 173 – 183.” Per OGBUINYA, J.C.A.
​And if so, the factors relevant and applicable to the issue of jurisdiction must now apply. One fundamental feature of challenging jurisdiction of a Court is that it can be raised at any time, even on appeal for the first time, see ADEGBOLA & ORS V. IDOWU & ORS (2017) LPELR-42105(SC) and SPDC V. EJEBU & ANOR (2010) LPELR-5025(CA) wherein the held as follows:
“I agree with the learned counsel that the fresh point or issues on jurisdiction can be raised for the first time in the appeal Court. In CHIEF ASANTE v. CHIEF TAWIA (1949) W.N.40 (also (1814 – 1973) PRIVY COUNCIL JUDGMENTS 432), it was held that it was never too late in the proceedings to raise a point of jurisdiction or competence of the trial Court at the Appeal Court even though it was not raised in any of the three Courts below or at the Court of trial. Their Lordships of the Board of the Privy Council could not assent to that view. The report further states – If it appeared to an Appellate Court that an order against which an appeal was brought had been made without jurisdiction, it could never be too late to admit and give effect to the plea that the order was a nullity.” Per EKO, J.S.C.
A challenge to jurisdiction of a Court is not regulated by the rules of procedure and pleadings. It can be raised orally or by way a motion and any other process. One moot point however, is that the opposing party must be given an opportunity to address the Court on the issue. In this case, it was raised in the address of Counsel and the trial Judge resolved in the judgment.
Therefore, the previous procedure or requirement that a party relying on limitation law must first plead it before it can be raised is no longer applicable and is not the current law. One must acknowledge the recent decision of the apex Court in the case relied upon by the Appellants’ Counsel which did not consider limitation law as a point of law which challenges the jurisdiction of the Court. The subtle objection therefore is unmeritorious and discountenanced.

The Appellants by issue 6 also challenged the finding of the trial Court where it held that the sale of land was carried out under customary law and documents are not relevant in such transaction, indeed, there is no such pleading by the Respondent to that effect. If that were so, why did the trial Judge fall back on the documents of title issued by the Local Government? A party cannot plead one method of proving title and fall back on a different method of proof. He must be consistent in his case, see the case of AIGHOBAHI & ORS V. AIFUWA (2006) LPELR – 267 (SC) wherein PER ONNOGHEN JSC held that:
“Where the plaintiffs case is based on traditional evidence of ownership as the legal basis of his claim, his duty is limited to proving such traditional title and no more. On the other hand, if a plaintiff’s claim relies on conveyance as the legal basis of ownership, his duty is simply to produce the documents of title or title deeds. The same thing applies where he claims through any of the other remaining three ways.”

Looking closely at the pleadings, the Respondent relied on documents and not customary or traditional history, any evidence not founded on pleadings goes to no issue, see the case of EMEGOKWUE V. OKADIGBO (1973) LPELR-1124(SC) wherein the Court held that:
“It is trite law, and we have repeated it on many occasions, that parties are bound by their pleadings and that any evidence which is at variance with the averments in the pleadings goes to no issue and should be disregarded by the Court. The reason for this rigid rule of pleadings and of evidence has been clearly stated by this Court in George and Ors v. Dominion Flour Mills Ltd. [1963] 1 All N.L.R. 71 at p. 77 as follows: “The fairness of a trial can be tested by the maxim audi alteram partem. Either party must be given an opportunity of being heard, but a party cannot be expected to prepare for the unknown, and the aim of pleadings is to give notice of the case to be met which enables either party to prepare his evidence and arguments upon the issues raised by the pleadings, and saves either side from being taken by surprise. Incidentally, it makes for economy. The plaintiff will, and indeed must, confine his evidence to those issues but the cardinal point is the avoidance of surprise.” Per FATAYI-WILLIAMS, J.S.C.
Also see the case of AKINBADE & ANOR V. BABATUNDE & ORS (2017) LPELR-43463(SC) wherein the apex Court held thusly:
“It is trite as well that for the evidence proffered in a case to be worthy of being evaluated, parties must have joined issues on the facts sought to be established by such evidence in their pleadings. Evidence in respect of unpleaded facts, facts on which parties had not joined issues on in their pleadings must, having gone to no issue, be ignored. See Morohunfola v. Kwara Tech. (1990) NWLR (Pt. 145). 506 and Ademeso v. Okoro (2005) 14 NWLR (Pt. 945) 308.” Per MUHAMMAD, J.S.C.

Furthermore, the conditions precedent to a customary sale of land as established in the case of ATANDA V. HON. COMMISSIONER FOR LANDS AND HOUSING, KWARA STATE & ANOR (2017) LPELR-42346(SC) must apply. The conditions that must be made out and which are missing are as follows:
i. There must be payment of money or agreed consideration;
ii. The transaction must be witnessed by witnesses; and
iii. The actual handing over of the land must be done in the presence of the same witnesses.
The conditions are a prerequisite and failure to establish any one of them defeats the unpleaded claim that the land was sold under customary law. Furthermore, no evidence in support of any of the factors necessary to be proved is before the Court. No evidence of the custom of the people of area was also established.

On visit to locus inquo, the Court is empowered to do so pursuant Section 127 of the Evidence Act, 2011 and the procedure to be adopted was set out in the case of ABOYEJI V. MOMOH (1994) LPELR-46 as follows:
a. The Court may adjourn to the locus and continue sitting there in the normal way by hearing and taking evidence of witnesses; or
b. The Court may just move to the locus to insect the subject matter in dispute and return to the Court room for evidence.
The Appellants contend that the trial Court breached the procedure settled for visit to locus in quo because it was done after the close of the case and the trial Judge proceeded to rely on his perception of the scene which was not supported by any witness or evidence before the Court, the apex Court in the case SHEKSE V. PLANKSHAK & ORS (2008) 15NWLR (Pt.1109) 105 thus:
“The Appellant has not been able to show that the non-recording of the proceedings at the locus-in-quo adversely affected his case. See Enigwe v. Akaigwe (1992) 2 NWLR (Pt.225) 505 at page 525-526, where the Supreme Court stated the principles in respect of visit to locus-in-quo as follows:
“In dealing with the foregoing submissions, I think it is necessary to state the general principles of visit to or inspection of a locus-in-quo. These are – 1. There is no rule of law which determines at what stage in a trial a visit of inspection must be made. See Ejidike & Ors v. Obiora (1951) 13 WACA 270 at 273 2. A Court should undertake a visit to the locus in-quo where such a visit will clear a doubt as to the accuracy of a piece of evidence when such evidence is in conflict with another evidence. See: Seismograph Services (Nig.) Ltd v. Ogbeni (supra). 3. Where there are two conflicting evidence adduced by parties to a case, it is necessary to visit the locus-in-quo if such a visit can resolve the conflict in the evidence. See Seismograph Service (Nig.) Ltd. v. Akporuovo (1974) 6 S.C. 119 at 128; (1974) 6 S.C. (Reprint) 103. 4. Where a trial Judge makes a visit to locus-in-quo, it is not proper for him to treat his perception at the scene as a finding of fact without evidence of such perception being given by a witness either at the locus or later in Court after the inspection – See Seismograph Service Ltd v. Onokpasa supra. 5. On a visit to a locus-in-quo, it is necessary for the trial Judge to make a record in the course of the proceedings of what transpires at the scene. However, if the trial Judge failed to make the record but made statement in his judgment about the visit, such statement would be taken as accurate account of what happened and therefore final, unless of course the contrary can be established by the party that impugns the record. See Nwizuk’s case (supra) and Maji v. Shafi (1965) NMLR 33 at 35 and Bello v. Kassim, (1969) 1 NMLR 148. 6. Where a visit is made to a locus-in-quo, evidence of witnesses can be received at the scene or in Court later. But the parties, in that case, must be given the opportunity of hearing the evidence of the witnesses and where necessary be offered the opportunity of cross-examining the witnesses and commenting on the evidence. See Seismograph Service Ltd. v. Onokpasa (supra) at pp. 134-135.” Per OGEBE, J.S.C.
The complaint that none of the parties applied for the visit to locus in quo and therefore it was illegal, is misconceived, the Appellants should have protested by raising an objection. But they participate. Therefore, the only complaint to be resolve is whether the procedure was duly followed by the Court below. The trial Judge must arrive at judgment on the basis of the totality of the evidence adduced before the Court. The trial Judge cannot replace the eye for the ear but rather to clear any ambiguity that may arise. The purpose of a visit to locus in quo is primarily to enable the Court to understand the questions that are being raised at the trial and to further follow evidence and to apply evidence. See SULAIMON & ORS V AJIBOLA & ORS (2018) LPELR-45529 (CA).
It is therefore not the impression from the visit but upon its impressions from the totality of the evidence adduced before the Court. Indeed, the Court cannot use his personal impression as evidence before the Court for arriving at the judgment, that has no foundation in the evidence before the Court, I agree with the Appellant that the trial Judge erred in drawing conclusions from his personal views when he said:
“it was clear at the locus inquo the area in dispute was in the exclusive possession of the defendant, who having bought same from Mr. Amale Kwagbagyi-Zegye Ziche went ahead to process his title documents.”
That did not transpire at the visit to locus in quo and so the trial Judge should not have drawn such conclusion from his personal opinion. The trial Judge erred and in doing so made a new case for the parties by relying on materials not established by evidence. A Judge is not allowed to make a new case for the parties, see NWAFOR V. ANYAEGBUNAM (1978) LPELR-2765(SC) wherein the apex Court held thusly:
“… it is not within the province and competence of a judge to evolve a case for the parties.” Per IDIGBE, J.S.C.

The duty of the Judge is to resolve disputes presented by parties for resolution and not to set up a new case different from the one contemplated by the parties in their pleadings, see ADDAH & ORS V. UBANDAWAKI (2015) LPELR-24266(SC) wherein the apex Court held that:
“No judge should embark upon deliberate falsehood or go on his own voyage to furnish imaginary evidence on the identity of the land in dispute. After all, a judge should not set up for parties a case different from the one established by cold facts supplied by the parties as well as their pleadings. See Oniah v. Onyia (1989) 1 NWLR (Pt. 99) 514 and Ojo-Osagie v. Adonri (1994) 6 NWLR (Pt. 349) 131.” Per FABIYI, J.S.C.
Furthermore, the manner in which the trial Judge couched the sole issue for determination was flawed because it shifted the burden of point of a negative confession on the Appellants which is contrary to the Evidence Act, 2011 which requires the party who asserts the positive to prove such assertion. The sole issue derailed the trial Judge into error which occasioned a miscarriage of justice.

Flowing from the resolution of all issues adopted for determination, which were resolved against the Respondent, the judgment cannot stand.

In the light of above, the appeal is meritorious and is allowed. The traditional history was not shaken and there was also no counter-claim and therefore the dismissal of the claim on the basis of a case made for the Respondent cannot stand. The Respondent failed to shift the burden of proof back to the Appellant and therefore, cannot be entitled to judgment. The judgment of the trial Court delivered on the 30th November, 2018 is hereby set aside and judgment is entered in favour of the Appellants in respect of 5.31 hectares (52plots) being the portion not sold to the Respondent.

I also find that the Respondent has trespassed onto the said 5.31 hectares of land and the sum of N2,000,000 (Two million Naira) is hereby awarded as damages for trespass.

​AN ORDER of perpetual injunction is hereby made restraining the respondent either by himself or his agents, heirs, or those deriving title from him, however called from committing acts of trespass on the Appellant’s land.
No order as to cost.

IGNATIUS IGWE AGUBE, J.C.A.: I had the privilege of reading the lead judgment of my learned brother, YARGATA. B. NIMPAR, JCA, before now, and I am in total agreement with his reasoning and conclusion on all the issues distilled for determination.

Accordingly, I shall also allow this appeal for being meritorious and abide by the consequential orders made in the lead judgment.

CORDELIA IFEOMA JOMBO-OFO, J.C.A.: I had the privilege of reading in draft the judgment delivered by my learned brother, HON. JUSTICE YARGATA BYENCHIT NIMPAR, JCA just delivered. He has exhaustively addressed the issue in contention. I am in full agreement with the reasoning and conclusions expressed therein that the appeal is meritorious and ought to be allowed. I will however like to add by way of emphasis that one of the questions to be resolved in this appeal is whether having rejected the sales agreement in evidence, the learned trial judge was right to hold that there was a valid transfer of land by Amale Kwaghgbagyi-Zegye- Zhiche who is the Appellants’ progenitor to the Respondent.

A root of title can be any document or claim which is sufficient in itself without any extrinsic evidence required to establish the title to the land. However where a party fails to prove the root of title so pleaded and relied upon, his claim must be dismissed. It is as good as he made no defense against the other party.

In the instant case, the Respondent case was founded on purchase of the land where-for the conveyance document is necessary to establish his claim. However, the trial Court Judge rejected the sale agreement from which the Respondent titled was derived from. Nevertheless the Court entered judgment in favour of the Respondent. It is the law that, when a party as in this case, is resting his root of title on purchase, he must produce and tender his deed of conveyance in order to succeed. See FOLARIN V. DUROJAIYE (1988) 1 NWLR (PT. 70) 351.
The basic foundation that is, sale agreement evidence having been rejected, there is nothing on which to find acts of ownership. The trial Court cannot rely on subsequent documents to find a case for the Respondent without the sale agreement, this is so because the case of Respondent was built on the foundation of documents of title which have no life upon rejection. I am compelled to hold that the trial Judge was in grave error when he entered judgment for the Respondent who failed to establish his root of title through sale agreement. This is more so when it is trite that the five (5) ways of proving title to land are independent of one another. See UMENNADOZIE OGBUOKWELU V. JAMES UMUE NAFANKWA (1994) 5 SCNJ 24.

Again, the Appellants relied on the traditional history and called two witnesses in proof of their title to the disputed land. Expounding what is implied by traditional history in proof of ownership of land, the Supreme Court, per Akpata, JSC in Ohaeri V. Akabeze (1992) LPELR- 2360 (SC) had this to say:
“Where a plaintiff pleads in terms of traditional history that a parcel of land was originally the property of his ancestors and pleads that line of descent, he is saying in effect that his ancestors were the founders of the land, the first persons to own the land.
The word originally or original is used in contradiction to ownership by inheritance, grant or conquest. “originally” or “original” pertains to the origin of something; that existed at first or has existed from the first….”

The settled position of the law is that where a party relies on traditional history in proof of title to the land, he must give satisfactory evidence as to how he derived the particular title pleaded and claimed. He is bound to plead and establish facts such as:
1. Who founded the land.
2. How he founded the land; and
3. The particulars of the intervening owners through whom he claims;
See NRUAMAH V. EBUZOEME (2013) LPELR- 19771 (SC); NGENE V. IGBO (2000) LPELR- 1987 (SC); EZEOKONKKWO V. OKEKE (2002) 5 S.C. (PT.1) 44.

At the trial, the Appellants testified mainly in line with their pleadings, relying on traditional history and long possession.
The elements required to be proved to ground a claim of ownership of land relying on traditional history, as established by judicial pronouncements, have been outlined above. The primary element is for the claimant to prove who founded the land in dispute. The evidence of the Appellants as regard who founded the land was not shaken, and I see no gaps in the evidence. I find it difficult to agree with findings of the learned trial Judge as the evidence of the Appellants plainly demonstrates the assailability of these findings.

For these reasons and others fully set out in the lead judgment, I agree that this appeal is meritorious and is accordingly allowed. The judgment of the trial Court delivered by HON. JUSTICE SIMON O. ABOKI on the 30th November, 2018 is hereby set aside. I make the same orders as contained in the lead judgment.

Appearances:

PAUL B. ATAYI, ESQ. For Appellant(s)

SAMSON C. BALA, ESQ. For Respondent(s)