BALA & ANOR v. HASSAN
(2022)LCN/16037(CA)
In the Court of Appeal
(KANO JUDICIAL DIVISION)
On Monday, June 20, 2022
CA/KN/116/2020
Before Our Lordships:
Boloukuromo Moses Ugo Justice of the Court of Appeal
Abubakar Muazu Lamido Justice of the Court of Appeal
Usman Alhaji Musale Justice of the Court of Appeal
Between
SHEHU BALA & ANOR APPELANT(S)
And
SALEH HASSAN RESPONDENT(S)
RATIO
DUTY OF THE COURT WHERE BOTH THE PLAINTIFF AND THE DEFENDANT CLAIM OWNERSHIP OF A LAND
The law is well settled that where both the plaintiff and the defendant claim ownership of a parcel of land as in the instant case, the task before a Court is to determine who between the two of them is the person that led better evidence to prove the ownership of the land in dispute. See ARASE VS ARASE (1981) 5 SC 33; DAVIES VS. ASIBONA (1994) 5 NWLR (PT. 343) 234 and NTEOGWUIJA VS. IKURU (1998) 10 NWLR (PT. 569) 267. And invariably, the Court will make a declaration of ownership in favour of the party who proves a better title. See ADOLE vs. GWAR (2008) 11 NWLR (PT. 1099) 562 and ADAMU & ORS. VS. JATAU SONS (2018) LPELR-47141 – PER ABUBAKAR MU’AZU LAMIDO, J.C.A
WHAT A CLAIMANT MUST ESTABLISH TO SUCCEED IN AN ACTION FOR DECLARATION OF TITLE TO LAND
For a claimant to succeed in an action for declaration of title to land, he must establish his claim of ownership by one or more of the following modes:-
1. By traditional evidence
2. By production of title documents
3. By acts of ownership over sufficient length of time, numerous and positive enough to warrant the inference that the person is the true owner of the land
4. By a long possession
5. By proof of possession of adjacent or connected land in the circumstances rendering it probable that the owner of such connected or adjacent land would be the true owner of the land in dispute.
See IDUNDUN VS. OKUMAGBA (1976) 9 1 10 WSC 227; AJIBOYE VS. ISHOLA (2006) 13 NWLR (PT. 998) 628 and ASANIKE VS. AJIGBOTOSHO & ORS. (2020) LPELR-52388 -PER ABUBAKAR MU’AZU LAMIDO, J.C.A
CIRCUMSTANCE WHEN DECLARATION OF TITLE CAN BE GRANTED BY THE COURT
The law is well settled that a declaration of title to a piece of land can only be granted if there is a definite, precise and accurate boundaries pleaded by a plaintiff. The onus of proof lies on the plaintiff who seeks the declaration and injunction to establish with certainty and precision the area of land to which the claim relates. See EKPEMUPOLO VS. EDREMODA (2009) ALL FWLR (PT. 473) 1220. However, pleading the precise identity and location of the land becomes necessary only where its features are disputed by parties but where the land is well known to the parties, it is not necessary to state its description and boundary. See ABOYEJI VS. MOMOH (1994) 4 NWLR (PT. 341) 646 and MAISHANU VS. ANCHAU (2006) 6 NWLR (PT. 1084) 565. Also where the identity of the land is ascertained with clarity from the pleadings of parties, the burden to establish the identity of the land does not arise. There can be no better way of establishing the identity of the land in dispute than a tendering of Certificate of Occupancy in respect of the land together with its survey plan. See ADELUSOLA VS. AKINDE (2004) 12 NWLR (PT. 887) 295; OGUN VS. AKINYELU (2004) 18 NWLR (PT. 905) 362 and CHARLIE VS. GUDI (2007) 2 NWLR (PT. 1017) 91. In the present appeal, there is enough evidence before the trial Court to properly infer the identity of the land which makes proof of identity of the land immaterial. See AKINTERINWA VS. OLADUNJOYE (2000) 6 NWLR (PT. 659) 92; GBADAMOSI VS. DAIRO (2007) 3 NWLR (PT. 1021) 282 and BAKO & ANOR VS. AUDU & ANOR (2018) LPELR-44394. Therefore, failure to specifically plead the identity and description of the land is not fatal to the Respondent’s case in view of the fact that a Certificate of Occupancy together with a survey plan are admitted in evidence. -PER ABUBAKAR MU’AZU LAMIDO, J.C.A
ON THE MEANING OF ROOT OF TITLE
The term root of title is a process through which a party came to be the owner of the land in dispute. See YUNANA & ORS vs. TULA & ORS. (2018) LPELR-44244 and AMALE & ORS. VS. MUSTAPHA (2022) LPELR-56897.
ESTABLISHMENT OF A VALID ROOT OF TITLE
It is well settled that once a party pleads and traces his root of title in an action involving title to land to a particular person or source and the averment is disputed or challenged, the party asserting must not only establish his own title to such land, he must also satisfy the Court on the validity of the title of that particular person or source from whom he claims to have derived his title. See MOGAJI VS. CADBURY (NIG) LTD (1985) 7 SC 89; ADOLE VS. GWAR (2008) LPELR 189 and ADEDIJI VS. KOLADE & ANOR (2012) LPELR 14171.
In proving root of title in a land dispute, the claimant must establish the following facts: (a) if the root of the title is based on the purchase of land according to English Law, the deed of conveyance must be produced and tendered in evidence in order to succeed, (b) if the land was purchased under customary law, then he must call his vendor or other persons who witnessed the sale to testify. See FOLARIN VS. DUROJAIYE (1988) 1 NWLR (PT. 70) 351; OLOSUNDE VS. OLADELE (1991) 4 NWLR (PT. 188) 113; DEEPER LIFE BIBLE CHURCH, ZARIA VS. ROKA (2013) LPELR-21867 and MARBACH GLOBAL CO. LTD. VS. DOSUNMU & ORS. (2018) LPELR-50833 –PER ABUBAKAR MU’AZU LAMIDO, J.C.A.
ON WHAT CONSTITUTES A COUNTERCLAIM
A counterclaim as the name implies is an independent action by a defendant though merged in the substantive claim for convenience. The two actions are tried in one suit. The plaintiff in a counterclaim gives evidence on his pleadings which will include his reply to the counterclaim. Where a plaintiff fails to file a reply to the counterclaim or fails to adduce evidence on his reply to the counterclaim, he would be deemed to have abandoned his defence to the counterclaim. See NWAENANG VS. NDARAKE & ORS. (2013) LPELR-20720 and KEYSTONE BANK LTD. VS. OKEB (NIG) LTD. & ANOR (2016) LPELR-41266.
A counterclaim is a separate and independent action which is on the same footing as the original claim and is subject to the same rules governing pleadings. Where a party intends to defend a counterclaim, he is obliged to file his defence to the counterclaim and also lead evidence. The counterclaim just like the original claim is established by preponderance of evidence. See DADA VS. WILLIAMS (2013) 2 NWLR (PT. 133B) 260; NSEFIK VS. MUNA (2014) 2 NWLR (PT. 1390) 151 and AGBAOSI VS. IMEVBORE (2014) 1 NWLR (PT. 1398) 556. –PER ABUBAKAR MU’AZU LAMIDO, J.C.A.
ON WHETHER AN AGENT ACTING ON BEHALF OF A PRINCIPAL CAN SUE IN HIS OWN NAME OR THE PRINCIPAL’S NAME
A similar situation such as this arose and was resolved by this Court in LAAH & ANOR vs. OPALUWA (2003) LPELR-7292 AT 14 – 16 where Salami, JCA held thus:-
“It is trite that a person to whom an obligation is owed may demand it through an action. A plaintiff or a petitioner must be the one capable of demanding or claiming for a right or an obligation against the defendant. But where for some reason, he is not in a position to bring the action in person, he may do so by donating his right to institute the action to another person through a Power of Attorney. The donee of the power is not such a plaintiff or a petitioner, therefore, in bringing the action, the attorney must do so in the plaintiff’s or petitioner’s name or state fact to such effect on the writ of summons or any other process he might consider suitable for the relevant cause of action. See Halsbury’s Laws of England 4th Edition Volume 1 at Paragraph 744 which reads thus: “An agent acting under a Power of Attorney should as a general rule, act in the name of the principal. If he is authorized to sue on the principal’s behalf, the action should be brought in the principal’s name.” The principle was enunciated in the decision in the case of JONES SALDANHA VS GARNEY (1913) WN 72 referred to in Vol. 50 of the English and Empire Digest Paragraph 1372 page 437. The Respondent has substantially complied with the practice in bringing this action as Mr J. P. Opaluwa suing as the attorney of Mr. Paul I. Meriga”.
Now, in this appeal, there is a Power of Attorney donated to the Respondent who instituted the action as lawful attorney to the donor. In the said power of attorney, the donee is expressly empowered to bringing an action or other proceedings in respect of, or affecting the said land or any plot thereof and to enforce by foreclosure, sale, the appointment of receiver/manager or otherwise any mortgage or other security vested in the donor and to complete any such transaction by execution of all deeds and instruments. Therefore, an agent under a Power of Attorney should as a general rule, act in the name of the principal if he is authorized to sue on the principal’s behalf. The action should be brought in the principal’s name. If the suit is brought in the name of the donee, it must be clear on the face of the processes that he is acting or suing for the donor in his own right as he is acting or suing for the donor in his own right as he had in right independent of the principal. See IFEANYI VS OSOM (2015) LPELR-25600, per Akomolafe – Wilson, JCA. –PER ABUBAKAR MU’AZU LAMIDO, J.C.A.
ABUBAKAR MU’AZU LAMIDO, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Kano State High Court delivered on 17th December, 2011 by Badamasi J. The Respondent as plaintiff brought an action for a declaration of title to a piece of land against the Appellant as Defendant and sought for the following reliefs as can be seen from the amended state of claim:
(a) Declaration of Court that Jibirin Lamido Unguwar Uku is the legal title holder and the owner of piece of land situate at Unguwa Uku, Tarauni District of Tarauni Local Government, Kano State covered by Right of Occupancy No. LKN/CON/COM/84/161.
(b) Declaration of Court that the Defendants have no legal title or ownership of the said piece of land and therefore has no justification to trespass into the land and prevents the Plaintiffs from his lawful occupation and constructions of structures under the approved building plan given by the KASEPPA.
(c) Declaration of Court that the Plaintiff having lawfully purchased the piece of land covered by Right of Occupancy No. LKN/CON/COM/84/161 from Jibrin Lamido is now the owner of the said land.
(d) Declaration of Court that the actions of the Defendants on invading the piece of land with their surface tanks, fire-woods etc and refusing to vacate the land and also attempting to prevent the Plaintiffs from lawfully constructing a structure approved by KASSEPPA was unlawful trespass and illegal.
(e) Perpetual injunction restraining the Defendants by themselves, servants, privies and agents from entering, remaining in the piece of land or occupying or continue to occupy the said piece of land.
(f) Damages/costs and/or other reliefs in the interest of justice.
The Defendants/Appellants filed a joint statement of defence later amended by leave of Court and counter claim against the plaintiffs/Respondents seeking for the following reliefs:
At the close of pleadings, the plaintiffs/Respondents opened their case and called three witnesses and tendered in evidence 10 exhibits. The Defendants/Appellants also called three witnesses and tendered in evidence 4 Exhibits. At the end of the hearing, parties filed and adopted their written addresses and in a considered judgment the trial Court entered judgment for the plaintiffs/Respondents. <br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>
Dissatisfied with the decision of the trial Court, the Defendants/Appellants filed their notice of appeal which was amended by leave of Court on 06/10/2021 containing six grounds of appeal couched in the following way:
GROUND ONE
The learned trial Court erred in law when he held:
“Filing of this suit by sale Hassan suing as the Lawful Attorney of Jibrin Lamido is quite in consonance with his power as donee of the power of Attorney executed by donor and the donee…” when the Supreme Court have held in several cases that for action brought by virtue of Power of Attorney to be competent, Donee of such power must sue in the names of their Donors.
GROUND TWO
The learned trial Judge did not properly evaluate the evidence adduced by the parties at the trial and thereby occasioned a miscarriage of justice on the part of the Appellants when the evidence led on records shows that the land belonging to the Respondents i.e plaintiff has been taken away by the Kano State Government during the construction of the Unguwa Uku Motor park showing that the land covered by the C of O no LKN/CON/COM/84/161 was not PW3’s.
GROUND THREE
The learned trial Judge erred in law when he held that “from what has been adduced before me, oral and documentary, that the oral and documentary evidence adduced by the plaintiffs outweighs one adduced by the Defendants” without adverting his mind to the state of pleadings and the issues called for determination as well as evidence led in support of those issues as per the decision of superior Court on Certificates granted to persons in respect of lands not belonging to the grantee.
GROUND FOUR
The learned trial Court erred in law when he granted an order of declaration of title in favour of the plaintiff when the precise, definite and accurate boundaries of the land was not pleaded nor proved.
GROUND FIVE
The learned Court erred in law when he dismissed the counter-claim without due regard and consideration to:-
– The Defendants’ pleadings and evidence led in support which negates any probability of Plaintiff’s vendor being the beneficial owner of the land proved to be in possession of the Appellants since 1989.
– The uncontroverted evidence on record showing that the Kano State Ministry of land did not follow the laid down procedure for conversion of Customary title to Statutory Right of Occupancy before issuing C of O no. LKN/CON/COM/84/161 to the Respondent’s vendor without evidence of an application for such conversion on record.
– The Defendant’s claim were not for declaration of title
GROUND SIX
The learned trial Judge erred in law when he held: “Exhibit 1 is a memorandum of sale agreement between Jibrin Lamido and Sale Hassan though it cannot confer title. It goes to establish that there was sale transaction between the owner of the land with Alhaji Sale Hassan when the document (Exhibit 1) was pleaded as conveyance instrument by the plaintiff and not as evidence of sale which makes it ineffective in conveying title as there was no approval of the Kano State Governor.
GROUND SEVEN
The decision of the learned trial Judge is against the weight of evidence.
In line with the practice and procedure of this Court, the Appellants filed their Appellants’ brief of argument on 03/12/2021 but deemed filed on 06/10/2021 and a reply brief on 22/10/2021. Four issues for determination were formulated by the Appellants and they are:-
1. Whether the learned trial Court was right to have granted an order declaring title to the Respondent where the precise definite and accurate boundaries of the land was neither pleaded nor proved.
2. Whether the learned trial Court was right to have granted an order clearing title to the Respondent considering the state of pleading, issues joined and evidence before the trial Court when Appellants have been in possession of their land at all times material to the action.
3. Whether the learned Court was right to have dismissed the Defendants/Appellants’ counter-claim in the circumstances of the action.
4. Whether the learned trial Court was right to hold that the action as brought was competent.
The Respondent’s brief of argument was filed on 07/10/2021 and two issues for determination were distilled therein as follows:-
1. Whether on the preponderance of evidence led and placed before the trial Court, the Respondent proved its claims to be entitled to judgment of the Court delivered on 14th October, 2019.
2. Whether the Appellants’ counter-claim was properly dismissed having not been proved on the preponderance of evidence led and materials placed before the trial Court.
In arguing issue one, learned Counsel for the Appellant submitted that in an action for declaration of title to land, a plaintiff will fail where the claimant fails to plead and give evidence as to the accurate boundaries of the land to which the declaration relates. He referred to OTANMA vs. YOUDUBAGHA (2006) ALL FWLR (PT. 300) 1579. He also stated that since the Appellant raised the issue of identity of the land in dispute in paragraph 4 of the joint amended statement of defence, the onus is on the Respondent to prove by credible evidence that the land in dispute is the land owned by PW3. He referred to EKPENMUPOLO VS. EDREMODA (2009) ALL FWLR (PT. 473) 1220. The evidence led at the trial by the Respondent’s witnesses suggested that the land purchased by the Respondent’s was not the same land originally owned by the PW3.
On issue two, he submitted that the trial Court was wrong in declaring title to the land in dispute to the Respondent considering the state of pleadings. Parties pleaded and joined issues on the validity of the title of the Respondent’s vendor whose land was acquired by the Kano State Government during the construction of Unguwa Uku motor park. He submitted further that the law is trite that where a grantor’s title to a land is challenged, the party seeking a declaration of title must not only plead and prove his own title but must go further to prove the title of his grantor. He referred to ANYAKU vs. ANYAKU (2015) ALL FWLR (PT. 799) 1176.
He also argued that the size of the land was neither pleaded nor was the purchase price pleaded. The sale agreement if any was not tendered in evidence and witnesses to the transaction were not called to testify and finally, there was no evidence that the Respondent was put in possession of the land by his vendor from the Respondent himself or from any witnesses to the transaction. He referred to AYORINDE VS. FAYOYEN (2001) FWLR (PT. 75) 483 and FOLARIN VS. DUROJAIYE (1988) 2 SCNJ 202. He argued that if the trial Court had properly evaluated the evidence adduced by the Respondent, the case of the Respondent would have been dismissed and the counter-claim allowed.
On issue three, he submitted that it was wrong for the trial Court to have dismissed the Appellant’s counter-claim which is a separate claim that must be considered fully on the basis of issues raised by the parties. He referred to MAOBISON INTER-LINK ASSOCIATED LTD. VS. UTC (NIG) PLC (2013) ALL FWLR (PT. 694) 52. He argued that the Appellants has proved their counterclaim as required by law entitling them to judgment of the Court. Moreso PW2 made an admission against the Respondent. He referred to ONISAODU VS. ELEWUJU (2006) 13 NWLR (PT. 998) 517. From the evidence adduced, the Certificate of Occupancy granted to the Respondent was wrongly issued for the law is settled that a Certificate of Occupancy granted in respect of land belonging to another person can be rescinded by the Court. He referred to ATANDA vs. ILIYAS (2013) ALL FWLR (PT. 681) 1468.
On issue four, he submitted that the trial Court was wrong to hold that the action was competent since the law is trite that actions brought in representative capacity must be brought in the name of the donor for same to be competent. He referred to MELWANI vs. FIVE STAR INDUSTRIES LTD (2002) FWLR (PT. 94) 31 and TIMOTHY OF ODUM VS. ONYEACHO (1966/67) 10 ENLR 132. Where a person holding a Power of Attorney institutes an action on behalf of his principal that person must sue in the name of his principal only. He referred to VULCANAASES LTD. VS. GESSELSHAFT INDUSTRIES GASVERWETUNG AG (2001) 1 FWLR 1. The Respondent only sued as a lawful Attorney to Jibrin Lamido which is contrary to the requirement of the law. The capacity in which the Respondent brought the action is thus unknown to law. The referred to MAGIBO vs. OGUNDE (2010) ALL FWLR (PT. 351) 1600.
Learned Counsel for the Respondent submitted on issue one that the Respondent has clearly established his root of title which is purchase from its original holder and does not have to rely on traditional history which requires detailed and precise description and accurate boundaries to be given. He referred to OMOREGIE vs. IDUGIEMWAN (1985) 2 NWLR (PT. 5) 41. He also argued that the description of the land is already in evidence having tendered Exhibit 10 which contains a survey plan of the land in dispute. He referred to NNADOZIE vs. OMESU (1996) 5 NWLR (PT. 446) 116.
He argued that the Respondent’s claim of title is predicated upon purchase and he has produced title documents including proof of purchase in Exhibit 1, letter of grant in Exhibit 4 and most importantly the Certificate of Occupancy in Exhibit 5. On this, the Respondent has clearly established his title to the disputed land and contrary to the arguments canvassed by the Appellants, the trial Court properly evaluated the evidence adduced before delivering its judgment. He referred to SHELL PETROLEUM DEV. CO. (NIG) LTD. VS. EDAMKUE, KORO & NWUIKUNEE (2009) 39 NSCQLR 597.
On issue two, he submitted that the Appellant’s contention that having not instituted the action before the trial Court in the name of the donor of the Power of Attorney, the whole suit is incompetent is a misconception of the law as the action at the trial Court was properly constituted. He referred to MADUKOLU vs. NKEMDILIM (1962) 3 SCNLR 341. Moreover, he argued that the Appellant did not raise the issue of competence of parties timeously at the trial and they are deemed to have waived their rights. He referred to EBOADE vs. ATOMESIN (1997) 5 NWLR (PT. 506) 490 and Order 13 Rule 16(1) of the Kano State High Court (Civil Procedure) Rules, 2014. Having not established the fact that the Respondent usurped the name of the donor of the Power of Attorney at the trial through DW1-DW3, the Appellants cannot raise same on appeal. He submitted that the learned trial Judge was in order, when he held that there are competent parties before the Court.
On issue three, he argued that the burden of proving the counterclaim is on the Appellants and that burden they failed to discharge. He referred to Section 137 of the Evidence Act, 2011; UBN VS. AYODARE (2007) 30 NSCQR; LAND MBANI VS. MBIABE BOSI (2006) 26 NSCQR 583. The Appellants could not prove that they have title to the land in dispute issued by the Kano Municipal Council and the documents tendered by them at the trial do not in any way prove title to the said land. The trial Court was therefore right to dismiss their counterclaim.
In the Appellant’s reply brief, it was contended by the Appellants that the Respondent’s argument that he has proved title to the land in dispute by producing his document of title is faulty in the sense that having an invalid Certificate of Occupancy cannot have the effect of extinguishing all previous rights over the land in dispute. He referred to IBRAHIM VS. MUHAMMED (2003) LPELR 1409; Secondly, the Certificate of Occupancy only creates a rebuttable presumption in favour of the holder and thirdly, the Respondent has failed to react to all the allegations in the amended statement of defence.
I have considered the issues for determination formulated by parties and to my mind, issues one and two as formulated by the Appellants can be merged into a single issue or in other respects, issue one as formulated in the Respondent’s brief can conveniently resolve the contention in respect of the two issues formulated by the Appellant. Thus the issues for determination of this appeal are:-
1. Whether on the available evidence placed before the trial Court, the Respondent proved his claims to be entitled to the judgment of the Court.
2. Whether the trial Court was right to dismiss the Appellants’ counterclaim.
3. Whether the trial Court was right to hold that the action was competent.
On issue one, the Appellants contended that the trial Court was in error to grant a declaratory relief to a piece of land to the Respondent in the absence of definite, precise identity of the land. The Respondent’s claim at the trial Court relates to a declaration of title to a piece of land covered by a Certificate of Occupancy. In such a situation, the plaintiff must prove his title to land by cogent evidence and cannot rely on the weakness of the defence or even an admission or implied admission of the defendant. See TUKURU & ORS. VS. SABI & ORS. (2013) 10 NWLR (PT. 1363) 442; OFODILE VS. IKEDIFE & ORS. (2015) LPELR-40712 and MINISTRY OF LANDS & HOUSING, BAUCHI STATE VS. TIRWUN (2017) LPELR-43314.
The law is well settled that where both the plaintiff and the defendant claim ownership of a parcel of land as in the instant case, the task before a Court is to determine who between the two of them is the person that led better evidence to prove the ownership of the land in dispute. See ARASE VS ARASE (1981) 5 SC 33; DAVIES VS. ASIBONA (1994) 5 NWLR (PT. 343) 234 and NTEOGWUIJA VS. IKURU (1998) 10 NWLR (PT. 569) 267. And invariably, the Court will make a declaration of ownership in favour of the party who proves a better title. See ADOLE vs. GWAR (2008) 11 NWLR (PT. 1099) 562 and ADAMU & ORS. VS. JATAU SONS (2018) LPELR-47141.
For a claimant to succeed in an action for declaration of title to land, he must establish his claim of ownership by one or more of the following modes:-
1. By traditional evidence
2. By production of title documents
3. By acts of ownership over sufficient length of time, numerous and positive enough to warrant the inference that the person is the true owner of the land
4. By a long possession
5. By proof of possession of adjacent or connected land in the circumstances rendering it probable that the owner of such connected or adjacent land would be the true owner of the land in dispute.
See IDUNDUN VS. OKUMAGBA (1976) 9 1 10 WSC 227; AJIBOYE VS. ISHOLA (2006) 13 NWLR (PT. 998) 628 and ASANIKE VS. AJIGBOTOSHO & ORS. (2020) LPELR-52388.
In proof of his claim, the Respondent led evidence to prove that by a sale agreement dated 15th February, 1998, he purchased the land in dispute from its original owner in the presence of witnesses including the village head of Unguwa Uku, Kano. This can be seen in Exhibit 1. The land in dispute originally belong to Lamido Jibrin who acquired a fencing permit from Tarauni Local Government in 1999 and a right of occupancy from the Kano State Ministry of Lands and Physical Planning in 2002 and a Certificate of Occupancy was also granted to him on 15th September, 2002. All these can be seen in Exhibits 3, 4, and 5.
One of the Appellant’s main contention under this issue is that the trial Court was in error to grant a declaratory relief to a piece of land in favour of the Respondent in the absence of a definite and precise identity of the land in dispute. The Respondent has argued that the land’s description can be fully seen on Exhibit 5 which is a Certificate of Occupancy consisting of the plan and description of the land in dispute.
The law is well settled that a declaration of title to a piece of land can only be granted if there is a definite, precise and accurate boundaries pleaded by a plaintiff. The onus of proof lies on the plaintiff who seeks the declaration and injunction to establish with certainty and precision the area of land to which the claim relates. See EKPEMUPOLO VS. EDREMODA (2009) ALL FWLR (PT. 473) 1220. However, pleading the precise identity and location of the land becomes necessary only where its features are disputed by parties but where the land is well known to the parties, it is not necessary to state its description and boundary. See ABOYEJI VS. MOMOH (1994) 4 NWLR (PT. 341) 646 and MAISHANU VS. ANCHAU (2006) 6 NWLR (PT. 1084) 565. Also where the identity of the land is ascertained with clarity from the pleadings of parties, the burden to establish the identity of the land does not arise. There can be no better way of establishing the identity of the land in dispute than a tendering of Certificate of Occupancy in respect of the land together with its survey plan. See ADELUSOLA VS. AKINDE (2004) 12 NWLR (PT. 887) 295; OGUN VS. AKINYELU (2004) 18 NWLR (PT. 905) 362 and CHARLIE VS. GUDI (2007) 2 NWLR (PT. 1017) 91. In the present appeal, there is enough evidence before the trial Court to properly infer the identity of the land which makes proof of identity of the land immaterial. See AKINTERINWA VS. OLADUNJOYE (2000) 6 NWLR (PT. 659) 92; GBADAMOSI VS. DAIRO (2007) 3 NWLR (PT. 1021) 282 and BAKO & ANOR VS. AUDU & ANOR (2018) LPELR-44394. Therefore, failure to specifically plead the identity and description of the land is not fatal to the Respondent’s case in view of the fact that a Certificate of Occupancy together with a survey plan are admitted in evidence.
The Appellants also argued that the Respondent did not plead and prove his root of title. The term root of title is a process through which a party came to be the owner of the land in dispute. See YUNANA & ORS vs. TULA & ORS. (2018) LPELR-44244 and AMALE & ORS. VS. MUSTAPHA (2022) LPELR-56897.
It is well settled that once a party pleads and traces his root of title in an action involving title to land to a particular person or source and the averment is disputed or challenged, the party asserting must not only establish his own title to such land, he must also satisfy the Court on the validity of the title of that particular person or source from whom he claims to have derived his title. See MOGAJI VS. CADBURY (NIG) LTD (1985) 7 SC 89; ADOLE VS. GWAR (2008) LPELR 189 and ADEDIJI VS. KOLADE & ANOR (2012) LPELR 14171.
In proving root of title in a land dispute, the claimant must establish the following facts: (a) if the root of the title is based on the purchase of land according to English Law, the deed of conveyance must be produced and tendered in evidence in order to succeed, (b) if the land was purchased under customary law, then he must call his vendor or other persons who witnessed the sale to testify. See FOLARIN VS. DUROJAIYE (1988) 1 NWLR (PT. 70) 351; OLOSUNDE VS. OLADELE (1991) 4 NWLR (PT. 188) 113; DEEPER LIFE BIBLE CHURCH, ZARIA VS. ROKA (2013) LPELR-21867 and MARBACH GLOBAL CO. LTD. VS. DOSUNMU & ORS. (2018) LPELR-50833.
The Respondent pleaded his root of title to one Lamido Jibrin who was the original owner and this can be seen from the amended statement of claim and evidence adduced. He pleaded customary purchase and tendered in evidence Exhibit 1. Thus, where a party pleads purchase or gift as his root of title, he either succeeds in proving the purchase or gift or he fails to prove the title he pleaded, he is not expected to turn round to rely on other acts like possession or ownership which acts are in the nature of things derivable from and rooted in the radical title pleaded. See OKHUAROBO VS. AIGBE (2002) 9 NWLR (PT. 771) 29; BABATI VS. AG YOBE STATE & ORS. (2012) LPELR-20792 and ADOLE VS. GWAR (SUPRA).
The Respondent traced his root of title to Jibrin Lamido who testified as PW3 at the trial and having called his vendor who testified as to fact of the customary transaction as in Exhibit 1, the Respondent has clearly established his root of title. This issue for determination is resolved against the Appellant and in favour of the Respondent.
On issue two, the Appellant argued that it was wrong for the trial Court to dismiss their counterclaim.
A counterclaim as the name implies is an independent action by a defendant though merged in the substantive claim for convenience. The two actions are tried in one suit. The plaintiff in a counterclaim gives evidence on his pleadings which will include his reply to the counterclaim. Where a plaintiff fails to file a reply to the counterclaim or fails to adduce evidence on his reply to the counterclaim, he would be deemed to have abandoned his defence to the counterclaim. See NWAENANG VS. NDARAKE & ORS. (2013) LPELR-20720 and KEYSTONE BANK LTD. VS. OKEB (NIG) LTD. & ANOR (2016) LPELR-41266.
A counterclaim is a separate and independent action which is on the same footing as the original claim and is subject to the same rules governing pleadings. Where a party intends to defend a counterclaim, he is obliged to file his defence to the counterclaim and also lead evidence. The counterclaim just like the original claim is established by preponderance of evidence. See DADA VS. WILLIAMS (2013) 2 NWLR (PT. 133B) 260; NSEFIK VS. MUNA (2014) 2 NWLR (PT. 1390) 151 and AGBAOSI VS. IMEVBORE (2014) 1 NWLR (PT. 1398) 556.
The trial Court duly considered the counterclaim of the Appellant and having granted the claims of the Respondent in respect of the land in dispute, which is being claimed by the Appellant, the counterclaim must therefore fail. In other words, where the facts are intertwined and interwoven as regards the plaintiff’s action and the defendant’s counterclaim, the success of the plaintiff’s action would mean the failure of the defendant’s counterclaim. See RIKICHI & ORS. VS. GAMBO (2019) LPELR 47676; UNITY BANK PLC VS. BILWADAMS CONSTRUCTION CO. LTD. & ORS (2019) LPELR 49290 and SAMELLO INVESTMENT LTD VS. NIG INTER BANK SETTLEMENT PLC (2019) LPELR 48852. In the appeal before us, the success of the Respondent’s case at the lower Court would invariably lead to the dismissal of the counterclaim of the Appellants, for there can be no two awards in respect of the land in dispute. This issue for determination is equally resolved against the Appellant and in favour of the Respondent.
On issue three, the Appellant argued that the Respondent’s suit was not properly constituted as the Respondent purporting to act under a power of Attorney can only bring an action in the name of the donor. The Respondent on the other hand argued that the issue of proper parties was not timeously raised by the Appellant and as such, they have waived their rights to object. He further stated that the Respondent has substantially complied with the rule since he expressed to be suing as a lawful Attorney to Jibrin Lamido.
The trial held at PP 443-444 of the record of appeal, thus:-
Before I conclude, I want to address some salient issues raised by the parties in their adopted written address one of such issues is the capacity of the plaintiff to sue as a lawful attorney to Jibrin Lamido the original owner.
It has been argued on behalf of the Defendants that the suit is incompetent because it was not brought in the name of the donor of the power of Attorney.
The title of this suit runs thus:
SALE HASSAN – PLAINTIFF
(Suing as lawful Attorney of Jibrin Lamido)
AND
1. SHEHU BALA
2. ALHAJI MAGAJI MAI ITACE – DEFENDANTS
Exhibit 8 is a power of Attorney donated to Sale Hassan by Jibrin Lamido in respect of the subject matter of this suit: The recital of that power of Attorney read thus:
“NOW THIS DEED WITNESSES THAT I JIBRIN LAMIDO THE DONOR hereby irrevocably appoint Sale Hassan the donee.
6. …
7. …
8. …
9. …
10. To bring or defend any action or other proceedings in respect of or effecting the said land or any plot thereof and to enforce by force closure sale the appointment of receiver or receiver manager or otherwise any mortgage or other security vested in me and to complete any such transaction by execution of all proper deeds and instruments and the doing of any proper or necessary act including the registration of any matter in any registry.
From the above recital, it is evident that the donee, Sale Hassan is empowered to bring or defend any action or any proceedings in respect of the subject matter of that suit.
Filing of this suit by Sale Hassan suing as the lawful Attorney of Jibrin Lamido is quite as consonance with his power as a donee of the power of Attorney executed by donor and the donee and which is registered as No 223 in Vol. 7 of the land Registry in the office of the deeds Register Flowing from this, I hold that this suit cannot by any stretch of imagination be termed incompetent.
A similar situation such as this arose and was resolved by this Court in LAAH & ANOR vs. OPALUWA (2003) LPELR-7292 AT 14 – 16 where Salami, JCA held thus:-
“It is trite that a person to whom an obligation is owed may demand it through an action. A plaintiff or a petitioner must be the one capable of demanding or claiming for a right or an obligation against the defendant. But where for some reason, he is not in a position to bring the action in person, he may do so by donating his right to institute the action to another person through a Power of Attorney. The donee of the power is not such a plaintiff or a petitioner, therefore, in bringing the action, the attorney must do so in the plaintiff’s or petitioner’s name or state fact to such effect on the writ of summons or any other process he might consider suitable for the relevant cause of action. See Halsbury’s Laws of England 4th Edition Volume 1 at Paragraph 744 which reads thus: “An agent acting under a Power of Attorney should as a general rule, act in the name of the principal. If he is authorized to sue on the principal’s behalf, the action should be brought in the principal’s name.” The principle was enunciated in the decision in the case of JONES SALDANHA VS GARNEY (1913) WN 72 referred to in Vol. 50 of the English and Empire Digest Paragraph 1372 page 437. The Respondent has substantially complied with the practice in bringing this action as Mr J. P. Opaluwa suing as the attorney of Mr. Paul I. Meriga”.
Now, in this appeal, there is a Power of Attorney donated to the Respondent who instituted the action as lawful attorney to the donor. In the said power of attorney, the donee is expressly empowered to bringing an action or other proceedings in respect of, or affecting the said land or any plot thereof and to enforce by foreclosure, sale, the appointment of receiver/manager or otherwise any mortgage or other security vested in the donor and to complete any such transaction by execution of all deeds and instruments. Therefore, an agent under a Power of Attorney should as a general rule, act in the name of the principal if he is authorized to sue on the principal’s behalf. The action should be brought in the principal’s name. If the suit is brought in the name of the donee, it must be clear on the face of the processes that he is acting or suing for the donor in his own right as he is acting or suing for the donor in his own right as he had in right independent of the principal. See IFEANYI VS OSOM (2015) LPELR-25600, per Akomolafe – Wilson, JCA.
The Respondent here sued in his name but expressed to be suing as lawful attorney to the donor (Jibrin Lamido) pursuant to a power of attorney donated to him. I think the Respondent has substantially complied with the rule and the trial Court was perfectly right in holding that there were proper parties before it. This issue is resolved against the Appellant and in favour of the Respondent.
On the whole, having resolved all three issues for determination against the Appellant, it follows that this appeal is unmeritorious. It is accordingly dismissed. The judgment of the trial Court in suit No K/442/2005 be and is hereby affirmed:
Costs of N100,000.00 to the Respondent.
BOLOUKUROMO MOSES UGO, J.C.A.: I had the privilege of reading in draft, the leading judgment of my learned brother ABUBAKAR MU’AZU LAMIDO, J.C.A. I am in agreement with his reasoning and conclusion. I also dismiss the appeal.
I abide by all the consequential orders, including that as to costs, contained in the leading judgment.
USMAN ALHAJI MUSALE, J.C.A.: I have read in draft, the judgment delivered by my learned brother ABUBAKAR MU’AZU LAMIDO, JCA in this appeal. I entirely agree with the judgment and the way the issues were treated by My Lord. I adopt the reasoning and conclusion reached as mine and find that the appeal is unmeritorious. The appeal is equally dismissed by me.
I abide by the consequential orders made therein.
Appearances:
MURTALA MUSA, ESQ. with him, A.J. RAJI, ESQ. and A.S. TUNKUYAU, ESQ. For Appellant(s)
SALISU SULE, ESQ. with him, FAROUK A. ASEKOME, ESQ. For Respondent(s)