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BELLO v. IDRIS (2022)

BELLO v. IDRIS

(2022)LCN/16015(CA)

In The Court Of Appeal

(MAKURDI JUDICIAL DIVISION)

On Friday, January 21, 2022

CA/J/184/09

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

ALHAJI A.B. BELLO APPELANT(S)

And

ALIYU MUNTARI IDRIS RESPONDENT(S)

 

RATIO:

IT IS A SETTLED LAW THAT DOCUMENTARY EVIDENCE IS THE BEST PROOF OF THE CONTENTS OF A DOCUMENT

It is settled that documentary evidence is said to be the BEST EVIDENCE and oral evidence is not allowed to vary the content of a document, see EGHAREVBA V. OSAGIE (2009) LPELR-1044(SC) wherein the apex Court held thus:
“It is now firmly settled that documentary evidence, is the best evidence. It is the best proof of the contents of such document and no oral evidence, will be allowed to discredit or contradict the contents thereof. See the case of The Attorney-General Bendel State & 2 Ors. v. United Bank for Africa Ltd (1986) 4 NWLR (Pt.337) 5. (47 @ 563 – per Oputa, JSC.” YARGATA BYENCHIT NIMPAR, J.C.A. 

THE ADMISSIBILITY OF A DOCUMENT IS DIFFERENT FROM THE WEIGHT TO BE ATTACHED TO THE DOCUMENT

The fact that a document passed admissibility test does not mean that the Court must place probative value on it because admissibility is different from weight, a document could be admitted but fail to attract any weight due to several reasons, see OMEGA BANK (NIG) PLC V O.B.C. LTD (2005) LPELR-2636(SC) which held thusly:
“As a matter of law, documentary evidence can be admitted in the absence of the maker. See Igbodim v. Obianke (1976) 9-10 SC 179. After all relevance is the key of admissibility. In the hierarchy of our adjectival law, probative value comes after admissibility. And so a document could be admitted without the Court attaching probative value to it. That is the point I am making. Basically, admissibility and weight to be attached to the document admitted are two different things. See Ayeni v. Dada (1978) 3 SC 35.” Per TOBI, J.S.C. YARGATA BYENCHIT NIMPAR, J.C.A.

THE SETTLED LAW ON THE IMPORTANCE OF DOCUMENTARY EVIDENCE

The Superior Courts have held repeatedly that documentary evidence is the hanger upon which to assess oral evidence, see BUNGE V. GOV., RIVERS STATE & ORS (2006) LPELR-816(SC) wherein the apex Court held thus:
“It is also settled that the importance of documentary evidence is that it could be used to resolve an issue or conflicting evidence. It could be used as a hanger from which to test the veracity of the oral testimonies. See the cases of Fashanu v. Adekoya (1974) 1All NLR (Pt. 1) 35; (1974) 6 S.C. 83 – per Coker, JSC; Awote v. Owodunni (No.2) (1987) 2 NWLR (Pt. 57) 366 and Armels Transport Ltd. v. Martins (1970) 1 All NLR 27 at 32. In the case of Alhaji Ibrahim v. Galadima S. Barde & 9 Ors. (1996) 12 SCNJ 1; (1996) 9 NWLR (Pt. 474) 513, in his dissenting judgment at page 52, Ogundare, JSC, (of blessed memory), referred to the case of Adeseye v. Taiwo (1956) 1 FSC 84; (1956) SCNLR 265 as to an admissible relevant book authority, and stated that it is not conclusive. He reproduced part of the statement of Nnaemeka-Agu, JSC, in the case of Kimdey & 11 Ors. v. Military Governor of Gongola State & Ors. (1988) 1 NSCC 827 (it is also reported in (1988) 2 NWLR (Pt.77) 445 and (1988) 5 SCNJ 28 citing Fashanu v. Adekoya (supra) and stated as follows: No doubt, the legal proposition that where there is oral as well as documentary evidence, documentary evidence should be a hanger from which to assess oral testimony is a sound one.” Per OGBUAGU, J.S.C. YARGATA BYENCHIT NIMPAR, J.C.A. 

THE PRINCIPLES OF LAW GOVERNING THE SALES OF FAMILY PROPERTY AND DOCUMENTARY EVIDENCE BEING UNKNOWN TO NATIVE LAW AND CUSTOM

The oral agreement must first be established before the agreement can have credit after all, the apex Court held in the case of OLUBODUN & ORS V LAWAL & ANOR (2008) LPELR-2609(SC) that:
”…it is a well-established principle of law that documentary evidence is unknown to native law and custom. See (1) Ajadi v. Olanrewaju (1969) 1 ALL NLR 382 and (2) Egwu v. Egwu (1995) 5 NWLR (Pt.396) 351.”
The fundamental issue here is the land being family land, the consent of the head of the family is sine qua non and without which the foundation for the claim by the Appellant is gone and nothing can be built on nothing, see OFFODILE V. OFFODILE & ORS (2019) LPELR-47851 (SC) wherein the apex Court held thus:
“The settled position of the law as rightly expounded by My learned brother is that where family land is sold without the concurrence of the head of the family, such a “sale” is void ab initio. It is an essential customary element that the head of the family must join in the sale of family property together with the principal members of the family for such transaction to become valid. See the cases of Fayehun v. Fadoju (2000) 6 NWLR (pt 661) 378; Aiyeola v Pedro (2014) 13 NWLR (pt 1424)409. In the case of Fayehun v Fadoju (Supra), this Court, per Karibi-Whyte, JSC. at page 404 had this to say: “A sale of family land by a member of the family without the consent of the Chief or head of the family is void ab initio. See Ekpendu v. Erika (1959) FSC 29 (1959) SCNLR 186. It is essential to the validity of the sale of family land, that the chief or head of family must consent to the transaction. Such a combination of parties to the conveyance of family land by the Chief or head of the family and the principal members of the family is in my opinion unimpeachable. YARGATA BYENCHIT NIMPAR, J.C.A. 

THE ROOTS OF TITLE TO OWNERSHIP OF ANY RIGHT OR INTEREST IN LAND IS THE SOURCE OF THAT TITLE

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. YARGATA BYENCHIT NIMPAR, J.C.A.

A PLEADED ROOT OF TITLE HAS TO BE ESTABLISHED

Once a party pleads a root of his claimed title, he must establish it, failing which he cannot proceed beyond that stage, the Appellant 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 therefrom 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 leading to a declaration. So the Appellant cannot allege that the Respondent failed to plead acquisition of family land. His case is different but the Appellant in his counterclaim pleaded his root of title as purchase of family land, he must prove it. Having failed, his counterclaim must fail and the findings made by the trial Judge are immutably and firmly rooted. YARGATA BYENCHIT 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 ISA RAMALAN on the 3rd day of January, 2009 wherein the lower Court entered judgment for the Respondent as per his claim and dismissed the counterclaim of the Appellant. The Appellant dissatisfied with the decision, filed a Notice of Appeal on the 25th day of February, 2009 and an Amended Notice of Appeal dated 30th January, 2019 but filed on the 18th March, 2019 setting out 4 grounds of appeal which sought for the setting aside of the judgment of the trial Court and allowing the counterclaim.

Facts leading to this appeal are straightforward and amenable to brief summary. The Respondent who was the plaintiff before the trial Court filed a writ of summons seeking the following reliefs:
a. A declaration that the title to the piece of land, lying, being and situate at Shendam Road, opposite VIP Guest House, Lafia which land is 200ft x 200ft is that of the Plaintiff and that he is entitled to immediate possession of same.
b. An order of perpetual injunction restraining the Defendant either by himself, or through his agents, servants and/or privies from entering, altering or changing the physical structure or building or even farming on the land.
c. A declaration that all documents whatever emanating either from the Nasarawa State Bureau/Ministry of lands Survey and Town Planning or Lafia Local Government anywhere at all in relation to the Land in dispute in the Defendant’s name are illegal, null and void.
d. The sum of One Million Naira (N1,000,000.00) being general damages suffered by the Plaintiff as a result of trespass into the Plaintiff’s land by the Defendant.

The Respondent’s claim is that he acquired the disputed portion of land measuring 200 by 200ft lying and situate at Shendam Road, Lafia Nasarawa State by way of purchase from one Alhaji Aliyu Ibrahim in 1996 and that the said Alhaji Aliyu Ibrahim, in 1994 acquired same from one Abdulmumuni Agwai whose title was allocated by Lafia Local Government and that the Respondent was subsequently issued a Right of Occupancy (R of O).

​On the other hand, the Appellant’s case was that he acquired a plot of land that was originally a deep pit which was lying and situate along Shendam Road, Lafia having been excavated to remove the sand for the construction of Shendam Road, Lafia Nasarawa State. The original owners of the land were the Sarkin Pada’s family of Lafia. The Appellant called 5 witnesses and tendered 8 Exhibits while the Respondents called 3 witnesses and tendered 7 Exhibits. The Appellant tendered a sale agreement dated 1981 in respect of the land (Exhibit 8), a site plan, change of ownership duly stamped and executed by Lafia ‘Local Government Chairman Land Advisory and Allocation Committee, is Exhibit 10, R of O (Exhibit 11), approval to construct a filling station, and his file from the Ministry of Lands, Lafia, Nasarawa State (Exhibit 16A) inter alia. He even tendered a letter from Lafia Local Government affirming his ownership over the land Exhibit 15. After due consideration of the pleadings and evidence, the trial Judge found that the Respondent proved his case while the counterclaim failed and was dismissed. The Appellant aggrieved with the said judgment brought the instant appeal.

​Pursuant to the Rules of the Court, the parties filed and exchange their briefs which were adopted at the hearing of the appeal. The Appellant’s Amended brief settled by ISHAKA M. DIKKO, SAN, is dated 30th day of January, 2019 and filed on the 18th March, 2019. The Appellant distilled 4 issues for determination as follows:
1. Whether the trial Court was right when it relied on oral testimony to displace unchallenged documentary evidence. (Distilled from ground 1).
2. Whether the trial Court was right when it refused to presume in favour of the contents of the Appellant’s document which was executed more than 20 years in the absence of any evidence negating its regularity, contents or existence. (Distilled from ground 2).
3. Whether the trial Court was right when it failed to allow the Appellant’s counterclaim despite the oral and documentary evidence led by the Appellant on the origin, size, location and ownership of the disputed land. (Distilled from ground 3).
4. Whether the trial Court was right when it relied on inadmissible evidence to give the respondent judgment. (Distilled from ground 4).

​The Respondent’s Brief settled by ADIGUN O. A., ESQ dated 12th day of September, 2013 filed on the 18th September, 2013 but deemed on the 24th February, 2014. The Respondent adopted the issues raised by the Appellant but in proffering arguments combined issues one and two and also considered issues three and four together.

Thereafter, the Appellant in response to the Respondent’s submissions filed a Reply Brief dated 30th January, 2019 on the 18th March, 2019.

APPELLANT’S SUBMISSION
ISSUE ONE
Arguing this issue, the Appellant submit that the trial Judge erred in law when he allowed oral testimony to displace documentary evidence properly placed before the Court even when the Respondent failed to plead and prove fraud, or even cross-examine any member of the vendor’s family on the authenticity of the sale agreement; and that the law is settled that the best evidence of a transaction is documentary evidence as held in NWANOSIKE V. JOHN HOLT PLC (2006) ALL FWLR (PT. 301) 1809, ATTORNEY GENERAL BENDEL STATE V. UNITED BANK OF AFRICA LTD (1986) 4 NWLR (PT. 37) 547, ADDA V. LIMAN (2011) ALL FWLR (PT. 587) 765 and Section 128 of the Evidence Act, 2011.

​The Appellant submitted that Section 128 of the Evidence Act clearly states ​ what the Court should do when presented with oral and documentary evidence while Section 128 (1) (a) of the Evidence Act, 2011 states the exceptions of relying on documentary evidence. Accordingly, the Appellant argued the Respondent testified that he bought the land measuring 0.07 hectares from Sarkin Pada’s family in 1981 and tendered the sale agreement which was corroborated by DW3 but did not remember selling the land or acknowledge any document in proof of the sale due to his age and blindness which necessitated his evidence being taken in his house but the Respondent did not deem it fit to challenge any of the Defendant’s witnesses as to the origin of Exhibit 8.

The Appellant relied on CIVIL DESIGN LTD V. SCOA 29 NSCQR (PT. II) 1298 and BROSSETTE NIG LTD V. M/S OLA ILEMOBOLA LTD 30 NSCQR (PT. II) 1134 to contend that since the Respondent had failed to cross-examine the Appellant’s witnesses so as to discredit Exhibit 8, the trial Court ought not to have discountenanced it on the mere account that DW3, impliedly denied the existence of the sale agreement. The Appellant urge the Court to hold that the Appellant’s contention that the trial Court was wrong having admitted Exhibit 8 without any opposition from the Respondent was wrong to proceed to set aside same because under Section 128(1) of the Evidence Act, 2011 oral evidence is ordinarily not admissible to contradict or vary the contents of document. The Appellant also urge the Court to resolve issue one against the Respondent.

ISSUE TWO
The Appellant contends that the trial Judge erred in failing to construe clear provisions of the law as provided in Section 155 of the Evidence Act where the Courts are enjoined to presume that the contents of documents in certain conditions after some requirement are met and Exhibit 8 met the conditions required by law, therefore the trial Court ought to presume in favour of Exhibit 8 and should have made a finding favourable to the Appellant having no other document or fact that rendered it null or void.

​Continuing, the Appellant submits that Exhibit 8 was identified by DW2 as a sale agreement which parties and their witnesses duly executed and this fact was corroborated by DW1 and DW3, however, the trial Court in its judgment set aside the said document. The Appellant argued that this error by the trial Court offended the provisions of Section 155 and 167 of the Evidence Act, 2011 and also the case of JINADU V. ESUROMBI-ARO (2005) 14 NWLR (PT. 944) 142 and NSIEGBE V. MGBEMENA 30 NSCQR (PT. H) 811. To further substantiate his argument, the Appellant submits that Exhibit 8, was executed by two principal members of the Sarkin Pada family, the evidence of DW3 that he was too sick to oversee transactions over the land, the evidence of DW1 that his father and uncle oversaw the sale which culminate in the birth of Exhibit 8 satisfied all the conditions required by law. The Appellant urge the Court to resolve this issue in favour of the Appellant.

ISSUE THREE
The Appellant urge the Court to reverse the holding of the trial Court that the Respondent did not prove his counterclaim and was not entitled to the Reliefs sought in the counterclaim and not denying the Appellant a declaration of title to land covered by R of O No. PL19906. The Appellant reproduced the evidence of DW1 where he told the Court that the land is a family land and was never sold nor acquired by any authority and DW1 was present when the land was negotiated and sold to the Appellant by himself, Alh. Abdullahi Sarkin Pada Mai Ashara (his father) and Alh. Rilwan Sarkin Pada (his uncle). The Appellant also reproduced the evidence of DW3 where he stated that when the Appellant indicated interest in the land, that no authority ever acquired same from their family nor was it ever allocated to anyone by any authority. The Appellant further reproduced the testimonies of DW4 and DW5 to submit that the Appellant put forth credible evidence both oral and documentary in proof of his quest for a declaration of title over plot PL 19906 measuring 0.07 hectares, the witnesses were credible persons with direct contact with the Appellant’s plot of land and gave credible evidence. That the testimonies of DW1, DW2 and DW3 evidence were unequivocal that at no point in time was the land ever acquired by any authority.

​According to the Appellant, even though the trial Court rejected the Appellant’s site plan submitted to Lafia Local Government on account of the name on the document, the Appellant was able to clearly and articulately identify his land by way of oral evidence by DW1-DW2 and by documentary evidence to wit the report from the land Advisory and Allocation Committee (Exhibit 7), the sale agreement (Exhibit 8) Local Government site plan receipt (Exhibit 9), the change of ownership form (Exhibit 10), the R of O (Exhibit 11), Nasarawa State Urban Development Board receipt for approval to build a fuel station (Exhibit 12 and 12A), letter from Lafia Local Government confirming his ownership over the plot (Exhibit 15), and the contents of his file at the Ministry including the survey plan drawn by a surveyor (Exhibit 16A). The Appellant relied on ADESANYA V. ADERONMU & ORS (2000) 6 SCNJ 242.

Furthermore, the Appellant submits that the trial Court made a grievous error in rejecting the Appellant’s counterclaim on the ground that he failed to prove the dimension and boundaries of his land, despite the fact that the Appellant has actually established by credible evidence his ownership of the land in dispute. The Appellant urge the Court to resolve issue three in favour of the Appellant and against the Respondent.

ISSUE FOUR
The Appellant contended that the trial Court acted upon evidence that violated accepted principles of law in arriving at the decision in favour of the Respondent as it is trite that evidence cannot be adduced on facts not pleaded during examination in chief or in cross-examination as held in INSP. KAYODE V. ODUTOLA 6 NSCQR (PT. II) 723 RATIO 2. The Appellant submits that neither the Appellant nor the Respondent pleaded the fact that DW3 was the head of the vendor’s family and no evidence was adduced by any of the witnesses to that effect even if evidence was adduced to that effect the trial Court ought to have disregarded it. The Appellant referred the Court to ABIMBOLA GEORGE V. DOMINION FLOUR MILLS LTD (1963) 1 ALL NLR 71.

Continuing, the Appellant argued that the trial Court made a case for the Respondent when it introduced facts not pleaded, unfounded and unproven allegation and used same to dismiss Exhibit 8 and all other documents in order to reach a decision in favour of the Respondent, which violated the position of the law that parties and the Court are bound by pleadings, and the Court is not allowed to raise an issue suo motu without calling on parties to address it as held in NSIEGBE V. MGBEMENA (2007) SCNJ 359.

​Predicated on the above, the Appellant submitted that the trial Court acted on evidence not backed by pleadings thereby suo motu making a case for the Respondent and subsequently made a decision in favour of the Respondent which is contrary to law and the trial Court also relied on the evidence of the Respondent when he claimed that the Appellant committed trespass without showing the trial Court the exact extend of the trespass into his land. The Appellant further submitted that the Respondent conceded that the Appellant had a land next to his own which measured 0.07 hectares (Exhibit 7) but failed to show the extend by which the Appellant left his own 0.07 hectares to enter his 200ft by 200ft. The Appellant relied on N.A.S. LTD V. UBA PLC (2005) 14 NWLR (PT. 945) 421. The Appellant argued that by the Appellant’s oral and documentary evidence in support of counterclaim, the onus of proof shifted to the Respondent who did not lead evidence in proof of his reply to the Amended Statement of Defence and Statement of Defence to the counterclaim. The Appellant referred the Court to AGBAKOBA V. INEC (2009) 6 ALL FWLR (PT. 462) 1037.

​The Appellant further contended that had the Respondent denied the Appellant’s ownership over the R of O No. PL19906 with a dimension of 0.07 hectares, then it could be said the whole area belonged to the Respondent and the Appellant trespassed by his mere presence thereon, however, that was not the case as the Respondent admitted that the Appellant had land there which DW3 produced documents to show that the Appellant did not enter the Respondent’s land. Furthermore, the Appellant submits that assuming without conceding in any way that trespass was proved by the Respondent, the trial Court ought to have declared the Appellant’s purported extension of his plot onto the Respondent’s only up to the extent of the alleged illegal act, and not to have gone further to completely nullify the Appellant’s title and documentary proof over his own land. The Appellant referred the Court to ADETUTU ADESANYA V. ALH. S.D. ADERONMU & ORS (2000) 6 SCNJ 242.
The Appellant urge the Court to answer this issue four in favour of the Appellant.

RESPONDENT’S SUBMISSION
ISSUE ONE AND TWO
The Respondent restated the principle of burden and standard of proof as held in HA-WAD INTERNATIONAL SCHOOL LIMITED V. MIMA PROJECT VENTURES LIMITED NO. 1 (2005) 2 NWLR (PT. 908) 552. The Respondent reproduced the Appellant’s reliefs in the counterclaim as contained in pages 76-78 of the record of appeal. The Respondent submits that the Appellant claimed that he bought the disputed land from DW3 who later denied the existence of any such transaction between his family and the Appellant. The Respondent submits further that the DW3 being the head of the family gave a cogent, coherent and straightforward evidence and also DW1 gave evidence to the effect that he was only a witness to how the transaction was being conducted, he did not sign the agreement of sale, he did not even know how much the disputed land was sold to the Appellant. The Appellant submits that the evidence of DW3 and DW1 nailed the coffin of the case of the Appellant. Continuing, the Respondent argued that the Appellant procured Exhibits 10 and 11 to establish title by document, the Appellant relied on sale agreement (Exhibit 8) as the foundation of his case, however, the existence of Exhibit 8 was denied by DW3 and its authenticity was faulted. The Respondent reproduced the holding of the trial Court at pages 211-212 to submit that the law is trite that mere production of a valid instrument of grant does not necessarily carry with it an automatic grant of the relief of declaration. Relying on OYENEYIN V. AKINKUGBE (2010) SCNJ 101 to submit the questions the Court needs to enquire in order to grant to title to Plaintiff.

​It was the argument of the Respondent that there is nothing in the testimony of the Appellant or Rilwanu Sidi to show that Rilwanu Sidi was the head of Sarkin Pada’s family as at when Exhibit 8 was purportedly made and there was also nothing to show that Rilwanu Sidi was so authorized to make the grant by the head of the family and its principal members. The Respondent submits that the land in dispute is family land, however, it is the law that a sale or lease of a family land carried out by the head of the family in which the principal members were not involved is voidable while a sale or lease of such land by a principal member of the family without the concurrence of the knowledge, approval, consent and authority of the head of the family is void ab-initio, therefore, Exhibit 8 is invalid. The Respondent referred the Court to EKPENDU V. ERIKA (1959) SCNJ 186 and MOZIE V. MBAMALU (2006) 15 NWLR (PT. 1003) 406.

The Respondent submits that assuming but without conceding that Exhibit 8 was validly procured, which in form gave birth to subsequent acquisition of Exhibit 10 (Change of Ownership) dated October 1999 and Exhibit 11 (Right of Occupancy dated November 2000 in the name of the Appellant), Exhibit 4 (change of Ownership dated 16/3/97) and Exhibit 5 (Certificate of Occupancy No.: A/627 dated 7/10/1999) and Exhibit 6 (Right of Occupancy No.: NS/634/20 dated 24/6/98 in the name of the Respondent were first in time in procurement in respect of the land in dispute. Maintaining his position, the Respondent submits that it is the law that where there are similar or competing claims in title to land or proof thereof by any of the five recognized ways by law, the first in time in procuring the documents has a better claim in law and in equity as held in AYANWALE V. ODUSAMI (2011) 12 SCNJ (PT. 2) 362 and ADELAJA V. FANOIKI (1990) 2 NWLR (PT. 131) 137.

​The Respondent argued that Section 123 and 130 of the Evidence Act are not applicable to the instant case and the said evidence was not validly procured and could not therefore have had the effect claimed by the holder of the instrument. The Respondent relied on OYENEYIN V. AKINKUGBE (2010) 1 SCNJ 101. The Respondent submits that DW3 is not blind, he is just old and he gave coherent, concise, flawless and intelligent testimony that an ordinary reasonable man in the society can therefrom infer logically that he is not impaired but mentally very sound. It was the contention of the Respondent that Exhibit 15 produced and tendered through DW4 lend credence to the fact that Lafia Local Government acquired the land around 1977 to 1978 and allocated it to allottees but he was not the land officer neither did he have documentary evidence to show that he was authorized by the Land officer to produce Exhibit 15 which made his evidence hearsay, therefore the trial Court was right in not attaching any weight to Exhibit 15. The Respondent urge the Court to resolve these issues in favour of the Respondent and dismiss this appeal.

ISSUES THREE AND FOUR
The Respondent relied on NTEOGWUIJA V. IDURU (1998) 10 NWLR (PT. 569) 267, AJAYI V. MILITARY ADMINISTRATOR, ONDO STATE (1997) 5 NWLR (PT. 504) 237, SOUTH ATLANTIC PETROL LTD V. M.P.R. (2009) 22 WRN 68, NGIGE V. OBI (2006) 18 WRN @ 106-107 and TEMILE V. AWANI (2001) 12 NWLR (PT. 728) 726 to submit that parties are bound by their pleadings and any testimony or evidence or fact canvassed which is not imbibed in the pleadings goes to no issue. According to the Respondent, the function of a trial Judge is to evaluate evidence and where the Court has made findings of facts, the Appellate Court will not interfere because it is a law that a Judge having had the opportunity of hearing the witness and watching their demeanor in the witness box, is entitled to select witnesses to believe and facts he finds proved and the Appellate Court will not interfere with such facts unless they are proved to be perverse as held in AGBI V. OGBEH (2005) 8 NWLR (PT. 926) 40, OMOZEGHIAN V. ADJARHO (2006) 4 NWLR (PT. 969) 33, AWUDU V. DANIEL (2005) 2 NWLR (PT. 909) 199, AMASIKE V. REGISTRAR GENERAL, CORPORATE AFFAIRS COMMISSION (2006) 3 NWLR (PT. 968) 462 and NWANKPU V. EWULU (1995) 7 NWLR 40 P. 269. The Respondent reproduced the holding of the trial Court at pages 211-212 to submit that the law is trite that the mere production of a valid instrument of grant such Exhibits 8, 9, 10 and 11 does not necessarily carry with it an automatic grant of the relief of declaration of title, the production of any instrument of grant of title carries with it the need for the Court to inquire into a number of questions which include:
a. Whether the document is genuine and valid.
b. Whether it has been duly executed, stamped and registered
c. Whether the grantor had the authority and capacity to make the grant
d. Whether the grantor had in fact what he purported to grant, and
e. Whether it had the effect claimed by the holder of the instrument

The Respondent submits that the Appellant’s case is Exhibit 8 which he purportedly procured when he allegedly bought the land from one Rilwanu Sidi and the evidence of DW1 and on the strength of Exhibit 8, he procured other Exhibits particularly Exhibits 10 and 11 which were change of ownership dated 1999 and Right of Occupancy in the Appellant’s name dated 2000.

​The Respondent urge the Court to resolve these issues in favour of the Respondent and dismiss this appeal.

APPELLANT’S REPLY
The Appellant submits that the Respondent alleged that DW3 (Abdu Sarkin Pada) denied knowledge of the sale or transaction and that DW3 is the head of the Sarkin Pada’s family, the Appellant urge the Court to discountenance this submission as such reference is nowhere borne out of records of the trial Court. The Appellant further submits that the Respondent also alleged that the Appellant procured Exhibits 10 and 11 tendered before the trial Court as allegations of procurement of Exhibits is criminal which requires proof beyond reasonable doubt which is in accordance with Section 135 of the Evidence Act. Furthermore, the Appellant submits that all the cases relied on by Respondent such as AYANWALE V. ODUSAMI (2011) 12 SCNJ (PT. 2) 362 and OYENEYIN V. AKINKUGBE (2010) 1 SCNJ 101 are inapplicable.

The Appellant reproduced all the authorities relied on by the Respondent such as AGBI V. OGBEH (2005) 8 NWLR (PT. 926) 40, AWUDU V. DANIEL (2005) 2 NWLR (PT. 909) 199, OMOZEGHIAN V. ADJARHO (2006) 4 NWLR (PT. 969) 33, AMASIKE V. REGISTRAR GENERAL, CORPORATE AFFAIRS COMMISSION (2006) 3 NWLR (PT. 968) 462, NWANKPU V. EWULU (1995) 7 NWLR 40, SKEN CONSULT LTD V. UKEY CITED IN FUNMI QUADRI, OYENEYIN V. AKINKUGBE (2010) SCNJ 101, NSEFIK V. MUNA (2007) 10 NWLR (PT. 1043) 507, ORIANWO V. OKENE (2002) 10 SCNQR 968 and ILONA V. IDAKWO & ANOR (2003) 14 NSCQR 1011, to submit that the authorities are irrelevant and not applicable to the instant situation.

RESOLUTION
I have considered the Notice of Appeal, the Record of Appeal and the respective briefs of learned Counsel in this appeal and I find that the Appellant distilled 4 issues for determination which were adopted by the Respondent but rearranged into two groups. The same issues are retained in content and the Court shall also adopt the issues as distilled by the Appellant for determination in this appeal but to be determined in the order treated by the Respondent.

ISSUES ONE & TWO
These two issues are interrelated and therefore the need to consider them together. The Appellant in the counterclaim sought as follows:
i. A declaration that the plot of land, subject matter of this suit is the property of the defendant legally and equitably acquired bona fide for value and in good faith.
ii. A declaration that the Plaintiff has no legal or equitable title over the land.
The Court below dismissed the counterclaim and the fulcrum of the decision was the finding that Exhibit 8 was denied by the family head that purportedly sold the land to the Appellant. Exhibit 8 is the sale agreement between the Appellant and the family of Rilwanu Sarkin Pada. DW3 (Abdu Sarkin Pada) was called as head of the family that allegedly sold the land to the Appellant, while in the witness box, the said DW3 told the Court below that he was not aware of any transaction about the land either with himself or any member of the family. Hear him:
“The ditch is not yet filled up as I have not been informed as I have not been going to the farm and I have not been informed of anything. I am not aware of any transaction about the land either with myself or any member of my family”.

​That was the basis upon which the lower Court discountenanced all the other documents because they all took root upon the said Exhibit 8. The contention of the Appellant is that the lower Court used oral evidence to displace documentary evidence. It is settled that documentary evidence is said to be the BEST EVIDENCE and oral evidence is not allowed to vary the content of a document, see EGHAREVBA V. OSAGIE (2009) LPELR-1044(SC) wherein the apex Court held thus:
“It is now firmly settled that documentary evidence, is the best evidence. It is the best proof of the contents of such document and no oral evidence, will be allowed to discredit or contradict the contents thereof. See the case of The Attorney-General Bendel State & 2 Ors. v. United Bank for Africa Ltd (1986) 4 NWLR (Pt.337) 5. (47 @ 563 – per Oputa, JSC.”

The fact that a document passed admissibility test does not mean that the Court must place probative value on it because admissibility is different from weight, a document could be admitted but fail to attract any weight due to several reasons, see OMEGA BANK (NIG) PLC V O.B.C. LTD (2005) LPELR-2636(SC) which held thusly:
“As a matter of law, documentary evidence can be admitted in the absence of the maker. See Igbodim v. Obianke (1976) 9-10 SC 179. After all relevance is the key of admissibility. In the hierarchy of our adjectival law, probative value comes after admissibility. And so a document could be admitted without the Court attaching probative value to it. That is the point I am making. Basically, admissibility and weight to be attached to the document admitted are two different things. See Ayeni v. Dada (1978) 3 SC 35.” Per TOBI, J.S.C.
The issue here is that Exhibit 8 could be the best form of evidence with regards to the nature of the Exhibit being a document but the content could have a different effect after the evaluation all the evidence before the Court. There is nothing sacrosanct about a document so as to conclude without more that whenever a document is tendered it is conclusive that the content is true and must have effect.

The Superior Courts have held repeatedly that documentary evidence is the hanger upon which to assess oral evidence, see BUNGE V. GOV., RIVERS STATE & ORS (2006) LPELR-816(SC) wherein the apex Court held thus:
“It is also settled that the importance of documentary evidence is that it could be used to resolve an issue or conflicting evidence. It could be used as a hanger from which to test the veracity of the oral testimonies. See the cases of Fashanu v. Adekoya (1974) 1All NLR (Pt. 1) 35; (1974) 6 S.C. 83 – per Coker, JSC; Awote v. Owodunni (No.2) (1987) 2 NWLR (Pt. 57) 366 and Armels Transport Ltd. v. Martins (1970) 1 All NLR 27 at 32. In the case of Alhaji Ibrahim v. Galadima S. Barde & 9 Ors. (1996) 12 SCNJ 1; (1996) 9 NWLR (Pt. 474) 513, in his dissenting judgment at page 52, Ogundare, JSC, (of blessed memory), referred to the case of Adeseye v. Taiwo (1956) 1 FSC 84; (1956) SCNLR 265 as to an admissible relevant book authority, and stated that it is not conclusive. He reproduced part of the statement of Nnaemeka-Agu, JSC, in the case of Kimdey & 11 Ors. v. Military Governor of Gongola State & Ors. (1988) 1 NSCC 827 (it is also reported in (1988) 2 NWLR (Pt.77) 445 and (1988) 5 SCNJ 28 citing Fashanu v. Adekoya (supra) and stated as follows: No doubt, the legal proposition that where there is oral as well as documentary evidence, documentary evidence should be a hanger from which to assess oral testimony is a sound one.” Per OGBUAGU, J.S.C.

​Fundamentally, every document relates to a subject matter or content and therefore, it must have a foundation and how all the stages of activities before the document comes into existence must be valid. Here, the document relates to the sale of family land and therefore, before it can have effect or value it must conform to settled legal principles in dealing with family land, failing which no matter what the document says, it will be worthless.

The Appellant made no pretense about how he came about the land, it is a purchase from family land. DW3 is head of family and he denied Exhibit 8, he told the lower Court that he is not aware of any transaction about the land with himself or any other member of the family. No family member came forward to acknowledge signing the said Exhibit 8 with the authority of the head of the family. A family member could sign the sale agreement with the authorization of the head of the family. How to deal with family property under customary law was captured in details in the case of USIOBAIFO V USIOBAIFO (2005) 3 NWLR (Pt. 913) 665 at 690 thusly:
“What is the effect of the head of family selling family land without the consent of the principal members of the family? The case of Ekpendu v. Erika (1959) SCNLR 186, (1959) 4 FSC 79 provides the answer. It was held in that case that where a head of a family sells family land without the consent of the principal members of the family, the sale is voidable. See also Esan v. Faro 12 WACA 135. In Alli v. Ikusebiala (1985) 1 NWLR (Pt. 4) 630, this Court held as follows: (1) Neither the head of the family alone, nor the principal members alone can make any valid alienation or give title to any person with respect to family land. (2) A head of a family not acting as such cannot convey a valid title in respect of family land. (3) Unimpeachable title can only be transferred from one community to another when head of the family does so with the consent and concurrence of the principal members of the family or community. In Adejumo v. Ayantegbe (1989) 3 NWLR (Pt. 110) 417, this Court went further. It held as follows: (1) Where there is a sale or conveyance of family land by the head of the family with some important members thereof but without the consent of some principal members of the family, then the transaction is voidable and those members who should have consented to the transaction but did not, can take out an action to have the transaction set aside. (2) The sale of family land by a member of the family who is not the head of the family, is void. (3) The sale of family land by the head of the family without the consent of principal members of the family is voidable. (4) The sale of family land by the head of the family as his own land is void. (5) Where a sale is void, it has to be so declared if asked to be set aside but where it is voidable, whether or not it will be set aside will depend upon the facts and circumstances of the case. As it is, this Court developed the law further in (4) above, that is, the sale of family land by the head of the family as his own land is void. Ekpendu v. Erika (supra) did not get to that stage or that far.” Per TOBI, J.S.C.
From the above quotation, sale of land by other family members without the authorization of the head of family is void. The oral agreement must first be established before the agreement can have credit after all, the apex Court held in the case of OLUBODUN & ORS V LAWAL & ANOR (2008) LPELR-2609(SC) that:
”…it is a well-established principle of law that documentary evidence is unknown to native law and custom. See (1) Ajadi v. Olanrewaju (1969) 1 ALL NLR 382 and (2) Egwu v. Egwu (1995) 5 NWLR (Pt.396) 351.”
The fundamental issue here is the land being family land, the consent of the head of the family is sine qua non and without which the foundation for the claim by the Appellant is gone and nothing can be built on nothing, see OFFODILE V. OFFODILE & ORS (2019) LPELR-47851 (SC) wherein the apex Court held thus:
“The settled position of the law as rightly expounded by My learned brother is that where family land is sold without the concurrence of the head of the family, such a “sale” is void ab initio. It is an essential customary element that the head of the family must join in the sale of family property together with the principal members of the family for such transaction to become valid. See the cases of Fayehun v. Fadoju (2000) 6 NWLR (pt 661) 378; Aiyeola v Pedro (2014) 13 NWLR (pt 1424)409. In the case of Fayehun v Fadoju (Supra), this Court, per Karibi-Whyte, JSC. at page 404 had this to say: “A sale of family land by a member of the family without the consent of the Chief or head of the family is void ab initio. See Ekpendu v. Erika (1959) FSC 29 (1959) SCNLR 186. It is essential to the validity of the sale of family land, that the chief or head of family must consent to the transaction. Such a combination of parties to the conveyance of family land by the Chief or head of the family and the principal members of the family is in my opinion unimpeachable.” His Lordship, Iguh, JSC concurred at page 405 when he observed as follows: “The principles of law governing sales of family property are well settled. In the first place, the head of a family must join in a disposition of family land and the principal members of that family must also concur in such a sale and disposition. Purporting to transfer family land without these essential customary elements will be void ab initio…” Per OKORO, J.S.C.
​That indeed is the basis for the findings of the trial Judge even though expressed differently and the basis on which other Exhibits stand and also rests. The Appellant posited that there were no pleadings as to who the family head was, and therefore the Court should not have used the principle against it. Well, the Appellant copiously pleaded the land as family land and therefore the law must take its course before the purchase of family can stand as valid. The Court can apply the law without the invitation of any party.

The contention that DW3 is blind and aged and therefore his evidence should have been considered against that background is untenable, the trial Judge did not indicate any disability that could make the evidence of the witness a doubtful one. In any case, the Appellant did not impeach the witness nor turned him into a hostile witness, he called him and therefore the evidence is his own evidence which was contradictory to what he asserted. The effect of when the evidence of a party is contradictory was restated in the case of IGE & ANOR V. AKOJU & ORS (1994) LPELR-1451(SC) wherein the apex Court held thus:
“Where a party’s evidence… is conflicting and contradictory as in this case, no reliable Tribunal will believe the party.” Per OLATAWURA, J.S.C.
On this ground alone the case of the Appellant must fail.

​The Appellant questioned the refusal of the trial Judge to presume documents made over 20 years ago, particularly, Exhibit 8 in the absence of any evidence negating its regularity, contents and existence. This is covered by Section 162 of the Evidence Act, 2011, it provides thus:<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>
“Recitals, statements and descriptions of facts, matters, and parties, contained in deeds, instruments, Acts of the National Assembly, or Statutory declarations 20 years old or more at the date of the contract in which such deed, instrument or other document is sought to be relied upon shall, unless and except so far as they may be proved to be inaccurate, be taken to be sufficient evidence of such facts, matters and descriptions.”
Few questions must be answered. Is Exhibit 8 a deed, instrument or Acts of the National Assembly? There is no such evidence before the Court so as to warrant the calling of the Section to the aid of the Appellant.
One other fact is that the presumption is only as to due execution because it is assumed that those who know the signature of the person who signed the document may not be alive and furthermore, it is fundamental that the document must have existed for 20 years before the date of the contract and not date of proceedings, see OBAWOLE & ANOR V WILLIAMS & ANOR (1996) LPELR-2158(SC) which held thus:
“In order to secure the benefit of the presumption created by Section 130, the document must be twenty years old at the date of the contract. The Courts below equated the “date of the contract” appearing in Section 130 with the date of the proceedings at which Exhibits “1” and “2” are being offered in evidence. This is not the law. See:  Johnson & Ors v. Lawanson & Ors. (1971) 1 All NLR 56; Cardoso v. Daniel & Ors. (1986) 2 NWLR (Pt.20) 1 at 19 and Owoade v. Omitola (1988) 2 NWLR (Pt.77) 413. Once the Court is satisfied that the document is twenty years old at the date of the contract.”
This aspect too was not made out by the Appellant and therefore he cannot invoke the Section as it is not applicable in this situation.

​The counterclaim of the Appellant is founded on the evidence led by the Appellant before the Court and the trial Judge dutifully evaluated same before dismissing the counterclaim. There is no other evidence that was strictly in support of the counterclaim. It still relates to the said Exhibit 8, which is the basis and foundation of his counterclaim and the said Exhibit lacks probative value and was rightly discarded by the Court below and without Exhibit 8, the foundation, the Appellant cannot establish his counterclaim. The Appellant failed to identify the piece of evidence that established the counterclaim because all the documents that DW4 tendered were founded on Exhibit 8. DW1 and DW3 confirmed the fact that the land is family land and it must be handled as such with relevant consent from the appropriate persons in the family before it can entitle the Appellant any interest. DW1 and DW3 said they knew of the negotiation for the sale and their valuable evidence stops there. As head of the family, DW3 was not aware the land was sold, was not aware the pit was refilled. I cannot see how the Appellant can have any relief building his case on Exhibit 8.

The Appellant raised the issue of identity of the land in dispute. As a counter-claimant he has the burden to establish the identity of the land because a counterclaim is a separate claim, see OROJA &ORS V. ADENIYI & ORS (2017) LPELR-41985(SC) wherein the apex Court held thus:
“…a counterclaim is always considered as an independent, separate and distinct claim which a trial Court must always consider. A trial Court confronted in a suit with both the main and counterclaims, must give separate judgment on each of the claims as each of such claim is independent of one another in this instant case.” Per SANUSI, J.S.C.
The burden of proof in a civil claim rest on the Appellant as counter-claimant and he failed and therefore the findings made by the trial Judge are unassailable and I agree with him.

The Appellant alleged that the lower Court relied on inadmissible evidence to give judgment to the Respondent and referred to what he considered as facts not pleaded, of course, pleadings is the back-bone of any claim, see ANEKWE & ANOR V. NWEKE (2014) LPELR-22697(SC) and ADELUSOLA & ORS V. AKINDE & ORS (2004) LPELR-120(SC).
The fact referred to is the evidence of DW3 and Exhibit 8, the Appellant pleaded that the land was family land, see the Amended Statement of Defence and counterclaim. Once the fact of family land is pleaded the law must kick in on how it is handled in terms of how a sale of family land can be valid. 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 pleads a root of his claimed title, he must establish it, failing which he cannot proceed beyond that stage, the Appellant 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 therefrom 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 leading to a declaration. So the Appellant cannot allege that the Respondent failed to plead acquisition of family land. His case is different but the Appellant in his counterclaim pleaded his root of title as purchase of family land, he must prove it. Having failed, his counterclaim must fail and the findings made by the trial Judge are immutably and firmly rooted.

​Having resolved all the issues against the Appellant, this appeal lacks merit and must be dismissed. The judgment of HON. JUSTICE ISA RAMALAN delivered on the 3rd day of January, 2009 is hereby affirmed.
Cost of N100,000.00 against the Appellant and in favour of the Respondent.

IGNATIUS IGWE AGUBE, J.C.A.: I was privileged to have read in advance the draft of the lead judgment of my Learned Brother YARGATA BYENCHIT NIMPAR, JCA and there is no doubt that my Lord has comprehensively dealt with the salient issues raised by the parties in this appeal and accordingly resolved all of them in favour of the Respondent who was the Plaintiff in the lower Court and against the Appellant who was the Defendant/Counter Claimant in the lower Court.

The law is settled that as the parties in their respective claim and counterclaim sought for Declaration of Title to the land in dispute, the onus of proof lay on each of them to plead and establish their respective titles on the balance of probability and as had long been established in a plethora of decisions by the Supreme Court and followed by this Court each could only establish his claim by any or combination of the five ways as enumerated below thus:
1. By traditional
2. By production of document(s) of title which must be duly authenticated,
​3. By the exercise of acts of possession numerous and positive enough over sufficient length of time to warrant the inference that the person exercising such acts is the true owner of the land in dispute,
4. By acts of possession and enjoyment of the land, and
5. By proof of possession of connected adjacent piece(s) of land in circumstances rendering it possible that the owner of such connected or adjacent land would in addition be the owner of the disputed land.
See the locus classicus of IDUNDUN vs. OKUMAGBA (1976) 9-10 SC 227; AWODI vs. AJAGBE (2015) ALL FWLR (PT.796) 1129 at 1141; ORIANZI vs. ATTORNEY-GENERAL OF RIVERS STATE (2017) 6 NWLR (PT.1561) 224 at 283 S.C.; ADDAH vs. UBANDAWAKI (2015) ALL FWLR (PT.7750 200 at 211 (SC); SORONNADI vs. DURUGO (2019) 6 NWLR (PT.1668) 281 at 294 S.C.; OYEWUSI vs. OLAGBAMI (2018) 14 NWLR (PT.1639) 297 at 317-318 S.C. and PADA vs. GALADIMA (2018) 3 NWLR (PT.1607) 436 at 455 S.C.

​In the instant case, the parties relied on documents of title to the disputed land and in particular, the Counter-claimant/Appellant relied on Exhibit 8 (an Agreement for the Sale of the land between him and the family of Rilwanu Sarkin Pada). Incidentally, since the Appellant claimed to have bought family land, DW3 the Head of the Family was called but he denied knowledge of the said sale or any transaction pertaining to the land either by himself or any member of his family. Accordingly, even though the documentary evidence (Exhibit 8) was supposed to be the best evidence which oral evidence could not be allowed to discredit the contents thereof in that where there was conflict between the oral evidence of the Parties and their Witnesses, that Agreement could be used as a hanger to resolve such conflict, as was decided in EGHAREVBA vs. OSAGIE (2009) LPELR-1044 (SC) per OGBUAGU, JSC Citing A.G. BENDEL STATE & 2 ORS. vs. UBA LTD. (1986) 4 NWLR (PT.337) 5 per OPUTA, JSC; OMEGA BANK (NIG.) PLC vs. O.B.C. LTD. (2005) LPELR-2636 (SC) per TOBI, JSC and BUNGE vs. GOV. OF RIVERS STATE & ORS. (2006) LPELR-816 (SC) ably cited by my Learned Brother in the lead judgment; the Court below having found that the purported sale was void by the lack of consent of Abdu Sarkin Pada (the Family Head) and other principal members of the family- rightly discountenanced the Sale Agreement (Exhibit 8) as well as other documents of title tendered by Appellant since one cannot put something on nothing and expect it to stand.
True to the decision of the Learned Trial Judge and indeed my Lord in his lead judgment, since Exhibit 8 was the foundation of the Appellant’s title to the disputed land but same was discredited in that neither the Head of the Family nor any family member came out to acknowledge the signing of the purported Agreement, the case of the Appellant in the lower Court collapsed like a pack of cards and same was rightly dismissed by the Learned Trial Judge on the principles long established in the celebrated case of EKPENDU vs. ERIKA (1959) SCNLR 186, (1959) 4 FSC 79 and followed by TOBI, JSC in USIOBAIFO vs. USIOBAIFO (2005) 3 NWLR (PT.913) 665 at 690; on sale or alienation of family land.

I adopt all the reasoning and conclusions arrived at on issues 3 and 4 for determination by my Noble Lord and Brother in the lead judgment and also dismiss the Appellant’s appeal and abide by the consequential Order as to costs.

CORDELIA IFEOMA JOMBO-OFO, J.C.A.: I had the advantage of reading the draft copy of the leading judgment which my lord YARGATA BYENCHIT NIMPAR, JCA., just delivered. My learned brother has quite meticulously and efficiently dealt with the issues canvassed in the appeal and has come to the apt conclusion that the appeal is lacking in merit and ought to be dismissed.

​The appeal is accordingly dismissed by me. I abide by the order as to cost of N100,000.00 awarded to the respondent against the appellant.

Appearances:

A.A. ILIYASU For Appellant(s)

…For Respondent(s)