CHIEF A. J. JIWUL v. NDE JOSHUA DIMLONG(2002)

CHIEF A. J. JIWUL v. NDE JOSHUA DIMLONG

(2002)LCN/1117(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 27th day of March, 2002

CA/J/45/96

 

JUSTICES

ALOMA MARIAM MUKHTAR   Justice of The Court of Appeal of Nigeria

ISA ABUBAKAR MANGAJI   Justice of The Court of Appeal of Nigeria

IFEYINWA CECILIA NZEAKO   Justice of The Court of Appeal of Nigeria

Between

 

CHIEF A. J. JIWUL Appellant(s)

AND

NDE JOSHUA DIMLONG Respondent(s)

NZEAKO, J.C.A. (Delivering the Leading Judgment): This is an appeal from the judgment of Damulak, J., sitting at the High Court of Justice, Pankshin, Plateau State of Nigeria, delivered on 30/9/94 in suit PLD/P30/92. The judgment was in favour of the defendant. By a notice of appeal filed on 2/12/94, the plaintiff who was dissatisfied appealed against the said judgment on 11 grounds.
Parties had upon settlement of records and service thereof exchanged briefs of argument in accordance with the rules of this court. The appellant’s brief was filed on 30/4/96. With leave of this court granted on 31/1/2002, the respondent’s brief filed out of time on 30/1/2002 was deemed properly filed and served within time. Before that, the respondent had complained about the record of proceedings being in-complete. He did this in a counter-affidavit filed on 16/3/98 in response to a motion filed on 29/10/97 by the appellant for an order to set the appeal down for hearing relying only on appellant’s brief of argument. The respondent also filed on 16/3/98 a motion dated 11/3/98 complaining of the same thing. This motion was later withdrawn by him and struck out by the court. Another motion was filed on 28/5/2001 by the respondent for leave to file a supplementary record of proceedings and was granted on 31/1/2002.
The appeal, considered over-delayed, was heard on the same 31/1/2002. Thereupon, D. Gopep, Esq., learned counsel for the appellant adopted his brief of argument and urged the court to allow the appeal. B. Dakup, Esq., learned counsel for the respondent also adopted his brief. He urged the court to dismiss the appeal. The appellant’s counsel had identified from the 11 grounds of appeal, 5 issues for determination in this appeal as follows:-
(i) “Whether the defendant is entitled in law to those declaration, issues and defences raised and resolved in his favour by the court suo motu?.
(ii) Whether the defendant established his vendor’s title in the face of the plaintiff’s case and having regard to the evidence?.
(iii) Whether exhibits F, M and K were admissible to defeat the title of the plaintiff?.
(iv) Whether the question of compensation was germane to this case having regard to the relative claims of the parties?.
(v) Whether the plaintiff’s title is valid?.”
On the other hand, counsel for the respondent did not identify any issues. He simply replied to the issues raised by the appellant. He is deemed to adopt the same issues.
The issues, distilled by learned counsel for the appellant, Mr. Gopep, will be considered in determining this appeal. They adequately cover the complaints of the appellant in the appeal, except ground 11. It is observed that no issue was distilled from ground 11 of the grounds of appeal. In accordance with the recognised practice of this court and the Supreme Court, the ground will be deemed abandoned, and ground 11 is hereby struck out. See Amadi v. NNPC (2000) 10 NWLR (Pt.674) 76 at 100 (SC) per Uwais, CJN; Ojegbe v. Omatisone (1999) 6 NWLR (Pt. 608) 591 at 598.
I will, at this stage set out in summary, the facts giving rise to the matters in this appeal.
The plaintiff in his suit filed on 14/10/92 claimed the following reliefs against the defendant:-
“(a) A declaration that he is the owner of that piece of land lying and situate in the area known as old market, Pankshin in Pankshin Town, and covering an area of over 0.60 hectares.
(b) A perpetual injunction restraining the defendant either by himself, servants, agents and or privies from entering the said piece of land.
(c) Ten thousand Naira (N10,000.00)being general damages against the defendant for his acts of trespass on the land in question.”
Pleadings were filed and exchanged by parties. The defendant denied the claim. Both parties had, in the course of events, amended their pleadings. At the trial, the plaintiff testified and called 3 witnesses.
The court had one witness, whose name was mentioned at the trial by witnesses, called. He testified as CW1.
The piece of land in dispute forms part of a larger piece of land held by Pankshin Native Authority, previously used as a market before the market was moved to a new site.
The case of the plaintiff/appellant in the court below is that the piece of land in dispute, formed a part of land covering 0.06 hectares carved out of the old market allocated to him in 1972 by the then Pankshin Native Authority in which it was vested. He had developed a part of it, quite extensively, erecting thereon a petrol filling station, several shops and warehouse. About the year 1978, the Plateau Transport Corporation (PTC), which a few years later wound up, had also required to obtain from the same Native Authority, then Pankshin Local Government Council, land for its operations.
Having shown interest in the old market land from which the plaintiff was allocated his 0.06 the Local Government Council referred the Plateau Transport Corporation (PTC) to the plaintiff.
Upon assurance that the corporation required the land for temporary occupation, the plaintiff permitted it to erect a temporary bus shed on some undeveloped part of his land. This they did.
When the corporation wound up some years later, plaintiff was approached by it to buy the structure from it. However, the defendant who offered a higher price about 1986 bought and removed the roof of the structure some time in 1986. It was in 1992 the defendant began to trespass on the land of the plaintiff.
On the other hand, the defendant’s case was that he bought the structure and the land where the bus shed was, from the Plateau Transport Corporation (PTC) in 1986, removed the roof of the bus shed and took possession through a mechanic DW4. That it was not till 1992 the plaintiff challenged him. According to the defendant, he bought the land in dispute from the Plateau Transport Corporation (PTC) and the land he bought excluded only the petrol station which he admitted belongs to the plaintiff. That the land which he bought was not part of the appellant’s land. That the roof he removed he donated to a school. That the plaintiff had been trying to expand the grant made to him in the 1972.
It is against the foregoing background that the judgment of the court below was given in favour of the defendant, and that this appeal came before us. Appellant’s complaints span through various elements in the judgment. They seem to touch the very foundation of the judgment.
The issues for determination earlier set out will now be considered.
Issue No.1:
Learned counsel for the appellant, D. Gopep Esq in his submission identified issue No.1 as arising from grounds 2, 4,5,6, and 7 of the grounds of appeal. There under, the appellant complains about declaration, issues and defence in the judgment which he contends were raised by the court suo motu or were issues not pleaded but were considered by the court and resolved in favour of the defendant.
The following were pointed out-
– A declaration of title to a right of occupancy in favour of the defendant;
– The defence of acquiescence;
-The defence of bona fide purchaser for value without notice;
-The issue of fraud;
-The Pankshin Local Government’s power to grant the Certificate of Occupancy (C of O) held by the plaintiff;
-Whether the land was in an urban area or rural.
The matters raised in this issues seem so vital to the foundation of the judgment appealed from, being matters which the court below relied upon to arrive at its decision in favour of the respondent and in dismissing the appellant’s claim. Learned counsel for the parties realised this as their detailed submissions on it show.
The central grouse of the appellant relates to the declaration of the title in favour of the defendant, matters of defences and issues in the judgment which counsel contends that the court below relied upon in arriving at its decision, when it had no power to do so. The first is that the defendant was not entitled to the award of title made in judgment, for he made no claim to entitle him to it. The others are that certain defences and issues raised in the judgment were not pleaded but were raised by the court below suo motu. Some were only raised at the address stage and evidence was led in respect of some. That even where a particular fact was pleaded, no particulars were provided and the evidence led was at variance with the pleadings.
Counsel identified six such matters and contended that the court below wrongly arrived at his decision, based on them. He cited several legal authorities. One part of the judgment complained of by the appellant under this issue is where the trial Judge stated as follows:-
” … I find that the plaintiff’s action fails and is hereby dismissed. I hereby make the following declarations:-
1. That the land covered by the site plan (Exhs. F- M) belongs to the defendant.”
In respect of this, learned counsel for the appellant Mr. Gopep submitted that the defendant did not counter-claim, and, did not seek any declaration or relief.
In a case where the plaintiff fails in an action for declaration of title, such a decision decrees no title to the defendant who never sought a declaration. He cited Igwe v. Kalu (1990) 5 NWLR (Pt.149) at 164; Awoni v. Olorunkosebi (1991) 7 NWLR (Pt. 203) 336 at 345.
On this issue, learned counsel for the respondent, Mr. Gopuk replied that the trial court was right, that dismissal of a suit for declaration of title connotes that title is declared for the other party who need not file a counter-claim to enjoy such a consequential order.
He finally submitted that an order made in favour of the respondent is perfect if it flows from the evidence and more so if the justice of the case demands. He relied on Registered Trustees of Apostolic Church v. Emmanuel Olowoleni (1990) 6 NWLR (Pt.155) 514, (1990) 10 SCNJ 69. It is observed that respondent in this case cited Emmanuel Olowoleni.
It is my respectful view that a court of justice can only grant reliefs sought or incidental to such reliefs. It has no jurisdiction to consider, not to mention, to grant a relief. See Akapo v. Hakeem Habeeb (1992) 6 NWLR (Pt. 247) 266 at 296 (SC); Ochonma v. Ashirin Unosi (1965) NMLR 321.
These principles arise from our adversary system of administration of justice. The system requires that the other party must be heard, an expression arising from the Latin maxim, “audi alteram partem,” which has since been entrenched in our Constitution. See section 33 of the 1979, and section 36 of the 1999 Constitutions. On the part of the Judge, he is in the middle – between the opposing parties, required to play the role of an umpire, without bias.
In these circumstances issues which the court must determine must be those issues of fact arising from the pleadings filed by the parties and proved by evidence adduced before the court or facts which have been pleaded and admitted and are not in controversy.  See Finnih v. Imade (1992) 1 NWLR (Pt. 219) 511 at 537. It was only claim of the plaintiff/appellant that was before the court below.
There is no doubt whatsoever that the defendant/respondent in this case did not file or place any claim or counter-claim before that court. The order made and complained of is not a consequential order as the respondent’s counsel terms it. Nor does it fit into the description of consequential order in The Registered Trustees of Apostolic Church v. Olowoleni (supra) cited for the respondent, also reported in (1990) 6 NWLR (Pt. 155) 514.
I am of the firm view, having regard to the state of the law that the learned trial Judge was in error in making a declaration of title not sought by the defendant. See also Igwe v. Kalu (1990) 5 NWLR (Pt. 149) 164; Kodilinye v. Odu (1935) 2 WACA 336 at 338. I would in the premises, set aside the order made by the court below decreeing title to the defendant/respondent who never made any claim.
There is the issue of the defence of acquiescence. On this, the trial court also relied in its judgment, complained of by the appellant. The learned trial Judge held that the plaintiff did not raise objection while the Plateau Transport Corporation (PTC) was putting up its structure in 1978, did not raise issue of title till 1993, did not challenge Plateau Transport Corporation’s title, and when it advertised the sale, the plaintiff should have challenged Plateau Transport corporation when it built the structure also or when it sold to the defendant, nor did he raise objection to defendant when he removed the roof in 1986. The learned trial Judge then concluded, thus:
” … instead of seeking redress in court, plaintiff obtained a Certificate of occupancy covering the bus shelter which was wrongly made.”
“This in my humble view amounts to acquiescence which can deprive him of his legal rights to the land in dispute in favour of the defunct Plateau Transport Corporation and defendant. See Kaiyaoja v. Egunla (1974) 12 SC 55, (1974) NSCC 606 at p.612.
For the appellant it was submitted that the conditions to ground this defence successfully are not present in the case. He listed the required conditions which must co-exist together, citing authorities: Morayo v. Okiade (1940) 15 NLR 131; Taiwo v. Taiwo (1958) SCNLR 244, (1958) 3 FSC 60 at 82; Akeju v. Suenu (1935) 6 NLR 87; Taylor v. Kingsway Stores (1965) 1 All NLR 19. He pointed out that worse still was that this being special defence, it must be particularised, that the respondent was not even put on notice as a reasonable person when he had not been shown any title document by his vendor, Plateau Transport Corporation and he assumed that the corporation had title. He cited Maji v. Shaft (1965) NMLR 33; Idehen v. Olaye (1991) 5 NWLR (Pt. 191) 344 at 354-355 to support his contention that there was no attempt at seeking the mandatory consent of the Local Government for the Plateau Transport Corporation to assign to the defendant.
For the respondent, the appellant’s complaints about the defences of acquiescence and purchaser for value without notice were treated together. He submitted that the trial court was right to hold that the appellant was guilty of acquiescence, listing acts done by respondent since 1986, when he bought the structure from the corporation.
He then concluded that despite those numerous acts of constructive possession, that the appellant remained indolent till 1992 when he filed the suit. The respondent, it was submitted, had suffered, parted with his N26,000.00 and expenses in pursuing C of O.
Further, that for a bona fide purchaser for value without notice, the defence of acquiescence and standing by are available to the defendant – he cited Yusuf v. Dada (1990) 4 NWLR (Pt.l46) 657, (1990) 7 SCNJ 69.
He asserted that the defence must not plead or particularise it.
Counsel said the trial court has, unlimited right to look into the entire evidence, evaluate and give reasons for his final decision. Counsel then concluded that acquiescence was one of the reasons for dismissing the suit, which is different from raising the issue suo motu.
Before proceeding to consider this part of the issue, let me state that reading the submission for the respondent, that one has the impression that learned counsel has not entirely grasped or adequately tackled the legal point being raised by counsel for the appellant.
Be that as it may, the law is clear on the status of and principles relating to pleadings and the equitable defence in his pleadings, the court has to consider it- see Yusuf v. Dada (1990) 4 NWLR (Pt.146) 657, (1990) 7 SCNJ 86. Where he does not, the court ought not consider it. It is settled law that where a defendant wishes to rely on a special defence, such a defence must be specifically pleaded. See FCDA v. NAIBI (1990) 3 NWLR (Pt. 138) 270 at 281. Karibi-whyte, JSC at P.221 put the law quite succinctly thus:-
“it is an elementary but fundamental principle of our administration of justice that the court cannot decide
a matter on a point of law or fact not relied upon by a party. In other words, court should not make a case for a party which the party did not himself make.”  It is not for the court to raise suo motu, and apply such a defence.I have examined the amended statement of defence filed by the respondent in the court below and undoubtedly the defence of laches and/or acquiescence was not pleaded. It did not arise in the evidence in court or at any stage of the court below.
An important principle earlier referred to applicable here and which has to be reiterated is that issues which the court should determine must be those issues of fact which arise from the pleadings of parties and proved in evidence before the court. See Finnih v. Imade (1992) 1 NWLR (Pt. 219) 511.
Furthermore, a defendant relying on any equitable defences such as estoppel, laches and acquiescence must specifically plead them. If he does not, he cannot rely on them. See Adeniran v. Alao (1992) 2 NWLR (Pt. 223) 35. In Moss v. Kenrow (Nig.) Ltd. (1992) 9 NWLR (Pt. 264) 207. The Supreme Court had held that all equitable defences which include laches and acquiescence must be pleaded fully with full particulars. See also Ibenwelu v. Lawal (1972) 1 All NLR 23 at P. 26 (Per Ademola, C.J.N.).
As it was not pleaded in the present case the defence is not  available to the defendants, not to mention the court raising and adjudicating on it. The issues whether there are facts supporting the defence does not arise and if it does, my humble view is that there are no facts to sustain it.
The defence so well known to law is not available when there are no lapses at all. Because of its equitable nature, the courts always examine both sides of the coin – the side of the plaintiff and that of the defence and determine the balance of justice between them. Decisions which are locus classicus abound. They show that when the issue of laches and acquiescence arises, the courts look to see the length of the delay, the nature of the acts done by the parties during the delay interval- see Oduola v. Ibadan City Council (1978) 1 LRN 82; Taylor v. Kinsways Stores Nigeria Ltd (1965) 1 All NLR 19 decided by the Supreme Court and Agbeyegbe v. Ikomi (1949) 12 WACA 383 (Privy Council). One other important principle of law on the defence of acquiescence is that acquiescence which will deprive a man of his legal rights must be such as amount to fraud. It comes to this that a party is not to be deprived of his legal rights unless he has acted in such a manner as would make it fraudulent for him to set up those rights. See Atunrase v. Sunmola (1985) 1 NWLR (Pt. 1) 105 at 111 (Per Kawu, JSC).
The case of Kaiyaoja v. Egunila (Supra) relied on by the court below enunciate these principles. The sense of this, the learned trial Judge in that court seemed to have missed and also its essence, when he failed to apply those principles and take note of the other elements required by law to be present before the defences of laches and acquiescence can avail a defendant who wishes to rely on them.
The elements are as follows:-
1. That the defendant was in fact mistaken as to his own rights over the land.
2. That he had in reliance of the mistake expended his money on the land.
3. That the plaintiff must have known of the existence of his own right which is inconsistent with the right
claimed by the defendant over the land.
4. The plaintiff must have known of the mistaken belief of the defendant.
5. The plaintiff must have encouraged the defendant in his expenditure of money.
Regarding the complaint that learned trial Judge raised these defences which had not been raised suo motu, it is my view that he has not the powers to do so, he has a duty to give the parties an opportunity to address him on the issues before deciding it. See Katto v. CBN (1991) 9 NWLR (Pt. 214) at 150. See also The Road Transport Employees Association of Nigeria v. The National Union of Road Transport Workers (1992) 2 NWLR (Pt. 224) 381 at 392. (Per Babalakin, JSC).
In the light of the foregoing, I uphold the submission of the learned counsel for the appellant.
Learned counsel for the respondent had submitted that on this defence alone, the plaintiff’s claim could be dismissed. It is obvious that he completely missed the legal grounds for the appellant’s complaint so lucidly and painstakingly set out by Mr. Gopep, learned counsel for the appellant.
The court had no right or powers in the circumstances to raise the defence on his own and to apply it to defeat the claim of the plaintiff as he did in his judgment.
I now come to the complaint of the appellant about the decision of the court that the respondent is a bona fide purchaser for value without notice. For the appellant, it was argued that this was another defence not raised by the defendant but was raised for him by the court suo motu. For, neither in his pleadings nor in his evidence did he raise that defence and it was the court which raised it in its judgment suo motu and considered it against the plaintiff.
Counsel contended that even if the defence was properly raised, it does not apply in aid of the defendant. Counsel relied on the case of Animashaun v. Olojo (1990) 6 NWLR (Pt. 154) 111 at 121-123 and F.C.D.A. v. Naibi (1990) 3 NWLR (138) 270 at 281.
There is indeed no pleading or evidence that the defendant was a purchaser for value without notice. Simply out of the blues, the learned trial Judge, after raising the issue on his own, and decided that the plaintiff
“In the same vein, assuming that the plaintiff had a right of occupancy on the disputed land as far back as 1973 through Exh. A, the defendant purchased the property from P.T.C. as a bona fide purchaser for value without notice. No evidence was led showing that the knew or had reason to believe that plaintiff had interest in the land. At best it is for the plaintiff to sue either the Pankshin L.G.C……..”
On the legal authorities earlier set out, the court has no powers to raise this issue, and apply it. The decision in the case of Yusuf v. Dada (supra) cited by the learned respondent’s counsel, infact supports the view that the equitable defence including that of purchaser for value without notice and estoppel must be pleaded. It is when pleaded, that a matter becomes an issue open for consideration by the trial court, which is the arbiter. The Supreme Court held in that case that in the circumstances of the case, “the defendant was entitled to raise any appropriate equitable defence for consideration of the court, and indeed he did so.” (per Agbaje, JSC at 87 of the report). Thus, when the defence did not as herein, the court cannot consider it.
In the case before the trial court, it was open to the defendant to raise any such defences or indeed any defences as he thought fit, for the court to consider them. It amounts to setting up a case for the parties. It also breached the “audi alteram partem” rule in our jurisprudence.
I agree with learned counsel for the appellant that this defence is not available to the defendant, not only for the above reason but also because he cannot in the circumstances of this case be described as bona fide purchaser without notice – notice of what in 1986 while the petrol station was standing there?
The same defendant himself had testified before the court now making this case for him thus:
” …. The land in dispute borders the petrol filling station which belongs to the plaintiff.”
Should the defendant not be expected to make some enquiries before his purported purchase in 1986 from adjoining land before him?
The law would attribute constructive notice to such a purchaser as the defendant. The law expects a purchaser of adjoining land to that which another to his knowledge occupies, to make enquiries as to title from that other.
In Animashun v. Olojo (1990) 6 NWLR (Pt. 154) 111 at 121- 123 SC, the Supreme Court, per Obaseki, JSC set out the law and meaning of a bona fide purchaser for value without notice and its application and what constructive notice means thus:- “What is the meaning of a ‘bona fide purchaser of the legal estate for value without notice? ‘bona fide is defined as,  “In good faith, honestly, without fraud, collusion, or participation in wrong doing.”
Purchasing for value
‘Purchaser’ in its technical sense does not necessarily imply purchaser for value. ‘for value’ are included to show that value must be given to earn the immunity from equitable claimants. Value means any consideration in money, money’s worth (e.g. other lands, stocks and shares and shares or services or marriage see Le Neve v. Le Neve (1747) 1 Ves Sen 64; Wh & T. ii 157; Willoughby v. Willoughby 1 TR 763. Of a legal estate. As courts of equity break in upon the common law, when necessity and conscience require it, still they allow superior force and strength to a legal title to estate. See Wortley v. Birkhead (1754) 2 Ven Sen 571 at 574 per Lor Harwicks, LC.
“Without Notice”. He must have no notice of the existence of equitable interest. He must have neither actual notice nor constructive notice nor imputed notice. A person has actual notice of all facts of which he has for has had (actual knowledge however that knowledge was acquired.
“Constructive Notice.”
The court of chancery insisted that purchaser should inquire about equitable interest with no less diligence
than about legal interest which they could ignore only at their own peril. The motto of English conveyance is caveat emptor; the risk of encumbrances is on the purchaser who must satisfy himself by a full investigation of title before completing his purchase. A purchaser would be able to plead absence of notice only if he had made all usual and proper inquiries, and had still found to indicate the equitable interest.
In the instant appeal, if the appellant had visited the site of the land plot 27 before completing the purchase, she would have found that the respondent was already in possession of the land and then further enquiries would have revealed that her vendors had already sold the plot and collected the purchase price from the respondent.
Imputed Notice…”
What enquiries did the defendant make when he saw the land he was buying as boarding plaintiff’s petrol station? There was no evidence. In the light of the foregoing and applying these principles to this matter, I am satisfied that the defendant does not qualify for this defence of purchaser for value without notice. The defence was wrongly put up and applied by the court.
On the question of fraud pertaining to the plaintiff’s title documents, counsel for the appellant contended that though pleaded in paragraph 7 of the amended statement of defence, there was no particularisation.
The only challenge to the validity of the title documents is on the footing of fraud, not in terms of the various unpleaded defences and question of its validity as raised by the court. Fraud it was submitted, was not proved beyond reasonable doubt, being an allegation of crime, citing section 137(1) of the Evidence Act, and Ajoke v. Oba (1962) All NLR 73; Ojibah v. Ojibah (1991) 5 NWLR (Pt. 191) 296 at 310; Awosile v. Sotunbo (1986) 3 NWLR (Pt.29) 471, (1992) 6 SCNJ 182; Tewogbade v. Obadina (1994) 4 NWLR (Pt.29) 326, (1994) 4 SCNJ 161 at 182, 183 and Highgrade Maritime Service Ltd. v. First Bank (1991) 1NWLR (Pt.l67) 290, (1991) SCNJ 110.
Counsel pointed out that the court below considered these issues which were either not established or raised by the defendant. In doing this, the court was making a case for the defendant. This, the court has no jurisdiction to do. He cited, Akinbo.ola v. Plisson Fisko (Nig.) Ltd. (1991) 1NWLR (Pt.l67) 270, (1991) 1 SCNJ 127; UBN Ltd. v. Ozigi (1994) 3 NWLR (Pt.333) 385, (1994) 5 SCNJ 42; Green v. Green (1987) 3 NWLR (Pt.61) 60, (1987) 11-12 SCNJ 64.
On the matter of fraud pertaining to the plaintiff’s title document, in the defendant’s paragraph 7 of the amended statement of defence, it was pleaded thus:-
“in further answer to paragraph 7 of claim denied above, defendant argues that plaintiff since 1987 has been trying to encroach upon defendant’s land wanting to expand the one allocated to him to include the land in dispute. Defendant states that any Certificate of Occupancy purportedly issued to the plaintiff including the land in dispute was fraudulently obtained and should be declared null and void.
(a) The defendant states that the plaintiff in October, 1979 applied to the Local Government Council Pankshin for “extension of his site and approval of building plan.” But was rejected by Government in a letter dated 26th October, 1986 Ref. No. Lan-Pank R of 041-14 copies of the application and the rejection of same are hereby pleaded. Plaintiff is put on notice to produce the originals.”
The foregoing are all the pleadings before the trial court on the issues of fraud. No particulars were set out and it is not apparent on the face of the pleadings what the facts being relied on are to ground the argument.
The respondent pleaded fraud, but did he prove it as required by law. As a matter of fact, none of the facts set out in paragraph 7 was proved by evidence at the trial. No particulars of fraud were pleaded by the defence. Fraud was no proved. It is settled law that a defendant who relies on a special defence, must plead it and give particulars. He must also lead credible evidence in support thereof.  If a defendant fails to lead evidence in proof of, the averments in his pleadings, he is taken as having abandoned them. Federal Capital Development Authority v. Naibi (1990) 3 NWLR (Pt. 138) 270 (per Nnamani, JSC, applying Hutchful v. Biney (1971) 1 All NLR 268; U.D.C. v. Ladipo (1971) 1 All NLR 102; Imana v. Robinson (1979) 3-4 SC 1,9-10; Balogun v. Amubikanhun (1985) 3 NWLR (Pt. 11) 27 at 29).
I would uphold the submission of counsel for the appellant.
The law is that a charge of fraud or the commission of crime or illegality must be specially pleaded and proved beyond reasonable doubt, in accordance with section 138(1) of the Evidence Act. See Ikoku v. Oli (1962) 1 SCNLR 307, (1962) 1 All NLR 194; Aiyedun v. Ajani (1980) 5-7 SC 94.What evidence the defence tried to lead relating to the title documents of the plaintiff runs counter to this pleading in paragraph 7.
Evidence which is at variance with or runs counter to pleadings is unacceptable and inadmissible. National Investment & Properties Ltd. v. Thompson Organisation Ltd. (1969) 1All NLR 136, (1969) 1 NMLR 99. For, parties are bound by their pleadings. The burden of proof of pleadings rests on the party who asserts the affirmative and who would fail if no evidence were adduced.
As it is, no particulars were pleaded and fraud was not proved beyond reasonable doubt, it was wrong for the court below to have based its decision on that. See Edun v. Provost Lagos State College of Education (1998) 13 NWLR (Pt. 580) 52.
Learned counsel for the respondent did not make submissions on this part of issue No. I relating to fraud, the pleadings in paragraph 7 of the amended statement of defence, particulars and proof of fraud by the respondent. He did not reply to the appellant’s submissions. He did however deal with what he termed “the legality of the allocation paper” in relation to the court’s decision on appellant’s title documents, Exhs. A and B. This, I will consider later under the final point raised under issue No.1 which is the next.
The power of the Pankshin Local Government to grant the certificate of occupancy C and O to the plaintiff in 1983 is the final point raised under this issue. Learned counsel submitted that again the trial court raised and considered the issue. It was never raised by the defendant in his pleadings or oral evidence, nor did he challenge the power of Pankshin Local Government. It was not even a matter for address. The court raised it in a bid to make a case for parties it was outside the consideration of the court. The case of Umar v. Bayero University (1988) 4 NWLR (Pt.86) 85 (1988) 7 SCNJ 380 was cited. Counsel contended that even if the trial court was correct in raising it, it was not correct in its conclusions. For, there was no denying it, that the plaintiff was granted the land in 1972 by the Pankshin Native authority for commercial purposes by Exh. A, and he developed it extensively – exhibit A was a final grant, a fact which the defendant could not dislodge. It created a legal estate in the plaintiff. The native authority had the power to do so by virtue of the Land Tenure (Native Authority Control of Settlements) Regulations, 1962, section 8, made pursuant to section 47 of the Land Tenure Law Cap. 59, Laws of the Northern Nigeria Council. Thus a certificate issued in 1983 does not confer a different right from the right of occupancy in Exh. A granted in 1972 which by virtue of section 6(3) of the Land Tenure Law, vested the right of occupancy on the plaintiff.
Plaintiff continued to be a holder of this right after the Land Use Act, 1978, by virtue of section 36 of the Act, whether the land be in an Urban or rural area by virtue of the Plateau State Land Use Act designation of Urban Area Edict No.7 of 1981. Counsel referred to Gzungwe v. Gbishe (1985) 2 NWLR (Pt. 8) 528 and Savannah Bank v. Ajilo (1987) 2 NWLR (Pt. 57) 421. Also Ogunleye v. Oni (1990) 2 NWLR (Pt.135) 745, (1990) 4 SCNJ 65 at 81.
It was further submitted for the appellant, that the trial court was not challenging the grant in 1972, rather, it was the Certificate issued in 1983 which cannot invalidate the grant in 1972 even if, which is denied, the Local Government had by law been deprived of the power to issue it in 1983.
Counsel further submitted, that the legal capacity to vest legal title in land in any person is a question of law and not fact. The case cited in support is, Gankon v. Ugochukwu (1993) 6 NWLR (Pt.296) 55 at 71.
Counsel made other submissions citing authorities.
For the respondent, his counsel in his submission pointed out that the appellant who claimed that he was allocated the land in 1972, did nothing till he got the C. of O. Exh Bin 1983. In his view the gap raises many doubts. He submitted that by 1983 part of Panshin was designated urban area and from the legal notice, the area designated is a radius 22km from a point at Plateau Hotel (Pankshin) Hill. He argued that since the trial Judge visited the locus he could by virtue of section 73 of the Evidence Act take judicial notice of distances from the two points. He questioned, “supposing the court was wrong, (without conceding) does it effect the final decision of the trial court, considering other evidences against title of the appellant” (sic). His answer to his question is that it does not at all. He submitted that not every slip can cause an appeal to be C allowed. Counsel cited Onwuka v. Omogui (1993) 2 SCNJ 198 and Obodo v. Ogabi (1987) 2 NWLR (Pt.54) 3.
Learned counsel conceded that “the allocation paper is the right vesting document.” (sic), and that C. of O. Exh. B granted in 1983 it merely confirms” (sic). He added that the two go together. He said “the legality of the allocation paper seriously destroyed,” “no compensation paid, fraudulent elements etc were aparant” (sic).
In counsel’s view, the court merely stated that the appellant’s suit was “worse in that the issuing authority had no right the two documents were faulted.” In his view the learned trial Judge was right in dismissing the suit.
Finally counsel said, “it is admitted that Exh. B confirms Exh. A.” he however argued that, “when there are discrepancies between the two the only option for the court was to disbelieve them all and that in this case the C. of O. does “not support or relate to Exh. A e.g it is unheard of for C. of O. not to contain plot number, date, irregular signatures etc.”
How I wish learned counsel took pains to present the respondent’s brief in a more intelligible and careful manner and language. Be that as it may, it is my firm view that the appellant’s grouse regarding that part of the judgment of the lower court is well founded.
While considering the part of the judgment, complained of, one question that came to mind was what the sequence of thought could have got the learned trial Judge into adjudication on the validity of the Certificate of Occupancy, exhibit B. The defendant never legally attacked or challenged the validity of the C of O whether in  his pleadings or by the testimony of his witnesses in court. Indeed, if witnesses testified concerning that, an objection that it was not pleaded would succeed, and if allowed to be proved, it goes to no issue. As earlier stated, some rather feeble effort at pleading fraud by the defence later turned out to be unfounded. It could not be supported by evidence. It was made in paragraph 7 of the statement of defence. That was the nearest the defence came to attacking the C of O of the plaintiff. It merely stated that since 1987 the plaintiff had been trying to encroach on the defendant’s land including the land in dispute and stated that any certificate of occupancy issued to him which included the land in dispute was fraudulently obtained and should be declared null and void.
To qualify for the consideration of the court, invalidity of the Certificate of Occupancy which ought to be supported with particulars ought to have been pleaded to enable the appellant know the case he had to meet. A party intending to rely on such special and serious defence as invalidity must plead it with particulars and this is trite law. The respondent’s brief talked of “discrepancies.” None was pleaded and none proved.
Not pleading it, as was submitted for the appellant, it did not fall within the consideration of the learned trial Judge. If however it becomes inevitable to raise any such, the law requires that the court must give an opportunity to parties to address it. See Umar v. Bayero Unversity (1988) 1 NWLR (Pt. 86) 85 SC. Matters not canvassed should by all means be avoided by courts. For, not doing so, leads to injustice. See Kuti v. Balogun (1978) 1 SC 53, (1978) 1 LRN 353.
There is a decision that must be called in aid here, T.O. Kuti v. Jibowu (1972) 1 ANLR (Pt.2) 180, (1972) 6 SC 147. In that case, a point namely, one about “discrepancy” in the signature of one of the parties was not made an issue by any of the parties or their counsel, either during the trial or at the hearing. The authenticity of the document in question was not disputed by any of the parties. The Supreme Court held that it was not open to the court to raise it. Should it be necessary to consider such an issue, at page 173 of the report, Fatayi-William, JSC put the applicable principle quite lucidly. The learned Justice of the Supreme Court said that in such a case, “the party or parties who were supposed to have executed the document in question should be given an opportunity to explain the discrepancy before any opinion is expressed as to the genuiness of the document.”
Trial courts ought to take these principles to heart as they touch the very essence of justice and fair hearing. In the matter before us, the learned trial Judge was therefore in error to have raised the issue of the validity of the certificate of occupancy as he did and based his judgment on it, in dismissing the plaintiff’s claim. Counsel for the respondent had submitted in his brief of argument that the appellant could not prove that he legally acquired, “title to land, his Exh. (A & B) is replete with abnormalities” (sic). The answer is that no abnormality was pleaded or proved by the defence, and none should have been adjudicated on by the court.
The issues being raised in the respondent’s brief, I must state with respect, were issues which did not arise at the trial. The validity of the C of O was not properly raised and tried at the trial.
I also agree with Mr. Gopep for the appellant in his answer to the question – suppose the court was right to raise the point about the power of the Local Government to issue the C of O, was it correct in its conclusion? Mr. Gopep’s answer was in the negative and he gave cogent reasons which I would uphold.
From my own point of view of the evidence on record, it is obvious that the appellant about 1972, got the allocation of the land for which the C of O was issued in 1983, from Pankshin Native Authority in which the land was vested.
The evidence was overwhelming. (See the testimony of PW1, PW2, PW4, DW6 and CW1. The plaintiff built a petrol station, shops and warehouse. These facts the defendant admitted in paragraph 4 of his statement of defence and his counsel Mr. Gopuk affirmed in his brief. Exh. A is the document of the plaintiff’s title. In the said paragraph 4, the defendant averred thus:-
“In answer to paragraph 4 of the statement of claims, defendant admits that plaintiff had developed the area allocated to him but not including the area in dispute…”
the power of the Native Authority to grant it for  commercial purposes was not challenged and never could be. It never arose at the trial.
In any event, there is section 8 of the Land Tenure (Native Authority – Control of Settlements) Regulations, 1962 made pursuant to section 47 of the Land Tenure Law, Cap. 59, Laws of the Northern Nigeria then applicable to the whole of the former Northern Region.
Section 8 of the regulations provides that the Native Authority may grant right of occupancy over land for “residential or business purposes or both, see section 8(1) and 8(2)(a).
In 1983, Pankshin Local government, ostensibly, the successor of Pankshin Native Authority issued a C of O which the plaintiff was entitled to. By virtue of section 36 of the Land Use Act, 1978 if the land is in a rural area the Local Government has the right to issue it. Once issued, no one has the power to divest him of his interest thereon, except in accordance with the law. See Dzungwe v. Gbishe (1985) 2 NWLR (Pt. 8) 520 at 540 per Anagolu, JSC. I believe that from 1972 when this land was allocated, interest thereon had vested in the plaintiff and a C of O was only a further documentation of the interest, not a new grant. A person who held land in a rural area before 1978 when the Land Use Act was promulgated and came into effect, is undoubtedly accepted by that Act as being entitled to continue in possession thereof and will continue to use the land for the purpose for which he acquired it, “as if a customary right of occupancy had been granted to” him by the appropriate Local Government.” See section 36 subsections (1),(2),(3) and (4) of the Act. If in an Urban Area, another subsection of the transitional provisions, section 34 of the Land Use Act applied. For the issuing of a C of O, the governor of the State, rather than the Local Government, has the powers to issue it. Subject to some provisions in the Act which are not applicable here however, the holder’s interest before 1978 is still recognised under the Act. In effect, whatever the position, for a person whose interest has vested, since 1972, the issue of a C of O subsequently in 1983 does not constitute the grant and his interest remains and this is so whether the land is in a rural area or an urban area.
As far as I can see, the grant of 1972 per se is not being challenged.
I think it will be wrong to use the C of O issued as a further record of the grant as it were, to defeat the interest of such a grantee.
It is correct to state that even if a defective C of O has been issued, its effect cannot be to deprive the party holding the grant of his interest or invalidate the grant. For, the grant remains valid.
Mr. Gopep has asserted that a certificate of occupancy is prima facie evidence of exclusive possession and the onus of proof is on a person who asserts the contrary. He relied on Oni’s case (supra). That is a correct statement of the law. But the point here is that there was no such contrary assertion in this case.
Learned counsel for the respondent’s contention that the finding of the trial Judge did not affect the final decision of the court is not supported by the contents of the judgment on record.
In his judgment, from page 112 of the records, the learned trial Judge treated the question of validity of the C of O. He said, “The next issue for determination is the validity of Exh. B1 (the Certificate of Occupancy No. 0738).”
He then reviewed the evidence adduced by the plaintiff and his witnesses and that of the defendant and his witnesses, raised another question whether or not the Pankshin Local Government had the power to grant the C of O in 1983 to the plaintiff. He again reviewed the evidence before him, expressed some views, citing legal authorities. Then he concluded thus:- “In the instant case, the plaintiff has not succeeded in proving that he had any right of occupancy, statutory or customary on the land in dispute.”
After a further review of the submission of counsel for both parties, the learned trial Judge went on:-
“Since the disputed land in this case falls within the Urban area, the Local Government had no power to
issue C of O to plaintiff. In the same vein, the Pankshin Local Government had no power to issue Exh. B to the plaintiff. The probative value of Exh. B1 is therefore put in issue. “Assuming that exhibit BI was validly made based on the allocation in exhibit ‘A’, it does not (on the face of it reflect the actual plot number. It rather states that the plot No. is “over 0.60 hect.” In the area known as old market Pankshin. The failure to insert the plot No. creates some doubt on the validity of exhibit B1. It was signed by an estate officer and one other unstamped signature for the Local Government Council. Mr. Gopuk contends that the signatures on exhibit B1 were those of Mr. Lawrence Deshi as estate officer and Ngolong Ngas for the L.G.C. He contended that the two signatories were not yet in office in 1983. He further contended that Lawrence Deshi was elected as Chairman of Pankshin in 1993 while the Ngolong Ngas was selected in 1985 and his appointment confirmed in 1987. Mr. Gopuk contended that exhibit BI was obtained by fraud. I tend to agree with Mr. Gopuk for the defendant that no evidence was adduced at the trial that the two
signatures were obtained by fraud. I also find that the contention is not subject to or cured by way of judicial notice. I however fail to accept the submission that there is a presumption that Mr. Lawrence Deshi and Ngolong Ngas were in 1983, appointed as estate officer and paramount chief respectively. It is settled that one of the recognised ways of proving title to land is by production of a valid instrument of grant. A Certificate of Occupancy (exhibit BI) is a valid instrument of grant but it does not automatically entitle plaintiff to a declaration that the land belongs to him. The court must inquire into one or all of the following questions:
(a) Whether the document is genuine?
(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 has the effect claimed by the holder of the instrument? see Romaine v. Romaine (1992) 4 NWLR (Pt. 238) 650 at P.662 per Nnaemeka-Agu, JSC.
In the instant case, the plaintiff’s reliance on exhibit BI is vitiated because the grantor, the Pankshin L.G.C. had no authority and capacity to make the grant of the disputed land.”
It is not clear what the trial court meant in the last paragraph above. However, in my view the evidence on record, shows that fraud was neither properly pleaded nor proved. Next, the learned trial Judge also raised and considered quite correctly, in my view the issue of, who of the two parties has a better titie. But he wrongly concluded thus after his review of the claim, the plaintiff’s root of title and the defendant’s, raising other issues:
“…But the plaintiff has a defective title by virtue of Exh. BI. His title to the disputed land is also doubtful
by virtue of Exh ‘A’ and BI. Based on the foregoing I find that the plaintiff has not proved by preponderance of credible evidence and the probabilities of the case that he has a better title than the defendant. I find that at the centre of the controversy on the disputed land the staff of the Pankshin Local Govt. PW2 who allocated land (exhibit A) to the plaintiff in 1972 was assisted by C.W.1 and D.W.6.”
There can be no doubt that it is the foregoing findings on the validity of the C. of O., signatories, discrepancies, the power of the Pankshin Local Government to grant the C. of O. to the plaintiff etc, complained of by the appellant above, which led the trial court to make the determination that, “the plaintiff’s action fails and is hereby dismissed.”
Learned counsel for the respondent was therefore in grave error when he submitted that the finding of the court below on this point did not affect the final decision of the court. It did indeed, and that decision in my view is not supportable. We will return to this later.
Whichever way the issue of the rights of the Local Government to issue a C. of O. is considered, whether properly raised or not, my conclusion is that the learned trial Judge was in error when he applied to his judgment, his decision in respect thereof, to defeat the interest of the appellant in the land which vested in him in 1972.
The next issue relates to the part of the judgment where the trial court, determined that the land of the plaintiff covered by his C of O was in an Urban area.
Appellant’s learned counsel pointed out that this issue was raised only during address in the court below and, that no evidence was raised in respect of this. That the trial court held the certificate invalid because the land was in an Urban Area within the exclusive jurisdiction of the Governor to grant a C. of O. Yet, there was no evidence to support this as there was no pleading on it.
The problem in this issue, it can be seen is in the bandwagon effect of the earlier issue concerning the power of the Local Government just determined above. In my view, the same principles virtually apply. Since it was not pleaded, by the defendant, the court below had no power to consider it. Indeed with respect, the learned trial Judge should have discountenanced the point when raised during counsel for the defendant’s final address before judgment.
Again, as no evidence was led to prove or disprove that that part of Pankshin is situate in the area designated Urban Area by the Plateau State Land Use Act Designation of Urban Area Edict No.7 of 1981, the learned trial Judge ought to have left it alone. In my humble view, the identification of the radius within which an area falls, in terms of the designated urban area. Undoubtedly, some material facts had to be placed before the court before any determination as to the location of the land in dispute could be made and thereafter, who has the power to issue a C. of O in respect thereof.
The area designated urban is stated as being within a radius of 22 kilometres from a point at the Plateau Hotel Pankshin Hill as pointed out by learned counsel for the respondent. The question is, where is this land, in an urban or rural area? Another is what distance is the land to the point identified by the edict from which the 22km radius has to be measured, and also who measured it? As the issue was not raised at the trial no evidence was led. There is no proof as to whether the land was urban or rural. The submission of Mr. Gopuk, learned counsel for the respondent on this issue is that the court visited the locus and could by virtue of section 73 of the Evidence Act, take judicial notice of distances from the two points.
Let me set out section 73 and also section 74 of the Evidence Act. These sections show that this is not the type of matter which the Act envisages the court would take judicial notice of.
“Section 73: No fact of which the court must take judicial notice of need be proved.”
Section 74(1) “The court shall take judicial notice of the following facts –
“( a) All Laws or enactment and subsidiary legislation made there under having the force of law now or heretofore in force, or hereafter to be in force, in any part of Nigeria;
(b) All public Act passed or hereafter to be passed by the National Assembly and all subsidiary legislation made there under, and all local and personal Act, directed by the National Assembly to be judicially noticed;
(c) The course of proceeding of the National Assembly and of the House of Assembly of States of Nigeria;
(d) The assumption of office of the President and of any seal used by the President;
(e) All seals of which English courts take judicial notice; the seals of all the courts of Nigeria; the seals of notaries public, and all seals which any person is authorised to use by any Act of the National Assembly or other enactment having the force of law in Nigeria;
(f) The existence, title and national flag of every State or sovereign recognised by Nigeria;
(g) The divisions of time, the geographical divisions of the world, the public festivals, fasts and holidays notified in the Federal Gazette or fixed by Act;
(h) The territories within the Commonwealth or under the dominion of the British Crown;
(i) The commencement, continuance and termination of hostilities between the Federal Republic of Nigeria and any other State or body of persons;
(j) The names of the members and officers of the court and of their deputies and subordinate officers and assistants, and also of all officers acting in execution of its process, and of all legal practitioners and other persons authorised by law to appear or act before it;
(k) The rule of the road on land or at sea;
(j) All general customs, rules and principles which have been held to have the force of law in or by any of the superior courts of law or equity in England, the Supreme Court of Nigeria or the Court of Appeal or by the High Court of the State or of the Federal Capital Territory, Abuja or by the Federal High Court and all customs which have been duly certified to and recorded in any such court;
(m) The courts of proceeding and all rules or practice in force in the High Court of Justice in England and in the High Court of a State and of the Federal High Court.
(2) In all cases in subsection (1) of this section and also on all members of public history, literature, science or art, the court may resort for its aid to appropriate books or documents of reference.
(3) If the court is called upon by any person to take judicial notice of any fact, it may refuse to do so unless and until such person produces any such book or document as it may consider necessary to enable it to do so.”
Clearly the facts required in this case are not such matters as the court “shall” take judicial notice of under the Act. They are not notorious facts. Yet, the Native Authority made the initial grant in 1972 and the Local Government issued a C. of O. in 1983.
I am more inclined to the reasoning in the submission of Mr. Gopep, learned counsel for the appellant. He had submitted that:-
“Plateau State Land Use Act designation of Urban Areas Edict No.7 of 1981 refers to Pankshin town with reference to geographical points relating to only physical features on the ground in survey terms. Whether a particular area falls within certain points is a question of fact which must be established by evidence, not one which the court could take judicial notice of. The court’s conclusion that the land in dispute is in an urban area is therefore speculative which the court cannot indulge in. Cited Okoya v. Santilli (1994) 4 NWLR (Pt.338) 256, (1994) 4 SCNJ 333; Obimiani Ltd. v.ACB Ltd. (1992) 3 NWLR (Pt.229) 260, (1992) SCNJ 1.”
No facts were pleaded in respect of the matter, the witnesses who were fficials of the Local Government did not have the matter put to them. A Court of Justice ought to limit itself to issues properly raised before it by the parties.
With the foregoing decision on these points of complaint raised under issue No.1 by the appellant the issue is determined in favour of the appellant. The accompanying grounds of appeal 2,4,5,6 and 7 therefore succeed.
For, issue No.2, distilled from grounds 1 and 3 of the grounds of appeal, the appellant complains about the decision as a whole not being supported by available evidence and also of finding made by the trial court amounting to misdirection in law.
The decision of the court below is as follows:
“It is the finding of this court that the defendant has adduced evidence showing that he had better title to the land in dispute than the plaintiff… I find that P.T.C. passed valid title to the defendant by virtue of Exh. K and the doctrine based on the maxim quic quid platatur solo solo cedit does not apply.”
The vital issue herein can be narrowed down to the question, who of the parties had better title to the land in dispute, the appellant or the respondent? This brings this court into examining the evidence on record, also to settle another issue, viz whether the land in dispute formed part of the land allocated to the appellant in 1972 by the Pankshin Native Authority or whether it was land allocated by Pankshin Local Government Council (LGC) in 1978 directly to the Plateau Transport Corporation (PTC) for its bus shed and was validly sold to the respondent. For, if the land formed part of the appellant’s land, then it could not have been validly allocated by the same council to the Transport Corporation. For, in that case, the Local Government Council had nothing to allocate to the Plateau Transport Corporation, and the defendant had nothing sold to him by the Plateau Transport Corporation. If on the other hand, the land in dispute does not form part of the plaintiff’s allocation of 1972 but was allocated by the Local Government Council to the Plateau Transport Corporation. (PTC) and it sold to the defendant, then that is the end of the plaintiff’s claim. For then the land vests in the defendant.
The plaintiff’s claims fails, he not having claim to the land in dispute.
I have taken time to examine the evidence on record adduced by the essential witnesses from both parties to the suit on this issue. They point to the following vital facts:-
“The Pankshin LGC did not actually allocate any land to the Transport Corporation for its bus service. There is no evidence that its bus shed erected on the land in dispute is on land allocated to it by either the Pankshin Native Authority or the Pankshin Local Government Council.”
A request was made by the corporation, but when it came to implementation, it was found that the land they showed interest in, surveyed by DW6 on the instruction of C.W.1, fell within the plaintiff/appellant’s land allocated by the Native Authority in 1972. The council and its officials including C.W.1 advised the corporation to negotiate with the plaintiff/appellant.
The assertion of the plaintiff’s interest in the land and its acknowledgement by the Local Government Council had been consistent and rang through the evidence on record, which was not controverted – see the evidence of P.W.2, PW4, DW6 and CW1. See also the minutes of the Local Government Council first Land Allocation Committee Meeting of 18/7/78 – exh ‘D’ tendered by P.W.4. To be set out later, is much of the witnesses as is relevant, bearing out the foregoing.
The claim of the plaintiff earlier set out and the jist of his evidence and the evidence of his witnesses show that he was claiming the land in dispute because it formed part of the land allocated to him in 1972 by the Pankshin Native Authority. The land forms part of the old weekly market in Pankshin and was vested in a Native Authority.
The plaintiff relied on Exh. A, B1 and B2 which he tendered.
Exhibit ‘A’ is the allocation document of 1972. Exhibit ‘B1’ is his C of O made in 1983 and exhibit ‘B2’ is the site plan of 1982 annexed to B1. They show that the land granted him covers an area of 0.60 hectares. There was no dispute that the Native Authority made him the grant. The plaintiff had carried out extensive development thereon, including a petrol station, shop and warehouse and this is not disputed. It was not controverted that P.W.2 was the Native Authority Official who in 1972 allocated the land. He was the supervisor of works in the Local Government and testified that the land was 0.60 hectares. It has on it the above structures and a structure built by the Bus service of the Pankshin Transport Corporation. P.W.2 was the sole authority allocating land, there being no land officer then.
I emphasise that the main issue has been, on whose land the Transport Corporation’s structure was built? All parties agree that it was built around 1978. What did the witnesses say? P.W.2 and C.W.1 testified that the Transport Corporation’s structure was on that land which was granted the plaintiff in 1972.
The defendant on the other hand was not disputing title to the plaintiff of the adjoining area where the filling station, the shops and the warehouse stand. Rather, he asserts that Bus service structure lies outside the plaintiff’s 1972 grant made by PW.2. At the locus in quo, however P.W.2 further confirmed the extent of the 1972 grant.
Other witnesses apart from P.W.2 whose testimony are vital to this question include P.W.1 (the plaintiff), P.WA, the defendant’s witness – D.W.6, D.W.7 (the defendant) and C.W.1 called by the court. I will start with P.W.4, then D.W.6, and others.
P.W.4 was a lands officer in the service of the Pankshin Local Government and the secretary to the Land Advisory and Allocation Committee of the Local Government. His testimony was to the effect that the land in dispute was not allocated to the Plateau Transport Corporation but to the plaintiff, nor was he aware that it was sold to the corporation. He said:- “I am aware that the Transport Corporation built a structure on the said land. I am not aware that the place was sold to the Transport Corporation.” (see P. 40 the records).
D.W 6: He was the defendant’s witness. He testified at page 51 and 59 of the records,
“My name is Kupshak Dimka, a land officer with the Pankshin L.G.C. I live in Pankshin in 1978. I was
working in Pankshin. I was then a Technical Assistant. I know the parties in this case. I know the piece of land in dispute. In 1978, the land in dispute was the Pankshin weekly market when the market was moved to the present site at New Layout, Sabon Lays, Pankshin I suggested to St. Paul Anglican Church, Pankshin to apply for that piece of land for the construction of a new church. Mr. A.J. Jiwul was in the Church at the time. He said that the piece of land belonged to him and that he had paid compensation for the said land. He was ready to donate it to the church. One of the church members objected on the ground that the place was too close to the road and children might be killed. In the same year I was instructed by my superior officer, Mr. Joseph Bewarang to survey part of the land
previously used for the market. I surveyed and plotted the area for Plateau State Bus service. I do not know how the Plateau Bus service come about the area. Only my boss at the time know it.
On the said land there are presently a petrol filling station, shops and a building belonging to the Plateau Bus service. I made a site plan in respect of the said land, I have the original site plan of the area surveyed by me for the Plateau Bus service. It was made in June 1978. This is the site plan.” (The plan is exh. E)
What is obvious from the above testimony of DW6 is that the title of the Transport Corporation has not been established. Only a survey ordered by C.W.1 was carried out and D.W.6 could not tell how the Corporation came by the land on which its bus shed was erected. C.W.1 could tell how the corporation came by it. This witness further testified at P.54 that the area covered by the plaintiff’s petrol station was carved out of the site plan, exh. ‘F’. He surveyed the land after the incident in the church. The filling station was there when he surveyed the land. The plaintiff’s shops were also there when he surveyed the land.
From these testimonies so far, the plaintiff’s land of 1972 was what was surveyed in 1978 by DW6, the petrol station being within it. The court below seemed not to appreciate this.
It is to be pointed out here that the defendant/respondent admitted in his evidence that, “the land in dispute borders the petrol station which belongs to the plaintiff.”
I would pause here to comment. It ought to be noted and appreciated at this point before proceeding further, the status of these and other witnesses who testified and that they showed that they knew and would be deemed to know the history, position and extent of the plaintiff’s grant in 1972 by the Pankshin Native Authority, carved out from the area formerly used as weekly market. They knew and testified to the interest shown in the land by the Transport Corporation in 1978 and about the bus shed which they built. They were all players in the transactions. 1 refer to PW2, PW4, DW4, DW6. CW1 who acted in their official capacities. This is quite unlike DWS and the defendant (DW7) who were no players during the crucial period. They surfaced from 1986. The 4 witnesses were involved in the allocation of plot of the plaintiff in 1972, as well as other activities which cropped up regarding the old weekly market land in subsequent years i.e 1972-1983. These were crucial years to this suit. PW2 at the time (1972) supervisor of works, Pankshin Local Native Authority, head of works department and in charge of allocation of plots. He was transferred from Pankshin to Mangu Local Government in 1976. His duties in Pankshin included supervision of roads, buildings, allocation of plots. He further testified:
“I know the extent of the land allocated in exhibit A. I have seen the land recently. The structures on the said piece of land are;
1. A petrol filling station, 2. Some shops, 3. A building belonging to bus service.
I confirm that the building of Plateau bus service is part of the land allocated in exhibit A. I left Pankshin on transfer to Mangu. After I had left for Mangu the Local Government summons me to Pankshin to show the extent (demarcation) of the land which I did. I was recalled to Pankshin between 1977 and1978. I cannot remember whether the building erected by the bus service was then on the land.”
Significantly, in cross-examination, this witness further testified:-
“I joined the service of Pankshin L.G.C. in 1950. I was a Technical Assistant in 1950. There was no land officer in Pankshin L.G.C. in 1972 but I had surveyors under me. I remember one Joseph Fube Bewarang and Nathaniel as surveyors under me. I was then the sole Authority who allocated plots at the time. There was no land allocation committee.”
He also stated in cross-examination that the plaintiff applied for the plot in writing to the Local Government. He could show the beacons on the said piece of land. Exhibit B was issued in 1983 when the witness was no longer in Pankshin Local Government Council, having been transferred in 1976. Exhibit A was issued to the plaintiff for petrol filling station and other commercial purposes, PW2 also state in cross-examination.
Questioned by the court, PW2 answered that exhibit A was issued in July 1972.
PW4 – was lands officers, Pankshin Local Government Council, its secretary and member of its boundary committee, member land advisory and allocation committee and secretary to the committee. It could be seen from his evidence in-chief, that the plaintiff had called him, among other things to tender official documents from records which were in his custody as secretary to the above committee. The relevant parts of his testimony appear in P.38 to 39 of the records thus:-
“As the secretary of the committee I write and keep minutes of the meeting of the committee past and present. I remember minute of the committee dated 18/5/77. I can identify a copy of the said minutes if I see it because I certified it as a true copy. It contains my stamp and signature. This is a copy of the said minutes.  (identified).”
These minutes of the First Land Committee meeting dated 18/5/77 became exhibit D. The witness went further to state,
“I know the land in dispute between the parties. The documents in respect of the disputed land are site plan and Certificate of Occupancy. I can identify the site plan accompanying the Certificate of Occupancy in respect of the disputed land if I see it. We have a copy of every site plan in the office file. It has the stamp of the lands section as well as a certificate. This is a copy of the site plan on the disputed land.”
The site plan became exhibit E (see P.39 of the records).
The learned trial Judge noted that it bore the stamp of Pankshin Local Government Lands and survey department, and was certified twice, on 6/2/82 and 17/5/93. Questioned in cross-examination, this witness testified:
“I was employed in 1974 as a Survey Labourer. I have a certificate in land surveying. I obtained the certificate in 1981 from Kaduna Polytechnic. I was made secretary …
On 15/11/91. I was not a member of the committee between 1974 and 1988. Exhibit “E” was drawn sometime in 1982 … I know Joseph F. Bewarang. He was the lands officer in 1978. He approved site plans on lands allocated
to individuals in 1978. I am not aware that the land in dispute was allocated to the Plateau Bus service. I discovered that the disputed land was allocated to Mr. A.J. Jiwul (Plaintiff) as per land allocation committee minutes. I am not aware of an application by plaintiff for extension of his plot allocated to him for petrol filling station already developed. I am not aware of such application dated 5/7/82. The document shown to me is not an application for extension. It is rather an application for C. of O. Form made by Mr. Jiwul in respect of plot No. B2 & B5, New Layout. I am not aware that the said application was rejected by Pankshin Local Government.
I am not aware of the letter addressed to Mr. Jiwul headed the extension of site plan and approval building plan dated 26/10/89. The letter emanated from Pankshin Local Government but it is not relevant to the area in dispute. I am not aware that the disputed land was allocated for market purposes by the Pankshin district to the Local Government. I was not the land officer when the Plateau Transport Corporation came in possession of the land in dispute. I am aware that the transport corporation built a structure on the said land. I am not aware that the place was sold by Transport Corporation to the defendant because I was not then the lands officer. I have never gone through the file dealing with correspondence between the lands department, the Local Government and Transport Corporation of Plateau State. I will be surprised that the place has been sold to another person because the area is covered by a certificate of occupancy issued sometimes in 1983. I only certified exhibit D on 10/2/93. It is true that I certified exhibit E on 17/5/93. The site plan (exhibit E) was signed in 1982 by Yakubu Bayala. He is presently my subordinate. Exhibits D1, D2 and E were not updated because of this case. As at 1977 the chairman of the Lands Advisory Committee was Danfulani D.D. It is true that clearance of the district head must be obtained before application for a C. of O. The land was allocated by the lands committee. I do not know whether there is a clearance letter from district head in the office file. I have come across such letter but I cannot tell when.”
It is to be observed that here again as with PW2, the defence during cross-examination brought up the name of Bewarang who later was CW1.
I would consider it helpful to identify at this point, the contents of exhibit D, the minutes of the First Land Allocation Committee meeting of 18/5/77 referred to in PW2’s evidence above, with respect to the land of the plaintiff and the land in dispute said to belong to Plateau Transport Corporation. This places related facts in proper perspective and their con.
The relevant part of exhibit D is recorded as under:- item (j) on page 5 of the minutes is titled “Plateau Bus Service.”
It records that the secretary to the Local Government Council informed the committee of the interest of the corporation in using the old market site and after some discussion it was decided thus-
That the land be allocated to it and the timber market be moved to a suitable position in the new market.
“It is also observed that Mr. A.J. Jiwul has a piece of land in the market site… the committee agreed that the Plateau Bus Service should negotiate with Mr. Jiwul for transfer of the interest.” (Italicising mine for attention).
When therefore PW1, the plaintiff testified that the Bus Service of the corporation approached him before they built the bus shed on his land, it is reasonable to believe that it was in line with the decision recorded in the above part of the council’s committee minutes of 18/5/77, and the testimony of CW1 at page 73 of the records. PW1 did not therefore have to protest or object as the court below blamed he did not, when the bus service built its structure or when he thought the bus service only sold the structure, after offering it to him and he could not buy it because the defendant offered a much higher price. Plaintiff also explained in his evidence that it was the structure which the bus service built with his consent that it sold. It was not his own and so he did not object.
The learned trial Judge totally missed these points.
He did not at all consider the evidence when he raised and determined the issue of acquiescence in his judgment and the vital issue of who of the parties had better title to the land.
With due respect to the learned trial Judge there is nothing in the action of the plaintiff in the evidence on record to show that he failed to seek redress in court when he ought to. His case was that it was in 1992 that the defendant began to trepass on his land. Then it was, he brought his action in suit PLD/P30-92 filed on 14/10/92 (and not 1993 as the learned trial Judge stated). What evidence of his title did the defendant proffer before the court below together with his witnesses?
He claims that the land in dispute belongs to him, having bought it from the Transport Corporation. He had called 6 witnesses and testified himself, as DW7.
DW2 and 3 only testified about non-payment to them of compensation for their land forming part of the weekly market vested in the Pankshin Native Authority or Local Government Council, out of which the plaintiff’s land where the petrol station and other development were built. Theirs was not evidence to prove the title of the defendant/respondent. It fails to establish that the land in dispute was vested in the Transport Corporation or the defendant, the purported purchaser.
The evidence of DW4 was intended by the defence to establish acts of possession by the defendant who said he had put him on the land after he purchased it from Plateau Transport Corporation in 1986. It must be realised that Plateau Transport Corporation’s title to the land needs to be established, tracing its root from the Local Government Council in which the land was vested. I have already dealt at length with the testimony of DW6 who could have been the star witness for the defence, being an official of the Local Government Council during part of the relevant period 1974 – 1978. He turned out to be one who could not establish the title of the corporation and thus, of the defendant. For, he did not know how the corporation came by the land where its bus shed was erected. His testimony supports the plaintiff’s case in relevant area which I earlier pointed out, and also when he further testified as follows:-
That in 1978, before his boss CW1 instructed him to survey the land, following the request by the Transport Corporation for land in the old market area, he had, while in church on a date, suggested to the Anglican Church to apply for that same land for their new church. That there and then, Mr. A.J. Jiwul, the plaintiff who was also in church then said the land belonged to him. That the plaintiff added that he was ready to donate it to the church. That church member however objected to acquiring the land. For, they said it was too near the road, and could constitute danger to children.
The only witness for defence who had anything to do with the Pankshin Local Government Council and whose evidence touched on the ownership of the land in dispute, was DW5. Yet, his evidence established nothing about the root of the defendant’s title. He was not resident in Pankshin but at Kurra fals Barkin Ladi Local Government Council and works at Doma Local Government Council.
His only contact with Pankshin Local Government Council was only in 1988-1990, long after the events which gave rise to this suit.
He testified (in-chief) at pages 49-50 of the records thus:-
“I worked in Pankshin L.G.C. from 1988-1990. I worked in the Works Department of Pankshin L.G.C. I know the location of the former bus station in Pankshin.
I know PW4 as well as Bayala. I worked with them in Pankshin. They worked under me as technical assistant officer.
To my knowledge no site plan for the said bus station was made. The site allocated to the plaintiff for the petrol filling station did not include the land allocated for the bus station. I have never come across Exh. B2 (the site plan) we do not usually back-date, site plans.”
It is observed that this witness was not in Pankshin Local Government Council at the crucial period relevant to the suit, i.e. 1972-1986. The period was when the plaintiff acquired his land, the development took place, the corporation built its bus shed, later wound up and proceeded to sell the structure (or was it the structure and land?)
He was not there when the site plan exhibit F of 1978 was made by DW6 on the instruction of CW1, and on the issue of C of O to the plaintiff in 1983 etc. This witness did not tell what his functions covered in the Works Department, what were his responsibilities?
He testified that the site of the petrol station did not include the land allocated for the bus station and he never came across exhibit B2 (the plaintiff’s site plan). If his duties did not bring him in contact with transactions which had been concluded before his time how could he? He knew nothing, to put it mildly. No wonder Mr. Gopep quite wisely, in my view put a few pointed and critical questions to him. His answers thereto finally completed his slaughter, rendering his evidence of no use to the defence. The witness answered thus:-
“I do not know when the land for the petrol filling station was allocated to the plaintiff. I was not present
when exhibit B1 (C of O) was issued. It bears the date as 30/9/83. I was not in Pankshin in 1983. I was not in a position to know the area covered by Exh. B1.”
Then came the testimony of the defendant. He was DW7. His testimony regarding his root of title from his evidence starting from page 54 of the records did not prove the title of his vendor. He said:-
”I know the piece of land in dispute. The said piece of land belongs to me. The plaintiff owns the land
on which there is a petrol station. I do not lay claim on the piece of land on which the petrol filling station is located.
As a district head, I am a site board member of the Pankshin Local Government lands committee. I am also a site board member of the Plateau Ministry of Lands and Survey Zonal office, Pankshin. The functions of the committee is to choose the site for any project sited in Pankshin from Federal or State or Local Government or any other organising or an individual wanting to construct a structure. I also certify change of ownership regarding the case of land between any organisation and the customary land owners. I also issue clearance letter to both the Local Government and State Government before the issue of any C of O the clearance letter must contain the size of the piece of land amount being paid as compensation and where possible the sales agreement made to the buyer (purchaser). I am also a member of the compensation committee of both the Local and State Government Lands Departments. All compensation in respect of any land must be paid through my office (District Office) to the original land owners. As far as I know, no compensation was paid on the land in dispute. In 1985, the land owners in respect of the disputed land reported to me that they had not been compensated in respect of their farm lands. I forwarded the complaint before the then acting Pankshin Local Government Chairman, Dr. Abdullahi Maikano. Unfortunately, he was transferred from Pankshin without resolving the issue. In 1986, when I bought the area from the Plateau Bus Service, I raised up the issue with the Chairman of the L.G.C., Mr. James Dimka. He promised to pay the land owners but till date they have not been paid. The Galadima of Pankshin has no right whatsoever to negotiate for the sale of land and payment of compensation to the farmers (as per exhibit C). In 1986, when the farmer learnt that I bought the land from Plateau Bus Service, they approached me. Among them were D.W.1, D.W2, D.W3 and one other named Linus Dagau. They complained to me that compensation in respect of the land was not paid to them by the L.G.C. I made a proposal to the Local Government to pay the land owners to be reimbursed later. I bought the said P.B.S. area for the sum of over N26,000 paid in bank draft. A receipt was issued to me. The draft was paid by one Mr. Dominic G. Wakjisa authorised by me. I can identify the receipt, a copy of the bank draft and the letter authorising Dominic Wakjisa to transact for me dated 2/10/86. The bank draft is dated 29/9/86. The exact amount paid by bank draft was N26,250.” D.W.7 continued at P.56:- “The letter conveying the sale was in writing addressed to Dominic G. Wakjisa. It was conveyed to him by the implementation committee. It was signed by one Jatau. I cannot remember the date.  This is the letter dated 15/9/86 signed by one J.F Jatau.”
At P.57, “After the payment, a sale agreement was executed between the Plateau State Transport Corporation and myself in October, 1986. I signed the agreement. This is the sales agreement.” The agreement is exhibit E.
The witness, PW7 went on:-
“There was a letter from P.S.T.C. signed by its sole administrator date October, 1986 conveying the sale agreement (exhibit K), the original site plan (photocopy) (exhibit F ) and .the receipt of purchase (exhibit G). I can identify the letter if I see it.” The letter is exhibit is exhibit L. He went on:-
“The site plan was signed by Joseph Bewarang the land officer of Pankshin L.G.C.” The plan identified is exhibit M.
“I was given another letter addressed to the permanent secretary of Ministry of Land and Survey, Jos informing him that the said property had been sold to me. I took the letter to the permanent secretary, he advised that since a C of O’ has’ not been issued to the P.S.T.C. I should draw another site plan in my name to so that the C of O would be made in my name. I have forwarded the site plan in my name. The Certificate of Occupancy has not been issued.”
The evidence in the above lines is quite significant. It shows again that Plateau Transport Corporation or Plateau Bus Service or Plateau State Transport Corporation as the defendant’s vendor is referred to severally, did not secure any title to the land. The rest of the evidence of the defendant on record, relevant to the issue of his title to the land in dispute, testifies only to his taking possession of the property after his purchase from Plateau State Transport Corporation. That a party is in possession of property is no proof of his ownership thereof.
This witness in cross-examination indeed admitted that:-
“The land in dispute borders the petrol filling station which belongs to the plaintiff. The land for the petrol filling station does not belong to me.”
The evidence of CWI finally affirms the party who has title to the land in dispute.
CW1 is Mr. Bewarang whose name was brought up for the first time in his cross-examination of plaintiff’s witnesses PW2 and PW4 by Mr. Dakup, learned defence counsel. DW6 mentioned him specially in a way identifying him as a vital connection, with respect to the land of the plaintiff and the land required by the Transport Corporation, now claimed by the defence to have sold the land in dispute to the defendant/respondent. He was the one who instructed DW6 to carry out a survey of land in which the Transport Corporation showed interest. It was no wonder, the learned trial Judge considered him a vital witness, and quite rightly, in my view called him.
His evidence appears on pages 73-74 of the records. He testified that the land was acquired by the Native Authority for a market. The land was later earmarked as a commercial area.
The plaintiff who applied, had his application approved by PW2 who went to the site, divided the land into two and gave the northern part to the plaintiff, while the southern part remained vacant.
He further testified:-
“When the Plateau Bus Service wanted land for its Bus Service Station, I took them (PBS) round town and they showed interest in the old market area. They showed interest in the land not developed by the plaintiff.
I advised the PBS to make (forward) their proposal to the L.G.C. which they did. The then secretary of the LGC, Mr. S. Walbel referred to the Town Planing Committee. I instructed PW6 to survey the area wanted by the P.B.S. as a result of which Exh. M was produced.  The Town Planing Committee refused the proposal for extension (i.e. annexing plaintiff’s land). The T.C.P advised PBS to negotiate with plaintiff or extension.  There was no feed-back. No site plan for the Southern part of the disputed land was drawn, other than the land allocated to plaintiff. The portion occupied by the PBS shelter falls within the plaintiff’s land.”
In cross-examination, CW1 responded thus:-
“No C of O was issued to PBS. The PBS operated on temporary basis. (Italicising mine for attention)
The foregoing evidence that the Plateau Bus Service bus shelter falls within plaintiff’s land is so clear and unequivocal. It seals off any claim to title of the disputed land by Plateau State Transport Corporation and now the defendant. No issue of credibility of this witness or indeed any other witness was addressed in the judgment of the court below. Yet the court failed to use the un-rebutted evidence as required by law.
The defendant claimed that he bought and acquired title to the land in dispute in 1986. This was 3 years after the plaintiff’s C of O was issued covering his allocation of 1972 now shown to include the land in dispute. The court below awarded the defendant the land in dispute. In justice, one is bound to ask, if indeed the land was in an urban area, in 1983, what of in 1986? Who has power to assign the land to the defendant except the Local Government if in a rural area or the Governor if in an urban area? None of them did. Defendant’s title is again fowled.
Corning to the issue of compensation to land owners which the defence also made heavy weather of, I should think that it has turned out to be a two edged sword. If turned against the defence, did the respondent pay compensation to the land owners? He did not. Why should he deserve title to the land in dispute then as awarded by the trial court when there was no evidence that he or his vendors the Plateau State Transport Corporation paid compensation which was rejected but later paid to some people who accepted. Is none payment of compensation to third parties a proper defence to a claim for trespass against a defendant who is the third party? I think not.
It is trite law that a party who relies on purchase of land to establish his title to the land has an onus placed on him, to prove the title of his vendor and that the vendor has a right to sell and for title to pass.
Where ownership of land is in dispute and a party’s claim is rooted in a sale and acts of possession, they only constitute incidence of ownership but not proof of the party’s root of title. See Registered Trustees of Apostolic Faith Mission v. James (1987) 3 NWLR (Pt.61) 556 SC.
So it is in this case, the onus to establish his root of title still remains un-discharged by the defendant in the light of the evidence recounted above. As both parties claimed to have been in possession of the land in dispute, the actual issue for determination has turned to who of the two had better title. See Registered Trustees of Apostolic Faith Church Mission (supra).
The appellant proved better title. The evidence, as shown above, establishes overwhelmingly the root of title of the plaintiff/appellant from the Pankshin Native Authority or Local Government Council in which the land was vested and the interest acquired by him since 1972. It does not establish that of the defendant/respondent.
It seems to me that the court below, in arriving at its decision in this case has not adequately considered and determine these fundamental issues before him and the applicable law, before reaching his decision. In the premises, this court has a duty not to affirm such a decision.
– Union Beverages Ltd. v. Pepsicola International Ltd. (1994) 3 NWLR CPt.330) 1 at 12; Offondu v. Niweigha (1993) 2 NWLR (Pt. 275) 253 SC.
Having proceeded to carefully examine and evaluate the evidence, I have noted that no issue of credibility of witnesses has been involved. See Ogunleye v. Oni (1990) 2 NWLR CPt.135) 745; Imah v. Okogbe (1993) 9 NWLR CPt.316) 159. I am satisfied that the plaintiff was a holder of the land in dispute from 1972, before the Land Use Act came into effect in 1978. He remains so. On the other hand the defendant had no title from his vendor.
Learned counsel for the respondent’s submission on page 5 of the respondent’s brief of argument has not helped matters. For this has exhibited completed mis-reading and misconception of the evidence before the court below. For instance, counsel had submitted that, “all the evidence of government officials for the appellant and the respondent are full of contradictions, unethical (sic) and the trial court was right for not relying on them (see evidence of PW3 and DW4.”
Neither PW3 nor DW4 is a government official. Counsel did not identify what contradiction he was referring to.
To appellant counsel’s contention that Bus Service acquired no title and passed nothing to the respondent, respondent’s counsel simply replied that all necessary papers were tendered and all necessary steps taken and complied with (evidence of CWI (sic). He further submitted:-
“All evidence tendered by respondent were purely receipts (see P.118) evidencing payments and doesn’t per se vest title. They were not registrable instruments…”
With respect, I am afraid, learned counsel has not addressed the vital and relevant question raised under this issue.
Be that as it may, the proper perspective of the evidence on record having been fully identified, I am able to state in summary, that no evidence adduced by the defence, rebutted the clear evidence of the plaintiff and his witnesses that the land in dispute forms part of the plaintiff’s land obtained in 1972. None established that the Transport Corporation and its Bus Service had title to the land which it could have passed or sold to the defendant/respondent. Rather, the available evidence from all the government officials shows that the corporation and its Bus Service did not acquire title in the land. It operated temporarily and had an understanding with the plaintiff, to erect its bus shed, on the plaintiff’s land. The land in dispute fell within the land of the plaintiff. The defendant therefore purporting to have bought the land had no interest or title transferred to him. The corporation had nothing to transfer – for, “nemo dat quo non habet. ” See Romaine v. Romaine (1992) 4 NWLR (Pt. 238) 650.
So much dust was raised by the defence at the court below about the land being in an urban area. This was to nullify the plaintiff’s C of O issued in 1983.
The plaintiff/appellant had tendered his C of O exhibit B1. A certificate of occupancy is prima facie evidence of exclusive possession of the land covered by the C of O. Any party is entitled to assert the contrary, but then, the onus lies on him to prove it. See Registered Trustees Apostolic Church v. Olowoleni (1990) 6 NWLR (Pt. 158) 514 at 536 I have not found on the records proof by the defence to rebut this presumption with respect to the C of O of the plaintiff – exhibit covering his allocation of 0.60 acres in 1972 which he had develop extensively and within which the land in dispute falls.
Issue No.3 questions the admissibility of exhibits F,M, and K to defeat the title of the plaintiff. Both counsels, as earlier stated virtually addressed it with issue 2.
Exhibit F, M and K were tendered by the defence at the trial.
Exhibits F is titled “proposed site plan for Plateau Bus station at Pankshin.” It was drawn by Dirnka who was defence witness, DW6, sometime in June 1979 exhibit M with the same title is the same as exhibit F. It is however a photocopy signed by CW1. The proposed site plan was done at CW1’s instructions by DW6 who testified that he did not know how the Transport Corporation came by the land and named CW1 as the one who does. The CW1 provided the answer – as set out earlier. DW6 admits that a site plan confers no title. He is right. All relevant witnesses have said that the Bus Service of the corporation had been advised to negotiate with the plaintiff. This was because the area they “proposed” and showed interest in fell within the plaintiff’s land. The plaintiff testified that he permitted the Bus Services to erect its structure on his land.
In my respectful view, that plan did not serve to prove that the Bus Service Station or the land was acquired or vested in the corporation.
What a survey plan does, is identify the land covered by it.
This is the reason why in an action for declaration of title where the identity of the land in dispute is in issue, the plaintiff is required to produce a plan or give such clear description thereof as could enable a surveyor produce a plan. Baruwa v. Ogunsola (1938) 4 WACA 159; Olusanni v. Oshasona (1992) 6 NWLR (Pt. 245) 22 at 37; Ibuluya v. Dikibo (1976) 6 SC 97 at 107; Sokpui II v. Agbozo III (1951) 13 WACA 241 at 242. Where however there is no dispute as to the identify of the land, a site plan is of no necessity. See Sokpui’s case (supra). Olorunfemi v. Ojo (1993) 8 NWLR (Pt. 313) 542.
Exhibit K is the sales agreement between the Plateau State Transport Corporation and the defendant. It has been shown that Plateau State Transport Corporation had nothing to convey. Romaine v. Romaine (supra) per Nnaemeka-Agu, JSC at 664-665. The issue being raised about its admissibility and whether it is registrable becomes of no moment in the circumstances.
The learned trial Judge was in grave error to employ the 3 exhibits, to award title to the defendant, unjustly denying the better proved and earlier interest of the plaintiff. It is worse still when it is realised that the defendant did not counter claim. See Awoyegbe v. Ogbeide (1988) 1 NWLR (Pt. 73) 695, (1988) 3 SCNJ 99 at 114.
It is in these premises that issues No.2 and 3 are determined in the appellant’s favour – with them the related grounds 1,3 and 8 of the ground of appeal succeed.
Issue No.4:
In this issue, the appellant posits that the question of compensation to the original land owners, raised by the defendant/respondent of which he and the court below made heavy storm, as he put it, was not germane to the claim before the court below.
In reply to this, the respondent’s counsel stated as follows in his brief (P.6)
” it is very wrong for the appellant to contend that if he did not pay compensation likewise Bus Service then his title is better (sic). The appellant (sic) evidence completely failed as regards compensation which is a condition to transfer the title from natives. He doesn’t know how much he paid, infact he doesn’t know the natives. All he knows is that he gave same (sic) money to PW3 (Galadima). This I submit fall short (sic) of any standard of proof.
As for the respondent it is not in doubt that the land was given free by the natives for a market square and later bus shed. The Native (sic) put their request and being perused (sic) compensation can the appellant rely on this to improve upon this case. I submit not. The appellant must only succeed on the strength of his case and not any weakness of the evidence of respondent.”
This submission has not actually answered to the legal issue which the appellant was making when he submitted that the question of compensation can only be raised by the persons entitled, this being their private rights. He contended that a person who is not the owner or occupier of land in respect of which a customary or statutory right of occupancy has been issued, has no locus standi to seek the nullification of the C of O issued in favour of another person.  Titiloye v. Olupo (1991) 7 NWLR (Pt. 205) 519 at 546 cited.
In the respondent’s further submission on issue number 4, his counsel seems to argue that payment of compensation is condition precedent to issuance of C of O and that the trial court was right in looking at and rejecting the plaintiff’s title documents, exhibit A, B1 and B2 which per se do not confer title. But it had been pointed out that the alleged original owners were not parties, that the issue of compensation was set out to challenge the validity of the acquisition of the land by the Local Government. Yet, the defendant claimed to have been granted interest in the same land which his witnesses challenged the Local Government over. Counsel for the appellant thought it was beyond common sense and logic for the court below to have glossed over it, found in its favour for the defendant, while holding that against the plaintiff. Counsel reminded that the farmers called by the defendant testified to the acquisition and the fact that they are still awaiting payment of compensation from the Local Government.
Let me also remind that the defendant (PW7) also testified that he was pursuing the compensation for them with an official of the government who left office before he could take action. I firmly believe he and the farmers should find another medium for pursuing that question, not in this action. I had, while addressing issue No.2, questioned the efficacy of the defence hinged on the question of non-payment of compensation to a third party in an action against a defendant for declaration of title and trespass. I reiterate that defence is not available to such a defendant. The matter of compensation is not in issue in the case, the farmers not being parties to this suit.
The court below had unfortunately failed to appreciate this and wrongly used it to determine the suit against the plaintiff/appellant.
That the defendant cannot succeed with that defence is even more so when it has been established by overwhelming evidence in this case that he has no valid title or indeed any interest in the land in dispute. He indeed has no locus standi to pursue the issue.
I agree entirely with Mr. Gopep’s submission as set out above.
Issue No.4 predicated on ground 9 of grounds of appeal is determined in favour of the appellant and ground 9 therefore succeeds.
The conclusions for the final issue distilled by the appellant from ground 10 can be drawn from the materials and decision in the aerlier issue already determined. The answer to the question whether the plaintiff/appellant has a valid title, appeared clearly under issue No.2. The answer is in the affirmative for the reasons already set out.
Learned counsel for the respondent had submitted that the trial court was right to hold that the respondent was in exclusive possession of the land in dispute since 1983 and that possession is a “strong component of ownership being 9-10 of ownership. He relied on Idundun v. Okumagba (1976) 9-10 SC 227; Ogbechie v. Onochie (No.2) (1988) 7 NWLR (Pt. 70) 390, (1988) SCNJ 170 at 172.
I am of the firm view that respondent’s purported possession was unlawful as his vendor passed nothing to him. Counsel for the respondent posited also that on the part of the plaintiff, he failed to prove that the Bus Service was in temporary possession through him. Let me break here to reaffirm that under issues 2 and 3, it has been shown that there was overwhelming evidence from PW2, PW4 PW6, CW1 and exhibit D tendered by PW4, proving this and the fact that the 1972 allocation to the plaintiff conveyed a valid interest in the land to him.
The learned trial Judge was in grave error when he held that the respondent had title to the land, but not the plaintiff.
It is always a good starting point in considering a case where the issue of title has been raised to go back to the illuminating decision of the Supreme Court in a case, which has become a locus classicus on ways of proving ownership of land. It is the case of Idundun v. Okumagba (1976) 10 SC 227 at 249. The ways set out by the apex court, per Fatayi-Williams, JSC are as follows:-
1. By traditional evidence OR
2. Production of documents, OR
3. Acts of the person selling the land e.g. selling leasing, farming etc extending over a sufficient period and are numerous and positive to warrant the inference that he is the true owner, OR
4. By acts of long possession and enjoyment of the land constituting prima facie evidence of ownership. For although under section 146 of Evidence Act, possession may raise presumption of ownership of land yet it does not do more and cannot stand against a party who proves a good title – Da Costa v. Ikomi (1968) 1 All NLR 394 at 398.
5. Proof of possession of adjacent or connected land in circumstances rendering it probable that the owner of such connected or adjacent land would be in addition the owner of the land in dispute (see section 46 of the Evidence Act).
The court, as an appellate court has the power, indeed the duty to consider and evaluate evidence and make proper and necessary findings where the trial court fails to consider and evaluate the evidence adduced by the parties before him provided the issue of credibility of witnesses is not involved. See Ogunleye v. Oni (1990) 2 NWLR (Pt. 135) 745 and Imah v. Okogbe (1993) 9 NWLR (Pt. 316) 159; Ofondu v. Niweigha (1993) 2 NWLR (Pt. 275) 253 SC; Anaeze v. Anyaso (1993) 5 NWLR (Pt. 291) 1 SC.
With the complaint of the appellants, I have carefully examined the records and found this to be a proper case to exercise those powers. In the process, I find that the evidence in proof of the plaintiff’s title met 4 of the ways of proving title set out in Idundun’s case (supra) viz, 2,3,4, and 5 as shown under issue 2.
In the premises, it is only just to conclude that plaintiff has proved valid title to the land in dispute. Issue 5 is decided in favour of the appellant. Ground 10 of the grounds of appeal also succeeds.
I am therefore in these circumstances unable to affirm the decision of the court below which failed to consider at all or in some cases adequately consider and to determine such fundamental and relevant questions which arose in this case before reaching his decision – see Union Beverages Ltd. v. Pepsicola International Ltd. (1994) 3 NWLR (330) 1 at 12.
As this appeal has merit, it succeeds. The judgment of the High Court of Plateau State sitting at Pankshin delivered on 30/9/94 is set aside. In its place, judgment is entered for the plaintiff/appellant as claimed. Cost of N5,000.00 is awarded the appellant against the respondent.

MUKHTAR, J.C.A.: I agree.

MANGAJI, J.C.A.: I have had a preview of the leading judgment just delivered by my learned brother, Nzeako, JCA. And I agree with the reasoning and the very sound conclusions reached therein.
I have no hesitation at all in adopting the reasoning and conclusions as mine.
Typical of my learned brother, all issues identified by parties have been exhaustively and adequately considered such that no gray area exists to be covered. There is therefore nothing useful for me to contribute. The court below not having considered some aspects of the suit adequately and in some areas as total failure to consider the appellant’s claim, this appeal succeeds. In the event the judgment of Damulak, J. in suit No. PLD/P30/92 dated 30/9/94 is hereby set aside. Judgment is accordingly entered for the appellant/plaintiff as claimed in the court below. N5000. 00 costs is awarded against the respondent.

Appeal allowed.

 

Appearances

Daniel GopepFor Appellant

 

AND

Bawa DakupFor Respondent

 

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