CSP I. I. ANAGBADO v. ALHAJI IDI FARUK (2016)

CSP I. I. ANAGBADO v. ALHAJI IDI FARUK

(2016)LCN/8315(CA)

In The Court of Appeal of Nigeria

On Friday, the 18th day of March, 2016

CA/K/122/2014

RATIO

EVIDENCE: DOCUMENTARY EVIDENCE; CATEGORIES OF PUBLIC DOCUMENTS THAT ARE ADMISSIBLE IN EVIDENCE
In Ogboru v. Uduaghan supra P.374, it was held by this Court thus: In all, therefore, the only categories of public documents that are admissible in evidence are either the original documents themselves, Onubruchere & Anor v. Esegine (1986) 1 NSCC 343 at 350; (1986) 1 NWLR (Pt. 19) 799; Iteogu v. L.P.D.C (2009) 17 NWLR (Pt. 1171) 614 634 or, in the absence of such original copies, their certified copies and no other, Minister of Lands W.N v Azikiwe (supra); Onubruchere and Anor v. Esegine (supra); Araka v. Egbue (2003) 33 WRN1; (2003) 17 NWLR (Pt. 848) 1 S.P.D.C v. Aswani ile Industries Ltd (1991) 3 NWLR (Pt. 180) 496, 505; Ojibah v. Ojibah (191) 296, 312; Nzekwu v. Nzekwu (1989) 2 NWLR (Pt. 104) 373.
However, Habeeb Esq., of learned counsel went on to state that the 2 sides of the divide represented by the cases of Giwa v. Harbun (supra); Lawson v. Afani Continental Co. Nig Ltd on one hand and those of Ogu v. MT & MCS Ltd supra; Ogboru v. Uduaghan (supra) on the other side of the divide, have been harmonized in the case of Kubau v. Rilwanu (2015) 4 NWLR (Pt. 1397) P. 284 @ 318, wherein Orji-Abadua, J.C.A held that:
Here, we are dealing with the original copy of the Certificate of Occupancy given to the respondent by the Kaduna State Government as an authentic proof of his ownership of the land indispute. See also, the Supreme Court case of Anamelechi Iteogu, Esq. v. The Legal Practitioners Disciplinary Committee, where it held that only secondary evidence of a public document admissible in evidence is a certified true copy. The synergy of the decisions in Daggash v. Bulama (supra) and the aforementioned cases of the Apex Court is that the Original copy of any public document issued to a person which is in the custody of that person, if tendered is admissible under the Evidence Act. The person would only encounter problem or experience turbulence when he produces or attempts to tender at the hearing of a proceeding a photocopy or secondary copy of the said original of the public document in his possession without certification. At that point the Evidence Act mandates him to produce a certified true copy of the said original copy to prove its authenticity and originality. It is clear that the opinion expressed by Salami, J.C.A (as he then was) in Lawson v. Afani Continental Co. Ltd (supra) is now obsolete, having been obscured and overruled by latter decisions of this Court and, in particular, the Supreme Court decision which are binding on this Court by the doctrine of Stare decisis. Therefore, it is, my humble opinion that failure to tender the certified true copy of the original Certificate of Occupancy No. 8051, where the original itself has been produced and tendered is immaterial and not fatal to the respondent’s case. (Underlining for Emphasis).
It would appear, the reasoning or thinking of this Court in the case of Kubau v. Rilwanu (supra) on the question of the admissibility of public document which has not been certified in evidence has been endorsed by the Apex Court in the case of G & T Invest. Ltd v. Witt & Bush Ltd (2011) 8 NWLR (Pt. 1250) P. 500 @ 527, in these Court:
“It is on record that the plaintiffs tendered a photocopy of a document which was certified by the registrar of the High Court of Lagos State, Ikeja, when in fact, if the 2nd plaintiff was desirous of tendering only a copy of the registration document it should have been certified by an official of the corporate Affairs office, the document being a public document that is subject to the provisions of Sections 109-112 of the Evidence Act supra. But then one should be mindful of the fact that the original copy of the certificate of Incorporation was stated to be in possession of the Plaintiffs in this case as it contained in the record of proceedings vide the evidence of the 2nd plaintiff which has been reproduced above. per. IBRAHIM SHATA BDLIYA, J.C.A

LAND LAW: TITLE TO LAND; MODES OR WAYS TO PROVE TITLE TO LAND

The law is trite, there are 5 recognized modes or ways to prove title to land as enunciated in a litany of cases by the appellate Courts, among which, is Idundun v. Okumagba (1976) 9-10 SC P. 227 @ 348, wherein, the Supreme Court listed the 5 ways to prove title to land to be:
“(a) By traditional evidence
(b) By production of title documents (underlined emphasis mine)
(c) By proving acts of ownership (such as renting out or farming on all or parts of the land extending over a sufficient length of time, numerous and positive enough as to warrant the inference that the person is the owner.
(d) By proving acts of long possession and enjoyment of the land and
(e) By proof of possession of connected or adjacent land in the circumstances rendering it practicable that the claimant is the owner of the adjacent land. per. IBRAHIM SHATA BDLIYA, J.C.A

EVIDENCE: TITLE DOCUMENT; TEST THAT ANY DOCUMENT RELIED ON AS PROOF OF TITLE TO LAND MUST SATISFY

However, the mere production of title document(s) is only a presumption, for there are certain tests that any document relied on as proof of title to land must satisfy as spelt out in the case of Akinduro v. Alaya (2007) 15 NWLR (Pt. 1057) P. 313 @ 329, as follows:
(a)Whether the document is genuine and valid;
(b) whether it has been duly executed, stamped and registered;
(c) Whether the grantor had the authority and capacity to make the grant;
(d) whether in fact the grantor has what he purported to grant; and
(e) whether it has the effect claimed by the holder of the instrument….. per. IBRAHIM SHATA BDLIYA, J.C.A

PRACTICE AND PROCEDURE: EFFECT OF DISCREPANCY AND INCONSISTENCY IN THE EVIDENCE OF A PARTY, WHEN ARE CONTRADICTIONS ARE FATAL

On the effect of discrepancy or inconsistency in the evidence of a party, on a particular issue, what the Apex Court enunciated in the case of Yakubu v. Jarroyel (2014) 11 NWLR (Pt. 1418) P. 205 @ 248, easily disposes of the grouse or complaint of the appellant. The Apex Court had this to say:
“It is not all contradictions in the evidence proffered and relied upon by a party in proof of his case that results in the rejection or the evidence It is only material discrepancies which constitute substantial disparagement of the witnesses concerned, in the sense that reliance on their testimony will likely result in miscarriage of justice, that should impact negatively on the case of the party who relies on such evidence. Thus contradictions in the evidence of witnesses may not be fatal to a case especially when they are minor and do not materially affect the fundamental and crucial issues in the case.
Contradictions are fatal only if, not being minor, they go to the substance of the case. And what is material and substantial remains a question of fact. per. IBRAHIM SHATA BDLIYA, J.C.A

JUSTICES

UWANI MUSA ABBA AJI Justice of The Court of Appeal of Nigeria

ISAIAH OLUFEMI AKEJU Justice of The Court of Appeal of Nigeria

IBRAHIM SHATA BDLIYA Justice of The Court of Appeal of Nigeria

Between

CSP I. I. ANAGBADO Appellant(s)

AND

ALHAJI IDI FARUK Respondent(s)

IBRAHIM SHATA BDLIYA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Justice, Kaduna State, (hereinafter refers to as the lower Court) delivered on the 30th day of September, 2013, in suit No. KDH/KAD/1063/2011, between Alhaji Idi Faruk (then plaintiff) and CSP I. I. Anagbado (then defendant). The facts or events leading to the institution of the suit before the lower Court and the appeal to this Court are simple and straightforward. Sometime in 1997, Federal Government landed properties were rationalized throughout the country. In Kaduna, Kaduna State, plot No. 17 Degel 2 Road, Angwan Rimi, G.R.A was subdivided whereby plot No. 17B was carried out as a separate plot. The respondent, who had earlier applied for this parcel of land claimed that same was granted vide lease agreement dated 1st September, 1997. The respondent further claimed that by virtue of the offer to him, which he accepted, he became the bonafide allotee and title holder of the craved out plot No. 17B Degel 2 Road, Angwan Rimi, Kaduna. The appellant claimed title to the said parcel of land. He therefore

asserted that he was offered and granted lease of the entire plot No. 17 Degel 2 Road, Angwan Rimi GRA, Kaduna, including the parcel of land the respondent claimed was allocated to him.

The respondent did not agree to the claim of title to the disputed parcel of land by the appellant hence he instituted suit No. KAD/KD/1063/2011, at the lower Court seeking the following reliefs:
“(a) A Declaration that the plaintiff is the bonafide allottee, owner and title holder of carried out plot No. 17B Degel 2, Road, Anguwan Rimi, Kaduna,
(b) A Declaration that the Defendant does not have any right, claim or interest in the carried out plot No. 17B Degel 2, Road, Anguwan Rimi, Kaduna.
(c) An order of Perpetual Injunction restraining the Defendants, their agents, servants and/or privies from interfering with the rights, interests or title of the Plaintiff over carve out plot No. 17B Degel 2, Road, Anguwan Rimi, Kaduna.”

Pleadings were filed, issues joined and the suit went to trial whereat both parties adduced evidence in proof of their respective claims. The learned trial judge of the lower Court, delivered his judgment on the 30th of September,

2013, thus:
“In the final analysis, I uphold the arguments for the plaintiff. I find the plaintiff?s case proved and do enter judgment for the plaintiff as per the plaintiff?s statement of claim. I find also that the defendant has failed to proved his counter claim. There is no evidence cogent enough to prove that the defendant is the sole allotee of No 17B Degel 2 Anguwan Rimi GRA, Kaduna without any carve out. The counter claim of the defendant is consequently.”

Peeved and piqued by the judgment of the lower Court, the appellant (as plaintiff) appealed to this Court vide a Notice and grounds of appeal filed on the 3rd of October, 2013 which was amended and filed on 9/6/14 and further amended and deemed filed on the 10th October, 2014 containing eight (8) grounds of appeal which are without the particulars are as follows:
“GROUND ONE
The learned trial Judge erred in law and in fad when he held that in this suit the title documents tendered by the Respondent e.g Exhibits P2, P3 and P4 enjoy the protection of Section 168(1) of the Evidence Act, it is the duty of the challenging Party to rebut that presumption. It is therefore the

duty of the Appellant to rebut the said presumption, particularly that the Appellant has alleged that the documents of title presented by the Respondent are all forged.
GROUND TWO
The learned trial Judge erred in fact and in Law when he held that it has been proved adequately that the Respondent is the bonafide Allottee, owner and title holder of the carve – out plot. The portion occupied by the Appellant is different from the carve – out portion granted to the Respondent.
GROUND THREE
The learned trial Judge erred in fact when he held that Exhibit P2 is the offer granted to the Respondent. Exhibit P3 is the acceptance of Exhibit P2.
GROUND FOUR
The learned trial Judge erred in Law and in fact when he held that the allocation made to the plaintiff was a good allocation and carve and that the argument that the carve-out was not granted by the Federal Government but by the Ministry of Work and Housing is not of moment.
GROUND FIVE
The learned trial Judge erred in fact and in Law when he held that from the state of pleadings, evidence adduced and legal argument submitted, the Defendant does not have any right, claim or

interest in the carve-out plot No. 17B Degel 2 Angwan Rimi, GRA Kaduna.
GROUND SIX
The learned trial Judge erred in fact and Law when he upheld the arguments for the Plaintiff and find the Plaintiff’s case Proved.
GROUND SEVEN
ERROR OF IAW
The learned trial Judge erred in Law when he admitted Exhibits P1, P2, P4, P6 and P7 (which were originals of public documents tendered by the Plaintiff himself and not the makers of such public documents) and Exhibits P3 and P5 (which are photocopies and uncertified documents) contrary to the requirement of Sections 105 and 87 of the Evidence Act, 2011.

The appellant sought the following reliefs:
“(a) To allow the Appellant Appeal.
(b) Setting aside the judgment of Kaduna state High Court in suit No. KDH/KAD/1063/2011 and grant the Appellant’s counter-claim in the lower Court.”

The appellant’s amended brief of argument was deemed filed on the 20th of April, 2015. The respondent’s amended brief of argument was deemed filed on the 19th of January, 2016. A Reply Brief was filed by the appellant on the 19th of January 2016. At the hearing of the appeal on the 19th of January

2016, C. D. Ebubedike Esq. who settled the appellant’s Amended brief of argument adopted same. Learned counsel further did urge the Court to allow the appeal and set aside the judgment of the lower Court. O. I. Habeeb Esq. similarly, adopted the respondent’s amended brief of argument and urged the Court to dismiss the appeal for lacking in merit, and to affirm the judgment of the lower Court.

On page 4 of the appellant’s Amended brief of argument, four (4) issues have been distilled from the 7 grounds of appeal thus:
“(1) ISSUE NO 1: Based on Ground Seven:-
WHETHER THE ADMISSION IN EVIDENCE OF EXHIBIT, P1, P2, P3, P4, P5, P6 AND P7 WHICH ARE ORIGINALS AND UNCERTIFIED PHOTOCOPIES OF DOCUMENTS AND RELIANCE PLACED ON THEM BY THE TRIAL COURT IN ARRIVING AT ITS DECISION WAS IN ORDER HAVING REGARD TO THE PROVISIONS OF SECTIONS 87 AND 105 OF THE EVIDENCE ACT.
(2) ISSUE NO. 2: Based on Ground Three:-
WHETHER EXHIBIT P3 IS THE ACCEPTANCE OF THE PLOT OFFERED BY EXHIBIT P2.
(3) ISSUE NO. 3: BASED ON GROUND EIGHT AND NINE:-
WHETHER EXHIBITS P1, P2, P3, P4, P5, P6 AND P7 CONSTITUTE AND QUALIFIED AS LEGAL AND VALID DOCUMENTS REQUIRED BY

LAW TO ESTABLISH TITLE AND OWNERSHIP TO LAND.
(4) ISSUE NO. 4: Based On Grounds Ten And Eleven:-
WHETHER THE DISMISSAL OF THE APPELLANT’S COUNTER CLAIM WAS AGAINST THE WEIGHT OF EVIDENCE.”

The respondent distilled three (3) issues from the grounds of appeal on page 7 of the amended brief of argument. They are:
“1. WHETHER THE RESPONDENT CAN BE SAID TO HAVE VALIDLY ACCEPTED THE OFFER OF CARVE OUT PLOT OF LAND NO. 17B, DEGEL 2, ANG, RIMI, KADUNA AS CONVEYED IN EXHIBIT P2 IN THE LIGHT OF THE CONTENTS OF THE LETTER OF ACCEPTANCE ADMITTED AS EXHIBIT P3?
2. WHETHER THE TRIAL JUDGE WAS JUSTIFIED IN ADMITTING IN EVIDENCE THE TITLE DOCUMENTS RELATING TO THE DISPUTED PROPERTY AND PLACING RELIANCE ON THEM TO GRANT THE RELIEFS SOUGHT BY THE RESPONDENT WHEN:
(a) They are Public documents
(b) They are originals and;
(c) They are tendered by the Respondent who is not their makers.
3. WHETHER ON THE STATE OF EVIDENCE LED, THE TRIAL JUDGE WAS RIGHT IN DISMISSING THE COUNTER CLAIM OF THE APPELANT?”

?An appellate Court is not under a regimental duty to take all the issues formulated by the parties in the appeal. An appellate Court

can and is entitled to reformulate issues for precision and clarity if it appears that the issues already formulated are inappropriate or not well framed. An appellate Court can formulate issues for determination as long as the issues so formulated cover the grounds of appeal. The purpose of reframing issue or issues is to lead to a more judicious and proper determination of an appeal. In other words, the purpose is to narrow the issue or issues in controversy in the interest of accuracy, clarity and brevity. As long as the issue or issues reframed, is/are anchored on the grounds of appeal, the opposite party cannot complain. See Okoro v. State (1988) 5 NWLR (Pt. 94) 255; Latunde v. Lajinfi (1989) 3 NWLR (Pt. 108) 177; Awojugbagbe Light Industries Ltd. v. Chinukwe (1995) 5 NWLR (pt.390) 379; Ogunbiyi v. Ishola (1996) 6 NWLR (Pt.452) 12.

?The issues formulated to be resolved which would ultimately determine the appeal which are contained the appellant’s and respondent’s amended briefs of argument are interwoven and or overlapping such that the adoption of one as the issues to be resolved, would also cover the other. This is so because Issue 1 of the

appellant is issue 2 of the respondent; Issue 2 of the appellant is issue 1 of the respondent, Issue 4 of the appellant is issue 3 of the respondent. This being so, the 4 issues contained in the appellant’s amended brief of argument are hereunder adopted by this Court for resolution, after all it is the appellant that has appealed. The respondent is only expected to respond to the appeal. For avoidance of doubt, the issues for resolution in the appeal are these:
“(1) ISSUE NO. 1: BASED ON GROUND SEVEN:-
WHETHER THE ADMISSION IN EVIDENCE OF EXHIBITS P1, P2, P3, P4, P5, P6 AND P7 WHICH ARE ORIGINALS AND UNCERTIFIED PHOTOCOPIES OF DOCUMENTS AND RELIANCE PLACED ON THEM BY THE TRIAL COURT IN ARRIVING AT ITS DECISION WAS IN ORDER HAVING REGARD TO THE PROVISIONS OF SECTIONS 87 AND 105 OF THE EVIDENCE ACT.
(2) ISSUE NO. 2: Based on Ground Three:-
WHETHER EXHIBIT P3 IS THE ACCEPTANCE OF THE PLOT OFFERED BY EXHIBIT P2.
(3) ISSUE NO. 3: Based on Ground Eight and Nine:-
WHETHER EXHIBITS P1, P2, P3, P4, P5, P6 AND P7 CONSTITUTE AND QUALIFIED AS LEGAL AND VALID DOCUMENTS REQUIRED BY LAW TO ESTABLISH TITLE AND OWNERSHIP TO LAND
4. ISSUE NO.

4: Based on Grounds Ten and Eleven:-
WHETHER THE DISMISSAL OF THE APPELLANT?S COUNTER CLAIM WAS AGAINST THE WEIGHT OF EVIDENCE.?

RESOLUTION OF ISSUE
The 4 issues are to be resolved in order set out supra.
ISSUE 1
The main question under this issue is the propriety or otherwise of the admissibility of Exhibits P1-P9 by the lower Court. Ebubedike Esq., of learned counsel to the appellant submitted that the lower Court erred in law when it admitted Exhibits P1 to P7 being original and uncertified photocopies of public documents in arriving at its decision. That by the provisions of Sections 102 of the Evidence Act, Exhibits P1-P7 are public documents which can only be admitted in evidence in accordance with Sections 87, 88, 89, 90, 104 and 105 of the Evidence Act, 2011. That the said Exhibits can only be tendered and admitted in evidence through their makers who were the Minister of the Federal Ministry of works and Housing and the secretary of the presidential committee of the white paper on the commission of Inquiry to the Alienation of Federal Government Landed Properties or their officials who made the said documents. That by

the provisions of Section 105 of the Evidence Act read together with Sections 87, 88, 89, 90 and 104 of the said Act, only certified true copies of public documents, are admissible in evidence. The case of Giwa v. Yarbun (2011) All FWLR (Pt. 565) P. 254 @ 279 cited and relied on to buttress the submissions supra. That Exhibits P1-P7 ought not been admitted and relied on being public documents which have not been certified as required by Section 87, 88, 89, 90 and 91 of the Evidence Act. 2011. The case of Lawson v. Afani Continental Co. Nig. Ltd (2002) FWLR (Pt.109) P.1736 @ 1757 cited to reinforce the submissions supra. In conclusion, learned counsel urged the Court to hold that Exhibits p1-p7 were erroneously admitted in evidence, therefore, same ought to be expunged as evidence before the lower Court. That with the expulsion of Exhibits P1-P7, the claim of the respondent to the property in dispute cannot be sustained. Issue 1 be resolved in favour of the appellant.

Habeeb Esq., for the respondent particularized the document in dispute as Exhibits P1-P9 and conceded that the issue of whether and how the originals of public document can be admitted in

evidence has been subjected to conflicting decisions of the appellate Courts resulting in different pronouncements by these Courts. Learned counsel pointed out that there are 2 sets of decisions of the Court on the issue of the admissibility of public documents, whether it must be certified even if it is an original or not in so far such documents has not been tendered through the maker or public officers. On one side of the divide is the case of Giwa v. Yarbun and Lawson v. Afani Continental Co. Nig. Ltd cited by leaned counsel to the appellant, and on the other divide the cases of Ogu v. MT & MCS Ltd (2011) 8 NWLR (Pt 1249) P. 345 @375; Ogboru v. Uduaghan (2011) 2 NWLR (Pt. 1232) P.538 @ 574 and Kuban v. Rilwanu (2014) 4 NWLR (Pt. 1397) P.284 @ 318.

Learned counsel further adumbrated that the current position of the law as enumerated in the case of Kuban v. Rilwanu (supra) is in tandem with the opinion of the Supreme Court on the issue in the case of G & T Invest. Ltd v. Witt & Bush Ltd (2011) 8 NWLR (Pt. 1250) P. 500 @ 527. As to the position of the law on the admissibility of public document, original or photocopy, in correspondence between

public officers (or institutions) and individuals, the case of PDP v. INEC (2014) 17 NWLR (pt. 1427) P. 525 @ 563 was cited, wherein it has been held by the Apex Court that public documents in their original form if in possession of private individuals could be admitted in evidence because they are not public documents. The case of Abuul v. Bensu (2003) 16 NWLR (pt. 845) p. 59 @ 76 was cited to reinforce the submission that official correspondence with private individual are not public documents which require certification to be admitted in evidence. On this precise, learned counsel did urge this Court to reject the contention of learned counsel to the appellant that Exhibits P1-P9 being public documents were wrongly admitted in evidence by the lower Court. That by the current position of the law, Exhibits P1-P7 were property admitted in evidence though not certified and admitted through person who were not their makers. Learned counsel urged the Court to resolve Issue 1 against the appellant.

In order to comprehend and appreciate the complaint or grouse of the appellant under Issue 1, it if pertinent to itemize the documents that have been admitted in

evidence as Exhibits P1-P7 by the lower Court.
They are:
“1. Exhibit P1 is a photocopy of application to the Federal Ministry of works and Housing seeking for allocation of plot of land by the Respondent.
2. Exhibit P2 is the original of the offer of Lease of the Plot of land in dispute issued to the Respondent by the Federal government of Nigeria through the Federal Ministry of works and Housing, land use and Allocation Committee.
3. Exhibit P3 is the photocopy of the Respondent’s letter of acceptance of the offer of leasehold as conveyed in Exhibit P2.
4. Exhibit P4 is the original of the Revenue Receipt issued in favour of the Respondent evidencing the payment of premium and Annual ground rent respectively in relation to the disputed property.
5. Exhibit P5 is the photocopy of the letter written by the Respondent to the secretary of the Presidential Implementation Committee seeking for confirmation/validation of the grant of the land in dispute to him.
6. Exhibit P6 is the original of the letter of the Implementation committee of the white Paper on the commission of Inquiry into the alienation of Federal Government Landed

property addressed to the Respondent and in response to the Inquiry in Exhibit P5.
7. Exhibit P7 is the original of the letter from Federal Ministry of Land and Urban Development directing the Respondent to take possession of the disputed property allocated to him being No. 78 Degel 2, U/Rimi, Kaduna.?

What qualifies as public or private document has been defined under Section 102 of the Evidence Act 2011 thus:
“The following documents are public documents:-
(a). documents forming the official acts or records of the official aft of –
(i) the sovereign authority;
(ii) official bodies and tribunals; or
(iii) public officers, legislative, judicial and executive, whether of Nigeria or elsewhere; and
(b) public records kept in Nigeria of private document”.
Section 103 of the Evidence Act provides that –
?All documents other than public documents are private documents.”

Sections 85 and 87 of the Evidence Act, 2011 provides that documents may be proved by primary evidence or secondary evidence as the case may be. The provisions of Sections 85, 86 and 87 are reproduced hereunder for emphasis and easy

comprehension:
“85. The contents of documents may be proved either by Primary or by secondary evidence.
86. (1) Primary evidence means the document itself produced for the inspection of the Court
(2) Where a document has been executed in several parts, each party shall be primary evidence of the document
(3) Where a document has been executed in counterpart, each counterpart being executed by one or some of the parties only, each counterpart shall be primary evidence as against the Parties executing it.
(4) Where a number of documents have all been made by one uniform process, as in the case of printing, lithography, photography, computer or other electronic or mechanical process, each shall be primary evidence of the contents of the rest; but where they are all copies of a common original, they shall not be primary evidence of the contents of the original.
87 Secondary evidence includes:
(a) certified copies given under the provisions hereafter contained in this Act;
(b) copies made from the original by mechanical or electronic processes which in themselves ensure the accuracy of the copy, and copies compared with such

copies;
(c) Copies made from or compared with the original;
(d) counterparts of documents as against the parties who did not execute them; and
(e) oral accounts of the contents of a document given by some person who has himself seen it.?
Section 88 of the Evidence Act, further provides thus:
?Documents shall be proved by primary evidence except in the cases mentioned in this Act”

Ebubedike Esq., of counsel to the appellant did contend that by the provisions of Section 87, 88, 89, 90 and 104 of the Evidence Act, only certified true copies of public documents are admissible in evidence. Learned counsel cited and relied on the cases of Giwa v. Yarbun (2011) All FWLR (pt. 565) p. 254 @ 279 and Lawson v. Afani Continental Co. Nig. Ltd. (2002) FWLR (Pt. 109) P. 1736 @ 1757 to buttress the submission supra. In Giwa v. Yarbun supra at pages 279 to 283, this Court held that:
?where the maker of the statement in the original document who had personal knowledge of the matter dealt with by the statement is called as a witness, the original of such public document could be admitted in evidence under Section 91(1) of the

Evidence Act, Cap.112, Laws of the Federation of Nigeria, 1990. But where the maker is not called, it is only a certified copy of such public document that is admissible under Section 112 of the Evidence Act, Cap.112, Laws of the Federation of Nigeria, 1990 so as to be certain of its authenticity and genuineness, otherwise, any fake or forged original copy of such public document may be procured by a party and be admitted in evidence by the Court without the Court being aware, In the instant case the plaintiff tendered the original copy of the purchase receipt without calling the makers when only the certified true copy was admissible in the absence of the maker, the trial Court therefore erred in admitting it in evidence” (Underlined for emphasis)
In Lawson v. Afani Continental Co. Nig. Ltd supra, this Court also held thus:
?This takes me to the question of admissibility of statutory right of occupancy Exhibit 3, the plan Exhibit 4 and the customary certificate of occupancy issued by Chikun Local Government. The three documents qualify as acts of public officers within the contemplation of Section 109 of the Evidence Act, Cap. 112 of the Laws of

the Federation of Nigeria, 1990. In this result only certified copies thereof are admissible and not original?the tendering in evidence of the originals of those public documents is erroneous. They are accordingly expunged….In the circumstance it is clear that the basis of the appellant’s claim is not credible. The Appellant?s case is founded on inadmissible evidence and if there is a declaration of title in his favour it will result in a miscarriage of justice. The appellant sought to obtain the declaration of title on the strength of the documents and if the same are inadmissible his claim should fail” (underlined for emphasis)
Habeeb Esq., of learned counsel to the respondent, did adumbrate that the issue of whether and how the original of a public document can be tendered and admitted in evidence in a proceeding before a Court of law has been subjected to conflicting decisions of the appellate Courts to the extent that divergent pronouncements have been echoed and reechoed in a litany of decided cases. Counsel pointed out that the cases cited and relied on by learned counsel to the appellant represent one side of the divide, whereas the

cases of Ogu v. MT & MCS Ltd (2011) 8 NWLR (pt. 1249) P. 345 @ 375 and Ogboru v. Uduaghan (2011) 2 NWLR (pt. 1232) P.538 @ 574, represent the other side of the divide. In Ogu v. MT & MCS Ltd supra P. 375, this Court held that:
“As was demonstrated in the portion of the lower Court’s judgment set out before now Exhibit P5 was admitted because it was the primary evidence of the document sought to be used in evidence; the document itself which did not require certification under, the Evidence Act for the purpose of admissibility in evidence. For that reason. I agree with the learned counsel for the respondent when he said in the respondent’s brief that Section 97 of the Evidence Act becomes operative or applies when the evidence sought to be tendered is secondary and not primary evidence of the document in question. The learned counsel has not challenged the finding by the lower Court that the Exhibit P5 was the primary evidence of the statement of defence by the appellant in a previous suit before the lower Court and that finding remains extant and binding. That being the position, I lave no difficulty in finding that the said Exhibit P5 being the

primary evidence of the document the contents of which was in issue in the case of the respondent did not require certification for its admission in evidence at the proceedings. The Exhibit for that reason, is admissible evidence in law and the lower Court was right to have admitted it. The cases of Araka v. Egbue and Dagaci of Dege v Dagaci of EBWA (both supra) cited by the learned counsel for the appellant are not helpful in this appeal because the documents in question in the Cases were secondary evidence of judgments of Courts to which the provisions of Section 97(2)(c) of the Evidence were applicable.”
In Ogboru v. Uduaghan supra P.374, it was held by this Court thus:
In all, therefore, the only categories of public documents that are admissible in evidence are either the original documents themselves, Onubruchere & Anor v. Esegine (1986) 1 NSCC 343 at 350; (1986) 1 NWLR (Pt. 19) 799; Iteogu v. L.P.D.C (2009) 17 NWLR (Pt. 1171) 614 634 or, in the absence of such original copies, their certified copies and no other, Minister of Lands W.N v Azikiwe (supra); Onubruchere and Anor v. Esegine (supra); Araka v. Egbue (2003) 33 WRN1; (2003)

17 NWLR (Pt. 848) 1 S.P.D.C v. Aswani ile Industries Ltd (1991) 3 NWLR (Pt. 180) 496, 505; Ojibah v. Ojibah (191) 296, 312; Nzekwu v. Nzekwu (1989) 2 NWLR (Pt. 104) 373.
However, Habeeb Esq., of learned counsel went on to state that the 2 sides of the divide represented by the cases of Giwa v. Harbun (supra); Lawson v. Afani Continental Co. Nig Ltd on one hand and those of Ogu v. MT & MCS Ltd supra; Ogboru v. Uduaghan (supra) on the other side of the divide, have been harmonized in the case of Kubau v. Rilwanu (2015) 4 NWLR (Pt. 1397) P. 284 @ 318, wherein Orji-Abadua, J.C.A held that:
Here, we are dealing with the original copy of the Certificate of Occupancy given to the respondent by the Kaduna State Government as an authentic proof of his ownership of the land indispute. See also, the Supreme Court case of Anamelechi Iteogu, Esq. v. The Legal Practitioners Disciplinary Committee, where it held that only secondary evidence of a public document admissible in evidence is a certified true copy. The synergy of the decisions in Daggash v. Bulama (supra) and the aforementioned cases of the Apex Court is that the Original copy of any public document issued to a person which is in the custody of that person, if tendered is admissible under the Evidence Act. The person would only encounter problem or

experience turbulence when he produces or attempts to tender at the hearing of a proceeding a photocopy or secondary copy of the said original of the public document in his possession without certification. At that point the Evidence Act mandates him to produce a certified true copy of the said original copy to prove its authenticity and originality. It is clear that the opinion expressed by Salami, J.C.A (as he then was) in Lawson v. Afani Continental Co. Ltd (supra) is now obsolete, having been obscured and overruled by latter decisions of this Court and, in particular, the Supreme Court decision which are binding on this Court by the doctrine of Stare decisis. Therefore, it is, my humble opinion that failure to tender the certified true copy of the original Certificate of Occupancy No. 8051, where the original itself has been produced and tendered is immaterial and not fatal to the respondent’s case. (Underlining for Emphasis).
It would appear, the reasoning or thinking of this Court in the case of Kubau v. Rilwanu (supra) on the question of the admissibility of public document which has not been certified in evidence has been endorsed by

the Apex Court in the case of G & T Invest. Ltd v. Witt & Bush Ltd (2011) 8 NWLR (Pt. 1250) P. 500 @ 527, in these Court:
“It is on record that the plaintiffs tendered a photocopy of a document which was certified by the registrar of the High Court of Lagos State, Ikeja, when in fact, if the 2nd plaintiff was desirous of tendering only a copy of the registration document it should have been certified by an official of the corporate Affairs office, the document being a public document that is subject to the provisions of Sections 109-112 of the Evidence Act supra. But then one should be mindful of the fact that the original copy of the certificate of Incorporation was stated to be in possession of the Plaintiffs in this case as it contained in the record of proceedings vide the evidence of the 2nd plaintiff which has been reproduced above.
The pertinent question to ask here is, if they had the original certificate and actually brought it to Court on the day of hearing, why did the witness not tender it? I am inclined to subscribe to the argument of the respondent that perhaps the plaintiffs did not possess the original Certificate of

Incorporation. If they didn?t, there was nothing that prevented them from tendering the copy, as permitted by Sections 93 and 95 of the Evidence Act supra.? (Underlining for emphasis).
Again considering the same issue, in the case of PDP v. INEC (2014) 17 NWLR (Pt. 1437) P. 525 @ 563 the supreme Court had this to say:
?Exhibit W05, the subject of this issue was the original correspondence, between the 25th respondent and Independent National Electoral commission. The said letter was in the custody of the 25th respondent and remained so up to the point it was tendered. It is my view that there was no need to certify the original copy of the letter even though it was issued to him by a public officer. It is the public officer who keeps the original of a public document who certifies a copy of it which can be tendered where the original cannot be tendered. Put differently, the only categories of public documents that are admissible are either the original document itself or in the absence of such original certified copies and no other. see: Minister of Lands Western Nigeria v. Azikiwe (1969) 1 All NLR 49; Nzekwu v. Nzekwu (1989) 2 NWLR

(Pt. 104) 373 Iteogu v. LPDC (2009) 17 NWLR (Pt. 1171) 614 at 634.”
Lastly, in Iteogu v. LPDC (2009) 17 NWLR (Pt. 1171) P. 614 @ 634, Onnoghen, J.S.C, dealing with admissibility of original correspondence between a pubic officer and a private individual, held that:
?A public document admissible in evidence is a certified true copy, the document in question were duly certified while those not certified were original correspondences addressed from the Ministries of Defence and Works to the petitioner in person and were tendered by the petitioner. Exhibit W05, as I said earlier was the original correspondence addressed to the 25th respondent by Independent National Electoral Commission. I do not see how that copy with the 25th respondent which he tendered was a public document. Rather, it is the copy with Independent National Electoral Commission which is a public document. In that case, the original can be tendered through the officer who made it or a certified copy of a secondary copy can also be tendered. The copy with the 25th respondent, to my mind, was properly tendered. I also resolve this issue against the appellant.?
Exhibit P1 is a photocopy of application to the Federal

Ministry works and Housing seeking for allocation of plot of land by the respondent. By the provisions of Section 102 (a) and (b) and Section 103 of the Evidence Act, it is a Public document.
Exhibits P1, P3, P5, are documents written or executed or made by the respondent. They are private documents by virtue of the provisions of Sections 102, and 103 of the Evidence Act. Each of them requires no certification to be admitted in evidence. Exhibits P2, P4, P6 and P7 are public document by virtue of the provisions of Section 102(a)(i) and (ii) of the Evidence Act, having been executed or made by either a public officer or public institution in course of carrying out an official duty. By the decisions in the cases of Ogboru v. Uduaghan (2011) 2 NWLR (Pt. 1232) P. 538 @ 574 Kubau v. Rilwanu (2014) 4 NWLR (Pt. 1397) p.284 @ 318; G & T Invest. Ltd v. Witt & Bush Ltd (2011) 8 NWLR (Pt. 1250) P. 500 @ 527 and PDP v. INEC (2014) 17 NWLR (Pt. 1437) P. 525 @ 563 as well as Iteogu v. LPDC (2009) 17 NWLR (Pt. 1171) p. 614 @ 634 they are public documents. consequently, the contention of Ebubedike Esq., of learned counsel to the appellant that

Exhibits P1-P7 were erroneously admitted in evidence by the lower Court cannot be sustained in view of the foregoing adumbration and the current; position of the principles of law on admissibility of originals of public document by this Court and the Apex Court. The lower Court was therefore right in admitting in evidence and relying on the said Exhibits P1-P7 in arriving at a decision. Issue 1 is hereby resolved against the appellant.

ISSUE 2
Whether Exhibit P3 is the acceptance of the plot offered by Exhibit 2. Learned counsel to the appellant referred to Exhibit P2 with reference No. KD/5AS/FGP/DR/17/B dated 1/9/97, especially Paragraphs 2(i)(iv) and (viii) thereof which stipulated the terms and conditions of the offer and Exhibit P3 dated 6/10/97 containing what the respondent had accepted pointing out that there was no valid acceptance of the offer by the respondent in view of the non-compliance with Paragraph 2(i) of Exhibit P2 by Exhibit P3. Specifically, it has been pointed out that the requirement for a written acceptance letter and certified bank cheque have not been satisfied by the respondent.

?In his further submission,

Ebubedike Esq. contended that the offer of lease of plot Exhibit P2 has a duration of 90 days within which it was to be accepted, however, there is nothing on Exhibit P3 that Exhibit P2 was accepted within the 90 days period. On the reference Nos. of Exhibit P2 and P3, learned counsel contended that whereas P2 has ref. No. KD/SAS/FG/DR/17/B, Exhibit Pw3 has ref. No. KD/SAS/FGP/DEG/17/B. That the discrepancy in the two Exhibits has rendered Exhibit P3, the acceptance letter invalid, therefore, the respondent did not accept the offer in law. Furthermore, learned counsel submitted Exhibit P2 does not contain the property identification No. 17B Road Angwan Rimi GRA, Kaduna, therefore, the respondent could not have accepted the offer of lease of same. Another contradiction spotted by learned counsel is that Exhibit P2 has the address of No. 12 Osburne Road, Ikoyi Lagos, “whereas Exhibit Pw has the address as Tafawa Balewa Square, Lagos through Federal controller of works and Housing, Kaduna; for the attention of secretary, Land use and Allocation committee Abuja”. That the discrepancy in the addresses used on the two Exhibits i.e P2 and PW3 is fundamental

with the consequence of rendering Exhibit PW3 invalid, therefore, the respondent could not have accepted the offer of the plot of land which was offered to him vide Exhibit P2.

Regarding the requirement of the certified Bank cheque per Exhibit P2, counsel argued that none has been executed as required because Exhibit p4 does not qualify as a Bank draft but it is a Revenue receipt from ?Abuja? rather than “Kaduna” where the plot of land is located per Exhibit P2. In conclusion, learned counsel urged the Court to hold that the respondent did not accept the offer of the lease of property No.17B Degel 2 Angwan Rimi Kaduna by Exhibit P3, therefore, there has been no valid acceptance of the offer of the lease by the respondent to confer legal filed on him. The Court has been urged to resolve issue 2 in favour of the appellant.

Habeeb Esq., for the respondent submitted that Exhibit P3 is a valid acceptance of the offer in Exhibit P2. That Exhibits P2 and P3 are the basis of contract between the respondent and Federal Ministry of Works and Housing, therefore, the appellant as a 3rd party, cannot question the validity or otherwise of such

contract. The cases of Ironbar v. FMF (2009) 15 NWLR (Pt, 1165) P. 506 @ 533 and Borishade v. NBN Ltd (2007) 1 NWLR (Pt. 1015) P. 217 @ 249 as well as Osoh v. Unity Bank Plc (2013) 9 NWLR (pt. 1359) p. 1031 cited to buttress the contention supra. As to the 90 days period of the offer, counsel pointed out that Exhibit P2 was dated 1/9/97, whereas Exhibit P3 was dated 6/10/97, exactly 35 days after Exhibit P2, therefore, the acceptance letter Exhibit p3 was within the 90 days period contained in Exhibit P2. on Exhibit P4, it has been contended that, if there was no payment by the respondent as regarded in Exhibit P2, Exhibit P7 would not have been issued by the Committee on Federal Government Property dealing with Landed properties. On the difference spotted in Exhibits P2 and Pw3 regarding the location of the rand in dispute, counsel contended that such discrepancy is of moment, it is trivial which cannot affect the validity of the acceptance of the offer of the lease to the respondent. The case of OAU (Nig) Ltd v. Umanah (2013) 4 NWLR (Pt. 1344) P. 323 @ 346 cited or reinforce the submission supra. In conclusion, learned counsel urged the Court to resolve

issue 2 against the appellant.

In resolving issue 2, I think it is desirable of first of all resort to Exhibits P2 and Pw3. In Exhibit P2 the following have been stated:
?2.The lease will be subject to the terms and conditions stated in the attached schedule. If these terms and conditions are acceptable to you, you are to indicate in writing within 90 days your acceptance of the offer enclosing a bank certified cheque for the sum of offer?. payable to the Federal Ministry of Works and Housing.
TERMS AND CONDITIONS OF OFFER
The terms and conditions shall be subject to contract and in accordance with the existing laws and regulations applicable to Government leases under the State Land Laws.
i. The offer remains open for 90 days only from the date of the letter, subject to the acceptance of all the terms herein contained.
ii. ..
iii. .
iv ……………
v …………….
vi. There letter of acceptance together with a copy of the receipt of payment should be forwarded to the Honourable Minister of works and Housing, Headquarters, Lagos, marked for the attention of the Secretary, Land

use and Allocation committee through the office of the Controller of Works and Housing in the State.
vii. Please note that acceptance of this offer is not valid unless it is accompanied by the certified Bank cheque as stated ii Paragraph (2) above including payment of other fees that must be chargeable.?

Exhibit P3 is as follows:
?The Honourable Minister of Work and Housing,
Federal Ministry of Works and Housing,
Headquarters,
Tafawa Balewa Square, Lagos.
Through:
The Federal Controller of Works & Housing,
Federal Ministry of Work and Housing,
Field Headquarters, Kaduna.
Attention: The secretary, Land Use and Allocation Committee, Abuja.
Dear Sir,
ACCEPTANCE OF OFFER OF LEASE OF PLOT AT KADUNA
May I write with gratitude to accept the offer of lease of Plot of Land Ref. No. KD/SAS/FGP/DEG/17/B situated at No.17 Degel 2 Road Kaduna and undertakes to abide by the terms of offer as stated.
I also include the bank certificate cheque in the sum of N15,500 (Fifteen Thousand, Five Hundred Naira) only payable to the Federal Ministry of works and Housing as requested.”

?Exhibit pw2 is an

offer letter from the Federal Ministry of works and Housing. Exhibit p3 is the letter of acceptance of the offer in Exhibit P2 by the respondent. Exhibit p4 is receipt for the payment of N15,500.00 as required by Exhibit p2. The letter of offer Exhibit p2 was written on 1/9/97 whereas Exhibit p3, the acceptance letter was written on 6/10/97. From 1/9/97 to 6/10/97 is less than 90 days. Therefore, the acceptance letter by the respondent was within the 90 days period required in Exhibit P2. As to the discrepancy in Exhibit p2 and p3 on the location of the disputed plot of land, i.e. the insertion of “DR” in p2 but “DEG” in P3, it is a slip, a misnomer and, of no consequence in that it does not affect the substance of the agreement by the respondent and the Federal Ministry of Works & Housing. Both parties knew the property in dispute’ None of them has been misled on the identity of the property. Perhaps, this is why Exhibit P6 the letter reaffirming the allocating of the property 17/B Degel Road, Angwan Rimi Kaduna, was written to the respondent by the Allocation committee. The law is trite, where discrepancy exists on minor issues which does not mislead the

parties, same would be of no consequence. A similar scenario was resolved in the case of AC(OAO)( Nig.) Ltd v. Umanah (2013) 4 NWLR (pt. 1344) p. 323 @ 346, where this Court per Ogunwumisu J.C.A, in dealing with discrepancy in the identification of Exhibits said as follows on page 346:
“I must say that the argument of the respondent’s counsel that since the appellant mistakenly referred to Exhibit D1 as DW1 in ground 2 of the notice of appeal and its particulars makes the appeal incompetent and should struck out amounts to no issue. The fact of the nomenclature given to the Exhibits is of no moment since the ground and particulars left no doubt as to the particular Exhibit was indeed referred to. For the purpose of this appeal, I hold that the appellant was indeed referring to Exhibits D1-D10, receipts issued by Allen Transport service Association between August 2005 and January 2006 contained on pages 54-59 of the records”

As to the requirement of the certified Bank cheque for the amount of N15,500.00, in Exhibit P2, I am of the view the Exhibit P4, satisfied this requirement. On the whole, by Exhibit P3, the respondent has had validly accepted the

offer and having satisfied the conditions contained in Exhibit p2, the acceptance of the offer by Exhibit P3 has been established. Issue 2 is resolved against the appellant.

ISSUE 3
Whether Exhibits P1, P2, P3, P4, P5, P6 and P7 constituted and qualified as legal and valid documents required by law to establish title and ownership to land. Ebubedike Esq., submitted that Exhibits P1 to P7 admitted in evidence at the lower Court do not constitute legal documents to establish title or ownership to land. That Exhibits P1-P7 are inadmissible documents, therefore the lower Court erred in law when it relied on same in granting the reliefs sought by the respondent. Counsel further referred to the case of Idundun v. Okumgba (1976) 9-10 SC P.227 @ 248, where in the five (5) ways to establish title to land has been enumerated, and contended that, in order to establish title to land, the document(s) relied on must satisfy the requirements listed in the case of Akinduro v. Alaya (2007) 15 NWLR (Pt. 1057) to show the authenticity or cogency of any document being relied on to proved or establish title to land. That none of the document, i.e Exhibits P1 – P7 can

qualify as document of title to any land in dispute. That Exhibit D2 has affected the validity, authenticity and credibility of Exhibits P1 – P7. That the lower Court should not have relied on them to grant the relief, sought by the respondent.

In his further submission, learned counsel pointed out that Exhibit P2 was issued to the respondent in contravention of the provisions of Section 52(1) of the Land Use Act, which vested the right to grant a lease of land in the Federal Government to be exercised by the President or anybody so designated. That the Federal Ministry of works and Housing, as at 1977, had power only to deal with issuance of certificate of occupancy over unoccupied land per Sections 5, 9 and 12 of the Land Use Act. The cases of Ofodile v. C.O.P Anambra State (2000) FWLR (Pt. 33) P. 309 @ 339 and Lawson v. Afani Continental Co. Ltd supra were cited to reinforce the submissions supra. Counsel did urge that issue 3 be resolved in favour of the appellant.

Habeeb Esq., for the respondent adumbrated that to appreciate, the basis of the judgment of the lower Court, a resort to the reliefs, sought in the statement of claim is pertinent.

That by Exhibit P2, the respondent sought clarification of Exhibit D2 in which the allocation to him was put in issue, but the matter was resolved by Exhibit p6, therefore the contents of Exhibit D2 could not be applied to invalidate Exhibit P2. Learned counsel did urge this Court not to rely on Exhibit D3 having be made or obtained during the pendency of the litigation at the lower Court. The case of Abdullahi v. Hassidu (1999) 4 NWLR (Pt. 600) P. 638 @ 645 cited to buttress the submission supra. Counsel, therefore, urged that this Court should not disturb the findings and decision of the lower Court on the validity of Exhibit p2, p5 and p7 which were relied on by the lower Court in its judgment delivered on the 30th of September, 2013. That issue 3 be resolved against the appellant.

mine)
(c) By proving acts of ownership (such as renting out or farming on all or parts of the land extending over a sufficient length of time, numerous and positive enough as to warrant the inference that the person is the owner.
(d) By proving acts of long possession and enjoyment of the land and
(e) By proof of possession of connected or adjacent land in the circumstances rendering it practicable that the claimant is the owner of the adjacent land?

?The basis of the respondents claim of title to plot No. 17/B Degel Road

ungwan Rimi Kaduna GRA are Exhibits P2, P3, P5, P6 and P7. The appellant relied on Exhibit D2 and D3 to show that the appellant has failed to establish his title to the said plot of land in dispute. It is pertinent, at this juncture, to revisit Exhibits P2, P3, P5, and P6 in order to see is these documents are valid in law to be the basis of granting title to the plot in dispute as against the Exhibits D2 and D3 which the appellant relied on in contesting the claims of the respondent at the lower Court. Evidence P2 is the letter of offer of the lease of the plot of land in dispute to the respondent. Exhibit p3 is the admission of the offer per Exhibit P2. Exhibit p4 is evidence of payment of N15,500.00 as required in Exhibit P2. Exhibit p5 is a letter seeking for clearance or affirmation of Exhibit P. Exhibit P6 affirmed the allocation of the land to the respondent. It is to be noted that Exhibits D2 and D3 where procured at the time the appellant had instituted an action against the respondent before the lower Court. Are Exhibits D2 and D3 of any evidential value? The law is settle, documents made or procured at a time an action is pending before a Court of

law by an interested party cannot be of any evidential value in same matter that is pending. See Abdullahi v. Hashidu (1999) 4 NWLR (Pt. 600) P. 638 @ 646 wherein it was held that:
“The next issue is as to the status of Exhs. JJ and KK. There is no doubt that when these documents were made pleadings have been filed and served.Therefore they were made at a time of the proceedings of the case. Exh. M2 is a document which of its face value appears to be the government’s expression of its acceptance of the recommendation of the judicial commission of inquiry which indicted the 1st Respondent. Exhs JJ and kk which on their face seek to explain the Federal Government’s position on ‘m2′ were obviously wrongly admitted as they were made in the course of the proceedings. Therefore they are of no evidential value in assessing the worth of these documents.”
See also Asuquo v. Asuquo (2009) 16 NWLR (Pt 1167) P.225 @ 252.

On page 302 of the printed record of appeal, the learned trial judge of the lower Court, after a dispassionate consideration of the evidence adduced by the parties, especially Exhibits P2, P3, P4, P5, P6, P7 and P8

vis-a-vis Exhibits D1, D2, and D3, came to this conclusion:
“Exhibit P1 is the application filed by the plaintiff for a plot in Kaduna. Exhibit P2 is the offer granted to the plaintiff. Exhibit P3 is the acceptance Exhibit P2 of Exhibit P4 the payment in respect thereof Exhibit p5 is an application for further validation and conformation of Exhibit P2. Exhibit P6 is that conformation. It states, inter alia, that the plaintiff be allowed to take over possession of the carve out since his allocation was done 1997. Exhibit P7 is conveys the conformation and validity of the application, Exhibit P6 is from the Presidential Implementation committee of the white Paper on the commission of Inquiry into the allocation of Federal Government landed property. See also Exhibit P8. Exhibit P9 provides that any carve out after 2000 is null and void. This Exhibit shall be considered along with the proceeding Exhibits particularly Exhibits P6, P7 and P8. It is particularly noted that the plaintiff carve out was created in 1997. It is therefore a good allocation and carve out. The argument that the carve out was not granted by the Federal Government but by the

Ministry of works & Housing is not of moment. The Federal Government vie its agent allocated the plot thus the conformation in Exhibit P6.?

I cannot fault the reasoning, conclusion and decision of the learned trial Judge of the lower Court. consequently, I resolve issue 3 against the appellant.

ISSUE 4
whether the dismissal of the appellant’s counter-claim was against the weight of evidence? On this issue Ebubedike Esq., submitted that on the totality of the evidence adduced at the lower Court (documentary and oral) the respondent failed to prove that plot No. 17/B was carved out of plot No. 17 Degel Road Angwan Rimi GRA Kaduna. That being the case’ the lower Court was wrong in holding that the respondent was lawfully allocated plot No. 17/B Degel 2 Road Angwan Rimi GRA, Kaduna, which warranted the dismissal of the counter-claim by the appellant. Counsel went further to contend that there is discrepancy between Exhibit P2 and P8. Whereas P2 was executed in 1/9/97, Exhibit PB was made on 18/3/2004, there being a period of 7 years in between. This, according to counsel, can only mean that plot No. 17/B Degel Road Angwan Rimi GRA Kaduna

never existed.

Ebubedike Esq., of learned counsel further did submit that the respondent failed to prove the size of the land he claimed title to as required in law. That where a claimant fails to prove the identity of the land to which title is being claimed to, such claim must fail and be dismissed. The case of Adesanya v. Aderonmu (2000) 9 NWLR (Pt. 672) p. 370 @ 386 cited in aid. Counsel also referred to Exhibits D1, D2, D3, D4 and D5, D13 and submitted that these documents fortified the claim of title to the disputed plot of land to which the respondent was granted title by the lower Court. That if the learned trial Judge have considered these documents vis-a-vis Exhibit P2, Pw3, P26 and P7, if he would not have held that the counter-claim was not proved, and dismissed same. The Court has been urged to resolve issue 4 in favour of the appellant and grant the counter-claim of the appellant.

Habeeb Esq, submitted that the identity of the plot No. 17/B Degel 2 Road Angwan Rimi Kaduna which was carried out of plot No. 17 Degel 2 Road Angwan Rimi GRA Kaduna has been stated in Exhibit P2 to be 960m. This being so, the contention of learned counsel

to the appellant that the size of the land in dispute has not been established at the lower Court, cannot be correct. That Exhibit P2 clearly indicated the location, type and size of the plot the respondent claimed it was allocated to him in 1997. On the discrepancy in the size of the plot, counsel pointed out that it is a misnomer, which cannot vitiate the respondent’s title in view of Exhibits P2, p3 and P6, notwithstanding Exhibits D1, D2 and D3 which were made during the pendency of the suit at the lower Court. In conclusion, learned counsel urged that issue 4 be resolved against the appellant.

Leaned counsel to the appellant contended the respondent did admit the size of the plot he claimed title to as stated in Exhibit P2 and P7. That having not proved the exact size of the plot in dispute, the lower Court erred in raw when it granted the claim of the respondent and dismissed the counter-claim. Agreed, there might be discrepancy in the size of the plot as indicated on Exhibit p2 and on the other hand on Exhibit P7, P8, but such discrepancy, in my view is not fatal to discredit Exhibit P2, P3 and P6. The location and type of the plot have not

been in doubt. It was known to the parties. On the effect of discrepancy or inconsistency in the evidence of a party, on a particular issue, what the Apex Court enunciated in the case of Yakubu v. Jarroyel (2014) 11 NWLR (Pt. 1418) P. 205 @ 248, easily disposes of the grouse or complaint of the appellant. The Apex Court had this to say:
“It is not all contradictions in the evidence proffered and relied upon by a party in proof of his case that results in the rejection or the evidence It is only material discrepancies which constitute substantial disparagement of the witnesses concerned, in the sense that reliance on their testimony will likely result in miscarriage of justice, that should impact negatively on the case of the party who relies on such evidence. Thus contradictions in the evidence of witnesses may not be fatal to a case especially when they are minor and do not materially affect the fundamental and crucial issues in the case.
Contradictions are fatal only if, not being minor, they go to the substance of the case. And what is material and substantial remains a question of fact.?

?If the appellant claimed the identity of the

land has not be proved, where is plot of land he counter-claimed. Surely, he knew the plot of land in dispute before claiming title to it. See Anyawu v. Uzowuoka (2009) 13 NWLR (Pt. 1159) P. 445 @ 476. Exhibits D1, D2, D3, D13 were made or procured during the pendency of the suit before the lower Court. The law is trite, such documents are not admissible, if admitted the Court cannot rely on same to arrive at a decision. See Abdullahi v. Hashidu (1999) 4 NWLR (Pt. 600) P. 638 @ 645. Having regard to Exhibit P2, P3, P4, P6, and D1, D2, D3 which have been discredited for having been made or procured by the appellant during the pendency of the suit at the lower Court, the learned judge of the Court below was right in his judgment on the counter-claim when he held that:
“The state of pleadings, evidence, adduced and legal arguments submitted, it is easy to find that the Defendant does not have any right, claim or interest in the carved out plot No. 17B Degel 2, Anguwan Rimi GRA, Kaduna. It has been proved adequately that Plaintiff is the bonafide allottee, owner and title holder of the carried out plot. The portion occupied by the Defendant is different

from the carved out portion granted to the plaintiff.. The Federal Government, through its agency, the Ministry of Works and Housing clearly allocated the carved out to the plaintiff
(underlining supplied for emphasis).

Issue 4 is resolved against the appellant. In the result, having resolved all the 4 issues against the appellant, the appeal fails in its entirety. The judgment of the lower Court delivered on the 30th of September, 2013 in suit NO. KDH/KAD/1063/2011 is hereby affirmed. The respondent is entitled to costs assessed at N50,000.00 same is awarded to him.

UWANI MUSA ABBA AJI, J.C.A.: I have had the privilege of reading the draft judgment of my learned brother, Ibrahim S. Bdliya, JCA just delivered.

My learned brother exhaustively considered all the issues presented to us for determination in this appeal and resolved them against the Appellant.

?I am in agreement with the reasoning and conclusions arrived at by my learned brother which I adopt as mine and have nothing useful to add. It is also for the same reasons therein that I too do not find merit in this appeal and it is also

dismissed by me. The judgment of the lower Court delivered on the 30th of September, 2013 in suit No. KDH/KAD/1063/2011 is hereby affirmed.

I abide by orders made including orders as to costs.

ISAIAH OLUFEMI AKEJU, J.C.A.: I had the privilege of reading the judgment of my learned brother, IBRAHIM SHATTA BDLIYA JCA before it was delivered. I agree with the reasoning of my learned brother and the conclusion that the appeal is unmeritorious based on the consideration of the issues raised therein. I dismiss the appeal and abide by the consequential order.

Appearances

Chinedu D. Ebubedike, Esq.For Appellant

AND

O. I. Habeeb, Esq.For Respondent