D.I.D. AL-AMAN CO (NIG) LTD & ANOR v. MINKO & ORS (2020)

D.I.D. AL-AMAN CO (NIG) LTD & ANOR v. MINKO & ORS

(2020)LCN/14780(CA)

In The Court Of Appeal

(KANO JUDICIAL DIVISION)

On Tuesday, November 03, 2020

CA/K/20/2018

RATIO

PROCESS: EFFECT OF THE AMENDMENT OF A COURT PROCESS

The effect of the amendment is that what stood before the amendment was no longer material before the Court and no longer defined the issues to be tried. This is the settled position of law severally stated and restated by the Courts. See KATTO VS. CBN (1999) 6 NWLR (PT. 607) 390; BELLO VS. INEC (2010) 8 NWLR (PT. 1196) 342; ADEWUMI VS. ATTORNEY GENERAL EKITI STATE (2002) 1 SCNJ 27. Pleading of a Court process once amended, relates back to the date of the amendment and what stood before the amendment becomes immaterial in the consideration or determination of the case. What stands relevant and important for determination in the case is/are the issue(s) raised in the amended pleading or process and the original process to which the amendment relates is considered or deemed as having been discarded. See MAIGARI VS. MALLE & ORS (2019) LPELR – 49374 (SC). PER WAMBAI, J.C.A.
PLEADINGS: PURPOSE OF AMENDMENT OF PLEADINGS

This is so because the purpose of amendment is to enable the Court decide the real issues in controversy between the parties and to prevent the Court from giving judgment in ignorance of facts that should be known before rights are finally decided. Thus, all amendments before the final amendments cease to be pleadings to be relied upon in the trial and they remain worthless. See OFORISHE VS. NIG. GAS CO. LTD. (2018) 2 NWLR (PT. 1602) 36. PER WAMBAI, J.C.A.
PLEADINGS: PREROGATIVE OF THE PLAINTIFF TO DETERMINE THE DEFENDANT IN A SUIT AGAINST WHOM HE SEEKS A RELIEF

It is the prerogative of the plaintiff to determine the defendant in a suit against whom he seeks a relief and the liability of any such defendant is determined by the plaintiff’s pleadings. Whether the claim will be established against all or any defendant or not is entirely a different matter to be determined at the trial. See BELLO VS. INEC (2010) 8 NWLR (PT. 1196) 342.
It is to be pointed out however, that having made a person a defendant, the plaintiff is permitted at any time to discontinue his suit or claim wholly or any part of it against the defendants or any of the defendants. This is what is called discontinuance of action or claim and a defendant against whom an action or claim has been discontinued wholly, is entitled to have an order to that effect and to have his name struck out from the suit. This is governed by the Rules of Court, Order 23 Rules 1(1) & 3 of the Kano State High Court (Civil Procedure) Rules 2014 provide:
“Rule 1 (1): A plaintiff may at any time before the receipt of the defence or after the receipt thereof, before taking any other proceeding in the action, by notice in writing duly filed and served, wholly discontinue his claim against all or any of the defendants or withdraw any part or parts of his claim…
Rule 1 (3): Where a defence has been filed, the plaintiff may with leave of a judge discontinue the proceedings or any part thereof on such terms and conditions as the judge may order.”
By this Rule 1 (1), a plaintiff or claimant is at liberty at any time before the receipt of the defence to his action but before taking any other proceedings in the suit, to withdraw his claims either wholly or in part against some or all the defendants by a Notice in writing. The only price is the payment of costs to the defendant(s) occasioned by the claim so withdrawn or discontinued. The conditions for a withdrawal or discontinuance under this Rule 1 (1) are that the withdrawal/discontinuance of the claim/action must be done before the receipt of defence to the action; the withdrawal/discontinuance must be by notice in writing duly served, and upon the payment of costs. See MINISTRY OF WORKS VS. TONIMAS NIG. LTD. (2002) 6 NWLR (PT. 762) 181.
Where the defence has been filed, the plaintiff can still discontinue his action or withdraw any part of his claim against all or any defendant under Rule 1 (3) by leave of Court upon the terms and conditions as the judge may order. Such leave is at the discretion of the Court and the application may be oral or a formal written application on notice. See UMEANADU VS. ATTORNEY GENERAL ANAMBRA STATE (2008) 9 NWLR (PT. 1091) 175. PER WAMBAI, J.C.A.

COURT: OBEDIENCE TO RULES OF COURT

I quite agree and appreciate the position of law which has now become a judicial chorus that Rules of Court are made to be obeyed and every Court should endeavor to see to it that its Rules or the Rules of other Courts are obeyed. It is however, not in every case that non observance/compliance with the procedural Rules of Court will have fatal consequences on the disobedient party or as in this case, would justify a wrong action taken by the Court. PER WAMBAI, J.C.A.

Before Our Lordships:

Abubakar Datti Yahaya Justice of the Court of Appeal

Habeeb Adewale Olumuyiwa Abiru Justice of the Court of Appeal

Amina Audi Wambai Justice of the Court of Appeal

Between

1. D.I.D. AL-AMAN COMPANY NIG. LTD. 2. ALHAJI DAUDA IBRAHIM APPELANT(S)

And

MALAM MINKO 2. MALAM SAMAILA 3. BARRISTER BASHIR 4. MALAM UMAR 5. MALAM AUWALU 6. MALAM ABBA 7. MALAM ISA NA AMANA 8. MALAM IBRO 9. MALAM MUKTAR 10. MALAM BAFFA LOTO 11. MALAM SHUAIBU 12. MALAM BALA 13. MALAM ABUBAKAR 14. MALAM HABIBU MAI BULO 15. MALAM MUSTAPHA 16. MALAM MAHADI 17. ALHAJI ISAH RESPONDENT(S)

AMINA AUDI WAMBAI, J.C.A. (Delivering the Leading Judgment): This appeal rose from the judgment of Hon. Justice Mohammed Yahaya of the Kano State High Court delivered on 19th October 2017 which entered judgment in favour of the Respondent (then Defendants) adjudged to be in possession and dismissed the Appellants’ claim of title to the land in dispute consisting of 44 plots situate at Hotoron Arewa Quarters, Nassarawa, Kano State.

The Appellants’ case on the amended statement of claim is that the land in dispute which belongs to them was purchased on 31/12/2006 from one Alhaji Yahaya Hotoro the customary owner, at the sum of N21,000,000 (N21 Million) but was later divided into 44 Residential plots for sale and a mosque, out of which the 2nd Appellant sold 6 plots to interested buyers but later, upon inspection sometime in May, 2015 discovered that 24 of the Plots were under construction or had outrightly been sold to the 2nd – 18th defendants by the 1st defendant without their knowledge or authorization. That they did not authorize the 1st defendant or anyone to sell these plots of land on their

behalf. The defendants were told to stop further development on the land and vacate possession. They refused, hence the institution of the action before the lower Court wherein the Appellants as plaintiffs sought declaration of title and injunctive reliefs against the defendants.

On the part of the 3rd, 5th, 6th, 7th, 10th, 11th, and 16th defendants their case is that the 1st defendant from whom they bought the plots is a known business associate and authorized and disclosed agent of the plaintiffs (Appellants) as the principals and that the agency relationship was not denied.

They averred that the sale transactions between them and the 1st defendant/Respondent which was on behalf of the plaintiffs/Appellants were registered with the ward Head of Hotoron Arewa as is the custom and tradition of the locality. That they are in lawful occupation and possession of the plots as the owners.

The 2nd Appellant was the sole witness for the plaintiffs and tendered Exhibits 1A, 1B, 2A & 2B, 3A & 3B and 4. Respondents as defendants called 7 witnesses. After reviewing the case of both parties and considering the written

submission of Counsel, the learned trial judge found that the Appellant did not prove their title to the land in dispute to entitle them to the reliefs claimed.

In respect of the defendants/Respondents (who did not counter-claim) the learned trial judge held:
“While coming to the defence, they all testified that they bought the plot from the 1st defendant whom they said is an agent to the plaintiffs. This assertion is not supported by any evidence, therefore I do not believe the truth of the such testimony. Even though the defendant did not counter claim however available evidence before me both from the plaintiffs and the defendants, shows that the defendants were in possession of the disputed lands”.

Upset by the decision, the Appellants caused a Notice of Appeal to be filed on their behalf on the 27/11/2019. It contains 7 grounds of appeal.

From the 7 grounds of appeal, Abdulsalam Adedeji Musbau Esq. who settled the Appellant’s brief filed on 27/09/2018 but deemed on 18/10/2018 identified 4 issues for determination namely:
i. Whether the trial Court was right in relying on the

Appellant’s statement of claim dated 10th July 2015 accompany (sic) the writ of summons instead of the amended statement of claim dated 11th May 2016 in reaching its decision dated 19th October 2017.
ii. Whether the Appellants have discharged the onus placed upon them by the law in an action for declaration of title to enable them get judgment in their favour.
iii. Whether possession per see (sic) can confer title on the Respondents who did not counter-claim or disputed the legal right of the Appellants over the land and defeats their claim for trespass.
iv. Whether the trial Court was right not to have make (sic) pronouncement on the 1st, 2nd, 4th, 9th and 15th Respondents herein who despite being served with originating process and all Court processes as well as hearing notices in the suit did not enter appearance nor file statement of defence.

On their part, Laminu Bala Esq. who settled the brief of arguments of the 3rd, 4th, 5th, 6th, 7th, 9th, 10th, 11th, 12th and 14th Respondents, distilled a sole issue for determination to wit:
Whether the Appellants suffered any miscarriage of justice and whether the learned trial judge was

right to have held that the Appellants have not prove their case on the preponderance of evidence and thereby dismissing the Appellants case.
Appellant filed a reply on 08/04/2019 and was deemed the same date.

A look at the Appellants’ 4 issues reveal that the issues 1 & 4 are related and issue 3 is an aspect of issue 2. Two issues will therefore determine this appeal as formulated thus:
1. Whether the trial Court was right in relying on the original statement of claim to hold that the Appellants did not have a case against some defendants and for failing to make a pronouncement in respect of the defendants who failed to enter appearance and defence.
2. Whether the lower Court was right in holding that the Appellants failed to prove their case and in entering judgment for the Respondents who did not counter-claim.

ISSUE NO. 1
Whether the trial Court was right in relying on the original statement of claim to hold that the Appellants did not have a case against some defendants and for failing to make a pronouncement in respect of the defendants who failed to enter appearance and defence.

The contention of the Appellant’s Counsel on this issue is that the lower trial judge was wrong to have relied on the original statement of claim instead of the amended statement of claim to hold that the Appellants did not lead evidence against the 19th, 20th, 22nd, 23rd, 25th defendants when they were not parties to the amended statement of claim which contains only 18 defendants, their names having been struck out by the Court upon the Appellant’s application. That contrary to the holding of the learned trial judge, the Appellants have a case against the 2nd, 4th, 7th, 9th, 10th, 15th, 16th & 17th defendants and that they led evidence against all the 1st – 18th defendants who were the defendants on the amended statement of defence.

It was Counsel’s submission that the object of an amendment of pleadings is to ensure that litigation between parties is conducted on the basis of the true facts or true relief or remedy sought which parties finally intend to rely on and as such, pronouncement of a Court must be confined to the parties and issues raised in the amended pleadings, and not on the original. He cited the cases of

OKOLI VS. AJOSE (1994) 8 NWLR (PT. 362) 300, 312; OLOMO-SOLA VS. OLORIAWO (2002) 2 NWLR (PT. 750) 113, 124 E – G; MUNIYAS (NIG.) LTD. VS. ASHAFA (2011) 6 NWLR (PT. 1242) 85.

Counsel urged us to hold that the departure from the amended statement of claim and the decision that the appellant only testified to prove the case only against the 3rd, 4th, 5th, 6th, 8th, 10th, 11th, 12th, 13th and 14th defendants occasioned a miscarriage of justice to the Appellants and to resolve the issue in the Appellant’s favour.

On his issue 4, it was Counsel’s contention that the none pronouncement by the trial Court on the effect of the failure of the 1st, 2nd, 4th and 9th, 15th Respondents to enter appearance and file their defence in compliance with Orders 17 Rule 2 (1) and (2) inspite of being served with the originating processes and hearing notice which calls for invocation of Order 20 Rule 6, has affected the Appellants’ right on the claims against the said Respondents. He cited the cases of YUSUF VS. OBASANJO (2003) 15 NWLR (Pt. 843) 293, SOLANKE VS. SOMEFUN (1974) 1 SC (141) 843 at 293 to argue that Rules of Court are made to be obeyed.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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The Respondent’s reaction is that both the original and the amended statement of claim are the same and assuming the lower Court committed an error in relying on the initial statement of claim, the error was caused by the Appellants’ failure to endorse the amended statement of claim as ordered by the Court in compliance with Order 24 Rule 6 of the Rules of the lower Court. Secondly, that the 2nd appellant was the first to rely on the initial statement of claim by adopting his statement on oath which accompanied the initial statement on oath and the Appellants have not shown what miscarriage of justice they have suffered which would result in the appeal been allowed, citing the cases of BENJAMIN NWAKUBA IROAGBARA VS. DAVID UFOMADU (2009) 6 SCNJ 183 & SILAS SULE VS. THE STATE (2009) 6 SCNJ 65.

The said parties not being represented by Counsel, no response was made to the Appellants’ submission.

RESOLUTION OF ISSUE NO. 1
The Appellants commenced this action before the lower Court by a writ of summons filed on the 10th July, 2015 along with a statement of claim and other necessary processes in the name of the two Appellants as

plaintiffs and 26 defendants.

Pursuant to the Appellant’s application, the original statement of claim was amended wherein only 18 persons were made defendants to the amended statement of claim filed on the 18/05/2016. By it, the names of the 7th, 15th, 16, 17th, 18th, 21st, 24th and 25th defendants which had by an oral application being struck out as defendants, were deleted and were struck out by the Court.

original process to which the amendment relates is considered or deemed as having been discarded. See MAIGARI VS. MALLE & ORS (2019) LPELR – 49374 (SC).
This is so because the purpose of amendment is to enable the Court decide the real issues in controversy between the parties and to prevent the Court from giving judgment in ignorance of facts that should be known before rights are finally decided. Thus, all amendments before the final amendments cease to be pleadings to be relied upon in the trial and they remain worthless. See OFORISHE VS. NIG. GAS CO. LTD. (2018) 2 NWLR (PT. 1602) 36.
In the instant case, the original statement of claim having been amended and deemed discarded, no further reference can be made to it to determine the parties or to define the live issue(s) to be tried. The Court was bound to confine itself to the parties as contained on the amended statement of claim in determining the parties and the claim before it. It follows that the lower Court ought not have relied on the original statement of claim in its judgment to determine the defendants or such defendants against whom the plaintiffs

have a claim. See SALAMI VS. OKE (1987) 2 NSCC 1167.

By the grant of the said motion dated 10/05/2016 striking out the names of the 7th, 15th, 16th, 17th, 18th, 21st, 24th, 25th and 27th (sic) on the original statement of claim, the said defendants ceased to be defendants to the suit, hence their names were deleted from the amended statement of claim. Consequentially, the numbering of the remaining 18 defendants was affected. The names of the remaining 18 defendants as on the amended statement of claim were stated at pages 91 – 92 of the record.

Therefore, contrary to the holding of the Court, the names of the 2nd, 4th, 7th, 9th, 10th, 15th and 16th defendants on the amended statement of claim against whom the Appellants claim they have a case were not struck out. However, while some defendants retained their numbers, some others were differently numbered as follows:
On the original statement of claim On amended statement of claim
2nd defendant – Malam Samaila – 2nd defendant
4th defendant – Malam Umar – 4th defendant

7th defendant Malam Isa Na Amana – 8th defendant
9th defendant – Malam Mukhtar – 10th defendant
10th defendant – Malam Baffa Loto   – 11th defendant
15th defendant – Malam Mustapha   – 20th defendant
16th defendant – Malam Mahdi – 22nd defendant
17th defendant – Alhaji Isa   – 23rd defendant

The learned trial judge held that:
“The plaintiffs have no case against the 2nd – 4th, 7th, 9th, 10th, 12th, 15th, 16th, 17th, 18th, 21st, 24th and 26th defendants as per the plaintiffs applications of 24/02/2015, 5th May, 2016 and 10/05/2016 and this I so hold.
While the remaining defendants who are 1st, 3rd – 5th, 8th, 11th, 13th, 19th, 20th, 22nd, 23rd and 25th the plaintiff testify (sic) to prove his case against them…”

The Appellant’s Counsel has faulted the above finding and conclusion contending that the said pronouncement by the

Court that the Appellants had no case against the 2nd, 4th, 7th, 9th, 10th, 15th, 16th and 17th against whom they have a claim occasioned a miscarriage of justice.

What is apt for consideration is whether the said defendants whom the learned trial judge said the Appellants had no case against, remained or ceased to be defendants to the action. By the mention of the 21st, 24th 26th defendants it is obvious that the lower Court relied on the original statement of claim to come to the conclusion that the Appellants had no case against such defendants.
It is the prerogative of the plaintiff to determine the defendant in a suit against whom he seeks a relief and the liability of any such defendant is determined by the plaintiff’s pleadings. Whether the claim will be established against all or any defendant or not is entirely a different matter to be determined at the trial. See BELLO VS. INEC (2010) 8 NWLR (PT. 1196) 342.
It is to be pointed out however, that having made a person a defendant, the plaintiff is permitted at any time to discontinue his suit or claim wholly or any part of it against the defendants or any of the

defendants. This is what is called discontinuance of action or claim and a defendant against whom an action or claim has been discontinued wholly, is entitled to have an order to that effect and to have his name struck out from the suit. This is governed by the Rules of Court, Order 23 Rules 1(1) & 3 of the Kano State High Court (Civil Procedure) Rules 2014 provide:
“Rule 1 (1): A plaintiff may at any time before the receipt of the defence or after the receipt thereof, before taking any other proceeding in the action, by notice in writing duly filed and served, wholly discontinue his claim against all or any of the defendants or withdraw any part or parts of his claim…
Rule 1 (3): Where a defence has been filed, the plaintiff may with leave of a judge discontinue the proceedings or any part thereof on such terms and conditions as the judge may order.”
By this Rule 1 (1), a plaintiff or claimant is at liberty at any time before the receipt of the defence to his action but before taking any other proceedings in the suit, to withdraw his claims either wholly or in part against some or all the defendants by a

Notice in writing. The only price is the payment of costs to the defendant(s) occasioned by the claim so withdrawn or discontinued. The conditions for a withdrawal or discontinuance under this Rule 1 (1) are that the withdrawal/discontinuance of the claim/action must be done before the receipt of defence to the action; the withdrawal/discontinuance must be by notice in writing duly served, and upon the payment of costs. See MINISTRY OF WORKS VS. TONIMAS NIG. LTD. (2002) 6 NWLR (PT. 762) 181.
Where the defence has been filed, the plaintiff can still discontinue his action or withdraw any part of his claim against all or any defendant under Rule 1 (3) by leave of Court upon the terms and conditions as the judge may order. Such leave is at the discretion of the Court and the application may be oral or a formal written application on notice. See UMEANADU VS. ATTORNEY GENERAL ANAMBRA STATE (2008) 9 NWLR (PT. 1091) 175.

In the case at hand both the formal and oral applications to strike out some defendants were made before the receipt of the statement of defence which was filed after the close of the plaintiff’s

evidence. As the record shows, the Appellants formally withdrew their case, pursuant to the motion dated 10/05/2016, against the 7th, 15th, 18th, 17th, 18th, 21st, 24th, and 25th defendants who were defendants on the original statement of claim and their names were struck. In addition to the formal application discontinuing the action against the stated defendants by striking out their names, Appellants’ Counsel made other oral applications, on the 24/11/2016 that the names of the 12th and 18th defendants on the amended statement of claim be struck out because they had paid the cost of the land to the Appellants. Similarly, on 27/2/2017 after the testimony of the 2nd Appellant as PW1, (the sole witness for plaintiffs), Counsel again informed the Court that the Appellants had settled with the 4th and 11th defendants and orally applied that their names be struck out. On both occasions, the Court out of the exercise of its discretion, dispensed with the requirement of a formal application and granted the Counsel’s oral application to strike out the names of the 12th & 18th and 4th & 11th defendants respectively from the amended

statement of claim. The Court has the discretion so to do and by those orders, the 4th, 11th, 12th and 18th defendants ceased to be defendants to the amended statement of claim except the 11th defendant whom the Appellants later by motion on notice filed on 2/5/17 relisted as a defendant and was by order of Court so relisted on 18/5/2017 as a defendant (see page 104 of the record).

With respect to the information by the Appellants Counsel to the Court on 10/5/2016 that they (Appellants) had settled with the 4th, 9th, 10th, 12th, 14th, 15th, 17th and 18th defendants and their names had been struck out, there is no record to the effect that their names were struck out except for the 4th, 12th, and 18th whose names were later struck out by the Court. There is no record to show that the 9th, 10th, 15th and 17th defendants were struck out as defendants from the amended statement of claim. Conversely, the inclusion of their names on the amended statement of claim filed later in time (on 18/5/2016) to the oral information (on the 10/5/16) is a clear indication that the Appellants did not discontinue/withdraw their claim(s) against the said defendants. Therefore,

as testified to and prayed by PW1, the Appellants case was against all the 1st to the 18th defendants except the 4th, 12th, 14th (exempted by PW1 in his prayer) and the 18th defendants. The lower Court was thus wrong to have held that the Appellants had no case against them.

The Respondent’s feeble argument that the two pleadings are the same is not supported by the record and cannot fly. This is so because in addition to the amendment of defendants’ names on the original statement of claim by the deletion of certain names, the original statement was substantially amended by amending paragraphs 4, 9, 10, 11, 12, 13, 14, and 16 of thereof.

The other argument by the learned Counsel justifying the lower Court’s reliance on the original statement of claim as the Appellants failure to endorse the amended statement of claim as directed by the Court in compliance with Order 24 Rule 6 of the Rules of the lower Court also cannot fly. I quite agree and appreciate the position of law which has now become a judicial chorus that Rules of Court are made to be obeyed and every Court should endeavor to see to it that its Rules or the Rules

of other Courts are obeyed. It is however, not in every case that non observance/compliance with the procedural Rules of Court will have fatal consequences on the disobedient party or as in this case, would justify a wrong action taken by the Court. The purpose of endorsing the amended pleadings as rightly submitted is for ease of identification of the process. However, it cannot be successfully argued that the Court which granted the amendment would have failed to see the amended statement of claim at page 61 of the record and clearly so titled and contained in its file. The failure to endorse on the amended statement the date it was so amended in my view, is not sufficient to justify the lower Court relying on the original statement of claim which it had amended. In sum, we agree with the Appellants’ Counsel that the lower Court was wrong in its holding that the Appellant had no case against those defendants. The question of whether the claim is proved against them is the subject of Issue No. 2 be considered anon.

With respect to the 1st, 2nd, and 15th Respondent (4th Respondent having later been struck out) who did not enter appearance, the

law is that in a civil action, the entry of appearance is a formal step taken by a defendant to an action who has been served with the plaintiffs originating process. Such appearance, if unconditional signifies the service of the originating process(es) on the defendant and must be done within the prescribed time by filing a memorandum of appearance. INAKOJU & ORS VS. ADELEKE & ORS (2006) 12 SC P1, (2007) 2 FWLR (Pt 366) 2403, ADEGOKE MOTORS LTD. VS. DJ.J. ADESANYA & ANOR. (1989) 3 NWLR (Pt 109) 250.
By Order 9 Rule 1 (1) of the Kano State High Court Rules 2014, a defendant served with an originating process shall within the period prescribed in the process for appearance, file in the registry the original and copy of duly completed and signed memorandum of appearance as in Form 15 with such modification or variations as the circumstances may require. The defendant is by this Rule required to enter appearance by filing in the Registry of the Court within the period specified by the originating summons, a memorandum of appearance which shall be duly signed, the significance of which is to indicate that the suit will be contested. If the defendant

fails to enter an appearance, the suit will be treated as undefended and plaintiff may proceed to ask for judgment to be entered in his favour or for the case to be set down for hearing. See INAKOJU & ORS V ADELEKE & ORS (Supra).
A defendant who intends to contest the suit shall within 14 days of the time prescribed for appearance or if he enters no appearance within 21 days of the service of the originating process, file his defence. See Order 17, 2 (1) & (2). The simple implication of defendant’s failure to file a defence is that no issues are joined and he admits the plaintiff’s claim. In EGESIMBA V ONUZURUIKE (2002) FWLR (Pt 128) 1227, at 1408, the Court held thus: “where the only pleading filed is the statement of claim, absence of a statement of defence means that no issue is joined”.
The all-important question now is whether the said defendants were served with the originating processes as proof of service is a precondition and is sine qua non to the exercise of jurisdiction by the Court over the defendants. A Court of law has no jurisdiction over a person who has not been served with its processes.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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The consistent evidence on record is that these defendants were duly served. The Court was so informed on 16/11/15, that the 1st, 2nd, 4th, 9th, 15th defendants had been served and the 2nd – 7th, 9th 15th agreed to repurchase the land. Then on 13/12/2016 the Court stated thus: –
“I am satisfied that hearing notice have been served on the 1st, 2nd – 9th, 14th, 17th defendants were (sic) served because I have the hearing notice and affidavit of service. Plaintiff may continue.”
(see P. 95 of the record).
Similarly, on 06/02/2017 the Court stated:
“I am satisfied the parties who have no Counsel have been served. The Counsel can proceed”.
Therefore, it is not in doubt that the said defendants (1st, 2nd, 4th & 15th Respondents) were duly served with the originating processes and hearing notices but deemed it not necessary to enter appearance or to defend the case.
The implication of their failure so to do is that they admitted the Appellant’s claim.

ISSUE NO. 2
Whether the lower Court was right in holding that the Appellants failed to prove their case

and in entering judgment for the Respondents who did not counter-claim.
On this issue, it was submitted that the Appellants gave unchallenged evidence and tendered 4 Exhibits that the land in dispute belong to the Appellants which they bought customarily from one Alhaji Yahaya Hotoro at N21 million (Twenty-One Million Naira Only) and divided into 44 plots to sell to interested buyers out of which they sold 6 plots but, suddenly upon inspection of the land, the 2nd Appellant discovered that the 1st – 18th Respondents had trespassed into the land. Learned Counsel argued that the Counsel to the 3rd, 4th, 5th, 6th, 8th, 10th, 11th, 12th, 13th and 14th who was in Court and had the opportunity to cross-examine PW1 but failed to do so or to recall the PW1 for cross-examination, is deemed to have accepted the evidence of PW1 as the truth and the Court is bound to act upon it. ADO IBRAHIM & CO. LTD. VS. ELDESTAIN (NIG.) LTD. (2002) 1 NWLR (PT. 747) and ERESIA EKE VS. ORIKOHA (2010) 6 NWLR (PT. 1197) 421, 448.

He submitted that the Respondents never denied the Appellants legal right over the land as averred at paragraphs 4 – 8 of

the amended statement of claim but admitted through their 7 witnesses DW1 – DW7 in unison that they bought the plots of land from the 1st Respondent who they claim is an agent of the 2nd Appellant.

Counsel therefore faulted the pronouncement by the lower Court that the Appellants were not put in possession by the original owner when the vendor’s title is not in issue, citing AYANWALE VS. ODUSAMI (2011) 18 NWLR (PT. 1279) 328, PP 356 A – B.

The lower Court was also faulted for raising suo motu and resolving that the purchase price was not paid in the presence of witnesses and if the sale was under common law, the purchase receipt was inadmissible being an unregistered registrable instrument. Counsel argued that the purchase receipt is only a written agreement evidencing transaction over land purchased by the Appellants and that assuming but not conceding is a registrable instrument it is admissible to prove acknowledgment of receipt of money and that title passed to the Appellants as on the authority of DANTATA VS. DANTATA (2000) 4 NWLR (PT. 756) 144 and ASUQUO VS. EYO (2014) 5 NWLR (PT. 1400) 247, 266.

Again, Counsel blamed the lower Court for holding that the plaintiffs did not prove the boundaries of the land when the identity or boundaries of the land was not in issue or even made an issue, and also, for erroneously holding that Exhibits 2A & 2B are not survey plans. He cited the case of ADENLE VS. OLUDE (2002) 18 NWLR (PT. 799) 473.

On his issue 4 it was submitted that the case of the 3rd, 4th, 5th, 6th, 8th, 10th, 11th, 12th, 13th, and 14th defendants at the lower Court is that they bought their respective plots from the 1st Respondent who is an agent of the 2nd Appellant but failed to tender the receipts purportedly issued to them by the Appellants. He cited the cases of IWOK VS. UNIVERSITY OF UYO (2011) 6 NWLR (PT. 1243) 211; UBN (NIG) PLC VS. OFAGBE FARMS LTD. (PT. 787) 242 (incomplete citation), OKHUAROBO VS. AIGBE (2002) 9 NWLR (PT. 771) 29, 61 F – H to argue that the failure to produce the pleaded receipts calls for invocation of Section 149 (d) (now 167 (d)) of the Evidence Act against the said defendants. Learned Counsel further referred to paragraph 8 of the joint statement of defence and submitted that the Respondents did not

plead specifically any act of possession. What they pleaded is of the respective plots of land and the documents evidencing the purchase which they failed to tender yet the learned trial judge in making a case for the said Respondents who did not counter-claim, or seek any relief from the Court, held that though they did not counter-claim, evidence shows that they were in possession of the disputed plots of land. He cited the case of AKULAKU VS. YONGO (2002) 5 NWLR (PT. 759) 135, 170 A – C to submit that the Respondents are not entitled to the declaratory judgment having not counter-claimed possession.

Counsel contended that possession cannot confer title on the Respondents since they traced their title through the purchase of the land from the 1st Respondent whom they alleged is an agent of the 2nd Appellant, which assertion the learned trial judge faulted. He cited AWARA VS. ALALIBO (2002) 18 NWLR (PT. 799) 484 A – B.

In urging us to resolve the issue in favour of the Appellants, Counsel submitted that the duty of the Court is to consider and determine the case before it in the light of the complaints and issues properly

raised by parties since the case is that of the parties and not of the Court.

In his response, learned Counsel for the Respondents restated the law that a plaintiff in an action for declaration of title must prove his case on preponderance of evidence of the strength of his case and not on the weakness of the defence – IROAGBARA VS. UFOMADU (2009) 6 SCJN 183; OMISORE VS. AREGBESOLA (2015) ALL FWLR (PT. 813) 1673. He stated that the Appellant’s case as pleaded at paragraphs 4, 5, 8, 9, 10, & 13 is that the 2nd Appellant divided the land into 44 plots and a Mosque, serially marked, out of which he sold 6 plots and the 1st Respondent allegedly sold 24 plots to the 2nd – 18 Respondents but the Appellants did not plead or adduce any evidence of the identity of the said plots. He submitted that the plaintiff claiming the declaration of title must clearly show the area of land to which his claim relates even when the location and identity of it is not in dispute, citing the case of ECHERIM OFUME VS. ISAAC NGBEKE (1994) 4 NWLR (PT. 341) 746.

Another nagging question according to the Counsel that calls for determination is

whether the Appellants having pleaded that they had sold six of the plots are still entitled to seek a declaration of title as in relief (a) in respect of the said plots, the answer to which he submitted can be found in the authority of IGE VS. FARINDE (1994) 7 NWLR (PT. 354) 42. That since the Appellants cannot be allowed in law to claim the 44 plots, the lower Court was right in dismissing the Appellant’s claim.

On the failure to cross-examine the PW1, Counsel submitted that it is a misconception of law that unchallenged evidence must be accepted by the Court contending that such unchallenged evidence must also be legally sufficient to support the claim before the Court can act upon it in making any findings on the claim, MICHAEL VS. YUOSO (2004) ALL FWLR (PT. 209) 1015; MAINASARA VS. IMAM (2012) ALL FWLR (PT. 618) 854. He argued that the unchallenged evidence of PW1 that he bought the plot from one Yahaya Hotoro which is not supported by Exhibits 1A & 1B is not legally admissible evidence and does not meet the requirement of the law to support their main claim to the 44 plots of land. In urging us to hold that the Appellants

failed to prove their claim and to dismiss the appeal he cited the case of REPTICO S.A GENEVA VS. AFRIBANK NIG. PLC (2013) 5 SCNJ 479 to support his position that evidence led on unpleaded facts which goes to no issue must be discountenanced by the Court and the pleaded facts upon which no evidence is led must be deemed abandoned.

RESOLUTION OF ISSUE 2
The main issue here is whether the learned trial judge was right in holding that the Appellants failed to prove their claim and proceeded to enter judgment for the Respondents.

The case for the Appellants on pleadings and through their sole witness, PW1, is that the Appellants are the owners of a farmland situate at Hotoron Arewa quarters which they bought from one Yahaya Hotoro at N21 Million Naira and divided into 44 residential plots for sale to interested buyers, and a Mosque, out of which they sold six plots. The 2nd Appellant later discovered upon inspection, that 24 plots were under construction or outrightly sold to the 2nd – 18th Respondents who claimed to have purchased same from the 1st Respondent but the Appellants had no knowledge of such sale nor did they authorize the 1st

Respondent nor any other person to sell the plots. Hence the Respondents are in illegal possession/occupation and they sought from the Court a declaration of title and injunctive orders against the Respondents.

The case for the Respondents is that they bought the respective plots of land from the 1st Respondent who is a known business associate and agent of the Appellants whose agency the Appellants never denied. That the transactions which were entered into on behalf of the Appellants were registered and endorsed by the Ward Head of Hotoron Arewa as is the custom and tradition of the area. They pleaded the various purchase receipts of the transactions.

The age long and well settled principle of law is that a person seeking a declaration of title to or an interest in land where his title is challenged or denied is that he must prove his entitlement to the claim by credible evidence that he is in fact entitled to the declaration sought. He must succeed on the strength of his case independent of the weakness of the defendant’s case. The duty of the defendant except he is a counter-claimant, is only to defend the

action. OSUJI VS. EKEOCHA (2009) ALL FWLR (PT. 490) 614, 640 (SC); AKINDURO VS. ALAYA (2007) ALL FWLR (PT. 381) 1653.
The onus placed on the claimant to prove his claim requires him to prove two essential requirements. First and foremost, the identity of the land to which his claim relates and secondly, to adduce credible evidence in proof of his title to the land in dispute. ARABE VS. ASANLU (1980) 5 – 7 SC 78; OKE VS. EKE (1982) 218; and also the case of ECHERIM OFUME VS. ISAAC NGBEKE (supra) cited by Respondents Counsel.
With regards to the first requirement, the primary duty placed on the plaintiff who comes to Court to claim a declaration of title to land is to show the Court clearly the area of land to which his claim relates so that the land can be early identified with certainty. The claimant has to prove the defined area to which the declaration can be attached by showing the dimensions of the land, the boundaries and other features on the land. GBADAMOSI VS. DAIRO (2006) 18 NWLR (PT. 1010) 134; OKOCHI VS. ANIMKWOI (2003) 18 NWLR (PT. 851).

The purpose of establishing the identity of the land is to enable

the person claiming know precisely the area of land to which the judgment or order of Court would be placed and also to obviate the possibility of a future litigation on that same area of land as between the parties and their proves. Thus where the identity of the land is required to be proved and it is not established, the Court would not grant a claim of title over it. OFFODILE VS. OFFODILE (2019) 16 NWLR (PT. 1698) 189 AT 202 F – H.

Where however, the identity of the land is not in issue between the parties, the need to prove the identity does not arise and no onus lies on the claimant to prove the identity of the land as the fact is not an issue for determination between the parties. See KYARI VS. ALKALI (2001) LPELR – 1728 SC; ATANDA VS. AJANI (1989) 3 NWLR (PT. 111) 51.

The identity of the land will be in issue if and only if the defendant made it so in his statement of defence. In other words, the question of identity of the disputed land will be in issue only where the defendant joins issues with the plaintiff. See GBADAMOSI VS. DAIRO (2007) 3 NWLR (PT. 1021) 282; KANO VS. MAIKAJI (2011) 7 NWLR (PT.

1275) 139; ATANDA VS. ILIASU (2013) 6 NWLR (PT. 1351) 529.

A look at the joint statement of defence clearly shows that the Respondents did not join issues with the Appellants on the identity of the land. Their pleadings did not question the identity of the land nor was any evidence adduced challenging the identity of the disputed land. The Respondents only pleaded and claim that they bought the plots of land from the Appellants’ agent. The Appellants are thus not required to prove the identity of the land known to all parties. Accordingly, I discountenance the Respondents argument that the Appellants did not prove the identity of the land and hold that there was no need for the Appellants to prove the identity of the respective plots of land same not being an issue between the parties.

The second hurdle for the claimant where his title is challenged, is to prove the root of his title to the disputed land by leading evidence to establish his claim. In the case at hand the Respondents do not contest the Appellants original ownership of the land in dispute. Their only claim is that they bought the various plots

of land from the 2nd Appellant through his well-known agent, the 1st Respondent, to whom they had made payment and that the Appellants instituted the action only to get more money from them. This is their case at pleadings and the general tenor of evidence of their seven witnesses. DW4 Barrister Bashiru Halilu who is the third Respondent stated in cross-examination thus:
“The plot we bought is for Alhaji Dauda the 2nd Plaintiff…”.
Paramountly, issues were not joined at pleadings on the Appellants’ title to the land nor how same was acquired. The Respondents having admitted the Appellants title to the land, bear no burden to prove an admitted title.
The law is trite that where a defendant in an action for declaration of title to land admits in his pleading that the claimant is the original owner of the land in dispute, the onus is on the defendant to establish a change of ownership by sale, gift or otherwise. The onus shifts to the defendant to prove how the claimant forfeited or transferred his original title so acknowledged to the defendant either directly by gift or assignment or even to a

third party from whom the defendant derived title. In that case, there is no onus on the plaintiff to establish a sale or a grant of land, the burden having shifted to the defendant. See ONOBRUCHERE VS. ESEGINE (1986) 1 NWLR (PT. 19) 792, where the apex Court held per Oputa JSC inter alia:
“… The onus or burden of proof is merely an onus to prove or establish an issue. There cannot be any burden of proof where there are no issues in dispute between the parties. For example, if the plaintiff claim is admitted that will be the end of the story.… Where for instance the plaintiff pleads possession of the land in dispute as his root of title and the Appellant admits possession but adds that the land was given to plaintiff on pledge, the onus shifts to the Appellant to prove that the plaintiff is not the owner of the land in his possession of which had been admitted.”
Similarly, in the case of MOGEKWU & ANOR VS. ADELANA & ORS (2014) LPELR – 23617 (CA) this Court per Abiru JCA applying among others the above decision of ONOBRUCHERE VS. ESEGINE (Supra) held thus:
“It is trite that where a defendant in an

action for declaration of title to land admits in his pleadings that the claimant is the original owner of the land in dispute, the onus is on the defendant to establish a change of ownership by sale or otherwise. In that case, there is no onus on the claimant to establish a sale or a grant of the land. Thus, it is the duty of the defendant to begin to adduce evidence, for it is the defendant who would lose if no more evidence is adduced having regard to the state of the pleadings – Ochoma Vs Unosi (1965) NMLR 301, Isiba Vs Hanson (1967) 1 All NLR 8, Mogaji Vs Odofin (1978) 4 SC 91, Bello Vs Eweka (1981) 1 SC 101, Onobruchere Vs Esegine (1986) 1 NWLR (Pt 19) 799, Ezeudu Vs Obiagwu (1986) 2 NWLR (Pt. 21) 208, Adedeji Vs Oloso (2007) 5 NWLR (Pt 1026) 133, Awure Vs Iledu (2008) 12 NWLR (Pt 1098) 249, Adole Vs Gwar (2008) 11 NWLR (Pt 1099) 562, Orlu Vs Gogo-Abite (2010) 8 NWLR (Pt 1196) 307. In the instant case, the Appellants having admitted that the land in dispute originally belonged to the late husband of the first Respondent, the onus was on the Appellants to prove the sale of the land in dispute to them and the first Respondent had no onus”.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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In the instant case, the Respondents having admitted and acknowledged the Appellants’ title to the land but averred that they bought the respective plots of land from the Appellants through their agent, the onus was on the Respondents to prove the sale of the land to them by the Appellants’ known agent with the knowledge and on behalf of the Appellants.

What follows is whether there is evidence on record establishing the Respondents’ claim that the 1st Respondent sold the land to them as an agent of the Appellants. In other words, that the sale transactions between the 1st Respondent and the other Respondents were conducted by the 1st Respondent in his capacity as an agent of the Appellants, as the principals.

It is trite that the burden of proof rests on the party, whether plaintiff or defendant, who asserts the affirmative of the issue, here, the ownership of the land by purchase from the Appellants through the Appellants’ agent, to prove what they assert. They do this by firstly proving the existence of an agency relationship between the 1st Respondent and the 2nd Appellant, Appellants having vehemently denied

such a relationship, and secondly, by proving that they bought the land from the 1st Respondent as agent of the Appellant.

The term “agency” in law connotes a relationship where one person has authority to act on behalf of another to create a legal relationship between that other and third parties. Generally, agency relationship exists in law when one person called the “agent” is vested with authority (express or implied) to act on behalf of another called “the principal” who consents to the act of the agent. An agent denotes one who acts, a doer that accomplishes a thing or things on behalf of the principal and not for himself. He is authorized to act for or in place of another, a representative. BAMGBOYE VS. UNIVERSITY OF ILORIN & ANOR (1999) 10 NWLR (PT. 622) 290 AT 329.
The existence of agency relationship depends on the nature of the agreement or the circumstances of the relationship between the alleged ‘principal’ and the alleged ‘agent’ and not necessarily on the exact phraseology used. See OSIGWE VS. PSPLS M. CONSTORTIUM LTD. (2009) 3 NWLR (PT. 1128) 378.

Therefore, the relationship arises basically in 3 ways. Namely; (a) by agreement, whether contractual or not between the principal and the agent which may be express or implied from the conduct or situation of parties; (b) retrospectively, by subsequent ratification by the principal of acts done on his behalf by the agent and (c) by operation of law under the doctrine of agency of necessity and some other cases. Agency may also operate by estoppel where the principal by operation of law is precluded from denying that another person acted on his behalf in an arrangement with a third party. See UTC NIG. LTD. VS. WEMA BANK PLC & INTEGRATED TRUST INVESTMENT LTD. (2002) 12 NWLR (PT. 781) 214; ORJI VS. ANYASO (2000) 2 NWLR (PT. 643).

Now, the Respondents pleaded and averred in their respective statements on oath that the 1st Respondent is a known business associate and agent of the 2nd Appellant; that the various sale transactions between them and the 1st Respondent acting as the agent of the Appellants were endorsed and sealed by the Ward Head of Hotoron Arewa; that the transaction and purchase receipts were in the name of the 1st

Appellant and the purchase receipts were pleaded. However, none of the 7 witnesses, DWs 1 – 7, tendered the purchase receipts or any document evidencing as they claimed, that the transactions were conducted on the letter headed paper of the 1st Appellant. Ironically, they stated that they handed over their purchase receipts to the 1st Respondent. Quite incredible. Is it reasonable for a purchaser issued with a receipt evidencing payment by him to the vendor to hand over the receipt, his proof of parting with his money and the vendors parting with his property, back to the vendor and not to have a copy of the purchase receipt? Methinks not. This is unbelievable. DW1 like the other defence witnesses admitted not been shown any document evidencing that the 2nd Appellant appointed the 1st Respondent as his agent. Even DW7 who said he was shown the headed paper of 1st Appellant before buying the plot failed to tender any such document or the purchase receipt.
The palpable explanation for their failure to tender the receipts or any document in proof of their claim that the transactions were rendered by the 1st Respondent

on behalf of and on the headed paper of the 1st Appellant is that if they had been tendered, they would have gone against their assertion. I agree with the Appellant’s Counsel that the presumption in Section 167 (d) of the Evidence Act 2011 operates against the Respondents see IWOK VS. UNIVERSITY OF UYO (2011) 67 NWLR (PT. 1243) 211, F – H. Additionally, DW1 specifically stated in cross-examination that “I made effort to get to the 2nd plaintiff over the agency of the 1st defendant but (sic) did not take me to the 2nd plaintiff”. This further explains why the 1st Respondent, the person at the centre of it all though served did not even appear to defend the action and to deny or affirm the claim.
Respondents therefore failed to place any documentary or concrete evidence before the Court showing the creation or the existence of an agency relationship between the 1st Respondent and the 2nd Appellant nor did they specifically deny paragraphs 6 & 7 of the amended statement of claim wherein it was pleaded that all documents evidencing sale transactions by the Appellants are on the standard Form of the 1st

Appellant with its office address and that all sale transactions by the Appellants must be stamped by them.
The legal conclusion from all these is that the Respondents failed to establish an agency relationship between the 2nd Appellant and the 1st Respondent. They also failed to support their pleadings with evidence that they purchased the respective plots of land from the 1st Respondent, having failed to present the purchase receipts before the Court.
It is not enough to plead that one person is an agent of the other without any evidence to support the assertion. Merely pleading as the Respondents did that the 1st Respondent is a close associate and known agent of the 2nd Appellant without proof does not establish agency relationship. Any person can exploit a close relationship with another to engage in contractual transactions with 3rd parties and create liability for the other to bear without the knowledge and consent of the other on whose behalf he acts. Something more has to be shown to establish the existence of an agency relationship between an acclaimed agent and an acclaimed principal. That proof is

absent in the present appeal.
The law is settled that a claimant who fails to prove the root of his title must fail in his claim.

Assuming, (and I am not saying so), that the general principle of law that a declaratory relief cannot be granted upon admission applies even where as in the present appeal pleadings are filed and parties join no issue on the claimant’s title, I will still be in a very comfort zone of the law to say that a minimal proof by the claimant will entitle him to the declaration sought.

Now, in proof of their claim, the Appellants tendered the purchase receipt of the land, Exhibits 1A & 1B as the sale agreement and the purchase receipt between himself as the purchaser and Yahaya Yakubu Hotoro as the vendor. They contain the purchase price of N21,000,000 and the description of the property sold to the 2nd appellant.

Counsel for the represented Respondents has contended that because the Appellants pleaded that they divided the land into 44 plots and Exhibit 1A states that the plots sold to the appellants are numbered 1 – 24, 42 and 44, a total of 26 plots, its contents are at variance with the

evidence and does not support the appellant’s claim. I disagree. The issue is whether the receipt evidences purchase of land at Hororon Arewa by the 2nd Appellant from his predecessor in title Alhaji Yahaya Yakubu for the stated amount of money. Whether the land was divided into 44 plots, or was divided into plots 1 – 24, 42 and 44 does not affect the fact of the purchase of the land which the document evidences – nor does it render the evidence of PW1 at variance with the pleadings to warrant the evidence being discountenanced.

Paramountly, issues were not joined at pleadings on the Appellants’ title to the land nor how same was acquired. Paragraph 4 of the amended statement of claim wherein the appellants pleaded:
The Plaintiffs avers that precisely on 31st December, 2006, the 2nd Plaintiff bought a Farmland situates at Hotoro Area Quarters, in Nassarawa Local Government Area of Kano State, from one Alhaji Yahaya Hotoro the customary owner for the sum of N21,000,000.00 (Twenty-One Million Naira Only) on behalf of the 1st Plaintiff and since then have been in through the Customary Owners.
was not specifically denied.

It is not the case of the respondents that the Appellants’ title through whose agent they claimed to have derived their own title, is a defective title. That couldn’t have been their case.

Furthermore, the evidence of PW1 remained unchallenged and uncontroverted throughout the trial and contrary to the contention of the Respondent’s Counsel, the unchallenged evidence supports the Appellants’ claim. The effect of the failure of the Respondent’s Counsel to cross-examine PW1 on the crucial and material evidence is that they admitted his evidence in chief. By implication, they accepted the truth of the evidence of PW1 on the matter so testified to. See OFORLETE VS. THE STATE (2000) 12 NWLR (PT. 681) 415; BELLO VS EWEKA (1981) 1 SC 101; ERESIA – EKE VS. ORIKOHA (2010) 8 NWLR (PT. 1197) 421, 448 E.

The fall out of the foregoing is that the Appellants’ title to the land in dispute was never an issue at pleadings. It is a fact admitted by the Respondents in their evidence. I therefore agree with the learned Appellant’s Counsel that the holding by the lower

Court that the Appellants were not put into possession by the original vendor is not supported by the record. The case of MANYA VS. IDRIS (2000) LPELR – 10172 (CA) relied upon was misapplied.

On the record, the Appellants adduced sufficient evidence to establish their claim and shifted the onus unto the Respondents to prove their claim on the pleadings. The Respondents failed to do that.

This much the lower Court found, that the Respondents’ assertion (that they bought the plots from the 1st Respondent whom they said is an agent to the plaintiffs), was not supported by evidence. However, in a complete somersault the same learned trial judge who made a finding that he did not believe, to his words “the truth of such testimony” in a 360 degree twist immediately following that finding held:
“Even though the defendant did not counter-claim however available evidence before me both from the plaintiff and the defendants shows that the defendants were in possession of the disputed lands. The plaintiff was not able to prove trespass to enable him possession because the plaintiff have not dislodged

the evidence of the defendants being in possession”.

This finding and conclusion are not only in conflict with the law and incongruent with the earlier finding by the Court, but is also perverse. It is in violent conflict with the evidence on record that the radical root of title from whom the Respondents claimed to have derived their title by virtue of which they were in possession, resides in the Appellants. Therefore, the above finding and conclusion clearly run counter to the evidence. They are perverse. Perversity occurs when (i) the judgment of the Court runs counter to the evidence adduced before the Court, or (ii) it has been shown that the trial Court took into account matters which it ought not to have taken into account or (iii) shuts its eyes to the obvious or a miscarriage of justice. See AGBOMEJI VS. BAKARE (1998) 9 NWLR (PT. 564) 1 SC; MOMOH VS. UMORU (2011) 15 NWLR (PT. 1270) 217; OFFODILE VS. OFFODILE (2019) 16 NWLR (PT. 1698 189.

The law is trite that a party who fails to prove the pleaded root of title, for instance purchase or gift of land, cannot turn round to rely on acts of possession for such acts of

possession become acts of trespass and no longer inures him. In the case of OKHUAROBO VS. AIGBE (2002) 9 NWLR (PT. 771) PAGE 29, PP 61, PARAS F – J the Supreme Court held thus:
“where a party pleads purchase or gift as his root of title, as in this case, he either succeeds in proving the purchase or gift or he fails. If he fails to prove the title pleaded, he cannot turn round to rely on acts of possession or acts of ownership which are acts in the nature of things derivable from and rooted in the radical title pleaded. Equally once radical title has been pleaded and proved, acts of ownership or possession resulting from such title need no longer be considered for they are non-issues, conversely, where the title pleaded has not been proved it will be unnecessary to consider acts of possession for they became no longer acts of possession but acts of trespass.”

Obviously, the finding and conclusion of the lower Court run counter to the evidence. The pronouncement by the Court entering judgment for the Respondents merely on the basis of being in possession, runs counter to the evidence on record. In a scenario

such as the one in this appeal, the duty of an appellate Court when it comes to a finding that a finding or decision of the lower Court is perverse, is to set aside the perverse finding or decision to right the wrong and to put an end to the miscarriage of justice. It is therefore necessary in the circumstances of this appeal for this Court to discharge its duty to set aside the perverse decision of the Court below. It is so set aside.

We resolve the issue in favour of the Appellants and allow the appeal. Consequently, judgment is hereby entered jointly and severally against the 1st, 2nd, 3rd, 5th, 6th, 7th, 8th, 9th, 10th, 11th, 13th, 15th, 16th and 17th Respondents in favour of Appellants granting the Appellants’ relief at paragraph 17 (a) (b) (c) of the amended statement of claim. In other words;
a. It is hereby declared that by virtue of purchase the plaintiffs/Appellant are the legal owners of all that piece of land situate at Hotoron Arewa in the Nassarawa District of the Nassarawa Local Government Area, Kano, Kano State consisting of 44 plots bordered in the North, South, West and East by existing buildings.

is also declared that the act of the defendants/Respondents in trespassing and or claiming same without any reasonable justification is unlawful and actionable in law and also remediable with general and aggravated damages.
c. An Order of perpetual injunction is hereby made restraining the defendants/Respondents by themselves, their agents, privies, servants, assigns and whosoever that may be claiming through them from further trespassing into or claiming the land, the subject matter of this suit.
In addition,
d. The Respondents are ordered to pay to the plaintiffs/ Appellants the sum of N500,000.00 (Five Hundred Thousand Naira) as general damages for trespass and mischief.
These shall be the orders of this Court.

ABUBAKAR DATTI YAHAYA, J.C.A.: I have read before now, the lead Judgment of my learned brother Wambai JCA just delivered. As usual, my lord has comprehensively considered and resolved the issues for determination. I adopt the reasoning and conclusion reached therein. I therefore also find merit in the appeal and I allow it. I abide by the Orders made therein.

HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.: I have had the privilege of reading before now the lead judgment delivered by my learned brother, Amina Audi Wambai, JCA. His Lordship has considered and resolved all the issues in contention in the appeal. I agree with the reasoning and abide the conclusions reached therein.

This appeal arose out of a land dispute. The case of the Appellant was that they purchased a large farmland, which was bordered on all sides by existing buildings and was situate in Hotoro Arewa Quarters of Kano, from one Alhaji Yahaya Hotoro, the customary owner, for the sum of N21 Million on the 31st of December, 2006, as evidenced by a Sale Agreement. It was their case that they went into possession of the land and demarcated same on a plan into forty-four plots, with a provision for a mosque, with the intent of selling the plots to intending buyers for development. It was their case that they commenced the selling of the plots of land in 2012 and had sold six plots by 2014 and that on a routine visit to the land in May 2015, they discovered the second to the seventeenth Respondents carrying out construction works, which were at

different stages, on some of the plots of land. It was their case that their enquiry revealed that it was the first Respondent that sold the plots of land to the second to the seventeenth Respondents and that the first Respondent did not have their authority to sell the land and that all attempts to get the Respondents off the land proved abortive.

The Respondents did not contest the ownership of the plots of land by the Appellants and it was their case that they purchased their different plots of land from the first Respondent, a well-known business associate and the authorized agent of the Appellants, and that the first Respondent sold the plots of land with the authority of the Appellants and that the transactions were concluded in the name of the second Appellant. It was their case that the transactions were endorsed, sealed and registered with the Ward Head of Hotoro Arewa Quarters in accordance with the custom and tradition of the locality and they were lawfully in occupation and possession of the different plots of land being the owners of same.

The matter proceeded to trial and in the course of which the second Appellant testified for

the Appellants and he gave evidence in terms of their case on the pleadings and he tendered the Hausa and English versions of Sale Agreement for the purchase of the land as Exhibits 1A and 1B and the site plan by which the land was demarcated into forty-eight plots plus a portion for a mosque as Exhibits 2A and 2B. The second Appellant was not cross-examined. Seven of the Respondents testified for the defence and they gave evidence in line with their case on the pleadings and under cross examination, they reiterated that it was from the first Respondent that purchased their plots of land and that it was to him that they made payments and they admitted that the first Respondent did not show them any document appointing him as agent by the Appellants and that the plots of land did not belong to the Ward Head of Hotoro Arewa Quarters.

The lower Court dismissed the claim of the Appellants for ownership of the plots of land and, in doing so, the lower Court stated in the judgment thus:
“Now from the evidence of the plaintiffs, no credible evidence that the plaintiffs vendor Yahaya Hotoro has put in the plaintiffs into possession after the sale,

secondly no evidence that the sum of the purchase price paid in the presence of witnesses. Assuming the sale was done under the common law or statutory law, still the requirement of the common law has not been fulfilled in that the sale agreement which is a registrable instrument, it has not been so registered which made it inadmissible. The plaintiffs failed to call his vendor or any of the witnesses mentioned in the said sale agreement which I hold to be very fatal to the case of the plaintiffs more especially that all the defendants testified that they are all in occupation of their plot since their purchase of their plots; even the plaintiffs in their pleadings said they saw the development of the plots by the defendants ….The fact that the plaintiff averred hat they were in possession is a clear evidence that when he purchased the plots he was never put into possession by his vendor.
Another requirement of the law for a plaintiff to succeed in a claim for a declaration of title to land, the plaintiff must state the boundaries of the land he sought for a declaration. This has been stated in a plethora of authorities which I need not mention

here because it is trite. The plaintiffs in the instant case have not identified the boundaries of the land in dispute. The mere tendering of a plan by the plaintiff will not discharge the requirement on the plaintiffs. The reason being that the said plan has not been authenticated by the authorized body, i.e. the Surveyor General of Kano State, and the said plan was not signed by the maker. The maker too was not called by the plaintiff to testify to tender same. Therefore, the plan tendered and admitted as Exhibit 2A is inadmissible having not satisfied the requirement for admissibility and it is hereby expunged. While coming to the defence, they all testified that they bought the plot from the 1st defendant whom they said is an agent to the plaintiffs. This assertion is not supported by any evidence, therefore I do not believe the truth of the of the testimony. Even though the defendants did not counterclaim however available evidence before me both from the plaintiffs and defendants shows that the defendants were in possession of the dispute lands….
On the whole therefore I hold that the plaintiffs have not proved their case on the preponderance

of evidence as such this case is dismissed.”

In interrogating the reasons given by the lower Court for dismissing the claims of the Appellants, I will commence with the issue of lack of proof of the boundaries of the land in dispute. It is correct, as stated by the lower Court, that it is an age long principle that any person claiming an interest in land must prove the exact location of the land and the precise area to which his claim relates. This is the foremost and a fundamental duty on a Claimant in a land dispute -Epi Vs Aigbedion (1972) 10 SC 53, Akeredolu vs Akinremi (1989) 3 NWLR (Pt 108) 164, Dabup vs Kolo (1993) 9 NWLR (Pt 317) 254, Begha vs Tiza (2000) 4 NWLR (Pt 652) 193, Ilona Vs Idakwo (2003) 11 NWLR (Pt 830) 53, Okochi Vs Animkwoi (2003) 18 NWLR (Pt 851) 1, Aremu vs Adetoro (2007) 16 NWLR (Pt 1060) 244, Ukaegbu vs Nwololo (2009) 3 NWLR (Pt 1127) 194. This duty on a claimant to prove the identity of the land in dispute is, however, not an absolute one and it only arises where the identity of the land is in issue between the parties; where it is not in issue, the claimant has no duty to prove it —

Fatuade Vs Onwoamanam (1990) 2 NWLR (Pt 132) 322, Alabi vs Oloya (2001) 6 NWLR (Pt 708) 37, Adelusola vs Akinde (2004) 12 NWLR (Pt 887) 295, Ezukwu vs Ukachukwu (2004) 17 NWLR (Pt 902) 227, Nwokidu vs Okanu (2010) 3 NWLR (Pt 1181) 362, Maigari vs Mailafiya (2011) 1 NWLR (Pt 1228) 379, Dakolo vs Rewane-Dakolo (2011) NWLR (Pt 1272) 22.
Where the identity of the land is admitted by a defendant, there is no onus on a claimant to prove it — Aboyeji Vs Momoh (1994) 4 NWLR (Pt 341) 646, Ezukwu vs Ukachukwu (2004) 17 NWLR (Pt 902) 227, Ogbu vs Wokoma (2005) 14 NWLR (Pt 944) 118, Otanma Vs Youdubagha (2006) 2 NWLR (Pt 964) 337, Maishanu vs Anchan (2008) 6 NWLR (Pt 1084) 565, Nwokidu vs Okanu (2010) 3 NWLR (Pt 1181) 362. Also, where the identity of the land is ascertained with clarity from the pleadings of the parties, the burden to establish the identity of the very land ceases to be on the claimant — Adelusola Vs Akinde (2004) 12 NWLR (Pt 887) 295, Ogun vs Akinyelu (2004) 18 NWLR (Pt 905) 362, Charlie vs Gudi (2007) 2 NWLR (Pt 1017) 91. Similarly, where the area of land in dispute is well known to the parties, or where there is enough evidence for the Court to infer the

identity of the land, the question of proof of the identity of the land does not arise — Akinterinwa Vs Oladunjoye (2000) 6 NWLR (Pt 659) 92, Gbadamosi vs Dairo (2007) 3 NWLR (Pt 1021) 282, Adedeji vs Oloso (2007) 5 NWLR (Pt 1026) 133, Orunengimo vs Egebe (2007) 15 NWLR (Pt 1058) 630, Aremu vs Adetoro (2007) 16 NWLR (Pt 1060) 244, Nwankwo Vs Ofomata (2009) 11 NWLR (Pt 1153) 496, Udechukwu vs Ezemuo (2009) 14 NWLR (Pt 1162) 525, Ayuya vs Yonrin (2011) 10 NWLR (Pt 1254) 135. Where the identity of the land in dispute is known to the defendant, the non-placement of the exact description of the land before the court by the claimant would not be fatal — Ekwomchi Vs Ukwu (2002) 1 NWLR (Pt 749) 590.

The Appellants described the portion of land claimed as a large farmland bordered on all sides by existing buildings and situate in Hotoro Arewa Quarters of Kano and which they demarcated on a plan into forty-four plots with a provision for a mosque, and on different portions of which the Respondents were presently carrying out construction works. The Respondents did not contest the description of the land by the Appellants and they admitted that they

were indeed on portions of the land and were carrying out developments thereon. In other words, the Respondents admitted the identity of the land in dispute and it is obvious that the land is very well known to the parties. There was thus no onus on the Appellants to prove the identity of the land in dispute. The lower Court was in clear error when it found otherwise and its decision to expunge the site plan of the Appellants, Exhibit 2A, by reason thereof is perverse and I set it aside.

Going to the finding of the lower Court on lack of proof of ownership of the land by the Appellants, the case of the Appellants was that they purchased the land from one Alhaji Yahaya Hotoro, the customary owner, for the sum of N21 Million on the 31st of December, 2006, as evidenced by a Sale Agreement. The law recognizes that there are two clear and distinct ways in which land can be properly and rightly sold, validly acquired and legally transferred in Nigeria and these are either under customary law; or under the received English law — Folarin Vs Durojaiye (1988) 1 NWLR (Pt 70) 351, Ojelade Vs Soroye (1998) 5 NWLR (Pt 549) 284, Buraimoh vs Karimu (1999) 9 NWLR (Pt

618) 310, Commissioner for Lands & Housing Kwara State Vs Atanda (2007) 2 NWLR (Pt 1018) 360. What determines under which system of law the sale has been conducted depends on the nature of the transaction and the procedure followed in making it; for example, sale by an agreement in writing is one of the absolutely necessary features of a valid sale under the received English law — Commissioner for Lands & Housing Kwara State vs Atanda (2007) 2 NWLR (Pt 1018) 360.
The Appellants relied on a Sale Agreement and it is thus clear from the facts of this case that the Appellants pleaded purchase under the received English Law. It is a well settled principle that the payment of purchase price coupled with being in possession thereof in a sale of land under English law confers an equitable title upon a purchaser which title is capable of defeating subsequent purchasers — Kachalla Vs Banki (2006) 8 NWLR (Pt 982) 364, Yaro Vs Arewa Construction Ltd (2007) 17 (Pt 1063) 333, Ezenwa vs Oko (2008) 3 NWLR (Pt 1075) 610, West African Cotton Ltd vs Yankara (2008) 4 NWLR (Pt 1077) 323. The Appellants gave evidence of payment of purchase price of N21

Million and they tendered the Sale Agreement as Exhibit IA and the agreement confirmed on its face the sum paid by the Appellants.
The lower Court held that the Sale Agreement was a registrable instrument that must be registered for it to be admissible. It is trite law that it is not every document affecting land that qualifies as an “instrument” that requires registration. Where a document does not confer a title to land, it is not a registrable instrument and need not be registered — Fasonu Vs Fawehinmi (1997) 3 NWLR (Pt 492) 182 at 189, Alimi Vs Obawole (1998) 6 NWLR (Pt 555) 591, Ibrahim Vs Osunde (2003) 2 NWLR (Pt 804) 241. Thus, it has been held by the courts that an agreement for sale of land and an agreement for a lease are not land instruments requiring registration as they are not, on their own, capable of conferring the right or title to or interest in land — Tella Vs Usman (1997) 12 NWLR (Pt 531) 168, Sanni vs Ogunbode (2001) 18 NWLR (Pt 714) 74. The holding of the lower Court that the Sale Agreement is a registrable instrument that required registration to be admissible was erroneous. The Sale Agreement was evidence of payment of

purchase price by the Appellants.

It was the case of the Appellant that they went into possession of the land and demarcated same on a plan into forty-four plots with a provision for a mosque and that they sold six of plots of land and they tendered the site plan showing the land laid out into plots as Exhibit 2A. This case of the Appellants was unchallenged by the Respondents and it is settled that unchallenged evidence of a fact constitutes sufficient proof of that fact and should be accepted and treated by a trial Court as such — Olude vs State (2018) LPELR 44070(SC), Daniel vs Ayala (2019) LPELR 49344(SC), Onyiorah vs Onyiorah (2019) LPELR 49096(SC).

It is trite law that the selling of land and the putting of assignees and tenants on the land constitutes acts of possession —Mogaji Vs Cadbury Fry (Export) Ltd (1972) 2 SC 97at page 104, Adewole vs Dada (2003) 4 NWLR (Pt 810) 369, Asiniola vs Fatodu (2009) 6 NWLR (Pt 1136) 184. Again, it is only logical that the Appellants went unto the land to take measurements and dimensions in carrying out the demarcation of the land into plots. The Supreme Court has held that going unto a parcel of land

to take measurements and dimensions for the purpose of preparing a plan was a sufficient act of possession to ground a claim for ownership of land – Bassil vs Fajebe (2001) 11 NWLR (Pt 725) 592 and Adeniran vs Alao (2001) 18 NWLR (Pt 745) 361.
What these translate to is that the Appellants led adequate evidence of payment of purchase price and possession of the land to support their case of purchase of the land and this invested them with an equitable title over the land in dispute. The Courts have held that such a title is sufficient to sustain a claim of ownership Of land — Iragunima Vs Rivers State Housing and Property Development Authority (2003) 12 NWLR (Pt 834) 427, Ashiru vs Olukoya (2006) 11 NWLR (Pt 990) 1, Etajata vs Ologbo (2007) 16 NWLR (Pt 1061) 554. The lower Court was thus again clearly in error when it found that the Appellants did not lead evidence of possession and that they failed to discharge the onus on them in proof of ownership of the land. The Appellants did.

With this finding, the onus automatically shifted to the Respondents. It is trite law that in claim for ownership of land, where a claimant discharges the onus of

proof on him, the onus shifts to the defendant to show that his own possession is of such a nature as to oust that of the original owner — Awomuti Vs Salami (1978) 3 SC 105, Sanyaolu Vs Coker (1983) 1 SCNLR 161, Dosunmu vs Joto (1987) 4 NWLR (Pt 65) 297, Agbonifo vs Aiwereoba (1988) I NWLR (Pt 70) 325, Buraimoh Vs Bamgbose (1989) 3 NWLR (Pt 109) 352, Adedeji vs Oloso (2007) 5 NWIR (Pt 1026) 133, Margi vs Yusuf (2009) 17 NWLR (Pt 1169) 162. The case of the Respondents was that they purchased their different plots of land from the first Respondent, a well-known business associate and the authorized agent of the Appellants, and that the first Respondent sold the plots of land with the authority of the Appellants and that the transactions were concluded in the name of the second Appellant. All the witnesses of the Respondents testified in line with these assertions, but they admitted under cross-examination that they did not see the document authorizing the first Respondent to sell the land.

In the above reproduced excerpts of the judgment, the lower Court found that the evidence led by the Respondents in proof of their purchase of the land was not

credible, reliable and/or true. The Respondents did not cross appeal or, in any way, challenge this finding of the lower Court in this appeal. It is settled law that a party against whom findings of fact were made has a duty to appeal against those findings otherwise he shall be deemed to have accepted the adverse findings on the issue and such findings bind the parties and the appellate Court and cannot be revisited — Daniel Vs Federal Republic of Nigeria (2015) 13 NWLR (Pt 1415) 119, Offodile vs Offodile (2019) LPELR 47851(SC), Jato vs State (2019) LPELR 49310(SC). This finding completely broke the backbone of and crumbled the case of the Respondents.

The Respondents did not, thus, lead any evidence to oust the ownership of the land by the Appellants. The fact of the Respondents being in possession of the land did not help their case. The law is that no amount of use or the length of period of usage could confer ownership of land on such a user and it behooves such a party to prove his ownership in the first place in order to justify the use to which the land in dispute had been put to. Enjoyment of a land in dispute cannot precede title nor can

it indicate same — Registered Trustees of the Apostolic Faith Mission vs James (1987) 3 NWLR (Pt 61) 556, Nwaeseh vs Nwaeseh (2000) 3 NWLR (Pt 649) 391, Yusuf vs Adegoke (2007) 11 NWLR (Pt 1045) 332, Olubodun Vs Lawal (2008) 17 NWLR (Pt 1115) 1. It is clear that the Appellants made out a better case of ownership of the land in dispute than the Respondents. The lower Court was in error when it found that the Appellants did not prove their case by a preponderance of evidence. The Appellants are entitled to succeed in their claim for ownership of land.

The Appellants also claimed in trespass and they sought for injunction to restrain further trespass and damages. Trespass is a violation of possessory rights; trespass to land is unlawful interference with exclusive possession. The slightest disturbance to the possession of land by a person who cannot show a better right to possession constitutes trespass in law — Solomon Vs Mogaji (1982) II SC 1, Oyebamiji Vs Fabiyi (2003) 12 NWLR (Pt 834) 2n, Echere vs Ezirike (2006) 12 NWLR (Pt 994) 386, Ogbeide vs Osifo (2007) 3 NWLR (Pt 1022) 423. It is defined as an unauthorized and direct breach of the

boundaries of another’s land. No intent to commit trespass is required so long as the act resulting in the trespass is violational and the resulting trespass is direct and immediate. It does not depend on the intention of trespasser, nor can he plead ignorance as to the true owner or that he thought the land belonged to him. It is enough that the right of the owner or person in exclusive possession was invaded — Dantsoho Vs Mohammed (2003) 6 NWLR (Pt 817) 457, Fagunwa vs Ädibi (2004) 17 NWLR (Pt 903) 544, Yusuff vs Keinsi (2005) 13 NWLR (Pt 943) 554.

The Appellants claimed that they were in possession of the land in dispute before the advent of the Respondents thereon. The Respondents countered that they were in possession of the land. The law is that there cannot be anything like concurrent possession by two parties claiming adversely to each other. Legal possession by one party, whether de jure or de facto, physical or constructive, excludes the other; thus, two persons cannot be in possession of land at the same time. One is the lawful possessor, whereas the other is the trespasser — Amakor Vs Obiefuna (1974) 3 SC 67, Okupe vs Ifemembi

(1974) 3 SC 97, Eki vs Giwa (1977) 2 SC 131, Adegbola vs Obalaja (1979) 2 LRN 164, Ayinla vs Sijuwola (1984) 5 SC 44.
Where two parties are both on a piece or parcel of land, claiming possession thereof, the possession being disputed, trespass will be at the suit of the one who can show that title to the land is in him — Kasunmu vs Abeo (1972) 2 SC 69, Umeobi vs Otukoya (1976) 4 SC 33, Mogaji Vs Cadbury (Nig) Ltd (1985) 7 SC 59, Ogundipe Vs Attorney General, Kwara State (1993) 8 NWLR (Pt 313) 558. Similarly, when the issue is as to which of two claimants has a better right to possession of a parcel of land in dispute, the law will ascribe such possession to the person who proves better little — Aromire Vs Awoyemi (1972) 1 SC 1, Fasoro vs Beyioku (1988) 2 NWLR (Pt 76) 263, Akunyili vs Ejidike (1996) 5 NWLR (Pt 449) 381, Audu vs Ndubuisi (1997) 3 NWLR (Pt 493) 306, Alimi vs Obawole (1998) 6 NWLR (Pt 555) 591.
This Court having found that the Appellants proved their ownership of the land in dispute, they are the lawful possessors of the land while the possession of the land by the Respondents amounts to trespass. The Respondents are liable to

the Appellants in trespass. The Appellants are entitled to their claims for damages and injunction — Olorunfemi Vs Asho (1999) 1 NWLR (Pt 585) 1 and Egwa vs Egwa (2007) 1 NWLR (Pt 1014) 71.

It is for these reasons and the fuller exposition of the law in the lead judgment that I too find merit in this appeal and I hereby allow same. I set aside the judgment of the High Court Of Kano State in Suit No W234/2015 delivered by Honorable Justice Mohammed Yahaya on the 19th of October, 2017. I abide the consequential orders made in the lead judgment.

Appearances:

ABDULSALAM ADEDEJI MUSBAU ESQ. For Appellant(s)

LAMINU BALA ESQ. For Respondent(s)