DR. ABDULRASHEED ALANAMU v. YAKUB AGBO & ORS. (2012)

DR. ABDULRASHEED ALANAMU v. YAKUB AGBO & ORS.

(2012)LCN/5320(CA)

In The Court of Appeal of Nigeria

On Thursday, the 26th day of April, 2012

CA/IL/26/2011

RATIO

LAND LAW: BURDEN OF PROOF IN A CLAIM FOR DECLARATION OF TITLE

It is now settled beyond peradventure that in a claim of declaration of title, the onus is on the plaintiff to prove his case since he who asserts must prove. The Plaintiff must rely on the strength of his own case and not the weakness of the defence except where the weakness tends to strengthen Plaintiff’s case or where the Defendants’ case supports his case. See the case of Ngene vs. Igbo (2000) 2 SCNJ 136 at 149 and Ezeokonkwo vs. Okeke (2002) 10 NSCQR 527 at 540.

It is also settled that the burden of proof is on the Plaintiff in an action for title to land to satisfy the Court that he is entitled on the evidence brought by him to the declaration of the titled claimed. The evidence to be adduced by him must be credible, convincing, positive and unequivocal evidence in support of his case. It is the law that such a party must succeed on the strength of his own case. See Ezeanoikwa vs. Muoneke (2005) All FWLR (Pt. 256) 1327 at 1339. PER TIJJANI ABDULLAHI J.C.A.

LAND LAW: WHETHER TITLE IS PUT IN ISSUE IN A CLAIM FOR TRESPASS TO LAND

It is also the law that, in a claim for trespass to land and injunction as in the instant case, title, needless to say is put in issue. The onus of proof in such a case as earlier stated in this judgment, is on the Plaintiff to prove ownership and or exclusive possession. PER TIJJANI ABDULLAHI J.C.A.

LAND LAW: METHODS OF PROVING OWNERSHIP OF LAND

It has been established in a plethora of decided cases that there are five methods by which ownership of land may be proved by a Plaintiff. They are:

By traditional evidence
By production of document of title which must be duly authenticated.
By the exercise of numerous and positive acts of ownership over a sufficient length of time to warrant the inference that the person is the true owner of the land.
By acts of long possession and enjoyment of the land; and
By proof of possession of connected or adjacent land in circumstances rendering it probable that the owner of such connected or adjacent land would in addition be the owner of the land in dispute.

See IDUNDUN vs. OKUMAGBA (1979) 9 – 10 SC 277, ONWUABUFOR v. OKOYE & ORS (1996) 1 NWLR (PT.424) 252 AT 279 – 280; NWADIOGBU V. NNDOZIE (2006) 6 SCNJ, 161 AT 167, 170 AND 172 AND KYARI VS. ALKALI (2001) 5 SCNJ 421 AT 447 – 448. PER TIJJANI ABDULLAHI J.C.A.

EVIDENCE: REQUIREMENT FOR THE COURT TO RELY ON AN INSTRUMENT

(i) Whether the document is genuine and valid

(ii) Whether it has been duly executed, stamped and registered.

(iii) Whether the grantor had the capacity and authority to make the grant.

(iv) Whether the grantor had in fact what he purported to grant and

(v) Whether it had the effect claimed of the instrument.

See the case of Kyari vs. Alkali (supra). PER TIJJANI ABDULLAHI J.C.A.

JUSTICES

TIJJANI ABDULLAHI Justice of The Court of Appeal of Nigeria

IGNATIUS IGWE AGUBE Justice of The Court of Appeal of Nigeria

OBANDE FESTUS OGBUINYA Justice of The Court of Appeal of Nigeria

Between

DR. ABDULRASHEED ALANAMU Appellant(s)

AND

1. YAKUB AGBO
2. ADISA YUSUF
3. TOYIN YUSUF Respondent(s)

TIJJANI ABDULLAHI J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of the Kwara State, High Court of Justice, holding at Ilorin delivered on the 30th March, 2010 by M. A. Akoja (J), wherein the Appellant’s case was dismissed against the Respondents herein. In the judgment appealed against the learned trial Judge held inter-alia thus:
“It is to be remembered that the issue of declaration of title had been very well treated in this judgment and it has been held that the claimant failed to plead an prove by evidence the origin and title of his vendor, hence he has failed to prove a valid and better title against the defendants herein.
Accordingly, the case of the claimant failed and same is dismissed.”
Aggrieved with the decision reproduced above, the Appellant approached this Court and expressed so by filing a Notice of Appeal containing seven grounds of appeal from which he distilled three issues for determination to wit:
“(i). Whether having regard to the totality of evidence before the lower Court, coupled with the inconsistency nature of the evidence of the Respondents’ witnesses the learned trial judge was right to have dismissed the Appellant’s case in its entirety (Grounds 1, 2, 3, 4 & 6)
(ii) Whether the trial Court has not failed in its sacred duty to evaluate or make findings on his observation at the locus in quo before arriving at his Judgment and whether the failure has not occasioned a miscarriage of justice against the Appellant (Ground 5).
(iii) Whether the Judgment of the lower court was not perverse and occasioned a miscarriage of justice against the Appellant having regard to its failure to attached (sic) any probative value to the act of long possession established by the Appellant (Ground 7).
For his Part, learned Counsel for the Respondents, after arguing a point of preliminary objection without filing a Notice to that effect as he is enjoined to do by the Rules of this Court, formulated two issues for determination thus:
“1. Whether considering the state of pleadings and evidence before it, the lower Court was right in dismissing the Appellant’s case while upholding the traditional history/evidence of the Respondents – Grounds 1, 2, 3, 4 and 6.
2. Whether the lower Court was not justified in its treatment of the Appellant’s purported acts of possession and ownership either in evidence or in observations at the locus in quo and whether same has occasioned any miscarriage of justice in the circumstances – Grounds 5 and 7.
It is appropriate at this junction to pause and state albeit briefly the facts of the case that gave rise to the appeal under consideration. They are that:- The Appellant at the lower Court instituted this suit against the Defendants (hereinafter referred to as “the Respondents,) claiming ownership, damages and injunction in respect of a piece or parcel of land measuring 50ft x 200ft (61.00n x 60:97m x 15.3m x 15.06m, 920.367Sqm) situate, lying and being at Tanke Iledu, along University permanent site Road, Tanke, Ilorin, Kwara State.
The Appellant’s basis of his claim to the entitlement of the reliefs being sought is hinged on a Deed of Conveyance made in 1977 between him and one Alhaji Baba Alao. The Appellant further claims to have been exercising right of ownership over the land and that he further attempted to enhance his title thereof by obtaining a Certificate of Registration in respect of same i.e Exhibit 14.
It is the contention of the Appellant that after the demise of the vendor, Alhaji Baba Alao, the Respondents started disturbing him on the land.
On the other hand, it is the case of the Respondents that the land in question belongs to the 1st Respondent’s family vide traditional history. The Respondents further established that the land does not belong to Tanke Ifedu family at all and that Alhaji Baba Alao was neither a member of the 1st Respondent’s family nor a member of Tanke Iledu family and never had the authority of the Respondent’s family to deal in the said land.
The Respondents further said that the land was transferred to the 3rd Respondent in November, 2004 and that it was barely some time in April, 2005 that the Appellant started digging a well on the land which act was challenged.
It is instructive to observe at this stage that before delving into considering the merit or demerit of this appeal, it will not be out of place to treat the preliminary objection raised by the Respondents as to the competency or otherwise of the same.
This brings me to the examination of the relevant Order and Rules pertaining to the raising of a preliminary objection under the Rules of this court. They are Order 10 Rule 1 and 3 reproduced hereunder.
Order 10 Rule 1 states:-
“A Respondent intending to rely upon a preliminary objection to the hearing of the appeal, shall give the appellant three clear days notice before the hearing setting out the grounds of objections and shall file such notice together with twenty copies thereof with the registry within the same time.”
Rule 3 states:
“If the respondent fails to comply with this Rule, the Court may refuse to entertain the objection or may adjourn the hearing thereof at the cost of the respondent or may make such other order as its thinks fit.”
Now, let me state clearly that often than not Counsel simply raise preliminary objection in Respondents’ briefs without filing a formal/separate Notice of Objection as directed by Order 10 Rule 1. The reason usually given, is that in so far as the Appellant is given at least 3 days notice of the objection, the same is okay to be raised in the Respondent’s brief.
I am of the view that is wrong as the aspect of the requirement to file the Notice of Objection in 20 copies is glossed over. No doubt, in law, it is the filing fee that breathes life into the process filed, except where filing fees is waived, as in the case of official process from Government and Government Departments.
In the case of Mr. Ibiwoye Anu Ayodeji and Anor v. Senator Simeon Sule Ajibola and Ors, an unreported decision of this division in EPT/CA/IL/SEN/9/2011, delivered on 14/12/11, pages 10 – 11, this Court held that:
“Of course, by law it is the filing fee that vests legitimacy or validity on a court process, except where such fees are waived as in the case of official process filed by government or department of government… since the alleged preliminary objection was…not filed separately, I do not therefore think their said objection is competent, to warrant any due consideration, by this court. Thus, the preliminary objection, raised by the 1st and 2nd Respondents in their Brief of argument, without evidence of prior filing of the said notice, is incompetent and cannot be relied upon to question the competence of the said grounds of appeal by the Appellants”.
See also PDP vs. Senator Dahiru B Gossol unreported decision of Court of Appeal in suit No. CA/IL/31/2011, delivered on 13/9/11; Edoho v. Asuquo (2007) All FWLR (pt.359) 1355, held 2 and 6; Bayero vs. Mainasara & Sons Ltd (2007) All FWLR (Pt.359) 1285; held 1, 9 and 10, Onwagbufor vs. Okoye (1996) 1 NWLR (pt.424) 252; NAA vs. Kawgaji (unreported decision of court of Appeal, in suit No.CA/J/166/2003), delivered on 30/3/11, Yola Division.

In the light of the foregoing, it needs not to be said that the preliminary objection raised and argued by the Respondents in breach of Order 10 Rules 1 and 3 is incompetent and of no moment and same is hereby dismissed.
Now, having dealt with the preliminary objection of the Respondents, I will now proceed to consider the appeal on the merit but before I delve into that, let me quickly state that on the 1st of February, 2012, when the appeal came before us for hearing, learned Counsel for the Appellant, Mr. O. J. Adesako adopted the Appellant’s Brief and the Reply Brief dated and filed on 24/5/2011 and the Reply-Brief deemed filed on 2/11/2011 respectively. He urged the Court to allow the appeal.
On the other hand, learned Counsel for the Respondent, Mr. S. O. Jimoh adopted the Respondents’ brief dated and filed on 22/06/2011 and urged us to dismiss the appeal for lacking in merit.

ARGUMENT OF ISSUES
Issue No. 1 as distilled by the learned Counsel for the Appellant is whether having regard to the totality of evidence before the lower Court, coupled with the inconsistency nature of the evidence of the Respondents’ witnesses, the learned trial Judge was right to have dismissed the Appellant’s case in its entirety (Grounds 1, 2, 3, 4 & 6).
In arguing this issue, learned Counsel submitted that the Appellant was able to establish his case through both oral and documentary evidence placed before the lower Court without any contradiction. The evidence of his witnesses was coherent and same was never controverted or shakened under cross-examination. He referred to pages 156, 159 and 160 of the Record to prove the point that the person from whom he bought the land one Alhaji Baba Alao is now deceased and that was his root of title. He went on to submit further that the Respondents equally admitted the fact that his vendor was dead. He referred to pages 82, 84, 86, 165, 172 and 176 of the Record to buttress his submission on this point.
It is the contention of the learned Counsel for the Appellant that it is a perversion of justice has occasioned a miscarriage of justice against the Appellant for the trial Court to have held that he (the Appellant) failed to plead and give evidence of the root of title of Baba Alao in spite of the fact that it is not in dispute that his vendor, Alhaji Baba Alao had passed on. It is the submission of the learned Counsel that it is the duty of the trial Judge to make findings on the unchallenged evidence that Alhaji Baba Alao who sold the land to the Appellant was deceased not to remain silent to the extent of later admitting that the issue of the denial and challenge of title of Alhaji Baba Alao was never addressed nor given any consideration. This is more so when the Respondents challenged the ownership of the Appellant after the death of his vendor (Alhaji Baba Alao).
It is the contention of the learned Counsel that the traditional history, the judge relied on in arriving at his decision cannot be said to be a traditional history in the real sense of it. What the Respondent pleaded and led in evidence, learned Counsel went on, was the fact that one Memudu Didi a descendant of Balogun Fulani and who was a cattle rearer and who first settled at Tanke-Ile-Iwe, and gave birth to Mohammed Woru who in turn gave birth to Yakubu Agbo (the 1st Respondent). See (page 76 of the record). The Traditional history given by the Respondents, learned Counsel submitted, has not shown any intervening of the 1st Respondent’s family genealogy. There is nothing on record to show that Usman Ore, Mohammed Woru or Yakub Agbo ever played any role to warrant their right or possession over the land in dispute.
Learned Counsel argued that the evidence adduced by the Respondents is full of contradictions and should not have been relied upon to find for them. He is of the view that the 1st Respondent’s case is premised on their family land at Tanke Ile-Iwe, which is against the Appellant’s claim that the land is at Tanke-Iledu, this, the learned Counsel went on, is a material contradiction that goes to the root of the Respondents’ case as what is purportedly sold to the 3rd Respondent by the 1st Respondent’s family from all indications happened to be at Tanke-Ile-Iwe from which land was sold to the 3rd Respondent, learned Counsel queried how come the land in dispute now falls on Tanke-Oledu. All these contradictions, learned Counsel went on should have been held against the Respondents. He urged us to resolve this issue in favour of the Appellant.

Issue No.2 is whether the trial court has not failed in its sacred duty to evaluate or make findings on his observation at the Locus in quo before arriving at its judgment and whether the failure has not occasioned a miscarriage of justice against the Appellant (Ground 5).
Learned counsel for the Appellant alluded to the visit of the locus in quo where the Judge stated thus: “…in the course of the Court attempting to properly review the facts of the case and get down to the writing of the judgment, it was observed quo where the Judge stated thus: “…in the course of the Court attempting to properly review the facts of the case and get down to the writing of the judgment, it was observed that a fundamental issue needed some clarification between the parties in the interest of justice.” Learned Counsel submitted that despite this elegant statement of the learned trial judge, no findings were made as regards to this lofty observation.
Learned Counsel submitted further on this point that the essence of the visit to the locus in quo was for the Court to have a first hand information about the respective cases of the parties. It is not the duty of the trial Court to pick and choose the evidence to be assessed. The visit to the locus in quo and the observation made thereon is material and the observation made therein is material evidence which trial court ought to have evaluated and assessed. For this submission, learned counsel relied on the case of Chief Falade Onisaodu and Anor v. Chief Asunmo Elewujie and Anor (2006) 7 SC (Pt.11) 45 at 49 holen 10 – 15, Alhaji Raufu Gbadamosi v. Olaitan Daivo (2007) 1 SC (Pt.11) 152 at 165 holden 30 – 35 and UBA v. BTL (2000) 28 NSCOR 381 at 455.
Learned Counsel submitted that the failure of the trial Judge to make any findings on the observation made at the locus in quo is tantamount to abandoning his sacred duty of evaluation of evidence, which no doubt has occasioned a miscarriage of justice on the part of the Appellant. For this reason, learned counsel urged us to resolve this issue in their favour and set aside the judgment of the lower court.
Last but not the least issue distilled by the Appellant is Issue No.3 distilled from the 7th ground of appeal. It is whether the judgment of the lower court was not perverse and occasioned a miscarriage of justice against the Appellants having regard to its failure to attach any probative value to the act of long possession established by the Appellant.
Learned counsel began his consideration of this issue by submitting outrightly that the judgment of the trial court is perverse and occasioned a miscarriage of justice against the Appellant having regards to its failure to attach any probative value to the act of long possession by the Appellant despite an avalanche of evidence to that effect.
It is also the contention of the learned counsel that the learned trial court relied on a piece of evidence not supported by the pleadings to dismiss the case of the Appellant wherein he held that:
“Furthermore, the land on which he (late Alhaji Baba Aloa) built his house was sold to him by one of the witnesses” (page 210 of the record).
Learned counsel further contended that this piece of evidence was never specifically pleaded in the amended Statement of Defence. Learned counsel went on to contend that it is an elementary principle of law that evidence not supported by pleading goes to no issue. For this contention, learned counsel relied on the case of CIVIL DESIGN CONSTRUCTION LTD vs. SCOA NIG. LTD (2007) 2 SC 195 at 235 holden (15 – 20). We were urged to resolve this issue in favour of the Appellant and allow the appeal and set aside the judgment of the lower Court and grant the Reliefs sought for at the said court in favour of the Appellant.
For his part, as I have earlier stated in the course of writing this judgment, learned Counsel for the Respondents formulated two issues for determination. Let me start with the first issue which is, whether considering the state of pleadings and evidence before it, the lower Court was right in dismissing the Appellant’s case while upholding the traditional history/evidence of the Respondents – Grounds 1, 2, 3, 4 and 6.
Learned counsel for the Respondents, Mr. S. O. Jimoh began his consideration of his issue by submitting that it is trite and a basic principle of law that in an action involving title to land the onus of proof lies on the claimant to satisfy the Court that he is entitled on the evidence brought by him, to the declaration of title being claimed. In this regard, the claimant must rely on the strength of his own case and not on the weakness of the defendant’s case. If this onus is not discharged, the weakness of the defendant’s case will not help him and the proper judgment will be for the defendant – See Olohunde v. Adeyoju (2000) 6 SCNJ 470 at 484 – 485; Adesanya v. Aderonmu (2000) 6 SCNJ 242 at 252 – 253; and Nwadiogbu v. Nbadozie (2001) 6 SCNJ 161 at 172.
It is the submission of the learned Counsel that from the facts pleaded by both parties to the dispute, it is obvious that the Appellant’s root of title was not only disputed but same was seriously challenged by the Respondents. Learned Counsel further submitted that once a party pleads and, traces his root of title in a dispute over land to a particular person or source and his averment as in the instant case, is disputed or challenged, that party to succeed as a plaintiff in the action, must not only establish his title to such land, he must also satisfy the Court as to the validity of the title of that particular person or source from whom he claims to have derived his title – See Adesanya v. Aderonmu (supra) at 255; Olohunde v. Adeyoju (supra) at 488 Ogunleye v. Oni (1990) 2 NWLR (Pt.135) 145 at 782 – 783; Ngne v. Igbo (2000) 2 SCNJ 136 at 149 & 155 – 157; Fasoro v. Beyioku (1988) 4 SCNJ 23 at 31; Ezeanoikwe v. Muoneke (2005) All FWLR (Pt.256) 1327 at 1339; Adole v. Gwar (2008) 5 MJSC 38 at 56; Nwadiogbu v. Nmnadozie (supra) at 169 – 170.
Learned Counsel contended that the Appellant did not plead anything in respect of the title of Alhaji Baba Alao in his statement of claim neither did he file and reply to the Respondents’ statement of Defence. Learned Counsel further contended that the Appellant’s failure to plead and prove the root of title of Alhaji Baba Alao is fatal to his case and same was rightly dismissed by the learned trial Judge. For this submission, learned Counsel relied on the case of Ngene vs. Igbo (2000) 2 SCNJ 136; Oluhunde vs. Adeyoju (2000) 6 SCNJ; 470 and Ogundeye vs. Oni (1990) 2 NWLR (Pt.135) 745.
The contention of the Appellant’s Counsel that in view of the death of his vendor (Alhaji Baba Alao) he could not be expected to prove the title of the deceased is not tenable in law. Learned Counsel submitted that the death of Alhiaji Baba Alao in the circumstances of this case and particularly in view of the following facts:
(i) From Exhibit 3A (Deed of conveyance) Alhaji Baba Alao sold or conveyed the land not in his personal capacity but “for himself and on behalf of Iledu family.
(ii) It was not established that all members of Iledu family are dead.
(iii) Inspite of (i) and (ii) above, the Appellant never deemed it fit to call any member of Alh. Baba Alao’s family to testify on his behalf.
Learned counsel then submitted that the learned trial Judge was right when he held at p.217 of the Record as follows:
“From the records of the court right from the statement of claim and the evidence read before the court at trial the issue of the denial and challenge of title of Alhaji Baba Alao was never addressed nor given any consideration by learned counsel to the claimant. The origin of the title or source of title of Alhaji Baba Alao was never pleaded and/or proved by evidence.”
It is the submission of the learned counsel that, the evidence adduced by the Respondents as to their root of title and in respect of Alhaji Baba Alao remain absolutely unchallenged and uncontroverted by the Appellant whatsoever. It is settled law, he further submitted that the effect of failure to cross-examine a witness upon a particular matter is tacit acceptance of the truth of the evidence of the witness. He relied on the case Gaji v. Paye (2003) 5 SC 53 at 63 and Oforlete vs. The State (2000) 7 SCNJ 162 at 183 to buttress his submission on this point.
Learned Counsel further submitted that where evidence is neither challenged nor controverted, as in the instant case, the trial court is entitled to act on such unchallenged evidence as duly establishing. For this submission, learned counsel relied on the case of Osondu Co. Ltd v. Akhigbe (1999) 7 SCNJ 1 at 16, Odebumi v. Abdullahi (1997) 2 SCNJ 112 at 126; NBTE v. Anyanwu (2005) All FWLR (pt.256) 1266 at 1288; Sai Pem SPA v. Idia Tefa (2001) FWLR (Pt.74) 374 at 394.
Learned counsel finally submitted on this aspect of the case, that, the lower court was right to have found and held that the traditional evidence of title led by the Respondents as duly established and we were urged to uphold same.

Issue No.2 is whether the lower Court was not justified in its treatment of Appellant’s purported acts of possession and ownership either in evidence or in its observation at the locus in quo and whether same has occasioned any miscarriage of justice in the circumstances.
On this issue for determination learned Counsel submitted that the Appellant’s attempt to rely on purported acts of possession and ownership cannot stand in view of the peculiar circumstances of the facts of this case as examined under issue No.1 supra. This is so, learned counsel reasoned, that, assuming not conceding that the Appellant duly established act of ownership and possession, it is trite that same can only be considered where the root of title is pleaded and duly established. For this submission, learned Counsel relied on the following: Nwokidu v. Okanu (2010) MJSC (Pt.1) 24; Orlu vs. Gogo-Abite (2010) MJSC (Pt.11) 180 at 222; Fosoro v. Beyioku (1988) 4 SCNJ 23 and Adedeji vs. Oloso (2007) 3 MJSC 56 at 107.
Learned counsel submitted that it is also trite that when a plaintiff (as in the instant case) fails to prove possession based on the root of title, cannot sustain his claim for title. He cited and relied on the case of Ukaegbu v. Nwololo (2009) 1 – 2 MJSC 98.
On relying on acts of possession and ownership as proof of title to land, learned counsel submitted that a plaintiff must show that such acts not only extend over a sufficient length of time but that they are numerous and positive enough to warrant the inference of exclusive ownership of such land. A few of such acts which are isolated in nature and which the adversary was not in a position to have known will not suffice, he further
submitted. He relied on the case of Achiakpa vs. Nduka (2007) 7SCNJ 585 at 608.
Learned counsel contended that in the case in hand, the Appellant woefully failed to establish numerous and positive acts of possession and ownership over a long period of time. Learned counsel further contended that the only isolated acts of digging a well and foundation by the Appellant were shown to be recent developments which were promptly challenged by the Respondents and which culminated in the institution of the present suit.
Learned Counsel went on to contend that, even then, it is well settled that even in appropriate cases of long possession by a Plaintiff cannot found a claim for declaration of title to land, damages for trespass and perpetual injunction against the true owner of title to such land. He referred us to case of Kyari vs. Alkali (2001) 5 SCNJ 421 at 457 – 458 to buttress his contention on this point. Learned Counsel urged us to resolve this issue in favour of the Respondents and dismiss the appeal as lacking in merit.
Now, it is instructive at this stage to state the law relating to a declaration of title to land before considerations are given to the issues formulated and argued by the learned Counsel on both side of the divide.
It is now settled beyond peradventure that in a claim of declaration of title, the onus is on the plaintiff to prove his case since he who asserts must prove. The Plaintiff must rely on the strength of his own case and not the weakness of the defence except where the weakness tends to strengthen Plaintiff’s case or where the Defendants’ case supports his case. See the case of Ngene vs. Igbo (2000) 2 SCNJ 136 at 149 and Ezeokonkwo vs. Okeke (2002) 10 NSCQR 527 at 540.

It has been established in a plethora of decided cases that there are five methods by which ownership of land may be proved by a Plaintiff. They are:
1. By traditional evidence
2. By production of document of title which must be duly authenticated.
3. By the exercise of numerous and positive acts of ownership over a sufficient length of time to warrant the inference that the person is the true owner of the land.
4. By acts of long possession and enjoyment of the land; and
5. By proof of possession of connected or adjacent land in circumstances rendering it probable that the owner of such connected or adjacent land would in addition be the owner of the land in dispute.
See IDUNDUN vs. OKUMAGBA (1979) 9 – 10 SC 277, ONWUABUFOR v. OKOYE & ORS (1996) 1 NWLR (PT.424) 252 AT 279 – 280; NWADIOGBU V. NNDOZIE (2006) 6 SCNJ, 161 AT 167, 170 AND 172 AND KYARI VS. ALKALI (2001) 5 SCNJ 421 AT 447 – 448.

It is also instructive to note that reliance upon an instrument like in the instant case inevitably carries with it the need for the court to enquire into some or all of a number of questions including:
(i) Whether the document is genuine and valid
(ii) Whether it has been duly executed, stamped and registered.
(iii) Whether the grantor had the capacity and authority to make the grant.
(iv) Whether the grantor had in fact what he purported to grant and
(v) Whether it had the effect claimed of the instrument.
See the case of Kyari vs. Alkali (supra).

RESOLUTION OF THE ISSUES
It is pertinent to observe at this stage that it is in the light of the foregoings that the issues formulated and canvassed by the parties will be considered.
A hard look at the issues formulated by the parties to this appeal would reveal the fact that issue No. 1 distilled by the Appellant is similar to issue No. 1 as formulated by the Respondent. Issue two distilled by the Appellant is also similar to issue No.2 formulated by the Respondent. The issues needles to say are similar to one another and the appeal can be determined on any of the two sets of issues formulated by either party. Let me take the two issues formulated by the Appellant in determining the appeal, after all the appeal is his.
The Appellant as Plaintiff in the lower Court as per his statement of claim has pleaded Deed of Conveyance between himself and one Alhaji Baba Alao who is now late as the person who sold the land in dispute as far back as 1977 and that since the purchase of the said land, he has been in quiet possession and has been exercising right of ownership on the land by digging a concrete wall and also a concrete foundation for fence and shops. He has also enhanced his title on the land as he applied for registration of title in 2004 and same was issued to him in June, 2005.
It is noteworthy to observe that both documents were admitted in evidence and marked as Exhibits 3A and 1A respectively. The Appellant in addition to the Exhibits herein also testified in person and called two witnesses, one a family member of the person who sold the land to him on behalf of himself and the family in person of Alhaji Ibrahim Adi whose testimony can be found on pages 161 to 162 and the person who made the concrete foundation to the Appellant whose evidence can be found on pages 162 to 163 of the record.
For his Part, learned Counsel for the Respondent vehemently challenged the title of the Appellant and vigorously submitted that since the title of the Appellant is put in issue for him to succeed in action for declaration of title to land he must trace the root of title of the person who sold the land to him. His failure to do so has a devastating consequence on the Appellant’s case.
The question to be asked at this stage is this, can it be said from what transpired at the lower court that the learned trial Judge has carefully evaluated the evidence adduced by both parties before dismissing the action of the Appellant? To answer this question, recourse had to be made to the proceedings of the trial Court.
Lest I forget, let it be said from the onset that the learned trial Judge held inter-alia that:
“…in the courses (sic) of the court attempting to properly review the facts of the case and get down to the writing of the judgment, it was observed that a fundamental issue needed some clarification between the parties in the interest of justice”.
Learned trial Judge did not stop there, he further went on:
“Observations were made at the locus in quo before the court retired to the court room for continuation of the case. Other information would be supplied about the visit as the judgment progresses.”
In view of the foregoing, one would have expected a detailed evaluation of what transpired at the locus in quo including what the learned trial Judge would have at the locus in view of the pleadings of the Appellant that he had dug a well and laid concrete foundation of shops to be built on the land since 1977 or at least before the death of the person who sold the land to him.
Learned Counsel for the Respondents has copiously submitted that the Appellant’s purported acts of ownership and possession, either in evidence or in his observations at the locus in quo is legally justified and has not occasioned any miscarriage of justice. Learned Counsel anchored his submission on the fact that the Appellant did not adduce evidence to establish his root of title. He is of the view that even though the person who sold the land to him had died, he should have called another member of the family of the deceased to testify for him.
It is noteworthy that with due respect to the learned Counsel, these submissions are not founded on the evidence adduced by the Appellant and are bereft of any legal foundation. Firstly, it is not true that the Appellant did not call a member of the deceased vendor to testify for him. PW2 whose evidence can be found on page 161, one Alhaji Ibrahim Adi is a brother of late Alhaji Amuda Aliyu Adi, a member of the family who witnessed the sale of the land to the Appellant.
Secondly, contrary to the contention of learned Counsel for the Respondent, apart from the evidence of title tendered by the Appellant, he called two other witnesses PW2 and PW3, a member of the family of the vendor and the person who worked for him on the land in 2003. See pages 161, 162 and 163 of the record
Be that as it may, I am of the considered view that the issues that called for determination at the lower Court would only be resolved if all the pieces of evidence adduced by the parties including what transpired at the locus in quo would be dispassionately evaluated and findings made therein. I am of the further view that failure by the learned trial Judge to consider and evaluate what transpired at the locus in quo is a breach of the Appellant’s right to fair hearing as enshrined in section 36 (1) of the constitution of the Federal Republic of Nigeria 1999.
In the light of the foregoings, I am of the considered view that the appeal under consideration is meritorious and same is hereby remitted to the High court of Justice Kwara state to be tried by another Judge other than AKOJA, J.
Parties to this appeal shall bear their respective costs of prosecuting it.

IGNATIUS IGWE AGUBE, J.C.A.: I have painstakingly read in draft the lead judgment just rendered by my Lord the Hon. T. Abdullahi, P. J, I agree totality with the reasons advanced before concluding that this appeal is meritorious.
Without mincing words, whereas in the lower Court, the learned trial Judge visited the locus in quo and promised to utilise his observations thereat in the course of evaluation of evidence and eventual judgment, but he failed so to do before dismissing the Appellant’s case; the Appellant was therefore deprived of his right to fair hearing and accordingly, the proceedings of the lower Court was vitiated same having been tainted with bias.
Accordingly, I have no reason to differ from the position taken by my learned Lord and I too shall allow the appeal and order a retrial before another Judge of the Kwara State High Court who shall be determined by the State Chief Judge.
I abide by all consequential orders as to costs.

OBANDE OGBUINYA, J.C.A.: I had the opportunity of reading, in draft, the leading judgment delivered by my learned brother, Tijjani Abdullahi, JCA and I agree with him. I have nothing more to add to it.

Appearances

O. J. Adesako Esq, with Chief J. A. YusufFor Appellant

AND

S. O. Jimoh Esq.For Respondent