EBUNDON v. INCORPORATED TRUSTEES OF RCCG & ORS (2020)

EBUNDON v. INCORPORATED TRUSTEES OF RCCG & ORS

(2020)LCN/14209(CA)

In The Court Of Appeal

(ASABA JUDICIAL DIVISION)

On Friday, May 22, 2020

CA/ASB/293/2017

Before Our Lordships:

Uzo Ifeyinwa Ndukwe-Anyanwu Justice of the Court of Appeal

Mohammed Ambi-Usi Danjuma Justice of the Court of Appeal

Abimbola Osarugue Obaseki-Adejumo Justice of the Court of Appeal

Between

JOHNBULL EBUNDON APPELANT(S)

And

1. INCORPORATED TRUSTEES OF REDEEMED CHRISTIAN CHURCH OF GOD 2. PASTOR ENOCH ADEBOYE 3. PASTOR CHRIS EBOH 4. CHUKWUDUMEBI KPOLUKWU 5. OGBUESHI ROY O. ELIKWU RESPONDENT(S)

RATIO

WHETHER A COURT CAN BE ACCUSED TO HAVE RAISED AN ISSUE SUO MOTU

Now back to the substance of this appeal, this Court has had cause to hold in the case of OBIAGWU & CO v OKORAFOR (2019) LPELR – 46689 (CA), on when a Court cannot be accused of raising issue suo motu;
“The position of the law on an issue raised suo motu by a Court, in my considered view would appear to have been settled for long and as enunciated by Tobi, JSC; in the case of ENEKWE V. INTERNATIONAL MERCHANT BANK OF NIGERIA LTD [2006] 19 NWLR (PT. 1013) 147,… That a Judge can only be accused of raising an issue suo motu, if the issue was never raised by any of the parties in the litigation. That a Judge cannot be accused of raising an issue suo motu if the issue was raised by both parties or by any of the parties in the proceedings. See also the case of IKENTA BEST (NIGERIA) LTD V ATTORNEY GENERAL RIVERS STATE (2008) 6 NWLR (PT. 1084) 642 wherein Tobi, JSC; reiterated the above position in these words: – “xxx A Court can only be accused of raising an issue, matter or fact suo motu, if the issue, matter or fact did not exist in the litigation. A Court cannot be accused of raising an issue, matter or fact suo motu if the issue, matter or fact exist in the litigation. A Judge by the nature of his adjudicatory functions, can draw inferences from stated facts in a case and by such inferences, the Judge can arrive at conclusions. It will be wrong to say that inferences legitimately drawn from facts in the case are introduced suo motu. PER OBASEKI-ADEJUMO, J.C.A.

THE TITLE AND OWNERSHIP OF LAND

Therefore, the issue of ownership/title must be settled. The Appellant claims a C of O but the basis of this title must be examined before the claim shall be considered.
In OSHIBANJO v ODUNLAMI (2015) LPELR – 25863 (CA) the Court held thus;
“A party on a parcel of land who claims ownership of the land is a trespasser if he lacks title to the land. See Egbuta vs Onuna (2007) 10 NWLR pt.1042 pg.298.”
per NDUKWE – ANYANWU, J.C.A (P. 28, PARAS. C-D)
Also, in EZENWA v OKO & ORS (1999) LPELR – 13012 (CA):
“trespass is defined as civil wrong against a party, it presupposes that appellant either to be the owner of disputed land or he is in possession.’’

DUTY OF A CLAIMANT WHERE TITLE OF HIS GRANTOR IS PUT IN ISSUE IN A CLAIM FOR DECLARATION OF TITLE TO LAND

This Court held on the Duty of a claimant where the title of his grantor is put in issue in a claim for declaration of title to land in OYELEDUN v ADEWUYI (2017) LPELR – 43256 (CA);
“The law is settled law that where a party pleads and traces the root of his title to the land in dispute to a particular person or grantor, and his opponent challenges or disputes those averments, for that party to succeed, he must not only plead and establish his own title but must proceed to satisfy the Court of the validity of the title of his grantor. See Ekpechi v. Owhonda (2003) 17 NWLR (pt.849) 326 at 348; Eshilonu v. Emereonyekwe (2002) 10 NWLR (pt.776) 634; Ashiru v. Olukoya (2006) 11 NWLR (pt.990) 1 and Nwadiogbu v. Nnadozie (2001) FWLR (pt.61) 1625 at 1638. Thus, in the case of Lawani Alli & Anor v. Chief Gbadamosi Abasi Alesinloye & Ors (2000) LPELR – 427 SC; Iguh, JSC stated the law as follows: “It is not in doubt that once a party pleads and traces his root of title in an action for a declaration of title to land action to a particular person or source and this averment, as in the present case, is challenged, the party, to succeed, as a Plaintiff in the Suit must not only establish his title to such land, he must also satisfy the Court as to the title of the person or Source form whom he claims. He cannot totally ignore the validity of his grantor’s title where this has been challenged and concentrate only on his own title to such land as he would not have acquired a valid title to land- if infact his grantor at all material time has no title thereto…”
per TSAMMANI, J.C.A (PP. 22 – 23, PARAS. B – C). PER OBASEKI-ADEJUMO, J.C.A.

WHETHER OR NOT A COUNTER-CLAIM IS AN INDEPENDENT ACTION

This Court in MAIKUDI v WADA (2018) LPELR – 46004 (CA) held on the Effect of failure to file statement on oath in respect of the defence to counter-claim;
“A counter-claim is an independent action and it needs not relate to or be in any way connected with the plaintiffs’ claim or rise out of the same transaction. It is not even analogous to the plaintiffs claim. It need not be an action of the same nature as the original claim. The separate and independent nature of a counter claim is borne out from the fact that it allows the defendant to maintain an action against the plaintiff as profitably as in a separate suit. It is a weapon of defence which enables the defendant to enforce a claim against the plaintiff as effectually as an independent action. See OROJA & ORS v. ADENIYI & ORS (2017) LPELR 41985 (SC). In OGBONNA v. A-G IMO STATE (1992) LPELR 2287 SC, the apex Court held that where a defendant counter-claims against the plaintiff, the latter is duty bound to file a reply in defence to the counter-claim, otherwise the Court is entitled, in fact obliged, to assume that the plaintiff has no defence to the counter-claim and may enter judgment for the defendant accordingly. This is because where a defendant pleads certain facts in his pleading in support of his counter-claim, with all the necessary particulars, but the plaintiff fails to reply to them, no issue is raised on such defendant’s pleading. So, the Court can proceed to give judgment on it without much ado. PER OBASEKI-ADEJUMO, J.C.A.

ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of Hon. Justice Marshal Umukoro (Hon. Chief Judge of Delta State) of the High Court of Delta State, Asaba Judicial Division delivered on the 10th February, 2017.

A brief summary of the facts of this appeal; The Appellant (who was the Claimant at the lower Court) claims that he acquired the land in dispute from one Mr. Anthony Moweta, with Deed of transfer (Exhibit G) between them dated 3rd May, 2001. Mr. Anthony Moweta claims that he acquired the land through inheritance from his late mother Mrs. Rose U. Moweta and his said mother who is late acquired the land through purchase from Umuda family of Umuaji quarters, Asaba who were the original owners. The Appellant’s case is that the land is not within D.D.P.A Housing Estate. The Respondents’ case on the other hand via his counter claim is that the land in dispute falls within D.D.P.A Housing Estate Delta state. The Respondents claim that D.D.P.A allocated the land to one late Miss Ofunne Joy through Exhibit R1 and that the said late Miss Joy Ofunne transferred

her interest in the land to him (5th Respondent) in the year 2001 vide Exhibit R2. The learned trial Judge in his considered judgment held that the claim of the Appellant (Claimant) and the counter – claim of the 5th Respondent (5th Defendant) were all dismissed on the ground that none of the parties sufficiently proved a good title.

The Appellant being dissatisfied with the decision filed his Notice of Appeal on 31st March, 2017 with one Ground of Appeal. The Appellant was granted leave by this honourable Court on 10th April, 2018 to amend his original Notice of Appeal and he filed four additional grounds of appeal. Appellant was also granted leave to raise the issue that his claims relate to trespass to land and not declaration of title to the land in dispute, the Amended Notice of Appeal was re – filed on 7th May, 2018.

The Appellant’s brief of argument is filed on 23rd April, 2018 and settled by A. O. Ewere Esq. of Ewere Law Office, wherein two issues were formulated for determination by this Court thus;
a. Whether the Learned trial judge was right to have dismissed Appellant’s suit on the ground that Exhibit

“C” (Deed of Conveyance between Nwasiwe Okolie Ogbueshi Henry Konwea acting for themselves and on behalf of the Umuda family of Umuaji quarters, Asaba and Mrs. Rose U. Moweta of No. 23 Egbe Street, Umezei quarters, Asaba) was prepared by M. C. U Odita who was incapable of doing so without calling on the parties to address him on the issue (Grounds 2 and 5)
b. Whether the Learned trial judge was right to have dismissed Appellant’s suit without considering Appellant’s act of exclusive possession of the land in dispute and when Appellant’s claims are based on trespass and damages and not on declaration of title to the land (Grounds 1, 3 and 4).

While the Respondents’ brief is filed 22nd June, 2018, same is settled by Eloka Asiana Esq. of Mater Dei Chambers, the two issues raised by the Appellant were adopted.

APPELLANT’S ARGUMENTS
The Appellant on issue one submits that the learned trial judge based his judgment on Exhibit C, and neither the Appellant nor the Respondents raised the issue of who prepared Exhibit C in their Written Addresses and Reply on points of law. The Learned trial judge

raised the issue and relied on it to refuse the Appellant’s suo motu. ALLI v ALESINLOYE (2000) 77 LRCN PAGE 742 at 795 – 796 RATIOS 16, 19 – 20

Appellant went on to submit that since the learned trial judge felt the issue of who prepared and signed Exhibit C was of considerable importance which he heavily relied on, he ought to have invited the parties through their counsel to address him. That the action of the learned trial judge is a fundamental error which has occasioned a miscarriage of justice as the procedure runs foul of the principle of audi alterem partem, HAMBE v HUEZE (2001) 84 LRCN PAGE 455 at 476 – 477 and Section 36 of the 1999 Constitution (as amended) were cited in aid.

Counsel contends that apart from Exhibit C, there were the oral evidence of PW2 and PW3 that clearly showed that the Claimant owns the land, JOLASUN v BAMGBOYE (2011) 190 LRCN PAGE 1 AT 32 RATIO 11; FAGUNWA vs ADIBI (2004) 120 LRCN PAGE 4548 at 4567 were relied upon.

On issue two, it is the Appellant’s submission that His Lordship dismissed the Appellant’s suit without considering the nature of his claim. Counsel contends the

Appellant’s claim is based on trespass, injunction and damages for trespass and not on declaration of title or grant of statutory right of occupancy.

Appellant further submits that it is not in dispute that the Appellant has been in exclusive possession of the entire land in dispute until the defendants came in some years later and fenced – off the area, the Appellant has not built on. Counsel cited UDE v CHIMBO (1998) 63 LRCN PAGE 4941 at 4964 RATIO 5; GWAMILE v IDIH & ANOR (2018) LPELR – 44139 in submitting that so long as a claim in damages for trespass is quite separate and independent of the claim for declaration of title, the failure of the claim for declaration of title will not necessarily lead to the dismissal of the claims in respect of trespass.

Appellant opines that it is a general principle of law that exclusive possession gives the person in such possession the right to retain it and to undisturbed enjoyment of it against all wrongdoers expect the person who can establish a better title and the Respondents have failed to do so.

It is the submission of the Appellant that the 5th Respondent is Statute barred

from making claim to the land. Therefore, the 5th Respondent’s counter claim on 8th October, 2012 which exceeds the 10 years period provided inSection 3 Cap. L. 11 Vol. 3 Limitation Law of Delta State, 2006 from the 3rd May, 2001 when the Appellant took possession of the land in dispute is barred.
Counsel urge the Court to resolve this issue in the Appellant’s favour.

RESPONDENTS’ ARGUMENTS
On issue 1, Counsel disagreed that the learned trial judge raised and dealth with the issue of the validity of Exhibit C suo motu. He referred to paragraphs 4(i) and (ii) of the Amended Joint Statement of Defence and paragraph 4(i) and (ii) of the 5th Respondent’s Written Statement on oath, the Appellant in paragraph 1 of its Reply to the Statement of Defence made an attempt to respond or deny the averment and evidence of the Respondents on the validity of Exhibit C, unfortunately, the Appellant did not lead any evidence in his reply, so the pleadings and evidence of the Respondents on the invalidity of Exhibit C being a land instrument allegedly prepared by a serving judicial officer remains unchallenged. DALEK NIG LTD v OMPADEC

(2007) ALL FWLR (PT. 364) 204 AT 226, PARAS. B – C, RATIO 1; ORIKOYE v LAGOS STATE GOVERNMENT (2014) ALL FWLR (PT. 744) 183 AT 193, PARAS. F – G, 194, PARAS. A – E, RATIO 1; OLUSANYA v OSINLEYE (2013) ALL FWLR (PT. 693) 1930 AT 1945, PARAS A – C, RATIO 8; OMISORE v AREGBESOLA (2015) ALL FWLR (PT. 813) 1673 AT 1734, PARAS. E – F, RATIO 21; DAIRO v UBN PLC (2007) ALL FWLR (PT. 392) 1846 AT 1880, PARA F were cited in submitting when issues are joined by parties in the proceedings and the effect of failure to lead evidence in support of pleadings.

Counsel further submits that by the provisions of Section 122 of the Evidence Act, 2011 the Court can take judicial notice of the enactment/law that prohibits serving judicial officers from preparing land instrument and IBRAHIM v OJONYE (2012) ALL FWLR (PT. 6541) 29 AT 151 TO 152, PARA G – B, RATIO 3; WEMA BANK PLC v L.L.T (NIG) LTD (2002) ALL FWLR (PT. 606) 436 AT 459, PARA. A, RATIO 11 were cited in aid.

Counsel contends that issues are joined in the pleading of the parties and the three issues raised in the Respondents issues for determination cannot be properly determined

without considering the issue of validity of a Deed allegedly prepared by a serving judicial officer, which is the foundation of the Appellant’s claim to the land in dispute.

Counsel further contends that it is not in all cases that the Court is bound to invite the parties to address it on a new issue raised by the Court, EFFIOM v C.R.O.S.I.E.C (2010) ALL FWLR (PT. 552) 1610 AT 1634 – 1635, PARAS. F – B, RATIO 5; OMONIYI v ALABI (2015) ALL FWLR (PT. 774) 181 AT 195 – 196, PARAS. H – A, RATIO 3; INTERCONTINENTAL BANK PLC v ZUMA FOR ENG. CO. LTD (2010) ALL FWLR (PT. 519) 1121 AT 1142, PARAS. E – F, RATIO 12 were relied on.

Counsel submits that the position of Exhibit C on the finding of the Court is different from that of Exhibits R1 and R2 because the Appellant merely raised allegation of forgery of the 5th Respondent’s documents in paragraph 3 (c) of his Reply to the Defendants’ Joint statement of Defence. He neither pleaded the particulars of the alleged forgery/fraud nor led evidence in proof of the alleged forgery/fraud. Relying on Section 135 (1) of the Evidence Act, 2011, Counsel submits that

allegation of crime in both civil and criminal proceedings but be proved beyond reasonable doubt.

Counsel on issue 2 submits that the judgment of the learned trial judge cannot be faulted based on issue 2 as couched by the Appellant because possession does not vest ownership and does not also relieve a party of the burden of proof of title of what is in his possession. OYENEYIN v AKINKUGBE (2010) ALL FWLR (PT. 517) 597 AT 612, PARAS. F – G; ODUNUKWE v OFOMATA (2011) ALL FWLR (PT. 568) 827 AT 847, PARAS. F – G; MOMOH v UMORU (2011) ALL FWLR (PT. 588) 797 AT 830, PARAS. E – H; OLASUPO v MORAKINYO (2014) ALL FWLR (PT. 726) 593 AT 606, PARA. E, RATIO 2; ADEDEJI v BELLO (2015) ALL FWLR (PT. 789) 1034 AT 1057, PARAS. F – G, RATIO 6 were cited in submitting that in a claim for trespass, damages and injunction as in the Appellant’s relief in this case, title to the disputed land is put in issue.

Counsel further submitted that the alleged act of exclusive possession by the Appellant was exercised in trespass to the land granted by the BDPA which is one of the chains in the 5th Respondent’s root of title to plot 6 described

in Exhibits V1 and V2. That the Appellant cannot rely on the said act of possession, which is in trespass to contend that his reliefs ought to have been granted when he has not discharged the burden on him to prove the root of title to the land, he is allegedly exercising exclusive possession on.

On the Appellant’s argument on limitation of law, Counsel contends that it is incompetent because the arguments were not predicated on any ground of appeal or issues for determination in this appeal, and the Appellant’s arguments and judicial authorities cited in issue 2 is not sustainable having regard to the above case of OYENEYIN v AKINKUGBE (SUPRA) on the effect of a claim for trespass and injunction.

Counsel urge the Court to uphold his foregoing submissions, discountenance the argument of the Appellant’s Counsel on issue no. 2 and resolve the said issue No. 2 against the Appellant.

RESOLUTION
The Appellant’s claim at the lower Court were;
a. Declaration that the action of the defendants in entering into the part of the claimants land covered by certificate of occupancy no DTSR 15734 REGISTERED as no 40 at page 40

in volume CO.206 in the lands registry, Asaba and erecting some temporary structures thereon for church service without first seek and obtaining claimants consent constitutes an act of trespass.
b. An order of perpetual injunction restraining the defendant either by themselves agents, privies, servants or whomsoever from entering into trespassing or continuing trespassing into or interfering in whatever manner with the use and occupation of the said claimant’s land.
c. An order directing defendants to dismantle all structures’ the erected on the said claimant’s land and vacant land forthwith
d. One hundred million naira (N100,000000) as general damages for acts of trespass committed by the defendants on the said land.”

The issues formulated by the Appellant which were adopted by the Respondents and would be for the determination of this appeal.

The crux of issue 1 is the basis of the lower Court judgment on the validity of Exhibit C, which the Appellant contends was raised suo motu by the Learned trial judge and parties were not invited to address the Court.

However, the Respondents in their Amended

Joint Statement of Defence, paragraph 4 (i) and (ii) at page 168, raised and challenged the validity of the deed of conveyance, I shall hereunder reproduce same;
i. Umuda Family never sold the land in dispute to Mrs. Rose U. Moweta at anytime at all as the Umuda Family had divested itself of title to the land in 1975 and Mr. Anthony Moweta never inherited the said land from his mother, Mrs. Rose U. Moweta. The Deed of Conveyance pleaded in the said paragraph 5 of the statement of claim is a forgery made for the purpose of this case. Furthermore, a firm of solicitors or any firm at all cannot prepare document as it does not have a signature to append.
ii. M. C. U Odita & Co of No. 129, Nnebisi Road, Asaba was the law firm of late Hon. Justice M. C. U Odita (C.J., Rtd). Justice M.C.U Odita was appointed judge of the then Bendel State High Court in 1985, and retired as the Chief Judge of Delta State. By the Code of Conduct for judicial Officers, he could not have operated a law firm of solicitors in his name and signed a land document as such when he has ceased to be a solicitor several years before 1990 that the Deed pleaded in the said paragraph

was purportedly prepared by him, or his said law firm that has no hand to write or sign a document.
and paragraph 4(i) and (ii) of the Respondents’ Written Statement on Oath at page 187 of the Record.

From the above, the Respondents raised the issue of the validity of Exhibit C, and the Appellant in paragraph 1 of its reply to the Defendants Joint Statement of Defence at page 159 averred thus;
i. ‘’In reply to paragraph 4(ii) of defendants’ joint statement of defence, Claimant states that it is not his case that the Deed of Conveyance between Nwasiwe Okolie, Ogbueshi Henry Konwea acting for themselves and on behalf of Umuda family of Umaji quarters, Asaba and Mrs. Rose U. Moweta was prepared and signed by Hon. Justice M. C. U Odita & Co. The document was handed over to claimant when claimant purchased the land. Claimant did not witness the preparation and signing of the said document.’’

The said Appellant/Claimant’s reply was not accompanied by a Statement on oath as required by the rules of Court, Order 17 Rules 1 and 18 Rules 1 & 2 of Delta State High Court Rules, 2009.

The statement of defence shall be a statement in summary form and shall be supported by copies of documentary evidence, list of witnesses and their written statements on oath.
Order 18 Rules 1& 2.
1. Where the claimant desires to make a reply, he shall file it within 14 days from the service of the defence.
Reply to Counter-claim.
2. Where a counter-claim is pleaded, a reply thereto is called a defence to counter-claim and shall be subject to the rules applicable to defence.
In GARBA & ORS v BANNA (2014) LPELR – 24308, this Court held on importance of a statement of oath thus;
“On its own, a Reply Statement on Oath rests on the word reply. It follows a Claimant’s reply in response to issues and arguments raised in an opponent’s statement which are fresh. A Reply Statement on Oath is a sworn evidence made to prove facts contained in a Claimant’s reply to Defendant’s Statement of Defence. The Reply Statement on Oath does not add nor revise the Claimant’s Statement on Oath. It is only necessary and allowed in proceedings to enable the Claimant prove facts in response to the Defendant’s fresh issue raised outside the

Claimant’s pleading. Accordingly, a Reply Statement, on Oath is that sworn evidence of a Claimant which seeks to prove facts in his Reply Statement as a result of the fresh, unique, novel and further averments introduced to the Defendant’s Statement of Defence outside the Claimant’s Statement of claim. See: Egesimba v. Onuzuruike (2002) 15 NWLR (PT.791) 466.”
per ONYEMENAM, J.C.A (P. 26, PARAS. A-E)

The 2PW under cross examination testified that he witnessed the sale by the Umuda family in 1990 and he inherited the said land from his mother and it was 100ft x 100ft. PW3 also testified that he is a member of Umuda family and was allocated No 168 in Uda layout land, Umuda family sold the land to the 2PW’s Mother. Furthermore, I have seen the final addresses of the Appellant/Claimant and Defendant/Respondent and observe that this issue was not raised.

From the above issue, I have seen the Exhibit C2, it is the conveyance of Mrs Rose Moweta from Uda family in respect of land at Phase 11, Asaba and it is franked “prepared by”;
“SIGNED
M.C.U.ODITA & CO
Solicitors,
129, Nnebisi Road
P.O. Box 81
Asaba.”

The learned trial judge stated that the; “Claimant did not challenge this and took judicial notice that Hon Justice M.C.U. Obi was appointed in Old Bendel State in 1985 and rose to an enviable position of the Chief Judge of Delta State. He retired honorably in December, 2010. He died in 2010…..’’
In INEC v ETENE (2013) LPELR – 22108, this Court held;
“…the Evidence Act has spelt out matters which a Court of law shall take judicial notice of in proceedings before it. Section 122(2) of the Act, cited by the learned counsel for the Appellants has the following provisions:- “(2) The Court shall take judicial notice of- a) all laws or enactments and any subsidiary legislation made under then having force of law now or previously in force in any part of Nigeria…….. On the state of the law, the Federal High Court had the duty to take judicial notice of, consider and apply all relevant and extant statues, including the Constitution, in the proceedings before it whether or not they were alluded to by the parties to the case. Whether the failure to do so, simpliciter, would occasion a

miscarriage of justice in a case would depend on the peculiar facts and circumstances of the case.”
per GARBA, J.C.A (PP. 22-23, PARAS. B-C)
See also LAFIA L.G v EXECUTIVE GOVT NASSARAWA & ORS (2012) LPELR – 20602 (SC); SHITTA-BEY v A.G FED & ANOR (1998) LPELR – 3055 (SC).
I find that much as the lower Court has judicial powers to take judicial notice of the laws, the issue of who signed was merely pleaded in the 5th Respondent’s defence and the statement on oath and not supported by any provable evidence and by Appellant’s reply statement of oath but not proved by evidence.
None of the parties provided a specimen signature of said Hon Justice M. U. J. Obi, on the record or identified same. There was nothing to compare it with; nobody was called to state whether he was present when Exhibit C was signed or who prepared it in the firm or whether he was the only legal practitioner who made up the law firm.
Also, the lower Court cannot take judicial notice of the signature of the said Judge, even if he was a former Chief Judge of Delta state, neither did the lower Court state in the Judgment that he knew the

signature nor compared it with any of his judgments. He did not state any parameter.
Moreover, from the franking, there is nothing to show that, it was the Honourable Judge that signed that document.
The name “M. U. C. Obi & Co”, is a law firm, the fact closed. The code of conduct and rules of ethics expect Judges or Public servants to resign from the office and cease participation once elevated.
For the avoidance of doubt, the rules cited by the lower Court does not apply to the Hon M.U.C. Obi who retired in 2010 well before the February 2016, Code of Conduct Rules, in addition once a judicial officer retires, he ceases to appear before a Court of law as a barrister or advocate but can act as a solicitor, consultant and do any work to be done and carry out the services of a solicitor.
Once the oath of office of a judge expires by retirement, being a Judge does not rob him of being a member of the legal profession or a member of the family of legal practitioners, having acquired all necessary requirements, he remains a Barrister and Solicitor of the Supreme Court but

without the right to appear in Court of law.
Therefore, the position of Section 22 (1), (2) & (6) of LPA CAP LII LFN 2004 and Rule 9(4) of the Revised Code of Conduct for Judicial Officers in Federal Republic of Nigeria, February 2016 relied upon in the judgment, is inapplicable under the circumstances of this case.

(2008) 6 NWLR (PT. 1084) 642 wherein Tobi, JSC; reiterated the above position in these words: – “xxx A Court can only be accused of raising an issue, matter or fact suo motu, if the issue, matter or fact did not exist in the litigation. A Court cannot be accused of raising an issue, matter or fact suo motu if the issue, matter or fact exist in the litigation. A Judge by the nature of his adjudicatory functions, can draw inferences from stated facts in a case and by such inferences, the Judge can arrive at conclusions. It will be wrong to say that inferences legitimately drawn from facts in the case are introduced suo motu. That is not correct. Xxxx” Guided by the above cited cases, I cannot but express the opinion that it is apparently because the Appellants have no proper answer to the issue of “joint tenancy” they have accused the lower Court of raising suo motu as they never filed a reply to the issue of joint ownership which the Respondent raised that they (Appellants) have now raised the issue that the lower Court raised the said issue of “joint tenancy” suo motu and riding on the shoulder of the principles of fair hearing, urging

this Court to set aside the judgment of the lower Court on that ground. I cannot but say that the correctness of the resolution of an issue a Court is accused of raising suo motu is not in issue in an issue founded on the allegation that a Court raised the said issue suo motu. This is because whether or not the Court accused of raising an issue suo motu and resolving same without calling on parties to address it thereon, correctly resolved the same is of no moment as the Court by so doing has committed an infraction of the principles of fair hearing. Hence, in my considered view, an Appellant who is also aggrieved with the correctness of the resolution of the issue raised by a Court suo motu must appeal against the finding in that regard (as the said Appellant cannot presume that the Court would agree with his stance of the issue) and argue it as a separate issue or argue it together with the issue questioning what the lower Court is accused of having resolved suo motu without hearing the parties. The Appellants would appear to have lost sight of this in that while they argued their issue one relating to what they conceived the lower Court to have done suo

motu without hearing parties, (and which is not founded on a separate ground of appeal), they also proceeded to argue regarding the correctness of what the lower Court was accused of raising and resolving suo motu (i.e. their ground 1 of the grounds of appeal from which no issue was distilled) together with the issue accusing the lower Court of resolving an issue suo motu without hearing the parties (an issue that lacks foundation in any of the grounds of appeal). To this extent, issue 1 as argued by the Appellants ought to have been discountenanced as they have argued an issue not based on any ground of appeal together with “a ground of appeal” from which no issue was formulated. In any event I find it amazing that the Appellants who at paragraph 7.06 of their brief of argument stated thus:- “xxx The case of the parties was fought on the issue of communal ownership of the land by Umuohakwe/Umuobiaku and not on Joint tenancy as such was unknown under customary law as at 1937-1938 when the said land tussel (sic) was fought.” (which I consider to be an acknowledgment that “Joint tenancy” is known to customary law, only that it was not known to customary law as

at 1937-1938), never disclosed when after 1938 the said “joint tenancy” became known to customary law. Suffice it to say that flowing from all that has been said and particularly against the backdrop of the pleadings of the parties, I clearly do not find the lower Court to have suo motu raised the issue of “joint tenancy” as alleged by the Appellants.”
per LOKULO-SODIPE, J.C.A (PP. 65-69, PARA. B)
The parties by the above averment joined issues and the next step is for the parties to lead evidence in proof of their averments.
The learned trial judge therefore, did not spring up the issue out of thin air, as it was already a live issue in the pleadings of the party and was enough to negate the claims of the parties.
In ALI v SULE (2017) LPELR – 42139 (CA) it was held thus;
“…This notwithstanding, under our adjectival laws, a judge can only be accused of raising issues suo motu if the issue was never raised by any of the parties in the litigation. A judge cannot be accused of raising an issue suo motu if the issue, just as in the instant appeal was raised by both parties or by any parties in the proceedings…”
per OHO, JCA (PP. 18 -20, PARAS. D – F)

See also; SANYINNA v SAYINNA (2019) LPELR – 46481 (CA); DANIEL v E.F.C.C (2016) LPELR – 41173 (CA); USMAN & ANOR v SALANKE (2015) LPELR – 40744 (CA).
In the analysis of this case, the learned trial Court did not raise it suo moto, the issue was raised by the one of the parties and issues were joined by the Appellant/Claimant on the pleadings, evidence on the statement of oath is a different issue.

Be that as it may, the reasons for his conclusion of setting aside Exhibit C is not tenable or sufficient having not been predicated on proven evidence from the records that indeed Hon M.U.C OBI signed Exhibit C.
I therefore, set aside the order and hold that Exhibit C is not nullified by this singular fact as will be seen in the second issue.
I therefore resolve the issue against the Appellant

On issue 2, the contention of the Appellant is that learned trial judge dismissed the Appellant’s case based on Exhibit C, and did not consider the acts of possession and the claim of trespass is correcthaving based his reasonings on the

validity of Exhibit C.

The Appellant’s principal claim is for “declaration of acts of trespass by the Respondents on his land covered by certificate of ownership No DTSR 15734 and registered as 40/40/Co.206’’, this presupposes that the ownership of the land is vested in him by virtue of the Certificate of occupancy and in the light of the defendants also challenging title of the claimant, has put the ownership of the land in issue. Basically, the defendant challenges the root of title of the claimant on the pleadings and on the evidence adduced by both parties.
Therefore, the issue of ownership/title must be settled. The Appellant claims a C of O but the basis of this title must be examined before the claim shall be considered.
In OSHIBANJO v ODUNLAMI (2015) LPELR – 25863 (CA) the Court held thus;
“A party on a parcel of land who claims ownership of the land is a trespasser if he lacks title to the land. See Egbuta vs Onuna (2007) 10 NWLR pt.1042 pg.298.”
per NDUKWE – ANYANWU, J.C.A (P. 28, PARAS. C-D)
Also, in EZENWA v OKO & ORS (1999) LPELR – 13012 (CA):
“trespass is defined as

civil wrong against a party, it presupposes that appellant either to be the owner of disputed land or he is in possession.’’

There is abundant evidence that the land in dispute was the same known to both parties but the issue of whose side it fell will depend on documentary evidence. I find that the area covered by D.D.P.A was ceded to Bendel State in 1975 by the UMUADA FAMILY, see Exhibit S & V1 and later devolved on the Delta Development and Property Authority (D.D.P.A) – Exhibit V2 and was so vested till the time it was allocated. This was the unchallenged evidence of DW1, DW2, DW3 & DW4 which was backed up by documentary evidence.

Furthermore, the title of the claimant- EXHIBIT C was stated to be sold by NWASIWE OKOLIE, OGBUESHI HENRY KONWEA acting for themselves and on behalf of Umuda family of UMAJI quarters in Oshimili Local government area of Bendel State to Mrs. Rose U. Moweta. There is an unchallenged documentary evidence that the Vendors are not accredited representatives of the Umuda family and a Court of law in suit no A/258/2002 delivered on 29th January, 2004 in REV F. B NWAMU & ORS v MASTER SAMUEL OGOCHUKWU

& 16 ORS, declared them non accredited agents to Umuda family and restraining them from selling family land and setting aside all such sales. ASEBIEKO v MORAKINYO (2016) LPELR 40865 – (CA).

This has largely affected the root title of the Claimant; this was not challenged and no superior evidence was tendered.
The short summary is that;
1. Both parties title flow from a common source –UMUDA FAMILY
2. Exhibit C was not entered by accredited vendors and if at all they did the sale has been long set aside.
3. The principal vendor to Mrs Rose Moweta, the mother of the person (Moweta) who sold to the claimant via her son had no title to convey, see Exhibits Q1 & Q2.
4. Exhibit G the transfer from Moweta to the 5th Cross Respondent does not mention the root sale title of his mother in 2001. Which is the vital link but states it was inter – vivos from the Umuada Family to which he does not belong having being challenged on the line of inheritance.
5. The property having been vested in BENDEL STATE as at the time of sale could not have been sold by the same grantee (UMUDA FAMILY) as at the time of sale to the claimant. The

property now belonged legally to D.D.P.A the only authority that can give title and did not have his name nor the name of his predecessors on their register as owner.

for a declaration of title to land action to a particular person or source and this averment, as in the present case, is challenged, the party, to succeed, as a Plaintiff in the Suit must not only establish his title to such land, he must also satisfy the Court as to the title of the person or Source form whom he claims. He cannot totally ignore the validity of his grantor’s title where this has been challenged and concentrate only on his own title to such land as he would not have acquired a valid title to land- if infact his grantor at all material time has no title thereto…”
per TSAMMANI, J.C.A (PP. 22 – 23, PARAS. B – C)
I adopt the reasoning of this judgment as mine in this appeal.

Therefore, the defects raised above in Exhibit C has rendered Exhibit C invalid having been set aside by a superior Court of law whose decision is still valid and subsisting.
The issue of trespass cannot be considered in the light of the above.
The appeal lacks merit and is dismissed in its entirety

CROSS APPEAL
This Cross – appeal is against the decision of Hon. Justice

Marshal Umukoro (Hon. Chief Judge of Delta State) of the High Court of Delta State, Asaba Judicial Division delivered on the 10th February, 2017.
The claims in the counter claim are thus;
i. A declaration that the 5th Defendant/counterclaimant is entitled to the possessory rights over all that piece or parcel of land measuring approximately (899.200msq) lying, situate and known as Plot 6 of Delta Development and Property AUTHORITY DDPA) Low cost Housing Estate along Benin-Asaba expressway, opposite Federal Road Safety office, shown in the DPPA LOW COST HOUSING Estate Survey Plan No AA/DT174/97 and the 5th Defendants/counter claim’s litigation Survey plan No AA/D06/2013 filed in this suit.
ii. A declaration that the Certificate of Occupancy No DTSR15734 GRANTED to the claimant upon a grant of land to him by Mr Anthony Moweta who was never a land owner at the Delta Development and property Authority (DDPA) Low cost Housing Estate or at Umuda land is null and void.
iii. An order setting aside the said Certificate of Occupancy No DTSR15734 IN THE NAME of Johnbull Ebundon dated 23/5/2011.
iv. A declaration that the cutting down of

the 5th defendant /counterclaimant’s pawpaw and growing orange trees on the land in dispute by the claimant and his building activity on the 5th defendant/counter claimant said land is an act of tresspass.
v. An order for possession of the said land trespassed upon by the claimant.
vi. An order directing the claimant to pay the sum of N30,000,000 (thirty million naira) to the 5th defendant /counterclaimant as damages for trespass to the 5th defendant/counterclaimant’s land.
vii. N1,200,000.00 being legal fees paid by the 5th defendant/counterclaimant for the defence of the suit and counter claim.
viii. An order of perpetual injunction restraining the claimant, his agents, privies and assigns from continuing any further act or trespass on the said 5th defendant/counter –claimant ‘s land.
And for further or other orders as the Honorable Court may deem fit to make in the circumstances.’’

A brief summary of the facts of this Cross -appeal are; the Cross – Respondent as the claimant at the lower Court claims that he purchased the land in dispute from one Mr. Anthony Moweta (2PW) on the 3rd of

May, 2001. Mr. Anthony Moweta claims that he acquired the land through inheritance from his late mother Mrs. Rose U. Moweta and his said mother who is late acquired the land through purchase from Umuda family of Umuaji quarters, Asaba who were the original owners. The Cross – Respondent’s case is that the land is not within D.D.P.A Housing Estate. The Cross – Appellants’ case on the other hand is that the land in dispute falls within DDPA Housing Estate. The Cross – Appellants claim that DDPA allocated the land to one late Miss Ofunne Joy through Exhibit R1 and that the said late Miss Joy Ofunne transferred her interest in the land to him (5th Respondent) in the year 2001 vide Exhibit R2. The Honourable Justice of the lower Court in his considered judgment held that the claim of the Cross – Respondent (Claimant) and the counter – claim of the 5th Cross – Appellant (5th Defendant) were all dismissed as His Lordship was of the view that none of the parties proved a good title sufficient for declaration of title in his favour.

Dissatisfied with the decision, the Cross – Appellants filed their Notice of

Cross – Appeal on 8th May, 2017 with three Grounds of Appeal and brief of argument was filed on the 14th of August, 2017 and it was settled by Eloka Asiana Esq. of Mater Dei Chambers, wherein two issues were formulated for determination by this Court thus;
1. Whether the learned trial judge was right in dismissing the 5th Cross Appellant’s counter – claim after dismissing the Cross – Respondent’s claim, having regard to the state of pleadings and evidence adduced at the trial?
2. Whether the Learned trial judge was right in relying on issues not joined or raised by the parties in their pleadings and supported evidence, in coming to the conclusion that the 5th Cross Appellant did not prove his Counter – Claim?

While the Cross – Respondent’s brief is filed 15th September, 2017, same is settled by A. O Ewere Esq. of Ewere Law Office, wherein a sole issue was raised;
1. Whether the learned trial judge evaluated the evidence led in support of 5th Defendant/Cross – Appellant’s case before dismissing the counter – claim.

CROSS APPELLANTS’ ARGUMENTS
On issue 1, Counsel submits that where there is claim for damages for trespass and perpetual injunction, title is said to be in issue. ARINZE v BAMGBOSE (2015) ALL FWLR (PT. 768) 968 AT 977, PARAS. F – H, PARA B; OLANIYAN v FATOKI (2014) ALL FWLR (PT. 717) 703 AT 715 – 716, PARAS. H – B, RATIO 2.

That title having been put in issue in this case, the identity of the disputed land must be proved, OKWARAONONI v MBADUGHA (2014) ALL FWLR (PT. 728) 914 – 937, PARAS, D – D, RATIO 5; OMOTOSHO v SAKA (2015) ALL FWLR (PT. 782); 1686 AT 1702, PARA. H RATIO 7.

Counsel further submits that a party to a claim of declaration of title to land must prove both his title and the root of title of his vendor, unless his vendor’s title is not challenged. ANYAKA v ANYAKA (2015) ALL FWLR (PT. 799) 150 AT 1176, PARAS. B – D, RATIO 10. That where two parties are laying claim to the same parcel of land, the Court will grant the land to the party that has proved a better title,AIYEOLA v PEDRO (2014) ALL FWLR (PT. 744) 17 AT 43; PARAS A – B, RATIO 6; OMOTOSHO v SAKA (SUPRA) AT 1702, PARAS. F – G, RATIO 6.

CROSS RESPONDENT’S ARGUMENTS
It is the Cross – Respondent’s submission that the Cross – Appellants’ postulation to the effect that since the Reply to Defendants’ Joint statement of Defence and Defence to the 5th Defendant’s counter – claim were filed without an accompanied written statement on oath, all that was required from the 5th Defendant/Cross – Appellant was a minimal proof and that the counter – claim of the 5th defendant ought to succeed in the circumstance.

Cross Respondent argues that a counter – claim like a cross appeal is a separate and independent suit and not an appendage to the main suit/appeal and relied on ADESINA v OBALA (1999) 66 LRCN PAGE 181 at 209 D; AKPAN v BOB & ORS (2011) 193 LRCN PAGE 78 at 163 – 164 RATIO 19. Counsel further argues that since Reply to the Defendants’ Joint statement of defence and defence to 5th Defendant’s counter – claim was filed without written statement on oath it amounts to the counter – claim not being defended. AKPAJI v UDEMBA (2009) 176 LRCN PAGE 97 at 112, Averments in the Defendants’ Amended statement of

Defence/Counter – claim of 5th Defendant shows that the Defendants were responding to averments in the Claimant’s statement of claim and a careful scrutiny of the claimant’s statement of claim, the evidence of the Claimant and his witnesses will show that the issues raised in the Defendants’ Joint Statement of Defence/Counter – Claim were adequately covered.

Counsel further contends that the argument of the Cross – Appellant’s counsel at paragraphs 4.2 (vi) of its brief is not supported by evidence on record. That the learned trial judge in accordance to the position of the law, evaluated all relevant Exhibits tendered before him in the matter alongside oral evidence; FAGUNWA v ADIBI (2004) 120 LRCN PAGE 4548 AT 4567. Counsel urges the Court to carefully study Exhibit V2 (Litigation survey) as it reveals that the Charles Edozim Avenue is outside the area verged green claimed to be the area granted to DDPA. He went on to submit that the Cross Respondent who has been in possession of the land before the suits were filed was not made party to the suits; BABATOLA v ALADEJANA (2001) 88 LRCN PAGE 2293 RATIO 9;

ALLI v ALESINLOYE (2000) 77 LRCN PAGE 742 at 798 E (RATIO 24); AWODI v AJAGBE (2015) 242 LRCN PAGE 99 RATIO 2.

In conclusion, Counsel urged the court to hold that the Cross Appellants woefully failed to prove the counter claim at the lower court.

CROSS APPELLANTS’ REPLY
In reply to the arguments, Counsel referred to Section 133 of the Evidence Act, 2011; MBANEFO v AGBU (2014) ALL FWLR (PT. 724) 40 AT 71 – 72, PARAS, H – B; OKOYE v NWANKWO (2014) ALL FWLR (PT. 756) 471 AT 491, PARAS. E – G, 498 – 499, PARAS G – A to submit that the Cross Respondent has failed to discharge the burden on them

On Exhibit S, Counsel submits that there is no evidence that the said grant evidenced in Exhibit S has been revoked by the Umuda family therefore, issues cannot also be said to have been joined by the parties; MAOBISON INTER – LINK ASSOCIATED LTD v U.T.C NIGERIA PLC (2013) ALL FWLR (PT. 694) 52 AT 60, PARAS. A. The Reply/Defence to Counterclaim filed by the Cross Respondent was abandoned as no evidence was led on it, thereby not controverting the Cross Appellants claim.

He referred to DALEK NIG. LTD v OMPADEC (2007) ALL FWLR (PT. 364) 204 at 226, PARAS. B – C. RATIO 1 on when issues are said to be joined in pleadings

On paragraph 3.1 of the Cross-Respondent’s brief, Counsel submits that Exhibit R1 having been tendered without objection on any ground that Exhibit R1 is a copy of the original document when Exhibit R1 is a certified true copy, admitted as public document by reason of its origin from the D. D. P. A, making it a public document. Sections 87 (a), 89(e), (f), 90 (1) and 102 of the Evidence Act, 2011; PROGRESSIVE ACTION CONGRESS v INEC (2009) ALL FWLR (PT. 478) 260 AT 335, PARAS. C – D, RATIO 17 was relied on.

DIBIA v TUBONIMI (2010) ALL FWLR (PT. 546) AT 598, PARAS D – G, RATIO 2; AFOLABI v OGUNLOWO (2008) ALL FWLR (PT. 429) 537 AT 560, PARAS. F – G, RATIO 4 were cited in submitting that the Cross-Respondent ought to have filed a counter survey plan where a party desires to contest the description and features on the plan filed by the Cross Appellant. ETA v DAZIE (2013) ALL FWLR (PT. 683) 1880 AT 1891 PARAS. B – D, R.

Counsel went on to submit that there is no evidence that the judgment in Exhibit

Q1 has been set aside, the order setting aside all sales of land by the Defendants therein includes the Cross Respondent, no valid title can be derived from the said Exhibit C even if the issue of its preparation by a serving judicial officer was not raised. Counsel refer to the case of ABIA v C.R.S.P.I LTD (2006) ALL FWLR (PT. 339) 955 AT 972 PARAS. C – E on the meaning of judgment in rem and AKINSANYA v ATT – GENERAL, FEDERAL MINISTRY OF JUSTICE (2013) ALL FWLR (PT. 668) 941 AT 952, PARAS. H – B.

In conclusion, Counsel urged the court to grant the reliefs of the Cross Appellants in the appeal.

RESOLUTION
The two issues distilled by the Cross Appellants and issue 1 of the Cross Respondent to my mind flow into each other and revolves around the same facts. Both issues would be resolved together.

The reasons for dismissing the counter claim in the judgment at page 310 – 312 of the record of proceedings were that; “where is the original copy of the letter of offer to Joy Ofunne by DPPA. Why is there no evidence of payment by the said JOY Ofunne as condition precedent for the allocation, no evidence of ground rent,

where is the consent of D.D.P.A granting the allocation to 5th defendants. Exhibit R1 was obtained on 6th May, 2015 by 5th defendant. The Exhibit R1 and R2 contradicted each other, reference letter of Exhibit R1 differed from Recitals and survey plan referred to in Exhibit R2 was missing in Exhibit R1. No witness testified of sale to the 5th Respondent.”

Upon a perusal of the Exhibits tendered in support of defense and counter claim in page 395, the allocation of Miss Joy Ofunne from D.D.P.A; a certified copy from the office collected by her on 22/8/97. It’s not in dispute that the entire lay out was vested via Bendel State to Delta State Development Authority, who in turn allocated same to the said Miss Joy, size of land allocated was 899.200 sq meters in Exhibit R1.

There has been no challenge as to the root title of the disputed land till this stage. DW3 a surveyor who was conversant with the area identified plots 6 and 7 as the verged yellow part affected and that as at then there was no Charles Edozie Avenue in Exhibit V2.

At page 114 of the records is the allocation letter of D.D.P.A to Joy Ofunne of plot 6 measuring 899.200 sq

meter and at clause 3c it states that “there shall be no assignment or subletting of any part without prior written consent from the Authority.” It is endorsed at the back as duly collected by Joy Ofunne on 22/8/97. At page 396 of the record is the Deed of transfer on 17/1/2001 from the said Miss Joy Ofunne to Mr Roy Ogugua Elikwu (5th Respondent).

The evidence of ECEE OKAFOR (DW4) throws more light on the matter, he is a staff of D.D.P.A and represents the office interest, he confirmed that the land in dispute plot 6 was within the land granted by Umuda family which passed to D.D.P.A and was allocated to Joy Ofunne in 2001 who was their staff but died, these are contained in paragraph 3 ii of the written statement on oath at page 410 of the record. He identified the survey plan No. AA/DT174/97 showing the extent of the entire D.D.P.A layout survey and boundaries, he swore thus;
2. Following the subpoena served on the general Manger of DPPA from this Court to come to testify in this case, Miss Agnese Onodioma was mandated by the said General manager on behalf of the DDPA in line with the directive of the said subpoena that the

evidence of a witness be filed in Court…..
3. I have now been mandated by MR Charles Esiovwa the General Manager of DDPA to give evidence in this case on behalf of DDPA in respect of the Land in dispute and I hereby depose as follows;
3i. I do not know Miss Joy Ofunne in person but from the records of the D.D.P.A I found that she was a staff until her death in 2001, and in 1997 she was granted a parcel of land in Delta development property Authority (DDPA) Low Income Housing Estate along Benin Asaba Express way Opposite Federal Road Safety office Asaba. UPON her fulfillment of the requisite conditions for the grant of land by the said DDPA. The said land granted to the said Miss Joy Ofunne in Plot No 6 of the D.D.P.A low income housing estate along Benin Asaba express way opposite Federal road safety office Asaba. I can identify the letter of offer of the said land by D.D.P.A to Miss Joy Ofunne which she acknowledge receipt of.
iii. From the deed shown to me by the 5th defendant the aforesaid Miss Joy Ofonne sold her aforesaid land plot 6 of the low cost housing Estate Asaba to 5th defendant counter claimant in 2001.
Vii. The DDDPA

did not grant or allot any land to Mr Anthony Moweta. His mother or the Claimant in the aforesaid D.D.P.A LOW COST HOUSING ESTATE, along Benin Asaba Express road, opposite Federal Road Safety Office, Asaba.’’

From the above evidence on oath, I am satisfied that the Authority’s staff (DW4) who testified on behalf of the authority claims ownership of the lay out, has testified clearly that the property belongs to them and it was allocated to the said Joy (a staff) and she is dead, he confirmed that all requirements were fulfilled by her and it was legally allotted to her, they are aware of the sale to the 5th defendant. There is no contradictory evidence on this and it remained unshaken. The issue of consent is for the D.D.P.A to contend with and since it’s not an issue in the pleadings, I do not see how it effects title, more also Dw4 – Ecee Okafor, an officer from D.D.P.A. stated in paragraph 3 of Exhibit W;
ix. When 5th defendant/counter – claimant reported to our office in 2003 that unknown person has encroached on his aforesaid plot 6, officials from the above office visited the land severally to investigate his report

in line with the method of treating such report but on each occasion, the armed youths and thugs who were supervising building work on the land chased them away so he was advised to seek legal remedy when he is able to know the identity of the person encroaching on the land.

From the above sworn statement at page 300 of the record, which again was not challenged, the witness tendered Exhibits X1-X10. From the evidence which was not shaken, we are satisfied that the ownership in the land had changed hands to the 5th Respondent and D.D.P.A were even aware of activities of the Cross Respondent on the land and made efforts to stop same. This Court is satisfied that on a preponderance of evidence that the said Joy Ofunne who sold and died in 2001 had sold to the 5th Respondent, with the knowledge and consent of the D.D.P.A.

On the questions asked in the judgment, firstly, I have examined the said letter of allocation of Joy Ofunne and find that it’s a certified true copy as required by law by virtue of it being a public document via Section 105 of Evidence Act, 2011 that was tendered and this was without any objection from the opposition.

The Cross Respondent had pleaded in paragraph 3c of his reply thus;
“…Claimant will lead evidence at the trial to establish the fact that the purported letter of offer by the DDPA, to the acclaimed Miss Joy Ofunne and Deed of transfer between the acclaimed Miss Joy Ofunne and the 5th defendant are forged documents as designed by the 5th defendant using his position as a retired staff of DDPA to perfect the fraud purely for this action. Claimant will put defendants to strictest proof of the averments in paragraph 14 & 15 of the defendants joint defence.”

It is pertinent to note that there were no particulars of fraud/forgery pleaded. The Apex Court in EYA & ORS v OLOPADE & ORS (2011) LPELR – 1184 (SC) on the issue whether when a party is relying on fraud or forgery, it must be pleaded and its particulars stated in the pleadings;
“To begin with, it is settled law that before a party can legally rely on fraud or forgery, the fact must not only be pleaded but particulars thereof must be provided in the pleadings.”
per ONNOGHEN, J.S.C (PP. 27-28, PARAS. F-A)
See also; AMINU v OGUNYEBI (2003) LPELR –

7195 (CA); HAPPY LAND HAPPY WORLD LTD v UNION BANK OF NIG & ORS (2017) LPELR – 43564.
The Cross Respondent therefore failed to do this and it does not amount to a challenge of the 5th defendant’s counter claim.

Furthermore, the said reply to statement of joint defence was not accompanied by a sworn statement on oath, the counterclaim has minimal proof of its case. The fact of the true position is that Cross Respondent had abandoned its defence to the counter claim.
This Court in MAIKUDI v WADA (2018) LPELR – 46004 (CA) held on the Effect of failure to file statement on oath in respect of the defence to counter-claim;
“A counter-claim is an independent action and it needs not relate to or be in any way connected with the plaintiffs’ claim or rise out of the same transaction. It is not even analogous to the plaintiffs claim. It need not be an action of the same nature as the original claim. The separate and independent nature of a counter claim is borne out from the fact that it allows the defendant to maintain an action against the plaintiff as profitably as in a separate suit. It is a weapon of defence which enables the

defendant to enforce a claim against the plaintiff as effectually as an independent action. See OROJA & ORS v. ADENIYI & ORS (2017) LPELR 41985 (SC). In OGBONNA v. A-G IMO STATE (1992) LPELR 2287 SC, the apex Court held that where a defendant counter-claims against the plaintiff, the latter is duty bound to file a reply in defence to the counter-claim, otherwise the Court is entitled, in fact obliged, to assume that the plaintiff has no defence to the counter-claim and may enter judgment for the defendant accordingly. This is because where a defendant pleads certain facts in his pleading in support of his counter-claim, with all the necessary particulars, but the plaintiff fails to reply to them, no issue is raised on such defendant’s pleading. So, the Court can proceed to give judgment on it without much ado. The Appellant, through his counsel, has argued that the reply to the counter claim filed by the Respondent at page 122 of the Record will not avail him as the Respondent did depose to a written statement on oath in support. It is his opinion that having not filed a written statement on oath, the Respondent is deemed to have accepted and rested

his case on the facts adduced by the counter claimant. What are these facts adduced by the Appellant Paragraphs 9, 10, 11, 13, 14, 16, 29, 30, 31, 32 and 33 are instructive. “Paragraph 9 That before December 2008, the Plaintiff met me and pleaded that I sign an Agreement of sale of the property to enable use same to process and obtain a loan from a friend. Paragraph 10 I only prepared the Agreement Letter dated 16/11/2008 upon the request of the Plaintiff to enable process and obtain loan from a friend of hers in order to complete the payment of the purchase sum as she told me and I believed her. Paragraph 11 That I equally gave photocopies of the title documents in respect of the property to the Plaintiff to enable her conduct search on the title of the property which she did before making any Payment to me. Paragraph 13 That I and Plaintiff entered into an agreement that failure of the Plaintiff to complete payment before December 2008 that the sale transaction should be revoked. The Defendant hereby pleads the said Agreement Letter signed on 9/9/2008 by the parties and same shall be relied upon during trial. Paragraph 14 Since the Plaintiff failed to

perform her obligation of paying the full amount of the agreed purchase before December 2005, being the agreed date that I rescinded from the transaction and thereby revoked the agreement to sale to the Plaintiff. Paragraph 16 It is my contention that the Plaintiff never made a complete payment of the purchase of the property before I revoked my agreement to sell the property to the Plaintiff.” Paragraph 29 That I hereby adopt and repeat paragraph 1-28 of my depositions above as my evidence to prove my counter claim. Paragraph 30 That I am the bona fide owner of the property known and described as Block 1, Flat 2, J.S. Tarka Street Area 2, Garki Abuja, the res. Paragraph 31 That the defendant (that is the Plaintiff in the original action) has failed to perform her obligation by virtue of the Agreement Letter’ signed by the parties on 9/9/2008 over the sale of the property to wit: Block 1, Flat 2, 15 Tarka Street Area 2 Garki Abuja. Paragraph 32 I have been a landlord to three tenants paying the sum of N300,000.00 as annual rent in their respective apartments in the said property. Paragraph 33 That following the forceful eviction of these tenants in the

property, that I continued to loose the sum of N900,000.00 annually since March 2011 when the evictions took place by the Plaintiff and her cohorts…” It is apparent from the record, that the Respondent did not file any fresh deposition on oath in support of his defence to counter-claim. The place of a counter-claim in a suit is settled. It is in reality a separate action. It is a defendant’s Statement of claim and has the same status as a plaintiff’s Statement of claim. Just as a Statement of claim in a contested case, must necessarily have a Statement of defence in response, a counter-claim that is contested must have a defence to counter-claim in response. Just as evidence must be adduced in support of a Statement of claim and a Statement of defence to enable the Court evaluate the evidence and decide on a balance of probabilities, evidence must also be adduced in support of a counter-claim and a defence to counter-claim to enable the Court evaluate the evidence on a balance of probabilities and come to a conclusion. Just as where a Statement of defence has been filed and no evidence is led on it, the defendant is deemed in law to have abandoned his defence

and admitted as true the averment in the Statement of claim, so also where a defence to counter-claim has been filed and no evidence is led on it, the defendant by counter-claim, is deemed to have abandoned his defence. See SHAYI v. BABA (2017) LPELR – 43147 (CA); OLALEYE V. WEMA BANK LTD., & ANOR. (2010) LPELR – 4744 (CA). In the appeal under consideration, there is no statement on oath in respect of the defence to counterclaim. In other words, no evidence was led in support of it. The defence to counter-claim is therefore deemed in law to have been abandoned and the averments in the counter-claim admitted as true. The evidence of the Appellant in respect of the counter-claim goes one way with no other evidence or set of facts weighing against it in view of the plaintiffs failure to file his written deposition on oath in respect of the counter-claim. It is also trite that where evidence adduced in a case to support a claim is one sided, the onus of proof is discharged on a minimal proof. See VISAFONE v. ONAMUSI (2016) LPELR – 41444 (CA).”
per ABOKI, J.C.A (PP. 31-36, PARAS. C-E)
From the above, it is clear that there is no defense by the Cross

Respondent on the joint defence and counter claim and there is no evidence adduced in support.

In the light of the above, there is no challenge to the history of ownership from DDPA to Miss Joy Ofunne, on the other hand, this Court is satisfied that the Exhibits presented show legal better ownership over and above the Claimant which is fraught with several defects.

The Cross – Respondent tried to challenge same its brief but having not done so at the lower Court via pleadings and statement on oath, it’s too late in the day to mount same.

The questions raised by the lower Court is with respect, a descent into the arena parties and the Court are bound by the pleadings and evidence adduced, see; NWAFOR v NCS (2018) LPELR – 45034 (CA) where the Court held in a similar case on the duty of a judge not to descend into the arena to bridge the yawning gap between the case of parties;
“It is sad that the learned trial judge acted pre-maturely by raising such a sensitive issue, suo motu, and relied on it to terminate the Suit, without allowing the Suit to be heard on the merits. He rather speculated on the evidence, he did not allow the parties

to adduce, relying on his pre-conceived mind and imagination. That, in my view, was a clear descent into the arena of conflict to make a case for the Respondent, against the run of the game and tenet of adjudication. See Suberu Vs The State (2010) LPELR – 3120 (SC); (2010) 8 NWLR (Pt. 1197) 586: “A judge should not descend into the arena. A Court has no duty to bridge the yawning gap in the case of a party. Ajuwon Vs Akanni (1993) 9 NWLR (Pt.505 422; Olorunfemi & Ors Vs Asho & Ors (1999) 1 NWLR (Pt.585) 1 at 9. See also the case of Obi Vs A.G. Imo State (2014) LPELR – 24280 CA: “A trial Judge must not be seen to descend into the arena of conflict in a trial, to generate evidence or facts not canvassed or adduced by Witness(es) or apparent on the face of the records before him, to decide a case, See Ayoade Vs Spring Bank PLC (2014) 4 NWLR (Pt. 1396) 93 at 128.”
per MBABA, J.C.A (PP. 33 – 34, PARA. C)

The Appellant submitted in his Cross Respondent’s brief that the identification of plot 6 was in dispute, I disagree with this as the evidence of DW3 & DW4 put together laid this to rest. The size of land granted was 899.200MSQ by

D.D.P.A, while that allegedly granted in the Exhibit C of Claimant in the lower Court was 100ft x 100ft and now he has 1093.25sqmts, without mincing words, he failed to even show how the land grew and did not refute the fact that he fenced the road and portions on the sides to get this new size of land. DW1, DW3 & DW4 were quite assertive and this evidence was left unchallenged by the Claimant both in pleading and in cross examination. It cannot be settled by address in the brief.

D.D.P.A though not joined in this action have not denied or complained about the ownership vested in the 5th Respondent therefore, it does not lie in the mouth of any to so challenge. The acts of possession and existing dwarf wall which was built upon by the Cross Respondent were not challenged in evidence and cross-examination. The 5th Respondent definitely has a better title to the land.

I find discrepancies in Exhibit R1 and R2. It does not invalidate the implication of the content in Exhibit R1, it is XEM.69/A5/6. But the deed recital is XEM 69/AS/6/3. The contents are the same and refer to the same parties and plot 6 at the same address. Dw4 identified and tendered

them as from their office and this was not taken up at cross examination by anybody, the copies in the record are not clear, it blurs out after 6/3. I am satisfied that it referred to the same thing and it was an insignificant error/or printers which did not deceive or confuse anybody, Exhibit V1 was tendered by the DW3, a surveyor who had worked on the area before and during the demarcation exercise between Umuada and D.D.P.A, he identified the land as D.D.P.A SURVEY PLAN, Marked verged yellow the land in dispute -plot 6. Therefore, it is not correct that there is no survey plan showing same and there is no disparity shown.

The lower Court erred on the reasons given in its judgment for a dismissal of the 5th Respondent’s counterclaim and same cannot stand in law, more especially when the Court did not draw the attention of counsel to address thereon.
The issue of 5th Respondent using his office to obtain documents is a quasi criminal allegation which has not been proved herein.

In the light of the analysis above, in respect of issues raised this Court is satisfied that the lower Court erred in dismissing the counter claim of the Cross

Appellants and resolve the two issues in favour of the Cross Appellants.

Before I close this Judgment, the claim in vii. N 1,200,000.00 being legal fees paid by the 5th defendant/counterclaimant for the defence of the suit and counter claim is in form of special damages, it is hereby refused not having been proved. It is important to observe that the Cross Appellants are asking for possessory rights, this Court and the parties are bound by reliefs of party, see APC & ORS v JOHN (2019) LPELR – 47003 (CA). The 5th Cross Appellant has adduced sufficient evidence to the fact that he first got to the land legally before the Cross Respondent carried out acts of trespass, destroyed his trees and built on his dwarf wall, deprived him from the land while building under the guard of armed thugs, he had to now build on the unbuilt portion of the land and put 1st – 4th defendants/Cross – Appellants on the land thus proving acts of possession till date, the Claimant’s title and possession having been faulted. This Court is satisfied that the 5th Cross Appellant is entitled to his claims.

This Cross appeal has merit and is allowed, the judgment of the

Hon. Justice Marshal Umukoro (Hon. Chief Judge of Delta State) of the High Court of Delta State, Asaba Judicial Division delivered on the 10th February, 2017 in respect of the counter claim is hereby set aside.

This Court makes the following orders;
i. A declaration that the 5th Defendant /counterclaimant is entitled to the possessory rights over all that piece or parcel of land measuring approximately (899.200msq) lying, situate and known as Plot 6 of Delta Development and Property AUTHORITY DDPA) Low cost Housing Estate along Benin- Asaba expressway, opposite Federal Road Safety office, shown in the D.D.P.A LOW COST HOUSING Estate Survey Plan No AA/DT174/97 and the 5th Defendants/counter claim’s litigation Survey plan No AA/D06/2013 filed in this suit.
ii. A declaration that the Certificate of Occupancy No DTSR15734 GRANTED to the claimant upon a grant of land to him by Mr Anthony Moweta who was never a land owner at the Delta Development and property Authority (DDPA) Low cost Housing Estate or at Umuda land is null and void.
iii. An order setting aside the said Certificate of Occupancy No DTSR15734 IN THE NAME of Johnbull

Ebundon dated 23/5/2011.
iv. A declaration that the cutting down of the 5th defendant/counterclaimant’s pawpaw and growing orange trees on the land in dispute by the claimant and his building activity on the 5th defendant/counter claimant said land is an act of trespass.
v. An order for possession of the said land trespassed upon by the claimant.
vi. An order directing the claimant to pay the sum of N15,000,000 (fifteen million naira) to the 5th defendant /counterclaimant as damages for trespass to the 5th defendant /counterclaimant’s land.
vii. An order of perpetual injunction restraining the claimant, his agents, privies and assigns from continuing any further act or trespass on the said 5th defendant /counter – claimant‘s land.
Cost of N300,000 to the Cross Appellants.

UZO IFEYINWA NDUKWE-ANYANWU, J.C.A.: I had the privilege of reading in draft form the judgment just delivered by my learned brother OBASEKI-ADEJUMO JCA. I agree with the reasoning and conclusions contained in the lead judgment. I also abide by the orders contained therein.

MOHAMMED AMBI-USI DANJUMA, J.C.A.: I

have read in draft before now, and agree that the lead Judgment of Abimbola Osarugue Obaseki Adejumo, JCA, in the above case represents the justice of this case. I concur that there was established in this case the entitlement to a declaration of title and possession as claimed.

Appearances:

…For Appellant(s)

…For Respondent(s)