EDEH v. ULOKO (2021)

EDEH v. ULOKO

(2021)LCN/15151(CA)

In The Court Of Appeal

(MAKURDI JUDICIAL DIVISION)

On Tuesday, May 18, 2021

CA/MK/260/2018

Before Our Lordships:

Ignatius Igwe Agube Justice of the Court of Appeal

Cordelia Ifeoma Jombo-Ofo Justice of the Court of Appeal

Yargata Byenchit Nimpar Justice of the Court of Appeal

Between

CLETUS OCHIDOMA EDEH APPELANT(S)

And

MRS. PATRICIA ULOKO RESPONDENT(S)

RATIO

WHETHER A COURT CAN GRANT A RELIEF NOT CLAIMED

I dare state that a Court cannot grant a relief not claimed. See The Nigerian Air Force vs. Shekete (2002) 12 SCNJ. 35 at 52 -53; Eagle Super Pack (Nig.) Ltd. vs. A.C.B. PLC (2006) 19 NWLR Pt. 1013, pg. 20. PER CORDELIA IFEOMA JOMBO-OFO, J.C.A.

POSITION OF THE LAW ON HOW PARTIES CAN MAKE CLAIM FOR RELIEF

For a plaintiff, a relief is claimed through the writ of summons or statement of claim, while for the defendant such as the respondent in the instant case, it is claimed through a counter claim as opposed to a statement of defence as the appellant has tried to suggest. The claim of a defendant in an action is made vide a counter-claim. See Dabup vs. Kolo(1993) 9 NWLR Pt. 317 pg. 674; Oyegbola vs. ESSO W.A. INC. (1966) All NLR 162; and Edosomwan vs. Idugboe (2019) LPELR-46423(CA). per Awotoye, J.C.A. PER CORDELIA IFEOMA JOMBO-OFO, J.C.A.

EFFECT OF THE PLEADINGS AND EVIDENCE PRESENTED BY THE PARTIES ON THE JURISDICTION OF THE COURT AND THE PARTIES THERETO

The law is trite that, the jurisdiction of a Court is limited to and wholly circumscribed by the pleading and evidence presented by the parties. Both the Court and the parties are bound by the pleadings of the parties and neither the party nor the Court would be allowed to set up a case different from the pleaded facts. See the case of Okpala & Sons Ltd. vs. NB Plc. (2017) LPELR-43826(SC) per Okoro, J.S.C., wherein he enjoined as follows: “The law is trite that litigation is fought on pleadings of the parties and no party will be allowed to go outside the pleadings to make a case different from that which he had pleaded. At the hearing, no litigant would be permitted to set up a case which is different from that set forth in his pleadings. See Onuoha Nwokorobia vs. Desmond Uchechi Nwogu & Ors. (2009) LPELR-2127 (SC), (2009) 10 NWLR (Pt.1150) 553; Clifford Osuji vs. Nkemjika Ekeocha (2009) LPELR-2816 (SC), (2009) 16 NWLR (Pt.1166) 81.” PER CORDELIA IFEOMA JOMBO-OFO, J.C.A.

WAYS BY WHICH A PLAINTIFF MAY PROVE HIS OWNERSHIP OR TITLE TO A LAND IN DISPUTE

The Supreme Court in the authority of Otukpo vs. John (2013) All FWLR Pt. 661, pg. 1433 at 1527, adopting its earlier decision in Idundun vs. Okumagba (1976) 9-10 SC., 227, enunciated thus: “Ownership of or title to land may be proved in any of the following ways: a. By traditional history; b. By production of documents of title; c. By acts of long possession and enjoyment of land; d. By acts of a person claiming the land e.g. by selling, leasing and renting; and or e. By proof of possession of connected or adjacent land.” See also Falaye vs. Dada (2016) 262 LRCN., pg. 38 at 87EE and 88AK; Atanda vs. Ajani (1989) 3 NWLR Pt. 111, pg. 511; Nruamah vs. Ebuzoeme (2013) All FWLR (Pt. 68) 1426 at 1428. It was held in Akanji vs. Balogun (2005) 10 NWLR Pt. 933 Pg. 394, per Oputa, J.S.C., that: “What is to be noted and re-emphasised is that the party claiming title to land is not bound to plead and prove more than one root of title to succeed. If he relies on more than one root, that is merely to make assurance doubly sure. He does that, abundantia cautella. PER CORDELIA IFEOMA JOMBO-OFO, J.C.A.

WHETHER A COURT CAN GRANT A RELIEF NOT CLAIMED

POSITION OF THE LAW O HOW PARTIES CAN MAKE CLAIM FOR RELIEF

EFFECT OF THE PLEADINGS AND EVIDENCE PRESENTED BY THE PARTIES ON THE JURISDICTION OF THE COURT AND THE PARTIES THERETO

CONDITIONS THAT MUST BE SATISFIED FOR CLAIM OF GIFT OF LAND INTER VIVOS

In the case of Gabdo vs. Usman (supra), this Court found and held thus: “Now, for the respondent who relied on gift from his father of the land in dispute, he carried the burden of proving by credible evidence the following two essential facts, namely: a. The fact of the gift inter vivos to him by his father; b. The title of his father to the land in dispute which he transferred to him by gift inter vivos.” See further, Ojo-Osagie vs. Adonri (1994) 6 NWLR Pt. 349, pg. 131 at 154; and Elayo vs. Veregh (2019) LPELR-47134(CA). In the instant case, the respondent pleaded and gave evidence that her father acquired the large expanse of the land in its virgin state. This is to say that the respondent’s father came on and acquired the land by deforestation, thereby becoming the original or 1st generation owner of the large expanse of land which included the land in dispute. It was from this large expanse of land that the respondent’s father in his lifetime, gifted to her the portion purportedly in dispute. Much as the respondent did not plead and offer any evidence pertaining to the custom that recognized that mode of acquisition of land, it is to my mind, not a mandatory requirement in proof of customary entitlement to land. However, being a customary gift inter vivos, as claimed by the respondent, it was incumbent on her to plead and prove the fact of witnesses to the gifting and when it was made and accepted, so as to meet the legal validity of customary gift inter vivos. The current state of the law on a gift of land inter vivos is as expounded in the case of Ezenwora vs. Ezenwora (2018) LPELR-43944 Pp. 26-27, para A., where Oho, J.C.A., had this to say: “To establish a gift of land inter vivos, there must be evidence of actual handing over of the land and acceptance thereof in the presence of witnesses. … To transfer an absolute title under customary law, it ought to be pleaded and proved that the gift was made in the presence of witnesses. To that effect, names of those witnesses should also be pleaded as well as the fact that they witnessed the actual delivery or handing over of the land to the particular donee.” PER CORDELIA IFEOMA JOMBO-OFO, J.C.A.

BURDEN PLACED ON A PARTY WHO PLEADS AND TRACES HIS TITLE TO A PARTICULAR PERSON, AND THAT AVERMENT IS CHALLENGED

… this Court in a plethora of authorities which include Elayo vs. Veregh (2019) LPELR-47134(CA) 21, paras. B-D, per Otisi, J.C.A., has reiterated in the following words that: “The position of the law is that, once a party pleads and traces his title to a particular person, and that averment is challenged, he must establish how that person from who he claims his root of title came to have title vested on him. Thus, he must not only establish his own title, but he must also satisfy the Court as to the title of the source from whom he claims to derive his title to the land; Adesanya vs. Aderonmu (2000) LPELR-145(SC); Anukam vs. Anukam (2008) 1-2 SC. 34; Nneji vs. Chukwu (1996) 10 NWLR Pt. 478, pg. 265; Odofin vs. Ayoola (1984) LPELR-2227(SC). …..” PER CORDELIA IFEOMA JOMBO-OFO, J.C.A.

BURDEN OF PROOF PLACED ON A PARTY SEEKING A DECLARATORY RELIEF WITH RESPECT TO A LAND IN DISPUTE

… in seeking a declaratory relief as sought for by the respondent in her statement of defence/counter-claim, she is to rise or fall depending on the strength or weakness of her case. It does not matter whether her pleading was challenged or not, the respondent is expected legally to carve her own niche based on the credible, cogent and admissible evidence she brought to bear on her case. See Obu vs. Okigwe (2018) LPELR-43938(CA), where this Court held that: “… The law is settled that a declaration of title is not granted on admission. The plaintiff must satisfy the Court by cogent, credible and legally admissible evidence that he is entitled to the declaration sought. See Fabunmi vs. Agbe (1985) LPELR-1221 (SC), (1985)1 NWLR Pt. 2, pg. 299; Umesie vs. Onuaguluchi (1995) 9 NWLR Pt. 421, pg. 515.” Also, in the case of Chukwu vs. Okoh (2016) LPELR-42117, this Court made it clear that: The law is settled that the Court does not grant a declaration on admission of parties. It is also settled that title or ownership of land cannot legally be granted on admission in the pleadings of a defendant. The plaintiff must satisfy the Court by cogent and credible evidence that he is entitled to the declaration. Therefore, a plaintiff seeking an exercise of the Court’s discretion in his favour has a duty to adduce cogent and credible evidence to justify the exercise of the Court’s discretion in his favour and not rely on the admissions in the pleadings. … The Court below clearly erred in law in finding that the appellant admitted that the land in dispute belongs to the respondent’s father when in fact and in law there was no such admission. In law, even if there was such admission, it did not discharge the respondent from the onus of proving his father’s ownership of the land in dispute and that the property ordered to be handed over to him was built from the proceeds of his father’s estate as claimed by him. (Emphasis supplied). PER CORDELIA IFEOMA JOMBO-OFO, J.C.A.

POSITION OF THE LAW REGARDING FILING OF A REPLY BY A PLAINTIFF

The position of the law that has now gained grounds is that, a plaintiff need not reply to a statement of defence just to deny averments therein unless, and until, new issues have been raised in the statement of defence that necessitates a response by way of reply. Once it can be discerned from the statements of claim and defence that the parties have joined issues, then it becomes unnecessary for the plaintiff to extend the pleadings further by way of a reply. In Spasco Vehicle and Plant Hire Co. Ltd. vs. Alraine (Nig.) Ltd. (1995) LPELR-3110(SC), pp 15-16, paras. D-A, per Iguh, J.S.C., held that: “It cannot be disputed that where no counter claim is filed by a defendant to a suit, … further pleadings by way of a reply to a statement of defence is generally unnecessary if the sole purpose is to deny the averment contained in the defendant’s statement of defence. See Aziz Akeredolu vs. Lasisi Akinremi (1989) 3 NWLR Pt. 108, pg. 164 at 172. Where, however, because of the nature of the statement of defence filed and the averments therein contained, the plaintiff proposes to lead material evidence in rebuttal or to raise new issues of fact not covered by his statement of claim or the statement of defence already filed, then it is prudent and, indeed, desirable in such circumstances for the plaintiff to file a reply in answer to the new issues raised. See Bakare vs. Ibrahim (1973) 6 SC. 205.” Also, in Unity Bank Plc. vs. Mr. Edward Bouari (2008) 2 SCNJ 116 at 139, where the Supreme Court, per Ogbuagu, J.S.C., had this to say: “A reply is used by a plaintiff to answer new issues raised in the statement of defence such as in the case of confession and avoidance. It is therefore, not necessary to file a reply if its only purpose is to deny the allegations of fact made in the Statement of Defence because of the principle of joinder of issues. Where no counter-claim is filed, a reply is generally unnecessary if it is to deny allegations in the Statement of Defence. After the completion of pleadings, issues are said to be joined and the case is ready for hearing. Such a joinder of issue operates as a denial of every allegation of facts in the pleadings upon which the issue has been joined. As rightly found by the learned trial Judge at page 228 of the records of appeal, relevant issues were clearly joined upon the pleadings of the two parties. It was therefore unnecessary for the appellant to file a reply. The success of the respondent’s counter-claim is inexorably the failure of the appellant’s claim and vice versa. This means that, both claims are mutually exclusive and that they counter each other. Having thus acknowledged that the parties have joined relevant issues, it follows that the learned trial Judge erred by turning around again to hold that the appellant failed to respond to the allegations in the statement of defence. Non-filing of a reply by the plaintiff/appellant to the respondent’s statement of defence/counter-claim, does not necessarily amount to admission of the facts raised in the counter-claim, on the contrary, it brought to a close the pleadings of both parties. See Philips vs. Eba Odan Commercial & Industrial Co. Ltd. (supra). PER CORDELIA IFEOMA JOMBO-OFO, J.C.A.

CORDELIA IFEOMA JOMBO-OFO, J.C.A. (Delivering the Leading Judgment): This appeal metamorphosed from the judgment of the High Court of Benue State, sitting at Otukpo (hereinafter to be known and referred to as the lower/trial Court) in suit No. OHC/17/2006, presided over by Hon. Justice W. I. Kpochi, J., and delivered on 26th June, 2018.

FACTS LEADING TO THE APPEAL
By a Writ of Summons issued on 22nd February, 2006 and Statement of Claim dated same day, the plaintiff at the lower Court and herein before us the appellant, sought the following reliefs against the defendant who before us the respondent:
22. WHEREOF the plaintiff’s claim against the defendants jointly and/or severally is in the terms following:
a. A DECLARATION that the plaintiff is the rightful and lawful owner of all that piece/parcel of land covered by Benue State Statutory Certificate of Occupancy No. BNA 3004 dated the 8th day of January, 1990, lying, situate and being at the GRA Otukpo and which plot is more particularly within the Government Layout known as Otukpo TPS 166 having lawfully and validly purchased same from the original owner, Lucy Aboh.
b. AN ORDER OF

perpetual injunction restraining the Defendants either by themselves their Agents, Servants, Privies and all others acting for, or on their behalf from further entering upon or, laying claim to, or committing acts of waste to trespass or encroachment or carrying on any form of developments in any manner howsoever on the plaintiff’s piece/parcel of land covered by Benue State Statutory Certificate of Occupancy NO. BNA 3004 dated 8th January, 1990, lying, situate and being at the GRA Otukpo behind the Conference Hotel on Otukpo TPS 166 Otukpo, Benue State Government Layout.
c. The sum of N2,000,000.00 (Two Million Naira) only being general damages for trespass. (See pages 1-3 and 6-11 of the record of appeal).

The defendants filed their 1ST AND 2ND DEFENDANTS JOINT STATEMENT OF DEFENCE as shown on pages 14-21 of the record of appeal. The 1st Defendant went on to Counter- Claim against all the defendants to the Counter-Claim jointly and severally as follows:
12. WHEREOF the 1st Defendant claims against all the Defendants to the counter-claim jointly and severally the following reliefs:
a) A Declaration that it is the 1st Defendant who is

entitled to be granted a Statutory Right of Occupancy over all the holding or parcel of land knowns as plot No. 237/AS – Otukpo and covered by Otukpo Local Government Certificate of Occupancy No. 1652 dated 7/8/80 which parcel of land is situate within G.R.A. along Egwa Avenue, Otukpo.
b) A Declaration that the Ministry for Lands and Survey represented by the 4th Defendant to the counter-claim wrongfully issued the R of O No. BNA 3004 dated 8/1/90 to Mrs. Lucy Aboh when the C of O dated 7/8/80 was not revoked and consequently, the purported grant to Mrs. Lucy Aboh was void and of no legal effect.
c) An Order of this Honorable Court calling for and ordering the 4th Defendant to cancel or revoke the said R of O No. BNA 3004 dated 8/1/90.
d) An Order setting aside the sale transaction dated the 13/6/90 made between the Plaintiff and the 1st Defendant to the counter-claim (Mrs. Lucy Aboh) on one hand and further order setting aside the sale transaction dated 2/1/2006 made between the Plaintiff in the substantive suit and the 3rd Defendant to the counter-claim. (See pages 22 – 23 of the record of appeal).

Both the appellant and

the respondent called one witness each to wit PW1 and DW1 respectively.

The case of the appellant at the lower Court is that he was a beneficiary of the piece of land situate on Plot No BNA 3004 covered by Benue State Statutory Right of Occupancy dated the 8th day of January, 1990 vide Exhibit A, being an agreement between him and one Mrs. Lucy Aboh. That the disputed land is situate within Benue State Government Layout known as Otukpo TPS 166 and which is outside the control and management of the Otukpo Local Government Council. While the appellant was attempting to fence off the land, he was challenged, hence, the suit that led to this appeal.

The respondent’s case is that the land in dispute is not within the Benue State Government Layout but within the control and management of the Otukpo Local Government Council. That the respondent’s ownership and possession of the land in dispute pre-dated 1980 before she approached the Otukpo Local Government Council to issue her with title documents to cover the piece of land. The respondent also claimed that the land was a gift from her father who first acquired it as a virgin land. She built

well, houses, foundation and several acts of ownership on the piece of land. The Otukpo Local Government Council subsequently surveyed the land and thus issued her with a Certificate of Occupancy dated 7th January, 1980 and an accompanying site plan which together were admitted at the lower Court as Exhibits “D” and “E” respectively. Respondent also gave evidence that the land in dispute is part of a larger land in her possession and belonging to her.

At the end of the hearing and upon counsel on both sides filing and exchanging their final written addresses, the learned trial Judge in his considered judgment delivered 26th June, 2018 entered judgment in favour of the defendant/counter-claimant, while dismissing the suit by the plaintiff.

Irked by the decision, the plaintiff as appellant filed a Notice of Appeal on 21st September, 2018. (See pages 243 – 245 of the record of appeal). Leave to amend the Notice of Appeal was sought and granted the appellant on 13th May, 2019. The said Amended Notice of Appeal was further amended vide an application argued and granted 17th February, 2021 and which regularized the 2nd

Amended Notice of Appeal which was filed out of time on 21st August, 2019.

In compliance with the rules and practice of this Court the parties filed and exchanged their briefs of argument. The appellant’s brief of argument filed out of time on 1st June, 2020 but deemed proper before the Court on 17th February, 2021, was settled by Ralph N. Ojabo, Esq. The respondent’s brief filed out of time on 1st July, 2020, and deemed properly filed also on 17th February, 2021 was settled by E. O. Samson, Esq.

From the 7 (seven) grounds of the 2nd Amended Notice of Appeal, the appellant distilled the following 4 (four) issues for determination:
i. Whether the Learned Trial Judge was right to raise the issue of deemed right of occupancy suo motu and based his judgment, against the appellant, on it without inviting the parties to address him on the issue. (Ground 7).
ii. Whether having regards to the pleading and evidence adduced before the lower Court, the Learned Trial Judge was right to have held that the respondent is entitled to a deemed right of occupancy over the disputed land. (Grounds 1 and 6).
iii. Whether the Learned Trial

Judge was right to hold that the respondent proved her title to the disputed land by traditional history and successfully rebutted the presumption of title in favour of the appellant’s predecessor in title. (Grounds 2 and 4).
iv. Whether having regards to the pleadings and evidence before the trial Court, the Learned Trial Judge was right to hold that the appellant did not join issues with the respondent on her counter-claim and whether the Learned Trial Judge properly evaluated the evidence adduced. (Grounds 3 and 5).

The respondent on her part formulated a lone issue as follows:
Whether or not the lower Court was right to have entered judgment for the respondent in view of the evidence placed before the lower Court.

ISSUE 1 (ONE)
Appellant’s first contention herein is that the learned trial Court was under a misapprehension of the law, when he held that the respondent was entitled to a deemed right of occupancy in that, he raised this suo motu and delivered judgment based on it without giving the parties chance to address him on the issue and for this reason, the appellant was adversely affected. See Gwede vs. INEC

(2014) LPELR-23763(SC).

Appellant argued that, none of the parties raised the issue of deemed right of occupancy in their pleadings, evidence or address and the learned trial Judge raised the issue for the first time in his judgment, without giving them chance to address him on it and that, this failure is fatal to the decision which in the circumstance ought to be set aside. See further Ogboru vs. Uduaghan (2010) LPELR- 3938(CA), per Dongban-Memsem; and Hon. Michael Dapianlong vs. Chief (Dr.) Joshua Dariye (2007) All FWLR Pt. 373, pg. 1 at 37-38. Appellant also contended that the consequence of a failure to respect a party’s right to address the Court on such an issue raised suo motu is to nullify the entire proceeding.

Learned counsel for the appellant further submitted that raising the issue of deemed right of occupancy as the learned trial Judge did, amounts to setting up a case for the respondent, different from the one the said respondent set up for himself in the course of trial. See the locus classicus of Ojo-Osagie vs. Adonri (1994) LPELR-2386(SC); NBCI vs. Integrated Gas (Nig.) Ltd. (2005) LPELR-2016(SC); Idoghor vs. Okagbare (2014)

LPELR-24500(CA); Aermacchi vs. AIC Ltd. (1986) 2 NWLR Pt. 23, pg. 443 at 449; Union Bank vs. Emole (2001) LPELR (3392) 1 at 18, E-G; Vambe vs. Adagba (2014) LPELR- 22652(CA); and Bankole vs. Denapo (2019) LPELR- 4644(CA) 11, paras. E-A. Appellant also referred the Court to the pleadings and evidence as led on both sides. He urged finally on this that, the learned trial Judge had no business raising the issue of deemed right of occupancy suo motu and then basing his decision thereon to the prejudice of the appellant. That, this is a grave error that is unacceptable, perverse and prejudicial with the consequential effect of not just causing a miscarriage of justice, but also of rendering the entire proceedings a nullity.

ISSUE 2 (TWO)
On their issue 2 (two), which is, whether having regards to the pleading and evidence adduced before the lower Court, the learned trial Judge was right to have held that the respondent is entitled to a deemed right of occupancy over the disputed land; the appellant submitted that the record does not support the conclusion of the learned trial Judge that the respondent is entitled to a deemed right of occupancy. He

canvassed that the land in dispute is within jurisdiction of the Benue State Government. Counsel argued that the respondent failed to meet any of the pre-conditions for the application of Section 34 Land Use Act, 1978 in her favour. Appellant contended that for a claimant to take advantage of the provisions of Section 34 of the Land Use Act, 1978, the claimant must establish the following conditions precedent to wit:
a. That the land is located in an urban area;
b. That he is the owner of the land;
c. That his ownership of the land predated 1978; and
d. That his claim is limited to only one undeveloped plot of land.

All these conditions must co-exist for the claimant to become entitled to a deemed right of occupancy. See Nigercare Devt. Co. Ltd. vs. Adamawa State Water Board (2008) LPELR-1997(SC).

Learned counsel for the appellant rehearsed the obvious which is that parties are confined to their respective pleadings and any evidence at variance with the pleadings must be disregarded by the Court. See Allison vs. Clever (2016) All FWLR Pt. 855, pg. 153 at 166, paras. A-B. Addah vs. Ubandawaki (2015) All FWLR Pt. 775, pg. 200 at 215; and

Akinbade vs. Babatunde (2017) LPELR-43463(SC). Counsel argued that the respondent was obliged to plead and prove that the disputed land is located in an urban area for her to be entitled to a deemed right of occupancy. That the respondent instead, set up the case that the land is not located in an urban area and further led evidence in support of the pleading to wit that, the land is not in an urban area. Counsel contended that it was therefore a perversion of justice to grant a deemed right of occupancy in respect of a land under Section 34 of the Land Use Act, 1978 to a claimant who not only pleaded but adduced evidence and argued forcefully that the disputed land is not located in an urban area. See paragraphs 5 – 12 of the respondent’s joint statement of defence and Section 2 of the Land Use Act, 1978; paragraphs 7 – 11 of the statement on oath of the respondent, upon which he urged that having failed to establish the fact of the disputed land being in an urban area, the respondent was not entitled to the deemed right of occupancy.

On the second hurdle to be cleared for a claimant to qualify for an order of deemed right of occupancy is that the

title to the land is vested in him, Counsel straight away cited the authority of Otukpo vs. John (2013) All FWLR Pt. 661, pg. 1433 at 1527. He argued that the respondent chose to prove her case of ownership by way of traditional history. The respondent was therefore bound to not only prove the alleged gift of the land, but was also bound to prove the alleged acquisition of the land by her father. See Gabdo vs. Usman (2015) LPELR-25678(CA); Elayo vs. Veregh (2019) LPELR-47134(CA). Counsel submitted that the respondent was obliged to plead and prove:
a) The root of title, the names and history of her ancestors and trace her title to the original owner;
b) Show how her predecessor acquired title;
c) The custom which recognizes the founding of the land; and
d) Identify and specify the incidents of such custom.

The appellant argued that the respondent merely pleaded that her father acquired a large expanse of land in its virgin state, but did not plead how the father made the said acquisition, neither did she plead the custom that recognized such mode of acquisition of land in Otukpo, nor did she plead the incidents of the custom which

are required to be identified, specified and proved. He canvassed that the respondent whose evidence was in line with her pleadings, failed to establish her father’s root of title, which is an indispensable fundamental pre-requisite to establishing her own title. Counsel went further to contend that even if the respondent is found to establish her father’s title, she was still bound to establish by evidence, her claim of customary gift intervivos. See Ezenwora vs. Ezenwora (2018) LPELR-43944-(CA); and Madam Alice Orido vs. Theophilus Akinlolu, CA/B/253/2004, delivered 29th March, 2012 per Iyizoba, J.C.A.

Counsel submitted finally on this leg that, having failed to establish her title by means of the alleged gift inter vivos, the learned trial Judge erred in upholding the claim of title by means of gift inter vivos.

Regarding the proof of ownership prior to 1978, the learned counsel for the appellant referred the Court to Aboshi vs. Fele & Ors. (2012) LPELR-8610(CA) upon which he placed reliance to submit that the respondent was not only bound to plead, but must further lead by means of credible and admissible evidence that prior to the

coming into effect of the Land Use Act, 1978, that she owned or was entitled to the ownership of the disputed land. Counsel submitted that the respondent did not plead or lead evidence that her root of title pre-dates 1978, when the Land Use Act supra, introduced the concept of deemed right of occupancy. Court and parties are bound by the pleadings, and evidence can only be led to establish pleaded facts. Counsel concluded that, the conclusion of the learned trial Judge that the respondent’s case fell within the provisions of the Land Use Act, 1978 vesting in her a deemed right of occupancy in respect of the land in dispute amounts to setting up a different case for the respondent.

Appellant also canvassed that a deemed right of occupancy can only be claimed in respect of one undeveloped plot of land. See Section 34(5) of the Land Use Act, 1978. Thus, where a claimant is laying claim to a vast area of undeveloped land, then such claim cannot succeed, in view of the automatic forfeiture provisions of the Land Use Act, 1978. He urged on us to resolve the issue in favour of the appellant and set aside the judgment of the lower Court.

ISSUE 3 (THREE)
Under the appellant’s issue 3 (three) which is; whether the learned trial Judge was right to hold that the respondent proved her title to the disputed land by traditional history and successfully rebutted the presumption of title in favour of the appellant’s predecessor in title. He submitted that the respondent failed to discharge the onus of proof required to displace the appellant’s title, which is rooted in Certificate of Occupancy No. BNA3004. He said that the respondent who sought to assert the contrary by setting up a contrary title, had the onus of proof. See Ogunleye vs Oni (2005) All FWLR Pt. 255, pg. 1000 at 1056; Gabdo vs. Usman (supra); Elayo vs. Veregh (2019) LPELR-47134(CA), per. Otisi, J.C.A., at p.21, paras. B-D upon which the learned counsel for the appellant placed reliance to submit that the respondent offered no evidence of proof of how her father acquired the large expanse of land, which he gifted her in his lifetime. Also, that the respondent did not prove the custom that recognized that method of acquisition of land in Otukpo, where the land is located. He opined that the respondent was unable to establish

her father’s root of title, which is indispensable fundamental pre-requisite to establishing her own title. See Ajegbomogun vs. Ayeoba (2019) LPELR-47519(CA).

The appellant canvassed that the respondent’s case is not helped by the claim that the pleading was not challenged. He reiterated the fact that a claim for declaration of title cannot be granted based on default of pleading or admission. The claimant must establish his claim on the strength of his pleading and evidence. See Obu vs. Okigwe (2018) LPELR-43938(CA); Fabunmi vs. Agbe (1985) LPELR-1221(SC), (1985) 1 NWLR Pt. 2, pg. 299; Umesie vs. Onuaguluchi (1995) 9 NWLR Pt. 421, pg. 515; Chukwu vs. Okoh (2016) LPELR-42117(CA); and Enadeghe vs. Eweka (supra). Title must precede acts of possession or ownership to validate such acts, as otherwise, such acts can amount to no more than acts of trespass. It was the further submission of the appellant that in the face of glaring failure on the part of the respondent to establish her title by means of gift inter vivos, the learned trial Judge erred in upholding her claim of title by means of gift inter vivos. Appellant contended that he established

his entitlement to ownership of the disputed land by production of documents of title, to wit, deed of assignment of certificate of occupancy and the certificate of occupancy. That the documents of title were not successfully challenged and as such, the learned trial Judge ought to have accepted it and validated the appellant’s claim by declaring title in his favour. He urged on us to resolve this issue in the favour of the appellant and set aside the judgment of the lower Court.

ISSUE 4 (FOUR)
On issue 4 (four) which is whether having regards to the pleadings and evidence before the lower Court, the learned trial Judge was right to hold that the appellant did not join issues with the respondent on her counter-claim and whether the learned trial Judge properly evaluated the evidence adduced; the appellant submitted that the learned trial Judge erred when he held that the appellant did not join issues with the respondent on her pleadings in paragraphs 43 and 44 of her statement of defence and counter-claim. Appellant also urged that the learned trial Judge failed to evaluate the evidence adduced.

On the first part of the issue, the

appellant contended that no new issues were raised in the respondent’s statement of defence that required response by way of filing a reply. See Spasco Vehicle and Plant Hire Co. Ltd. vs. Alraine (Nig.) Ltd. (1995) LPELR-3110(SC), per Iguh, J.S.C., pp 15 -16, paras. D-A; Bakare vs. Ibrahim (1973) 6 SC. 205; Unity Bank Plc. & Anor. vs. Mr. Edward Bouari (2008) 2 SCNJ 116 at 139; Philips vs. Eba Odan Commercial & Industries Co. Ltd. (2012) LPELR-9718(SC); and the findings of the learned trial Judge as contained at page 6 of the judgment in the penultimate paragraph, (page 228 of the record of appeal). Learned counsel opined that the parties have joined issues on the relevant issue, central to which is the question of the title to the disputed land. Appellant argued that having joined issues with the appellant on her pleadings, it became unnecessary for the appellant to re-join issues with the respondent by filing a reply to the respondent’s statement of defence and counter-claim.

The appellant’s further contention include that the learned trial Judge also failed to evaluate or properly evaluate the evidence adduced at the trial as

there was no admissible or credible evidence which if accepted, would support the findings of the trial Judge or the inference which he made. Submits that the trial Judge failed to consider the act of possession such as the fencing carried out on the land by the appellant. Referring to the proceedings as shown at pages 213-214 and the judgment of the trial Court at page 230 of the record of appeal, the appellant canvassed that, Exhibit “D” which was tendered but rejected in evidence, was the same evidence the learned trial Judge based his decision on to decide in favour of the respondent. Appellant contends that rejected documents cannot be basis upon which a trial Court can find for the respondent that tendered them. Appellant also contends that there are two years gap between 1978 and 1980 and so presuming that predating 1980 is the same as predating 1978 amounts to filling in the gap in the pleading and evidence of the respondent and the trial Court is not permitted to do that. See Shema vs. Masari (2011) LPELR- 9181(CA), 38, paras. B-D, per Augie, J.C.A. (as she then was); and Ominiyi vs. Alabi (supra). Appellant also submitted that the evidence

of the alleged development on the land by the respondent was challenged. That, the learned trial Judge completely failed and/or brushed aside the pleading and evidence of both parties that the respondent sold her interest on the disputed land, if any, to one Tony Obande alias Born Black. That, this failure to evaluate or properly evaluate the pleading and evidence of the sale of the disputed land to Tony Obande and the subsequent sale of same by Tony Obande to the appellant, led to a serious miscarriage of justice. Counsel canvassed that, if the trial Judge had evaluated at all, the pleadings and evidence of both parties on this issue, he would have come to the inevitable conclusion that the respondent, having divested herself of the disputed land in favour of Tony Obande, had no title left in her to be declared, as the learned trial Judge did. He argued that the fact of the sale of the disputed land by the respondent to Tony Obande was fully established at the trial Court and therefore ought to have given primacy of consideration by the learned trial Judge while evaluating the evidence. See Mini Lodge Ltd. vs. Ngei & Anor. (2009) LPELR-1877(SC) 41, paras. B-D,

per Adekeye, J.S.C.; and Agunbiade vs. Atlor (Nig.) Ltd. (2015) LPELR-24716(CA) 19, paras. D-F, per Abiriyi, J.C.A.

Appellant finally opines that, head or tail, the inevitable conclusion is that, he is entitled to ownership of the disputed land. That, it was the failure of the learned trial Judge to properly evaluate these pieces of evidence lawfully adduced at the trial, vis-a-vis the pleadings of the parties that led him to reach the erroneous conclusion that the respondent was entitled to a declaration of title to the disputed land. He then urged on us to resolve the issue in favour of the appellant and against the respondent and thus, set aside the judgment of the lower Court.

In reaction, the respondent in their sole issue submitted that the appellant failed to address the object of the dismissal of the said appellant’s case. Learned counsel for the respondent went on to refer to some findings of the lower Court as contained at pages 232 to 236 of the record of appeal and thus, submitted that, since the appellant failed to appeal against the findings thereof, the consequence is that, the appellant has admitted the findings. Respondent

further canvassed that the appellant did not appeal on whether or not the respondent has buildings, developments or economic trees on the disputed land which pre-dated 1980. That these developments confirm that the respondent was in constructive possession of the land in dispute before the issuance of Exhibit “B”. See Gaiya vs. Mabin (2015) LPELR-40404(CA) pg. 8; and Sawaba vs. Gaadi (2015) LPELR-24372(CA), pp. 25 – 26. Learned counsel for the respondent further canvassed that these developments as made on the land, were not subjected to cross examination at the lower Court and so are deemed admitted by the appellant and that it was on this basis that the learned trial Judge found at page 233 of the record of appeal as follows:
“It is trite law that a Certificate of Occupancy is a prima facie evidence of title or right over land. This is a presumption of Law but it is a rebuttable presumption, the effect of which vanishes once it is effectively challenged with better title…”

Respondent contends that, her case was not based on traditional history or production of title documents alone, but on acts of long possession extending

over a sufficient length of time numerous and positive enough as to warrant the inference of true ownership by the respondent as well as 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 one in dispute. See Falaye vs. Dada (2016) 262 LRCN, pg. 38, paras. 87EE – 88AK; and Mkpinang vs. Ndem (2013) 215 LRCN, pg. 130 at 140KP, for modes of proof of ownership of land, where title is in dispute.

Respondent further submitted that, paragraph 40 of her statement of defence on page 19 of the record of appeal, shows that she had successfully challenged trespassers from part of the land vide suit No. OHC/3/2003 at the Benue State High Court sitting in Otukpo, being a piece of land which is connected to the land in dispute. That, these are new issues which ought to be challenged by the way of a reply. That, the land in issue is different from the land covered by Exhibit “B”. (See paragraphs 23 and 24 of the Statement of Defence). The respondent further contended that the appellant must employ the services of a Surveyor to

give evidence in order to confirm that the land in dispute relates to the land contained in Exhibit “B” and that the features on the survey plan correlate with the land in dispute. See Awodi vs. Ajagbe (2015) 242 LRCN Pp. 99 at 135, per Okoro, J.S.C., and Balarabe vs. Garangamawa (2017) LPELR-43193 (CA). Respondent argued that, no feature on the land as shown in the pleadings conforms with the survey plan. All the appellant did was to dump the plan, Exhibit “B” before the lower Court without linking it to the land in dispute. That, the fact that the land in contention is different from the one contained in Exhibit “B” is a completely new issue which cannot be swept under the carpet without a reply to it. It was also the submission of the respondent that “OTUKPO L.G.A.” as shown in Exhibit “B” is too wide and general to fix the disputed land to the title document. The size of the land being claimed by the appellant is small compared to the land under the control and management of the respondent. Respondent contended that her title predates 1980. That the appellant did not prove that the land is located on

TPS 166 other than Exhibit “B” being the Certificate of Occupancy.

Also, the respondent contended that, because the appellant did not file a reply or defence to the respondent’s counter claim and thus, did not challenge the fact or controvert the evidence of gift as led by the respondent, it amounts to admission of the fact and so required no further proof. The “deemed right” as stated by the lower Court were mere passing comments and not the reason for the decision of the said lower Court. (See pages 239 – 240 of the record of appeal). Having referred the Court to the case of Akpaji vs. Udemba (2012) LPELR-7070(CA) 16, the learned counsel for the respondent finally urged on us to dismiss the appeal.

RESOLUTION OF ISSUE 1 (ONE)
The first issue to be addressed by this Court has to do with the “deemed right” of occupancy as found by the lower Court– whether same was raised suo motu and without inviting the parties to address the trial Judge on it and if so, what effect it has on the judgment.

The learned trial Judge had held inter alia as follows:
“… The said gift to the

defendant (respondent) coupled with the acts of possession and/or ownership whereby the defendant lives on the land and has established many other structures, i.e. buildings, well, foundation, economic trees etc. on the land, is clear manifestation of her earlier existing right over the disputed land which are deemed rights.
In all the circumstances of this case, the defendant is deemed to have a statutory right of occupancy over the land under Section 34 (2) of the Land Use Act, 1978. See Adole vs. Gwar (2008) LPELR-1 at 12, paras. A-C, where Onu, J.S.C., stated thus:
“it is trite law that a deemed grant comes into existence automatically by the operation of Law and the grantee acquires a vested right just as an actual grantee of a right of occupancy.” (Underlining mine for emphasis) (See particularly page 239 of the printed record).

The word “Deem” is defined in Black’s Law Dictionary, Sixth Edition at page 415 to mean: “to hold; consider; adjudge; believe; condemn; determine; treat as if; construe”.

Given the simple and literal meaning of the word “deemed” as used in the above definition,

it appears to me that the learned trial Judge “holds” the view and/or “considers” it proper, that the right over the disputed land is duly vested on the respondent pursuant to the provisions of Section 34(2) of the Land Use Act, 1978. Save to say that the learned trial Judge made the finding of fact as he considered or adjudged it appropriate, there seems to be nothing extraordinary or ambiguous about the usage of the words “deemed right” as they appear in the judgment, as to warrant calling on the parties to address him on them. He interpreted the law as he saw it and applied same to the facts and came up with the conclusion as it appeared justifiable to him. The learned trial Judge to my mind, interpreted the law as he saw it. The usage of those words is clear, unambiguous and did not call for any clarification by the parties, hence, the hue and cry of the appellant in this regard is of no moment.
The argument of the appellant that the parties did not raise the issue of deemed right of occupancy in their pleadings and evidence or addresses, and that the learned trial Judge on his own volition, raised the issue of

“deemed right” of occupancy for the first time in his judgment, without availing them the opportunity to address him on it, flies on the face. The words were clear in the mind of the lower Court when he relied on same to reach his decision to wit: that the deemed right of occupancy was vested on the respondent pursuant to Section 34(2) of the Land Use Act, 1978.
I do not consider the cases of Ogboru vs. Uduaghan (supra); Hon. Michael Dapianlong vs. Chief (Dr.) Joshua Dariye (supra); Ojo-Osagie vs. Adonri (supra); Akeredolu vs. Abraham (supra); Aermacchi vs. AIC Ltd. (supra) and the rest of them relied upon by the appellant, to be applicable in the circumstances. Therefore, issue 1 (one) which is whether the learned trial Judge was right to raise the issue of deemed right of occupancy suo motu and based his judgment, against the appellant, on it without inviting the parties to address him on the issue, is answered in the affirmative. Issue 1 (one) is resolved in favour of the respondent and against the appellant.

RESOLUTION OF ISSUE 2 (TWO)
Whether having regards to the pleading and evidence adduced before the lower Court, the learned

trial Judge was right to have held that the respondent is entitled to a deemed right of occupancy over the disputed land.

The learned trial Judge in his judgment held inter alia that:
“In all the circumstances of this case, the defendant is deemed to have a statutory right of occupancy over the land under Section 34(2) of the Land Use Act, 1978.” (Underlining mine for emphasis) (See page 239 of the printed record).

Section 34(2) of the Land Use Act under which the foregoing findings of the lower Court was made is reproduced hereunder for ease of reference. It reads:
Where the land is developed the land shall continue to be held by the person in whom it was vested immediately before the commencement of this Act as if the holder of a statutory right of occupancy issued by the Governor under this Act. (Underlining mine for emphasis).

The reliefs sought by the defendant/respondent are as already set out above in her statement of defence/counter claim. These reliefs form the epi-centre of the burden, the respondent has to surmount in order for her to succeed in her counter-claim. I dare state that a Court cannot grant a relief not claimed. See

The Nigerian Air Force vs. Shekete (2002) 12 SCNJ. 35 at 52 -53; Eagle Super Pack (Nig.) Ltd. vs. A.C.B. PLC (2006) 19 NWLR Pt. 1013, pg. 20.

Be that as it may, in her evidence-in-chief, which is a repetition of her averments in her pleadings, the respondent stated outrightly that, the land upon which her counter-claim is based is not located within an urban area. See particularly paragraphs 7 – 10 of the respondent’s written statement on oath, which for ease of reference I feel compelled to reproduce thus:
7. I will contend at the trial that, if Mrs. Lucy Aboh was issued with Right of Occupancy No. BNA 3004 dated 8/1/90 by the Benue State Govt.

Ministry of Lands and Survey, then the issuance of such an R of O (Right of Occupancy) was done in error and secretly and in violation of my existing customary title over the disputed land and the R of O to that existent (sic) was void ab initio.
8. I know that the disputed parcel of land is not on TPS 166 nor is it within the State Govt. Layout. Rather, the disputed land is within the control and management of Otukpo Local Govt.
9. At the hearing of this suit, I will be heard to say that in exercise of power, the Otukpo Local Govt. Council after I had applied to it for issuance of a Certificate of Occupancy over the disputed parcel of land, I was issued with Certificate of Occupancy (C of O) No. 1652 dated 7/8/80 covering my plot No. 237/AS – Otukpo. I will tender the C of O dated 7/8/80. …..
10. I wish to state that before the said C of O dated 7/8/80 was issued to me, the Otukpo Local Govt. Council sent a team to (sic) surveyors, from its Land and Survey Department, the disputed parcel of land was surveyed and beaconed a total area measuring approximately 546 metres which parcel of land is situate along Chief Egwa Avenue, G.R.A.,

Otukpo and a site plan showing the extend (sic) of the disputed land covered by the C of O dated 7/8/80. … (See pages 97 – 98 of the printed record of appeal).

From the case of the respondent as set out above, it is clear that the land in dispute is not in an urban area, hence, it is under the control and management of the Otukpo Local Govt. Council. It is the provisions of Section 2(1) of the Land Use Act (supra) that:
1) As from the commencement of this Act –
a) all land in urban areas shall be under the control and management of the Governor of each State, and
b) all other land shall, subject to this Act, be under the control and management of the Local Government within the area of jurisdiction of which the land is situated.

The law is trite that, the jurisdiction of a Court is limited to and wholly circumscribed by the pleading and evidence presented by the parties.

Both the Court and the parties are bound by the pleadings of the parties and neither the party nor the Court would be allowed to set up a case different from the pleaded facts. See the case of Okpala & Sons Ltd. vs. NB Plc. (2017)

LPELR-43826(SC) per Okoro, J.S.C., wherein he enjoined as follows:
“The law is trite that litigation is fought on pleadings of the parties and no party will be allowed to go outside the pleadings to make a case different from that which he had pleaded. At the hearing, no litigant would be permitted to set up a case which is different from that set forth in his pleadings. See Onuoha Nwokorobia vs. Desmond Uchechi Nwogu & Ors. (2009) LPELR-2127 (SC), (2009) 10 NWLR (Pt.1150) 553; Clifford Osuji vs. Nkemjika Ekeocha (2009) LPELR-2816 (SC), (2009) 16 NWLR (Pt.1166) 81.”

The respondent’s case is clear on the fact that the land envisaged by her to be in dispute, is under the management and control of the Otukpo Local Government Council, which is to say that it situates within the rural area. However, the lower Court erroneously granted her reliefs as if she is a beneficiary of the provisions of Section 34 (2) of the Land Use Act, 1978. Her land according to her pleading and evidence, is not in the urban area. As a matter of fact, the respondent’s land is situate in a rural area, thus, subjecting it to the control and management of the Local

Government Council as opposed to the control and management of the State Government and the Governor. This is to say that the decision of the learned trial Judge to grant to the respondent a deemed right of occupancy in respect of the disputed land is indeed not sustainable under the law. The decision amounts to setting up for the respondent, a case which she herself did not set up. See Bankole vs. Denapo (2019) LPELR-4644, pg. 11, paras. E-F, where this Court per Ogakwu. J.C.A., had this to say:
“… It is not the duty of the Court to make a case for the parties. The Court acts and finds only on the case the parties present before it.”
Since the respondent pleaded and led evidence to show that the land she is agitating for is not located in an urban area, she has failed to meet a pivotal and indispensable pre-requisite to entitlement to a deemed right of occupancy as envisaged by Section 34(2) of the Land Use Act, 1978. She is as such not entitled to the grant of a deemed right of occupancy as was made by the learned trial Court in the circumstances.

Going forward, another condition a claimant seeking declaration of title to land

must satisfy for him to become entitled to a deemed right of occupancy is that, title to the land is properly vested in him. The Supreme Court in the authority of Otukpo vs. John (2013) All FWLR Pt. 661, pg. 1433 at 1527, adopting its earlier decision in Idundun vs. Okumagba (1976) 9-10 SC., 227, enunciated thus:
“Ownership of or title to land may be proved in any of the following ways:
a. By traditional history;
b. By production of documents of title;
c. By acts of long possession and enjoyment of land;
d. By acts of a person claiming the land e.g. by selling, leasing and renting; and or
e. By proof of possession of connected or adjacent land.”
See also Falaye vs. Dada (2016) 262 LRCN., pg. 38 at 87EE and 88AK; Atanda vs. Ajani (1989) 3 NWLR Pt. 111, pg. 511; Nruamah vs. Ebuzoeme (2013) All FWLR (Pt. 68) 1426 at 1428. It was held in Akanji vs. Balogun (2005) 10 NWLR Pt. 933 Pg. 394, per Oputa, J.S.C., that:
“What is to be noted and re-emphasised is that the party claiming title to land is not bound to plead and prove more than one root of title to succeed. If he relies on more than one root, that is merely to make

assurance doubly sure. He does that, abundantia cautella.

The respondent had pleaded that she came on the land by virtue of its being a gift from her late father of a large expanse of land, of which the disputed portion forms a part of and that her father acquired the land in its virgin state. See paragraph 43 of the joint statement of defence at page 20 of the printed record of appeal). In the case of Gabdo vs. Usman (supra), this Court found and held thus:
“Now, for the respondent who relied on gift from his father of the land in dispute, he carried the burden of proving by credible evidence the following two essential facts, namely:
a. The fact of the gift inter vivos to him by his father;
b. The title of his father to the land in dispute which he transferred to him by gift inter vivos.”
See further, Ojo-Osagie vs. Adonri (1994) 6 NWLR Pt. 349, pg. 131 at 154; and Elayo vs. Veregh (2019) LPELR-47134(CA).
In the instant case, the respondent pleaded and gave evidence that her father acquired the large expanse of the land in its virgin state. This is to say that the respondent’s father came on and acquired the land by

deforestation, thereby becoming the original or 1st generation owner of the large expanse of land which included the land in dispute. It was from this large expanse of land that the respondent’s father in his lifetime, gifted to her the portion purportedly in dispute. Much as the respondent did not plead and offer any evidence pertaining to the custom that recognized that mode of acquisition of land, it is to my mind, not a mandatory requirement in proof of customary entitlement to land. However, being a customary gift inter vivos, as claimed by the respondent, it was incumbent on her to plead and prove the fact of witnesses to the gifting and when it was made and accepted, so as to meet the legal validity of customary gift inter vivos. The current state of the law on a gift of land inter vivos is as expounded in the case of Ezenwora vs. Ezenwora (2018) LPELR-43944 Pp. 26-27, para A., where Oho, J.C.A., had this to say:
“To establish a gift of land inter vivos, there must be evidence of actual handing over of the land and acceptance thereof in the presence of witnesses. … To transfer an absolute title under customary law, it ought to be pleaded

and proved that the gift was made in the presence of witnesses. To that effect, names of those witnesses should also be pleaded as well as the fact that they witnessed the actual delivery or handing over of the land to the particular donee.” The respondent in the instant scenario neither pleaded nor led evidence to show that the alleged gift was made and accepted publicly and in the presence of witnesses nor their identity. The respondent therefore failed to fulfil the requisite conditions needed to establish the alleged gift inter vivos to her of the disputed land.

As rightly submitted by the learned counsel for the appellant, the respondent having failed to prove how she got onto the land, all those claims of acts of possession, no matter for how long, goes to naught. It is settled beyond peradventure that title to land must precede or come before acts of possession, otherwise, such acts would amount to no more than acts of trespass.

In the face of the respondent’s failure to establish her claim of gift inter vivos, it follows that there was no such gifting. The learned trial Judge, with all due respect, erred in finding in favour of the claim

of title by way of gift inter vivos.

Also, under Section 34(1) of the Land Use Act, 1978, for a claimant to benefit from the provisions of Section 34 (supra), he must ensure that the land is not only in an urban area, but that it is vested in any person immediately before the commencement of the Act id est 1978. In Aboshi vs. Fele (2012) LPELR-8610(CA) pg. 31, paras. C-F, this Court per Onyemenam, J.C.A., stated the position of the law thus:
“The primary fact to note is that under the Land Use Act, 1978 two types of rights of occupancy are recognized. The Statutory Right of Occupancy granted by the Governor under Section 5(1)(a) of the Act and the Statutory Right of Occupancy deemed granted by the Governor pursuant to Section 34(2) of the Act. It is settled law that, a deemed grant vests as much right on the grantee as an actual grantee. Section 34 of the Act recognizes the title of persons who were on the land prior to 1978 when the Act came into force.” (Underlining mine).
Thus, in order to be entitled to a deemed right of occupancy the respondent needed to establish that prior to 1978 when the Land Use Act came into force, that she was at that

point entitled to ownership of the land in dispute.

Paragraphs 16, 17, 40(a) and 43 of the respondent’s statement of defence/counter-claim are quite instructive in the attempt to determine the status of the disputed land as at 1978 vis-a-vis the respondent’s entitlement. I deem it necessary to reproduce particularly paragraphs 17 and 40(a)for a more lucid appreciation of the facts and they read:
17. The 1st and 2nd Defendants in further answer to paragraphs 6 and 7 of the claim aver that, as at the time Mrs. Lucy Aboh purportedly obtained her R of O No. BNA 3004, the C of O dated 7/8/80 had not been revoked and consequently, the purported grant made to Mrs. Lucy Aboh was void from its beginning. …….
40(a) The 1st Defendant even applied to the State Ministry of Lands and Survey to convert her C of O No. 1652 dated 7/8/80 to R of O and paid the necessary processing fees. ……(Emphasis mine for effect) (See pages 16 and 19-20 respectively of the record of appeal).

The foregoing facts as pleaded were led in evidence by the respondent particularly at paragraphs 9 and 10 of her statement on oath which

also read as follows:
9. At the hearing of this suit, I will be heard to say that in exercise of power, the Otukpo Local Government Council, after I had applied to it for issuance of a Certificate of Occupancy over the disputed parcel of land, I was issued with Certificate of Occupancy (C of O) No. 1652 dated 7/8/80 covering my plot No. 237/AS – Otukpo. I will tender the C of O dated 7/8/80. ….
10. I wish to state that before the said C of O dated 7/8/80 was issued to me, the Otukpo Local Government Conk (sic) sent a team to (sic) surveyors from its Land and Survey Department, the disputed parcel of land was surveyed and beaconed a total area measuring approximately 546 Metres which parcel of land is situate along Chief Egwa Avenue, G.R.A., Otukpo and a site plan showing the extend (sic) of the disputed land covered by the C of O dated 7/8/80. ………(See page 98 of the printed record of appeal).

Both the pleadings and evidence led are at one that, the date of the respondent’s purported root of title id est Certificate of Occupancy No. 1652 is dated 07/08/80 which indicates that as at 1978 when the Land Use Act

came into force, she was yet to arm herself with a valid Certificate of Occupancy. In other words, the Land Use Act, 1978 was already in force before the respondent got her Certificate of Occupancy validated if at all. Being that, her purported Certificate of Occupancy is dated 07/08/80, it means that it post-dated the Land Use Act, that came into force in 1978. I am trying to say that, the said Certificate of Occupancy was yet to be vested in the respondent as at 1978 when the Act came into force. The inference therefrom is that she became seised of a valid Certificate of Occupancy if at all, two years after the coming into force of the Land Use Act (supra). Meanwhile, by the provisions of Section 34(1) of the Land Use Act, 1978, the respondent is meant to satisfy the Court as on who the title to the disputed land was vested in as at 1978 and up to 07/08/80 when her purported document of title was validated. For that, Certificate of Occupancy which would entitle the respondent to ownership of the disputed land to have the needed probative value, it ought to have been subsisting and validly vested in either her father or the respondent herself, as at the point of

coming into force of the Land Use Act, in 1978. Unfortunately, the land was obviously not yet vested in the respondent as at 1978, given that her application to the Local Government Council for issuance or validation of Certificate of Occupancy was still pending. Not being a valid holder of title to the land in dispute as at 1978 when the Land Use Act came into existence, the respondent cannot benefit from its provisions, dealing with the vesting of “deemed right of occupancy”. Moreover, the land the respondent was concerned about is located in a rural area as I earlier noted and not in an urban area as envisaged by Section 34 (1) and (2) of the Land Use Act, supra. The conclusion of the learned trial Judge, therefore, that the respondent’s case fell within the province of the Land Use Act, 1978, vesting the deemed right of occupancy of the disputed land in her, is erroneous and only amounted to setting up a different case for the respondent. This decision or conclusion of the learned trial Judge is indeed perverse and liable to be set aside and is thus set aside.

It is against the backdrop of all that I have reasoned so far, that I

shall resolve issue 2 (two) and it is so resolved in favour of the appellant and against the respondent.

RESOLUTION OF ISSUE 3 (THREE)
Whether the learned trial Judge was right to hold that the respondent proved her title to the disputed land by traditional history and successfully rebutted the presumption of title in favour of the appellant’s predecessor in title.

Now, given the five modes of establishing title to land earlier enumerated in this judgment, it is manifest that a claimant of title must come under at least one of such modes. See again, the locus classicus on this principle enunciated in Idundun vs. Okumagba (supra); and Otukpo vs. John (supra). To establish title by way of any of the listed means, the claimant must then plead and lead evidence to that event. The learned trial Judge had held in his judgment that the respondent established her title by way of traditional history. Respondent’s story remains that, she became entitled to the land by virtue of a gift inter vivos by her father in his lifetime and that the father acquired same as a virgin land. (See again paragraph 43 of the statement of defence contained at

page 20 of the record of appeal as well as paragraph 41 of her statement of defence/counter claim on page 104 of the record of appeal).
Without prejudice to my being repetitive, this Court in a plethora of authorities which include Elayo vs. Veregh (2019) LPELR-47134(CA) 21, paras. B-D, per Otisi, J.C.A., has reiterated in the following words that:
“The position of the law is that, once a party pleads and traces his title to a particular person, and that averment is challenged, he must establish how that person from who he claims his root of title came to have title vested on him. Thus, he must not only establish his own title, but he must also satisfy the Court as to the title of the source from whom he claims to derive his title to the land; Adesanya vs. Aderonmu (2000) LPELR-145(SC); Anukam vs. Anukam (2008) 1-2 SC. 34; Nneji vs. Chukwu (1996) 10 NWLR Pt. 478, pg. 265; Odofin vs. Ayoola (1984) LPELR-2227(SC). …..”
As earlier deduced from the pleadings and evidence in support, I found that by implication, the respondent’s father acquired the root of title to the vast expanse of land which purportedly included the land in dispute by

reason of deforestation of same by him. However, the respondent was unable to establish that she in turn inherited the portion in dispute by gift inter vivos from her father as purportedly claimed by her. Aside from not being able to support the claim, particularly with the invalid Certificate of Occupancy paraded by her, she also failed to plead and lead evidence of those who witnessed the gifting inter vivos. Thus, and in line with the decision in Gabdo vs. Usman (supra), the respondent failed to satisfy the Court as to how she came unto the land in question. I am saying that, the respondent has not been able to prove how she came to have title to the land in dispute vested in her, granted that the father acquired his by reason of coming first on the land as a virgin land and deforesting same. In order for the respondent to succeed, this gap in devolution from her father to the respondent. See again, Ajegbomogun vs. Ayeoba (supra). In the end, the respondent could not prove the means by which the gift was made to her, whether documentarily or customary oral tradition.

Bearing in mind that, in seeking a declaratory relief as sought for by the respondent in

her statement of defence/counter-claim, she is to rise or fall depending on the strength or weakness of her case. It does not matter whether her pleading was challenged or not, the respondent is expected legally to carve her own niche based on the credible, cogent and admissible evidence she brought to bear on her case. See Obu vs. Okigwe (2018) LPELR-43938(CA), where this Court held that:
“… The law is settled that a declaration of title is not granted on admission. The plaintiff must satisfy the Court by cogent, credible and legally admissible evidence that he is entitled to the declaration sought. See Fabunmi vs. Agbe (1985) LPELR-1221 (SC), (1985)1 NWLR Pt. 2, pg. 299; Umesie vs. Onuaguluchi (1995) 9 NWLR Pt. 421, pg. 515.”
Also, in the case of Chukwu vs. Okoh (2016) LPELR-42117, this Court made it clear that:
The law is settled that the Court does not grant a declaration on admission of parties. It is also settled that title or ownership of land cannot legally be granted on admission in the pleadings of a defendant. The plaintiff must satisfy the Court by cogent and credible evidence that he is entitled to the declaration.

Therefore, a plaintiff seeking an exercise of the Court’s discretion in his favour has a duty to adduce cogent and credible evidence to justify the exercise of the Court’s discretion in his favour and not rely on the admissions in the pleadings. … The Court below clearly erred in law in finding that the appellant admitted that the land in dispute belongs to the respondent’s father when in fact and in law there was no such admission. In law, even if there was such admission, it did not discharge the respondent from the onus of proving his father’s ownership of the land in dispute and that the property ordered to be handed over to him was built from the proceeds of his father’s estate as claimed by him. (Emphasis supplied).

Failure to first and foremost establish ownership, renders the respondent’s acclaimed acts of possession, whether long or short to be an act of trespass instead. This principle of law was well articulated in the case of Ho vs. Abubakar (2016) LPELR-41635(CA) PG. 51, paras. A-D, per Abiru, J.C.A., as follows:
“It is correct that the Appellant led evidence that he was in

possession of the land and that he planted economic trees thereon, but it is elementary law that no amount of use or the length of period of usage of land could confer ownership of land on such a user and it behoves such a party to prove his title in the first place in order to justify the use to which the land in dispute had been put to. Enjoyment of a land in dispute cannot precede title nor can it indicate same – Registered Trustees of the Apostolic Faith Mission vs. James (1987) 3 NWLR Pt. 61, pg. 556; Nwaeseh vs. Nwaeseh (2000) 3 NWLR Pt. 649, pg. 391; Yusuf vs. Adegoke (2007) 11 NWLR Pt. 1945, pg. 332; Olubodun vs. Lawal (2008) 17 NWLR Pt. 1115, pg.1. …
Moreover, it is settled that a person without title in occupation of land or a trespasser cannot claim to be the occupier or holder of land for the purpose of being conferred with a deemed right of occupancy under Sections 34 and 36 of the Land Use Act – Dakat vs. Dashe (1997) 12 NWLR Pt. 531, pg. 46; and Teniola vs. Olohunkun (1999) 5 NWLR Pt. 602, pg. 280; and Omiyale vs. Macaulay (2009) 7 NWLR Pt. 1141, pg. 597.”

Having clearly failed to

establish her entitlement to the ownership of the land in dispute, the respondent had no basis to rebut the presumption of title in favour of the appellant who on the contrary has by his pleading and his Certificate of Occupancy No. BNA 3004 dated 8/6/90, tendered and admitted in evidence as Exhibit “B”, was able to establish ownership of the land in dispute. The appellant further relied on his act of possession to wit fencing of the land in dispute. The learned trial Judge, in the light of this background, lacked the pedestal to stand on and grant the respondent entitlement to the land in dispute pursuant to Section 34 of the Land Use Act, 1978. The question, whether the learned trial Judge was right to hold that the respondent proved her title to the disputed land by traditional history and successfully rebutted the presumption of title in favour of the appellant’s predecessor in title, is therefore answered in the negative. Issue 3 (three) is thus resolved in favour of the appellant and against the respondent.

RESOLUTION OF ISSUE 4 (FOUR)
Whether having regards to the pleadings and evidence before the trial Court, the learned

trial Judge was right to hold that the appellant did not join issues with the respondent on her counter-claim and whether the learned trial Judge properly evaluated the evidence adduced.

however, because of the nature of the statement of defence filed and the averments therein contained, the plaintiff proposes to lead material evidence in rebuttal or to raise new issues of fact not covered by his statement of claim or the statement of defence already filed, then it is prudent and, indeed, desirable in such circumstances for the plaintiff to file a reply in answer to the new issues raised. See Bakare vs. Ibrahim (1973) 6 SC. 205.”
Also, in Unity Bank Plc. vs. Mr. Edward Bouari (2008) 2 SCNJ 116 at 139, where the Supreme Court, per Ogbuagu, J.S.C., had this to say:
“A reply is used by a plaintiff to answer new issues raised in the statement of defence such as in the case of confession and avoidance. It is therefore, not necessary to file a reply if its only purpose is to deny the allegations of fact made in the Statement of Defence because of the principle of joinder of issues. Where no counter-claim is filed, a reply is generally unnecessary if it is to deny allegations in the Statement of Defence. After the completion of pleadings, issues are said to be joined and the case is ready for hearing. Such a joinder of issue operates as a

denial of every allegation of facts in the pleadings upon which the issue has been joined.
As rightly found by the learned trial Judge at page 228 of the records of appeal, relevant issues were clearly joined upon the pleadings of the two parties. It was therefore unnecessary for the appellant to file a reply. The success of the respondent’s counter-claim is inexorably the failure of the appellant’s claim and vice versa. This means that, both claims are mutually exclusive and that they counter each other. Having thus acknowledged that the parties have joined relevant issues, it follows that the learned trial Judge erred by turning around again to hold that the appellant failed to respond to the allegations in the statement of defence. Non-filing of a reply by the plaintiff/appellant to the respondent’s statement of defence/counter-claim, does not necessarily amount to admission of the facts raised in the counter-claim, on the contrary, it brought to a close the pleadings of both parties. See Philips vs. Eba Odan Commercial & Industrial Co. Ltd. (supra).

I quite align myself with the submission of the learned counsel for the

appellant to the fact that there was improper evaluation of evidence led before it in certain major issues. Of a fact, the learned trial Judge failed to ascribe probative value to the act of possession such as the fencing carried out on the disputed land by the appellant. Citing another example of the improper evaluation by the learned trial Judge as can be gleaned at page 239 of the printed record relating to the respondent’s pleading and evidence regarding when she acquired title to the disputed land. Therein, the learned trial Judge held as follows:
“It is my candid view that, since the defendant stated in her pleading and evidence that her existence on the land pre-dates 1980 when she was issued a Certificate of Occupancy by Otukpo Local Government and that her father had acquired the Land in its virgin state long before he gave same to her pre-dating 1980, it is safe to presume that her father’s acquisition and the subsequent gift to her pre-dates the coming into effect of the Land Use Act, 1978. This is particularly so when her establishments on the land like buildings and economic trees are brought into focus and again in the absence of

any contrary or challenging evidence from the plaintiff thus inexorably leading one to a safe presumption of a deemed grant of Statutory Right of Occupancy to the defendant by the Governor under Section 34(2) of the Land Use Act, 1978.”

With all due respect, but it was clearly erroneous of the learned trial Judge to place reliance and base his decision on that Certificate of Occupancy issued to the respondent by the Otukpo Local Government on 7th August, 1980, not minding the fact that same was tendered before him as Exhibit “D” but subsequently rejected in evidence. (See further pages 213-214 and 230 of the record of appeal). As was the holding of this Court in the case of Babati vs. A.G., Yobe State & Ors. (2012) LPELR-20792(CA), Pp. 26-27, paras. A-C, per Sankey, J.C.A.:
“It is the law, as settled in a number of authorities that once a Judge has rejected a document in evidence, he cannot subsequently make use of same nor ascribe any value to same in his judgment. The same document can neither be re-tendered nor relied upon in the course of Counsel’s addresses nor commented upon by the trial Judge, except on appeal. In the same

vein, the trial Judge cannot review his ruling on the rejection of the document. This is a duty left to the Court of Appeal …
In the more recent case of Omotoso vs. Executive Governor, Ekiti State (2018) LPELR-45871, pg. 39, paras. B-E, per Belgore, J.C.A., who had this to say:
“On issue three, the appellants argued that certain documents were not considered by the trial Court. It is now clear that those documents are the four documents tendered by their counsel which were rejected by the trial Court and which were so marked. The law is very clear and settled that rejected documents cannot be basis upon which a trial Court can find for the party that tendered them. They cannot be the basis upon which a decision would be founded …”

After all said and done and given the circumstances of this case, the respondent had no interest whatsoever vested in her ab initio, most importantly as she could not establish her claim that she acquired entitlement to the land by way of customary gift inter vivos. It thereby became unnecessary for the learned trial Judge to consider the pleadings and evidence of both parties

regarding sale or no sale of the disputed land to one Tony Obande. The fact is that she had no interest thereon to bequeath to any one, Tony Obande inclusive, consequent upon which the declaration of entitlement to the said land by the learned lower Court cannot be allowed to stand. Any sale of the disputed land or part of it thereof by the respondent to Tony Amadi, is akin to giving what one does not have. The purported sale is void ab initio and of no effect whatsoever. Issue 4 (four) is accordingly resolved in favour of the appellant and against the respondent.

In the end, whatever parameter was used by the lower Court to measure the case of the parties concerning the land in dispute, the respondent ought not to have been granted her claims of entitlement to the same under the Land Use Act, 1978. It is rather the plaintiff/appellant who on the preponderance of evidence, is entitled to the ownership of the land known as plot No. BNA 3004 covered by the Benue State Statutory Right of Occupancy dated 8th January, 1990 and issued in the name of Lucy Aboh of No. 30 Ibadan Street, Otukpo GRA and situate behind the Conference Hotel, Otukpo. Furthermore, the

respondent either by herself or her agents, servants, privies and or anyone acting for or on her behalf, is restrained from further entering upon or laying claim to or committing acts of waste or trespass or encroachment or carrying on any form of development in any manner howsoever, on the said plaintiff’s parcel of land covered by Benue State Statutory Right of Occupancy No. BNA 3004, dated 8th January, 1990, lying, situate and being at the GRA Otukpo, behind Conference Hotel on Otukpo TPS 166 Otukpo, Benue State Government, Layout.

Having resolved issue 1 (one) in favour of the respondent and against the appellant, while issues 2 (two), 3 (three) and 4 (four) go in favour of the appellant and against the respondent, it follows that the appeal has succeeded in part only.

The appeal, in the event is allowed in part, while the defendant/respondent’s counter-claim is dismissed in its entirety for want of merit.

IGNATIUS IGWE AGUBE, J.C.A.: I have privilege of reading in advance, the draft of the lead judgment of my noble brother, Hon. Justice C. Ifeoma Jombo-Ofo, J.C.A., as he has comprehensively considered the issues submitted for

determination in this Appeal, in line with the appropriate principles of law as established by Erudite Jurists of the Apex Court and this Court. Accordingly, I adopt all the views expressed by my Lord and the conclusions reached on the issues therein completely as mine and I have nothing more to add than to also concur that the Appeal succeeds in part. I abide by consequential order dismissing the Defendant/Respondent’s Counter-Claim for being unmeritorious.

YARGATA BYENCHIT NIMPAR, J.C.A.: I was afforded the privilege of reading in advance, the judgment just delivered by my learned brother, C. IFEOMA JOMBO-OFO, J.C.A. and I agree with the lucid reasoning and resolution of all the issues donated for resolution in the appeal.

Let me contribute to the discourse on the issue of a deemed statutory right of occupancy as provided for by Section 34(2) of the Land Use Act, 1978 which says:
“Where the land is developed, the land shall continue to be held by the person in whom it was vested immediately before the commencement of this Act as if the holder of a statutory right of occupancy issued by the Governor under this Act.”
The Land Use Act

recognizes pre-existing occupation and use of land which translates into statutory rights of occupancy and such rights can only be taken away in strict compliance with the provisions of the law. That is what is termed a deemed statutory right of occupancy because, the occupation of such land predated the coming into effect of the Land Use Act and it was deliberately inserted to protect and preserve the rights of indigenous people and those who had been on the land before the law came into effect and handed over ownership of land in each State to the Governor to hold in trust for the people. It is the wisdom of the legislators that, a security for indigenous communities be put in the law in the form of a deemed right. A similar provision is also therein for farm lands too. The legal regime for a deemed statutory right of occupancy is the same for an issued statutory right of occupancy. See also the Court’s decision in ADUM V REGISTERED TRUSTEES DEEPER CHRISTIAN LIFE MINISTRY (2017) LPELR-42443(CA) where SANKEY, J.C.A. held:
“By the operation of Section 35 of the Act, the Respondent, who had the land vested in him, was deemed to have continued to hold the

same as if he was the holder of a statutory right of occupancy issued by the Governor/Military Administrator under Section 5 of the Act. A deemed right of occupancy is also a vested right recognized by the Act itself. Consequently, it must first have to be properly revoked or nullified before another Statutory right of occupancy can be issued in its place.”
A deemed right, though, without a real certificate issued is on the same level of recognition or validity as the certificate issued by the Governor.

I agree with the lead judgment and the manner all the issues were resolved. I also abide by the orders made therein.

Appearances:

N. Ojabo, Esq. with him, I. J. Ekpo, Esq. For Appellant(s)

O. Samson, Esq. For Respondent(s)