FIRST BANK OF NIGERIA PLC v. JIBRIN OKELEWU & ANOR (2013)

FIRST BANK OF NIGERIA PLC v. JIBRIN OKELEWU & ANOR

(2013)LCN/5984(CA)

In The Court of Appeal of Nigeria

On Thursday, the 7th day of February, 2013

CA/A/08/2011

RATIO

LAND LAW: DECLARATION OF TITLE TO LAND: 5 WAYS OF PROVING TITLE TO LAND

There are some basic principles of law concerning actions to declaration of title to land. The principle of law is clear and it has been settled through a long line of cases that title to land can be proved in one or more of the following five ways.

1. Traditional evidence

2. Production of document of title

3. Acts of ownership and possession by a person (such as selling, leasing, renting out or farming on all or part of the land) extending over a sufficient length of time numerous and positive enough to warrant the inference of true ownership.

4. Acts of long possession and enjoyment of land

5. By proof of probability under Evidence Act such as proof of possession of connected or adjacent land in circumstances rendering it probable that the owner of such-connected or adjacent land, would, in addition, be the owner of the land in dispute. See IDUNDUN v. OKUMAGBA (1976) 9 – 10 SC 227 &247; AYOOLA v. ODOFIN (1984) 2 SC 120; NWOSU v. UDEAJA (1990) 1 NWLR [pt.125] 188 at 192; AIGBOBAHI V. AIFUWA (2006) 6 NWLR [PT.975] 270 at 275; AYOADE ADEWUYI v. ANDREW ODUKWE (2005)7 SCNJ 227 at 237.PER TINUADE AKOMOLAFE-WILSON, J.C.A.

LAND LAW: DECLARATION OF TITLE: BURDEN OF PROOF IN MATTERS OF DECLARATION OF TITLE

The issue of proof rests squarely on the claimant to prove his title by preponderance of evidence. He is to establish his case, relying on his case and not on the weakness of the defendant’s case. See AJIBOYE v. ISHOLA (2006) 13 NWLR 998 628 at 652.PER TINUADE AKOMOLAFE-WILSON, J.C.A.

LAND LAW: DECLARATION OF TITLE TO LAND: WHAT MUST BE FIRST BE ESTABLISHED IN AN ACTION FOR DECLARATION OF TITLE TO LAND

LAND LAW: DECLARATION OF TITLE TO LAND: WHERE THE IDENTITY OF LAND IN DISPUTE WAS NEVER AN ISSUE BETWEEN THE PARTIES

LAND LAW: DECLARATION OF TITLE TO LAND: WHERE THE IDENTITY OF LAND IN DISPUTE WAS AN ISSUE BETWEEN THE PARTIES

However, where the identity of land is in dispute, it must be manifest in the pleadings before the court and the defendant who puts the identity of land with a survey plan in dispute, must come by way of clear and specific traverse of the averments of the claimant in his pleadings. See NWADIKE ONUS v. IBEKWE & ORS (1987) 4 NWLR [pt.67] 718 (224).PER TINUADE AKOMOLAFE-WILSON, J.C.A.

JUSTICES

HUSSIEN MUKHTAR Justice of The Court of Appeal of Nigeria

REGINA OBIAGELI NWODO Justice of The Court of Appeal of Nigeria

TINUADE AKOMOLAFE-WILSON Justice of The Court of Appeal of Nigeria

Between

FIRST BANK OF NIGERIA PLC – Appellant(s)

AND

1. JIBRIN OKELEWU

2. MR. GIMBA AUDU – Respondent(s)

TINUADE AKOMOLAFE-WILSON, J.C.A. (Delivering the Leading Judgment): The Appellant, a corporate body, as claimant filed an action before the Kogi state High court, Lokoja presided over by Hon. Justice S. T. Husseini against the Respondents, seeking for the following reliefs:

(a) A declaration that the Claimant is the bonafide, beneficial and customary owner of a parcel of land lying and situated near new post office, Anyigba measuring 0.36 hectares or 60m x 50m and bounded by Dekina Local Government beacon Nos. AY 1646, 1647, 1648, 1649, 1650 AND 1651 covered by Dekina Local Government Certificate of Occupancy No.2102 dated 10/10/1986.

(b) An order of perpetual injunction restraining the Defendants by themselves or their agents, privies, servants or whosever or any person claiming title through them from building on the land in dispute or further trespassing into it or from alienating it in part or whole the land in dispute and from doing any act on it.

(c) An order of this Court enabling the Claimant to pull down the fence and any structures erected on the land in dispute.

(d) N500,000.00 general damages for tort of trespass’

(e) Cost of this action.

The Respondents did not counter-claim.

The Appellant in proof of its case called one witness who testified as PW1, the Bank Manager of the claimant’s Bank at Anyigba; and tendered Exhibits P1, P2(a), (b), Pw3, P4 (a) and (d) Ps (a) & (b)’ Exhibits P3 and P5 were admitted provisionally by the lower court but P2 (a) & (b) were discountenanced at the judgment.

The Appellant claimed ownership of the land in dispute by virtue of allocation to her by Dekina Local Government vide a certificate of occupancy No.2102 dated 10/10/86. She complained that sometime in July 2009′ the 1st Respondent through the 2nd Respondent trespassed into the land in dispute, cleared the land, dug a foundation and built a fence round the whole land and all efforts to stop the Respondents from further work proved abortive hence the action at the lower court.

The Respondents in defence, called three witnesses who testified as DW1, DW2, DW3 while the 1st Respondent testified as DW4, and tendered Exhibits D1, D2, D3, D4 and D5. The evidence is to the effect that the land in dispute which is a part of a larger parcel of land belongs to one Madam Attah Iyidi (DW1) by virtue of inheritance being a family farm land. The 1st Respondent traced his root of title to DW1 who sold the land to him. Portions of the land of DW1 had earlier been sold to DW2 and DW3 who are the immediate neighbours of 1st Respondent. The 1st Respondent claimed that the Appellant’s certificate of occupancy (Exhibit P1) and the site plan (Exhibit P3) are not in respect of the land in dispute.

The learned trial Judge, while dismissing the action held that the claimant failed to prove the identity of the land; and failed to establish that the land in dispute is on the layout of Dekina Local Government upon which the Local Government issued a certificate of occupancy in favour of the claimant. Being dissatisfied with the decision of the lower court, the claimant appealed against the judgment and filed ten grounds of appeal which were forwarded to this Honourable Court by a supplementary Record of Appeal dated 16/4/2012 hereby reproduced save for the particulars –

GROUND ONE:

The judgment of the lower court is against the weight of evidence

GROUND TWO:

The learned trial Judge of the lower court erred in law in dismissing the Appellants case before it when he held that “I am inclined to dismiss this case moreso that the claimant have not discharged the onus on them as to whether the land in dispute was/is on the layout of Dekina Local Government and thereby occasioned a miscarriage of justice.

GROUND THREE:

The learned Justice of the lower court misdirected himself on the fact when he found that “I think in that circumstance, the evidence of the surveyor or any other expert involved in that exercise was necessary so as to establish the dispute. I do not think this is too much an expectation from the claimant in the light of the decision in EZEANEH v. MOHAMMED ATTA (2004) 2 SCNJ 200 at 217. Such evidence was not forthcoming and so the mere reflection of beacon numbers on Exhibit P1 stating the certain dimension without fixing same to the land in dispute fall short of the proof of identity required of the claimant to the land in dispute” hence caused a miscarriage of justice.

GROUND FOUR:

The trial lower court misdirected itself in law and on the fact when it found that “now, the issue still revolve around the identity of the land claimed. Mr. Akubo submits that the land in dispute is known to the parties hence the duty of the claimant on having to prove the identity of the land as-no longer necessary. That is the position of law in ideal cases as explained by the decision in ODICHA v. CHIBOGWU (1994) 7 – 8 SCNJ 317; OGEDEMGBE v. BALOGUN (2007) 9 NWLR [pt.1079] 404. But the matter on hand is not the ideal type. Was the identity of land established on account of the fact that the 1st defendant fenced that land? Does that not amount to shifting the onus of proof which is on the claimant”? and thereby occasioned miscarriage of justice.

GROUND FIVE:

The lower court erred in law in holding that in the absence of such certification, I will reflect the said document as admissible evidence but since same is already before the court and marked Exhibit F3, I will discountanance that document and thereby caused a miscarriage of justice.

GROUND SIX:

The trial court misdirected itself in law and on the fact when it found that “the land in dispute is part of the larger land acquired by the predecessors of DWI as family land and DWI inherited that farm land” hence caused a miscarriage of justice.

GROUND SEVEN:

The lower court misdirected itself in law and on the fact when it found as a fact that the place or piece of land which the place or piece of land which DW1 sold to DW2 and DW3 is at a place called Oko-Ogbaikeke both DW2 and DW3 share boundary with the land which the 1st defendant has fenced that is to say, the land in dispute and the 1st defendant in the same vein acquired the land in dispute through DW1 and thereby occasioned a miscarriage of justice.

GROUND EIGHT:

The trial lower court erred in law in rejecting Exhibits P4 (a) E P4 (b) tendered by the Appellant hence caused miscarriage of justice.

GROUND NINE:

The learned trial Judge of the lower court erred in law which he stated thus, “in effect, I further hold that Exhibit 05 had evidential value as a receipt of payment only over the transaction to which the document relates and thereby occasioned a miscarriage of Justice.

GROUND TEN:

The learned trial Judge of the lower court misdirected himself on the fact when he first relied on traditional evidence of DW1 to hold that she is the owner of the land in dispute from whom 1st defendant (now 1st respondent) acquired the land through purchase by virtue of evidence on record and thereby occasioned miscarriage of justice.

The learned counsel for the Appellant J. A. Akubo Esq. in his Brief of Argument formulated five issues for determination and same were adopted by Lawrence John Esq. of learned counsel to the Respondents viz:

1. Whether the appellant adduced credible evidence to prove its title to the land in dispute as required by law to entitle her to judgment.

2. Whether the lower court was right to have dismissed the suit of the appellant by gratuitously raising the issue of identity of the disputed land when the issue of identity of said land is not in dispute and did not arise from the pleadings.

3. Whether the lower court was right to have dismissed the suit of the appellant by gratuitously raising issues not contained in the pleadings suo motu and determining same without affording the parties or their counsel fair hearing on such issues.

4. Whether the lower court was right to have relied and preferred traditional evidence of DW1 to documentary evidence of 1st respondent and whether the lower court has right to have made specific findings of fact in favour of DW1- who is not a party or counter-claimant to this case’

5. Whether the lower court was right to have admitted cash receipts of ground rent of the land in dispute in evidence provisionally as exhibits P2 (a) & (b) and rejected them at the stage of judgment.

On issue one, it is the submission of Mr. J. A. Akubo for the Appellant that the uncontroverted oral evidence of PW1 and Exhibit ‘P1’, ‘P3’ and ‘P2a’ and ‘P2b’ of, the Appellant sufficiently proved the root of title of the appellant and the identity of the land in dispute with precision as required by law. He expatiated that Exhibit ‘P1’, the certificate of occupancy duly granted her by Dekina Local Government showed ex-facie that the land in dispute is on the layout of Dekina Local Government at Anyigba as it states thus: “Layout along Anyigba – Idah Rood” which duly quoted the measurements of the land and the boundary beacon numbers which were more particularly described with precision in Exhibit P3, the site plan. He submitted that there are five ways of proving title to land and the Appellant has satisfied one of such ways by the production of his document. He relied on AYOADE ADEWUYI v. ANDREW AJULU ODUKWE (2005) 7 SCNJ 227 at 237. He concluded on the issue that since it is not disputed that the Local Government has power to allocate or grant customary right of occupancy, the Appellant has established her claim and is entitled to judgment hence issue one should be resolved in her favour.

On issue two, it is the strong contention of the Appellant’s counsel that the issue of identity of the land did not arise from the pleadings and was never an issue in this case as the land in dispute is borne by the evidence of the parties in court and the finding of the lower court which stated –

“The land in dispute in this case is that piece or parcel of land of land which is enclosed by a wall fence of 6 (six) coaches. It is in evidence that this fence was constructed by the 1st defendant. Exhibits P2A and P3B put together is the negative and the photographic representation respectively of the land in dispute”

He further submitted that where the land in dispute is known to both parties, the requirement of proof of the identity of the land in dispute is irrelevant. He cited the following cases – EMMANUEL ILONA v. SUNDAY IDAKWO & ANOR (2003) 5 SCNJ 330 AT 352; ADIJANYA v. ADERONMU (2000) 6 SCNJ 242 at 259; MARTIN UDECHUKWU & ORS. v. SUNDAY EZEMWO (2009) 14 NWLR (Pt.1162) 525 at 539 and IREJU NWOKIDU & ORS V. MARKOKANU & ANOR (2010) 3 NWLR (Pt.1181) 362 at 393 – 394 to substantiate his submission.

In concluding this issue, learned counsel relying on the authorities of OBULOR v. OBURO (2001) 4 SCNJ 22 at 28 – 29; and KANO v. OYELAKIN (1993) 3 SCNJ 65 at 83, submitted that it was wrong for the lower court to have suo motu introduced the issue of identity of the land and based its decision on same when it was not based on the pleadings of the party and evidence before the court.

On issue 3, it is also learned counsel’s contention that the issue raised on Exhibits P3 and D5 were raised suo muto by the learned trial Judge devoid of the pleadings before the court while the parties were not given the opportunity of being heard on the issue hence a denial of fair hearing contrary to the Supreme Court decision in EZENWA v. OLEHE (1995) 4 NWLR (Pt.388) 142 at 170. Further on Exhibit ‘P3′, the survey plan, he noted that contrary to the lower court’s decision, it substantially complied with provisions of Section 3(1) of the Survey Law of the Northern Nigeria Cap 129 as applicable to Kogi State and thus it was wrong to have discountenanced same while basing the dismissal of the Appellants’ case on lack of proof of identity of the land in dispute vide Exhibit ‘P3’. He referred to the conclusions of the judgment at page 332 of the Record of Appeal.

As for Exhibit ‘D5’, learned counsel further contended that there was nothing in evidence to suggest that Exhibit ‘D5’ was tendered by DW4 (1st Respondent) as evidence of receipt of payment, but that the lower court gratuitously raised this issue to make a case for the Respondents at page 324 of the Record. It is his submission that evidence of DW4 at page 315 line 1 of the Record of Appeal showed clearly that Exhibit ‘D5’ was tendered as evidence holding title to land.

Still on Exhibit ‘D5’, Mr. Akubo noted that DW1 transferred the land in dispute to the 1st Respondent without obtaining the consent of Dekina Local Government against the provisions of Section 21 (a) and (b) of the Land Use Act which made it mandatory for such consent of the Local Government to be obtained before any assignment of any land subject to Customary Right of Occupancy. He therefore argued that Exhibit ‘D5’ the purported transfer between DW1 and 1st Respondent is a nullity. He cited in support BROSSETTE v. MANUFACTURING NIG LTD v. M/S OLA ILEMOBOLA LTD & 3 ORS (2007) 14 NWLR [pt.1053] 109 at 138 – 139. Counsel further attacked Exhibit ‘D5′ as being inadmissible for failure to stamp same as required by section 15 (2) (3) of Land Registration Law of Northern Nigeria Cap 58, Vol. 11 of 1963 as applicable to Kogi State. He therefore urged the court to resolve issue three in favour of the Appellant.

With regard to issue four, counsel submitted that the lower court was wrong to have relied and preferred the traditional evidence of DW1, who, moreso was not a party to this case, to the documentary evidence of the Appellant. He submitted relying on JACH v. WHYTE (2001) 3 SCNJ 55 at 76 that documentary evidence is the best evidence. Counsel argued specifically that the findings of fact in favour of DW1, who did not counter claim, at page 327 lines 1 – 11, which in effect attempted to establish the proof of ownership of DW1 of the land in dispute are products of bias and extraneous issue raised by the lower court without any evidence in a bid to make a case for the Respondents thereby occasioning a miscarriage of justice. He urged the court to resolve issue four in favour of the Appellant.

The last, issue five complains about the rejection of Exhibits P4 (a) and (b) by the lower court firstly, on the ground that being photo-copies of cash receipt on land it will tantamount to taking the Respondents by surprise when evidence of their whereabouts of the originals were freshly given in the witness box without* pleading those facts as notice to the Respondents. Secondly, counsel impugned the rejection of the documents on the ground that they are relevant and admissible documents on land matters; as relevance governs the admissibility of documents. He relied on MAGAJI v. NIGERIAN ARMY (2008) 8 NWLR [pt.1089] 388 at 396.

Finally learned counsel urged the court to allow the appeal and resolve all the issues in favour of the Appellant.

Lawrence John Esq. of learned counsel to the Respondents adopted the issues raised by the Appellants and responded to them seriatim.

It is learned counsel’s submission on Issue one that the Appellant failed to adduce credible evidence to prove its root of the title to the disputed land as her mere production of certificate of occupancy (Exhibit P1) without relating same to the land in dispute is not sufficient to discharge the Appellant on the onus of proof placed on him. He noted that in the face of Exhibit P1, the land is somewhere in the layout of Idah/Anyigba Road whereas there are many lands along and within Anyigba Ida Road. He added that Exhibit P3, the site plan did not mention anything about layout and that the site plan is not even linked to the certificate of occupancy. It is his contention that the master plan ought to have been tendered. He therefore argued that the learned trial Judge was right to have dismissed the Appellants’ case for failure to establish the identity of the land in dispute.

In response to Appellant’s submission on issue two, Mr. Lawrence John submitted that the issue of identity of the land was never raised suo muto by the lower court. Rather the parties joined issues on identity of the land in their pleadings and furthermore that both counsel in their briefs of argument made submissions on same. He remarked that the cases cited by the Appellant’s counsel is support of his case are either not apposite or irrelevant to the case in point.

With regard to issue 3, learned counsel referring to paragraphs 5 and 11 of the statement of claim submitted that both Exhibits P3 and D5 were pleaded. He noted that an objection was raised on Exhibit P3 at its tendering on the ground that the date on the site plan was not indicated while the name of the surveyor was not pleaded; hence it is wrong to state that the court suo motu raised issue bordering an Exhibit P3. However, without conceding, he argued that the issue raised on Exhibit P3 did not affect the judgment of the court as the case was not dismissed for failure to identify the land in dispute vide Exhibit P3 but for failure to fix their title document against the land in dispute.

On Exhibit D5, counsel submitted that Exhibit D5 was a mere formality to show payment of money and that what conferred ownership on 1st Respondent is the fact that the land in dispute was sold to him by DW1 and he took possession of same. On issue of consent, it is his contention that the consent of Dekina Local Government need not be obtained before DW1 can sell their land as failure to obtain consent does not invalidate the sale of land in dispute. He relied on the case of AWOJUGBAGBE LIGHT INDUSTRY LTD v. CHINUKWE (1993) 1 NWLR [pt.270] 48s at 509 – 510.

On Issue 4, it was submitted for the Respondents that one of the ways of proving title to land is by traditional evidence to trace root of title and such evidence need not be given only by the parties to the suit. It is his contention that by the evidence of DW1, and both DW2 and DW3, DW1 had customary right over the land before the land Use Act, 1978 which land could not be divested to anybody except for overriding public purpose under Section 28(3) of the Land Use Act. He cited ONONUJU v. A-G ANAMBRA STATE (2009) 7 ALL FWLR [pt.478] 200 at 218. par G – H; CSS BOOKSHOP LTD v. THE REGISTRERED TRUSTEES OF MOSLEM COMMUNTTY IN RIVERS STATE (2006) 4 SCNJ 310.

Finally on issue five, learned counsel submitted that by the principles of front loading, witnesses are not supposed to give oral evidence on documents but to merely submit same. He therefore argued that the lower court was right to have rejected Exhibits P4 (a) and (b) which by pleadings did not show they were photo-copies without any explanation about their whereabout in their pleadings and stating so during oral evidence is taking the respondents by surprise. Besides, he added that the Appellant did not show how the rejection of the exhibits affected the judgment. In conclusion, he urged the court to dismiss this appeal and affirm the judgment of the lower court.

Mr. J. A. Akubo filed Appellant’s Reply Brief of Argument on 23/03/11. Some of the points raised therein are more of re-argument of his former submissions in his brief of argument. On the failure to call a surveyor which he regarded as unnecessary as he re-emphasized the identity of land was not in dispute, he submitted that a party is not bound to call a host of witnesses. He cited in support MUSA v. YERIMA (1997) 7 SCNJ 109 at 124 & 134.

On section 149 (d) of the Evidence Act, counsel submitted that the issue of master plan was not part of Appellant’s pleading in the lower Court hence failure to tender same does not amount to withholding evidence. With respect to Exhibit ‘D5′ concerning the admissibility of a document where consent of the granting authority is a condition precedent, he submitted that Supreme Court authorities are to the effect that consent must first be obtained and therefore the decision of AWOJUGBAGBE LIGHT INDUSTRY LTD v. CHIMUKWE (supra) being a Court of Appeal decision is not an authority on this point.

On sections 36 and 28 (3) of Land Use Act cited and relied upon by the Respondent’s counsel, Mr. Akubo submitted that the provisions of Land Use Act cannot avail DW1 and L” Respondent because evidence of tradition of DW1 relied upon by the lower court was overtaken by Exhibit D1, the certificate of occupancy of DW1. He submitted that the cases cited by Respondents’ counsel are irrelevant to the instant case.

The questions for determination as couched by the Appellant are quite detailed to encapsulate the issues raised on the grounds of appeal. I therefore adopt them as the matters for consideration in this appeal. However, I will take issue 1, 2, and 4 together as they are all subsumed on the vital and most crucial point as to the proof of title by the Appellant.

ISSUES 1, 2 AND 4:

1. Traditional evidence

2. Production of document of title

4. Acts of long possession and enjoyment of land

In an action for declaration of title to land, it is a fundamental principle of law that the first and foremost duty of the claimant is to establish the identity, size, location and boundaries of the land with such reasonable degree of accuracy and certainty that its identity will no longer be in doubt. See EFE II ROJIE v. OKPALEFE (1991) 4 LRCN 1327; IJAMAH OTIKA ODICHE v. OGAH CHIBOGWU (1994) 78 [Pt.11] SCNJ 317 at 323, MWOKOPOBIA v. MWOGU (2009) 2009 10 NWLR [pt.1150] 553 at 588 – 589; UDECHUKWU v. EZEMUO (2009) 14 NWLR (Pt.1162) 582 at 542.In the case at hand, the Appellant relied on production of title document as proof of ownership of the disputed land. Exhibit PL is the certificate of occupancy issued to the Appellant by the Dekina Local Government as its root of title. It is not contested that the Dekina Local Government, by virtue of Section 6(1) (a) of Land Use Act has power to allocate or grant a customary right of occupancy over land within its jurisdiction. Exhibit P1 was granted to the Appellant pursuant to that Dower.

The pertinent question at this juncture is why did the court dismiss the appellant’s case? The plank upon which this case was dismissed, that is, its ratio descidendi is quite glaring from the conclusion of the judgment at page 332, lines 6 – 9 of the Record of Appeal which the Appellant adequately reproduced as finding of the lower court under issue 2 of his Brief of Argument thus:-

“Therefore, by their failure to establish the identity of the land by way of fixing their document of title against the land in dispute as the same, land covered by Exhibit ‘P1′ I am inclined to dismiss this case more so that the claimants have not discharged onus on them as lo whether the land in dispute was/is on the layout of Dekino Local Government.” (Emphasis mine).

The contention of the Appellant is that the land in dispute is known to both parties and thus there was no dispute as to the identity of the land claimed by the Appellant hence proof of same by the Appellant is unnecessary.

Where the identity of land in dispute was never an issue between the parties, the requirement of the proof of identity of land in dispute is irrelevant. See EMMANUEL ILOMA v. SUNDAY IDAKWO & ANOR (2003) 5 SCNJ 330 at 352; ADESANYA v. ADERUNMU (2000) 6 SCNJ 242 at 259; MARTIN UDECHUKWU & 2 or v. SUNDAY EZEMUO (2009) 14 NWLR (Pt.1162) 525 at 539; IREJU NWOKIDU & ORS v. MARK OKAMU & ANOR (2010) 3 NWLR [pt.1181] 362 at 393 – 394. However, where the identity of land is in dispute, it must be manifest in the pleadings before the court and the defendant who puts the identity of land with a survey plan in dispute, must come by way of clear and specific traverse of the averments of the claimant in his pleadings. See NWADIKE ONUS v. IBEKWE & ORS (1987) 4 NWLR [pt.67] 718 (224).A perusal of the pleadings and evidence before the lower court shows that the identity of the land was made an issue by the Respondents, in this case. Indeed, the identity of the land is in dispute. Paragraphs 5, 6, 11 and 21 of the Appellants Statement of Claim at pages 5 to 9 of the Record of Appeal are material.

5. The claimant is the bonafide and beneficial owner of a parcel of land lying and situate at Anyigba near Ayangba new Post Office measuring 0.36 hectares or 60m x 60m which is best described by a survey/site plan and bounded by Dekina Local Government beacons No. AY 1646, 1647, 1648, 1649, 1650, and 1651.

6. The claimant became the beneficial owner of the land in dispute by allocation or grant of it by Dekina Local Government vide a certificate of occupancy No 2102 dated 10/10/1986. The said certificate of occupancy is hereby pleaded and shall be relied upon at trial.

11. The claimant further states that the land in dispute was surveyed and site/survey plan drawn which shows the dimension or boundaries of the land. Same is hereby pleaded and shall be relied upon at the hearing of this suit.

21. The claimant avers that the land in dispute is on the layout of Dekina Local Government at Anyigba.

In re-action to these averments, the Respondents joined issues with the Appellant on the root of title of the Appellant, the size and location of the land in dispute that is whether it is on the layout of Dekina Local Government and also the identity of the land claimed by the Appellant. See paragraphs 4, 10, 17, 12 and 16 of the Respondents’ Joint Statement of Defence at 88 – 92 of the Record of Appeal.

“4. The defendants in response to paragraphs 5 and 6 of the statement of claim aver that the 1st defendant is the bonafide and beneficial owner of that parcel of land measuring 79.8m x 77.Im x 72.3m x 63.6m which is bigger than the land of the claimant stated in paragraph 5 of the statement of claim.

11. The defendants deny paragraphs 11, 12, 13 and 14 of the statement of claim and aver that no site/survey plan was drawn in respect of the land in dispute neither was there a genuine grant to the claimant by the Dekina Local Government.

12. The defendants aver that the certificate of occupancy and the site plan pleaded and attached to the statement of claim are not in respect of the 1st defendant’s land which is in dispute.

16. The defendants deny paragraph 21 and aver that the land in dispute is not on the lavout of Dekina Local Government at Anyigba and therefore gut the claimant to the strictest proof.”

See also paragraph 9 of the statement on oath of the 1st Respondent at page 96 of the Record of Appeal where it states –

“That the site/survey plan and the Dekina Local Government certificate of occupancy attached by the claimant to her claim are not in respect of the land in dispute.”

From these pleadings, the Respondents had put a query as to the identity of the land being claimed by, the Appellant. There was a disagreement as to dimension and the location of the land in dispute. It is admitted that Exhibit P1 the certificate of occupancy was tendered to show the root of title and the site plan provisionally admitted as Exhibit P3, was also tendered to prove the boundaries or the identity of the land in dispute. The worrisome question is whether Exhibit P3 actually relates to Exhibit P1 and the land in dispute, vis-a-vis the contention of the Respondents that the land being claimed by the Appellant belongs to the 1st Respondent. It is pertinent to emphasize that in paragraph 4 of the joint statement of Defence already quoted above, the Respondent in response to the averment of the Appellant that his land measures 0.36 hectares or 50m by 60m, averred that the 1’t defendant’s land measures “79m x 77.1m x 72.3m x 63.6m, which is bigger than the land of the claimant stated in paragraph 5 of the statement of claim. Again on the face of Exhibit P1, the certificate of occupancy, the land is said to be bound with Local Government Beacons Nos. Ay 1646, 1647, 1648, 1649, 1650 and 1651. Curiously however, the site plan which is meant to explain the size and boundaries of the land has only beacon Nos. 1546, 1647, 1648, and 1649 with the absence of beacons numbers 1650 and 1651. The only inference that can be made from these inconsistencies is that the survey plan, Exhibit P3 is not related to Exhibit P1, the certificate of occupancy which is the root of title of the Appellant. The two documents relied upon by the Appellant are irreconcilable. It has failed to prove the identity of the land he claims. The salient question is whether Exhibit ‘P1” refers to the land in dispute? In an action for declaration of title to land, the plaintiff has the onus of showing satisfactorily that his plan corresponds with the land to which he lays claim. See ONWUCHEKWA v. EZEOGU (2002) 18 NWIR [pt.799] 333 SC. The doubt as to the identity of the land claimed by the Appellant is worsened by the fact that PW1 admitted that he does not even know the boundary neighbours of the land.

I am conscious of the established principle of law that it is not in every case for a declaration of title to land that a survey plan is mandatory. A plan is not sine qua non in all cases for declaration of title to land. A survey plan is not necessary where the parties have compromised the issue of identity of the disputed land by pleadings and evidence – See OYADEJI v. ADENLE (1993) 9 NWLR [pt.316] 224 at 237.

However where both parties by their pleadings and evidence are not in ad addem as to the situs and size of the land as in the instant case, then the land must be described with such degree of accuracy that the identity of the parcel of land in dispute will be crystal clear to the court. See ADEYORI v. ADENIRAN (2001) FWLR 701; EMMANUEL ILONA v. SUNDAY IDAKWO & ANOR (2003) 5 SCNJ 330 at 352.

It has been pointed out that Exhibits P1 and P3 are in conflict. Worse still is the fact that the identity of Exhibit P1 is itself is vague as to the exact location of the land. A perusal of Exhibit P1 shows the description of the land merely as a piece of land along ldah Road. The specific location on Idah Road is not stated hence Exhibit P1 is insufficient proof of the identity of the land being claimed by the Appellant. The need for proper proof of the land in dispute becomes more paramount having regard to the pleadings and evidence of the Appellant stating that the land he claims is in layout of Dekina Local Government at Anyigba which the Respondents specifically denied and further clarified that their land, which they commenced fencing since 2001 is not on Dekina Local Government layout Area. The denial of the fact as to the identity of the land, as to whether it is located in Dekina Local Government Layout Area was clear and loud. Apart from the denial in paragraph 16 of the statement of Defence (quoted above) which put the Appellant to the strictest proof thereof, the Respondents in their Statements on oath categorically denied the Appellant’s assertion that the land in dispute is in Dekina Local Government Layout. Paragraph 6 of the statement on oath of DW2, at page 99 of the Record of Appeal, who also has DW1 as his predecessor-in-title and shares boundary with the 1st Respondent states – “That my land is not in Dekina Local Government or any government Layout.” Paragraph 8 of the Statement of Oath of another purchaser with the same predecessor-in-title with DW1, also a boundary man to 1st Respondent at page 100 of Record of Appeal states – “That my land is not in Dekina Local Government or any government Layout.”

This constant denial of the identity of the land, as to its location warranted proper evidence from the Appellant to establish his claim that the land in dispute is in that layout. Unfortunately, the only evidence supplied by the Appellant is that of PW1.

The testimony of PW1 under-cross examination on this issue is bereft of any such proof to show that the land claimed by the Appellant is in Dekina Local Government Area Layout. He stated thus –

“I said that the land in dispute is a layout plan based on the site plan and the certificate of occupancy issued to us. I said so because Exhibit Pl is carrying the stamp of Dekina Local Government…”

The fact that a certificate of occupancy issued by Dekina Local Government, bears its stamp is not by any stretch of imagination an iota of proof that that parcel of land is indeed in a layout, moreso when no master plan of a layout was tendered. Exhibit P3 tendered is also not of any assistance to properly identify the land claimed by the Appellant as the beacons therein do not completely relate to those on Exhibit ‘P3. It also did not show whether the land is in Dekina Local Government Layout. Unfortunately, the surveyor who prepared Exhibit P3 was not called to testify to clarify these contradictions.

Undoubtedly, it is the duty of a claimant in a claim for declaration of title to land to establish with certainty and accuracy the identity of the land he is claiming. This is a condition precedent mandatory to the success of the claim. – ADENIRAN v. ASHABI (2004) 2 NWIR [pt.857] 375; OTANMA v. YOUDUBAGHA (2006) 2 NWIR [pt.964] 337 SC. A claimant who fails to prove the exact extent, location and/or identity of the land he claims cannot be said to have proved his title to land. His claim ought to be dismissed. See GBADAMOSI v. DAIRO (2007) 3 NWLR [pt.1021] 282 SC.

It appears to me that the learned counsel for the Appellant is under a misapprehension of the issues involved when he submitted that the evidence before the lower court shows that the land is known to both parties merely because the Respondents agreed that the land in dispute is that which the 1st Respondent fenced round. The interpretation of this evidence simply means that what the 1st Respondent is contending is that his land, which the Appellant is claiming, by virtue of Exhibit P1, has no proof to show that the land is the same as the document, he holds, that is Exhibit P1. The issue is not whether the land is known to both parties. Rather, the contest is whether the Appellant has been able to relate his document to the land in dispute so as to identify the land, he claims as actually belonging to him. It is not merely an issue of ownership as contended by Appellant’s counsel. It is also an issue of proper identification of the land being claimed by the Appellant.

Granted, a certificate of occupancy is normally the evidence of exclusive possession and the rights provided for in favour of the person in possession of such certificate – AUTA v. IBE (2003) 13 NWLR [pt.831] 247 SC; nevertheless, the presumption that the holding of a certificate of occupancy is prima facie evidence of title over the land covered by it is rebuttable. This is because possession simplicita, when challenged will not automatically confer right to statutory or customary right of occupancy. Thus, the mere production of a certificate of occupancy by a party in a suit does not itself entitle the party to a declaration of title to land. It must be shown that the possession was rightly conferred. See OKPALUGO v. ADESOYE (1996) NWLR [pt.476] 77 SC; DIM v. A-G FEDERATION (2004) 12 NWLR [Pt.888] 459 (C.A); AUTA v. IBE (supra). This brings me to the issue four for determination.The attack of Mr. Akubo in the findings of the lower court at page 327 lines 1 – 11 concerning the traditional evidence in favour of DW1 is of no moment. Here again, he is under a misconception that before a party can validly trace his root of title in a declaration to land, he must necessarily join his predecessor-in-title as a party. This is not borne out of any principle of law; or practice. A defendant who has been sued for trespass has the right to call as a witness the person from whom he claims his right of possession or ownership. 1st Respondent, who was the 1st defendant in the lower court pleaded traditional evidence to support his right of possession/ownership of the land in dispute by calling DW1 who sold the land to him to support his evidence as DW4 therein. This is to the effect that he (1st Respondent) is not a trespasser on the land in dispute but that he purchased same from DW1 who inherited the family farm land and also called his boundary men, DW2 and DW3 to who also have the same predecessor-in-title with him to prove that DW1 owned the land. The fact that DW1 did not counter-claim does not subtract from the value of the evidence supplied by 1st Respondent to support his case. The learned trial Judge was conscious of the fact that DW1 was not a party to the case and that neither she nor the Respondents counter claimed, hence he made no order in their favour. (See page 332 of the Record of Appeal).

The finding of facts complained of by the Appellant can be summaried as follows:

(1) The place or piece of land which DW1 sold to DW2 and DW3 is at a place called Oko-Ogbaikeke.

(2) Both DW2 and DW3 share boundary with the land which the 1st Defendant has fenced that is to say, the land in dispute.

(3) The 1st Defendant in the same vein acquired the land in dispute through DW1.

(4) That the land in dispute is part of the larger farm land acquired by the predecessors of DW1 as family land.

(5) DW1 inherited that farmland

These findings are not spurious but are uncontroverted pleadings and evidence before the court. See paragraphs 4, 5, 18, 19, 20, 21, 22, 23 and 24 of the Joint Statement of Defence of the Respondents at pages 86 – 92 of the Record as follows:

4. The defendants in response to paragraphs 5 and 6 of the statement of claim aver that the 1st defendants is the bonafide and beneficial owner of that parcel of land measuring 79.8m x 77.1m x 72.3m x 63.6m which is bigger than the land of the claimant stated in paragraph 5 of the statement of claim.

5. The defendants aver that the 1st defendant bought the land in dispute which is described in paragraph 5 above from the Madam Atta Iyidi on 4/4/2001 and took possession immediately.

18. The defendants aver that the entire land in that vicinity including the land in dispute was acquired in the forest form and disvirgined by Emakoji Ogo who used same for farming during his life time.

19. The defendants aver that the entire land of Emakoji Ogoh is known and called Ogbaikeke where the land in dispute is situate

20. The defendants aver that after the death of Emakoji Ogoh, the land devolved on his son called Iyidi Emakoji who used same for farming purpose till his death.

21. The defendants aver that after the death of lyidi Emakoji, the land developed on Attah lyidi who is the only surviving child of Iyidi Emakoji.

22. The defendants aver that it was this Attah Iyidi who sold the land in dispute which form part of the vase land of the family to the 1n defendant.

23. The defendants aver that the lands presently occupied by Alhaji Dada Ejiga, Lona Filling station, Isah Ichaba, James Ikani, Sule Abu, Asta Nigeria Ltd Trailer Park, Muslim Clinic, Part of Kogi State Diagnostic and Reference Hospital and Barrister Tanko Mahammed were granted to them by Iyidi Emakoji and Attah lyidi respectively.

24. The defendants aver that James Ikani and Sule Abu who are among those mentioned in paragraph 23 are immediate boundary neighbours of the 1st defendant who also acquired their land through Attah Iyidi’s family.”

paragraphs 1, 2, 6, 7, 8, 9, 10, 11 of the Written Statements on oath of 1st Defendant’s witness at pages 97 to 98 of the Record as follows: –

1. That I sold the land in dispute to the 1st defendant on 4/4/2001.

2. That I did not sell the land in dispute or any land to the claimant.

6. That it was my grandfather by name Emakoji Ogoh who 1st acquired the entire land in the vicinity called Oko-Ogbaikeke, disvirgined same and was using the land for farming purpose.

7. That after the death of Emakoji Ogoh, the land devolved on his son called Iyidi, Emakoji who also used the land for farming purpose till his death.

8. That after the death of Iyidi Emakoji the land devolved on me being the only surviving child of lyidi Emakoji.

9. That I was also making use of the entire land for farming until I sold part of it to some persons.

10. That my father Iyidi Emakoji and myself granted the place presently occupied by Alhaji Wada Ejiga, Lona Filling Station, Isah Ichaba, James Ikani, Sule Abu, Asta Nigeria Ltd Trailer Park, Muslim Clinic, part of Kogi State Diagnostic and Reference Hospital and Barrister Tanko Mohammed which were formally part of our family land at Ogbaikeke.

11. That I was given judgment in the cases involving me ad Atajachi Ejiga and Alhaji Shaibu Etu over Ogbaikeke land which include the land in dispute.”

See also paragraphs 1, 2, 3, 4 of DW2 Statement on Oath at page 100 of the Record of Appeal-

“1 That I knew one Attah lyidi and her junior brother Mohammed lyidi (now late) for a very long time now.

2. That I bought a portion of land from Madam Attah tyidi at Oko-Ogbaikeke

3. That the portion of land she sold to me shares boundary with the land of the 1st defendant.

4. That I started development on my portion of land in 1982 immediately I bought the land from Attah Iyidi.”

The learned trial Judge therefore has committed no error in relying and preferring traditional evidence of the Respondents over the unreliable documentary evidence of the Appellant which have been proved not to relate to the land in dispute.

I am therefore in disagreement with the submission of learned counsel to the Appellant at page 17 of his Brief of Argument where he stated that those findings of fact by the court are “products of bias and extraneous issues raised by the lower court to make a case for the respondents.” This in my view, is a baseless attack on the judgment of the lower court. The case of OBOMSHENSE v. ENIAHON (1993) 7 SCNJC [pt.11] 479 at 494 & 497 is not apposite to this case.

The concomitant effect of preference of the traditional evidence of DW1 is that DW1, who sold to the 1st Respondent, had an existing customary right of ownership over the land. The 1st Respondent relied on Exhibit ‘D5’ which according to him is evidence of payment of money for the land he purchased from DW1. I will deliberate later on Exhibit D3 while considering Issue No. 3. The grant of a certificate of occupancy to a person does not extinguish the right of an existing customary owner. This is because the prior holder is deemed to be the holder of a customary right of occupancy over such a land. Unless and until such a prior holder’s interest is revoked, a subsequent grant is not valid. See MACAGLEY v. OMIYALE (1997) 4 NWLR [pt.497] 94. Thus, by virtue of Section 36 of the Land Use Act, the land in dispute is deemed to have been vested in DW1 before the commencement of Land Use Act, 1978. The cited case of ONONUJU v. AOG ANAMBRA STATE (2009) 7 ALL FWLR [pt.478] 200 at 218, paragraph G – H succinctly captures the position of the law.

“Section 36 of the Act has transitional provisions relating to the Land situate in non-urban area such as the land in dispute in this case. Sub section (2) therefore deals with agricultural lands while sub-section 4 relates to developed lands. In either case, the holder of the customary Right of Occupancy of such lands shall continue to hold the land and would be entitled as of right, to a Certificate of Occupancy under the Act, neither the Governor nor the Local Government would have a right to divest such land from the person in whom the land was properly vested by the issue of Certificate of Occupancy over the land to another person in whom the land was not vested.”

It is restated that the lower court committed no error in the findings. The Appellant’s counsel in his Reply Brief of Argument has argued that the evidence of tradition of DW1 relied upon by the lower court has been overtaken by Exhibit ‘D1’ (the certificate of occupancy of DW1). I am afraid, this issue was not raised in the lower court and none of the ten grounds of appeal filed by the Appellant covered this issue. It is trite that an issue for determination in a brief of argument must arise from grounds of appeal filed by the parties. Once an issue formulated is not related to any ground of appeal, then it is irrelevant and goes to no issue. Any such issue and argument will be discountenanced – IBATOR v. BARAKUNO (2007) NWLR [pt.1040] 475 (SC); AMADI v. NNPC (2000] 6 SC [pt.66] 72; SHITTA-BEY v. A.G.FEDERATION (1998) 10 NWLR [pt.570] 312 SC. This point was not also raised as an issue for determination in his Brief of Argument despite the fact that the 1st Respondent relied on traditional evidence through DW1 to prove his root of title as evidenced by his pleadings and statement of oath while I had quoted earlier. The Appellant cannot therefore in his Reply Brief raise this issue.

Be that as it may, it is important to note that the 1st Respondent did not counter-claim. Hence the fact that consent was not obtained from the Local Government Council before the land was sold to the 1st Respondent is immaterial. The 1st Respondent is not in court to seek for certificate of occupancy on the land. His defence simply is that the land in which he is accused of trespassing does not belong to the appellant.

The onus of proof rests solely on the claimant (appellant herein) to prove his case. In other words it is paramount that in order to establish his title to the land he claimed, he must in the process rely on the strength of his own case and not on the weakness of the defence. See ODOFIN v. AYOOLA (1984) 11 SC. The perceived weakness of the Respondent’s claim does not in anyway improve on the case of the Appellant to prove his claim to the land in dispute. For instance, it does not improve the fact the Appellant failed to identify the land, which he claims as he fixed irreconcilable beacons on Exhibits ‘P1’ and ‘P3′ in the land so as to identify the land in dispute. Neither does it assist him in his inability to prove that the land is in Dekina Local Government Layout. The end result is that the Appellant has failed to establish his claim to the land in dispute. Issues 1, 2 and 4 are hereby also resolved in favour of the Respondents,

ISSUE THREE is whether the lower court was right to have dismissed the suit of the Appellant by gratuitously raising issues bordering in Exhibit P3 of the Appellant and D5 of the Respondent not contained in the pleadings and suo motu determining same without inviting the parties on such issues. The objection of the learned counsel to Exhibit P3 is reflected at page 304 paragraph 2 of the Record of proceedings whilst the response of the Appellant’s learned counsel is at page 305, paragraph 2. A perusal of the proceedings show that the objection was on the ground that the date and name of the surveyor were not pleaded wherein the Appellant replied that such details amount to evidence which need not be pleaded. However, the finding of the court on this issue (page 330) is at variance with the objection raised. I am therefore in agreement with the Appellant’s counsel that the pronouncement on the rejection of Exhibit P3 on the ground of non certification of the document pursuant to section 3(1) of the Survey law of Northern Nigeria cap 129 as applicable to Kogi State was a new issue suo motu raised by the court without giving the parties the opportunity to address on the issue raised. The courts have held severally that failure to give parties opportunities to be heard on points raised by the court suo motu amounts to breach of fair hearing on that issue. See the cited case of ODESSA v. FRN (NO 2) (2005) 10 NWIR [pt.934] 528 at 558. I therefore hold that Exhibit P3 which was admitted provisionally was wrongly discountenanced by the lower court. Now the pertinent question is whether this pronouncement or error has affected the judgment of the court. In other words, whether it caused any miscarriage of justice.

Mr. Akubo’s contention is that “the trial court dismissed the claimant’s case for lack of proving identity of the land in dispute vide exhibit P3 I do not agree with him. The trial Judge did not dismiss the Appellant’s claim because of the absence of the site plan – Exhibit P3. Rather, it was so dismissed because of failure of the Appellant “to establish the identity of the land by way of fixing their document of title against the land in dispute in the same land covered by their Exhibit P1” and “as to whether the land in dispute was/is on the layout of Dekina Local Government.”

The sequence of the logical reasoning of the trial Judge before he came to this conclusion at page 332 can be garnered from page 331 of the Record of Appeal. I do not find it necessary to reproduce the proceedings on this point. It suffices to note that it is his finding, and rightly too, that in the circumstances of this case, relying on EZEANEH v. MOHAMMUD ATTA [2004] 2 SCNJ 200, 217 the evidence of a surveyor was necessary so as to establish the identity and location of the land in dispute. The admission of Exhibit p3 though wrongly discountenanced could not have saved the situation.

It is trite law that it is not every error in a case that will result in an appeal being allowed. It is only when the error is substantial; in that it has occasioned a miscarriage of justice that an appellate court is bound to interfere. See NWAEZE v. STATE (1996) 2 NWLR [pt.428] 1 SC. In the instant case, the error has not affected the judgment.

On Exhibit D5, the Appellant’s counsel impugned the admission and holding that it has evidential value as a receipt of payment when there is nothing in evidence suggesting that it was so tendered. I dare say the Appellant’s counsel missed the point in issue. He seemed to have being oblivious of paragraph 4 of the 1st Respondent’s (1st Defendant) statement on oath at page 95 of the Record of Appeal, which clearly averred thus –

“That I entered into an agreement evidencing payment with Madam Attah Iyichi by way of Deed of transfer on 4/4/2001”

It is not in doubt that the statement on oath of a witness is evidence before the court.

Without much ado, I hold that the complaint raised by Mr. Akubo has not been substantiated and it is therefore of no effect to this judgment of the court.

The last point on this issue is the submission that Exhibit D5 having been made without consent of Dekina Local Government first been sought and obtained as required by Section 21 {a) and (b) of the Land Use Act, 1978 as well as not being stamped as a registrable instrument pursuant to the requirement of law in Section 15 (2) (3) Land Registration Law of Northern Nigeria Cap 58, Vol. II of 1963 of applicable to Kogi State is a nullity by virtue of Section 26 of the Land Use Act. The principles of the law enunciated and the cases cited and relied upon by learned counsel for the Appellant on these points are quite in order. However, with respect, his argument is not relevant on this issue because as I have stated earlier, Exhibit D5 was not tendered nor admitted as a Deed of Transfer evidencing transfer of interest on land, rather it was rightly admitted as a receipt or acknowledgement of payment of money in respect of transactions affecting land. It has been established through a long line of cases that an unregistered registrable instrument, though, is not admissible to prove title, is admissible to prove payment of money and coupled with possession of land by the purchaser; it may give rise to an equitable interest. see COMMISSIONER FOR LAND & HOUSING, KWARA STATE V. ATANDA (2007) 2 NWLR (Pt.1018) 360; CO-OP BANK LTD. V. LAWAL (2007) 1 NWLR (PT.1015) 287; OBIENU V. OKEKE (2006) 16 NWLR (PT.1005) 255; OLANREWAJU V. OGUNLEYE (1997) 2 NWLR (PT.485) 12 SC; LAWAL V. EJIDIKE (1997) 2 NWLR (Pt.487) 319; UNUBIA V. A.G. RIVERS STATE (1999) 3 NWLR (Pt.593) 82.Having regard to decided cases on this point, the lower court rightly admitted Exhibit D5 in the proceedings. In the sum issue No 3 is also resolved in favour of the Respondents.

The last issue – 5 is also on admissibility of documents; namely, Exhibits P4 (a) and (b) being cash receipts for payment of ground rent by the Appellant to Dekina Local Government; which were provisionally admitted by the learned trial Judge but discountenanced at the stage of judgment on the ground that being photo copies which is secondary evidence as opposed to primary evidence, a person who intends to rely on them must at the earliest opportunity plead the fact so as to put the other party on notice’ See page 330 lines 10 – 23 of the Record of Appeal.

In my view, the decision of the trial Judge on this issue is inappropriate. I agree with the Appellants’ counsel that they were wrongly rejected. By the provisions of section 96 of the Evidence Act, Cap 112, Laws of the Federation of Nigeria, documents shall be proved by primary evidence except in the circumstances enumerated in section 97 (1) of the Act. (now sections 88 and 89 respectively of the Evidence Act 2011, Cap E.14) I am therefore in agreement with Mr. Akubo that a witness has a right to state the whereabouts of the original of a document in compliance with section 97 (1) of the Evidence Act, for the purpose of laying foundation before tendering secondary evidence of such original documents. Besides, the law has progressed as to admissibility of documents. The line of authorities is to the effect that relevancy is what governs admissibility of document. Once a document is pleaded and it is relevant, and it is a document which can ordinarily be admitted under the Evidence Act, the fact that it is a photo-copy should not obstruct its admissibility. The probative value to be attached to the document however is another kettle of fish. See OBEBE v. EKELE (2001) 8 WRN 68 at 78. See also the cited cases of OSHUNRINDE v. MUANDE (1996) 6 NWIR [pt.455] 383; ARTRA INDUSTRIAL LTD v. MBCL (1997) 1 NWLR [pt.483] 574]; MAGAJI v. NIGERIA ARMY (2008) 8 NWLR [p1.1089] 338 at 396.

Exhibits P4 (a) and (b) having been pleaded and are relevant were wrongly rejected by the lower court. However, the same question arises; whether the error attendant to their rejection has caused any miscarriage of justice. It is sufficient for a party to merely complain about an error or a misdirection Judge on appeal. He must go further to show how the error or misdirection affected the judgment appealed. The Appellant did not make any such reference in his Brief of Argument. I must say that I do not perceive of any such adverse effect on the judgment. This is because there is no nexus between Exhibits P4 (a) and (b) and Exhibit P1, the certificate of occupancy. The exhibits do not in anyway improve the case of the Appellant as to the identity and location of the land claimed by the Appellant. Thus if the exhibits were not rejected, they would not have indeed helped the case of the Appellant. The rejection of the exhibits, though wrongly done, is of no consequence to the judgment. I hold that issue 5 though resolved in favour of the Appellant has no effect whatsoever on the judgment of the court and cannot therefore be a basis to allow this appeal.

On the whole, this appeal is devoid of any merit. It is hereby dismissed with cost of N30,000.00 in favour of the Respondents.

HUSSEIN MUKHTAR, J.C.A.: I have had the privilege of reading in advance the judgment just delivered by my learned brother T. Akomolofe-Wilson, JCA. I agree with the reasoning and conclusion that the appeal is clearly without substance and ought to be dismissed. It is hereby so ordered. I also endorse the order for costs.

REGINA OBIAGELI NWODO, J.C.A.: I had the privilege to read in draft the lead judgment of my learned brother TINUADE AKOMOLAFE-WILSON JCA, just delivered. I agree with the conclusion contained thereat that this appeal lacks merit and is hereby dismissed.

I also abide by the order as to cost.

Appearances

J. A. Akubo Esq.For Appellant AND

Lawrence JohnFor Respondent