GONIMI & ORS v. MAKINTAMI (2020)

GONIMI & ORS v. MAKINTAMI

(2020)LCN/14754(CA)

In The Court Of Appeal

(GOMBE JUDICIAL DIVISION)

On Thursday, November 12, 2020

CA/G/173/2014

RATIO

EVIDENCE: RULE OF EVIDENCE ON PROVING CONTENT OF A DOCUMENT

Section 85 of the Evidence Act, 2011 provides that the contents of documents may be proved either by primary or secondary evidence. Section 86(1) of the Evidence Act, 2011 defines primary evidence as the document itself produced for the inspection of the Court. Section 88 of the Evidence Act, 2011 provides that documents shall be proved by primary evidence except in cases mentioned in the Act. The Evidence Act in Section 89 thereof lists the cases in which secondary evidence instead of primary evidence may be given in relation to a document.
Nothing in these sections prevents the admissibility of the original of public document in evidence. However, the desirability of such an original being tendered by the maker, except for exceptions provided for in the Evidence Act cannot be over emphasised. See Section 83 of the Evidence Act, 2011. PER ABUNDAGA, J.C.A.
LAND LAW: PRIMARY DUTY ON A PLAINTIFF IN A CLAIM OF TITLE TO LAND

It is settled law that the primary duty on a plaintiff in a claim of title to land is to show the Court clearly the areas of land to which his claim relates so that the land can be identified with certainty. In other words, in an action for declaration of title to land, the onus is on the plaintiff to prove title to a defined area to which the declaration can be attached: Dada vs. Dosunmu (2006) LPELR-909 (SC), at Pp. 56 – 58, paras F – C. See also Fabunmi vs. Agbe (1985) LPELR-1221 (SC), at p. 53, paras – C-D, Maishanu & Ors vs. Anchan (2007) LPELR-8336 (CA), at p. 14 paras A – D, Akulaku & Ors vs. Yongo (2002) LPELR-392 (SC), Pp. 36 – 37, paras B – A. PER ABUNDAGA, J.C.A.

LAND LAW: CIRCUMSTANCES WHERE THE IDENTITY OF A LAND WILL BE IN ISSUE

However, it is also settled law that the identity of a land in a land dispute will only be in issue if the defendant in his statement of defence makes it one. If he disputes specifically either the area or the location or the features shown in the plaintiff’s plan, then the identity of the land becomes an issue: Gbadamosi vs. Dairo (2007) LPELR-1315 (SC), Pp. 15 – 16, paras G – A. See also Fatuade vs. Onwoamanam (1990) LPELR-1253 (SC), Pp. 6 – 7, paras F – A, Anyanwu & Ors vs. Uzowuaka & Ors (2009) LPELR-515 (SC) Pp. 34 – 35, paras D – C. PER ABUNDAGA, J.C.A.

EVIDENCE: BURDEN OF PROOF IN LAND MATTERS

The burden of proof in land matters is on the plaintiff. He must in discharging that burden rely on the strength of his own case, and not rely on the weakness of the defendant’s case. The authorities on this are legion. Suffice it to refer to the following cases:- Commissioner of Lands, Mid Western State vs. Edo-Osagie & Ors (1973) LPELR-2933 (SC), Pp. 32 – 33, paras E – F, Aremu vs. Adetoro (2007) LPELR-5646 (SC), page 9 paras B – D, Agbeje & Ors vs. Ajibola & Ors (2002) LPELR-237 (SC), page 16 para & D – E. PER ABUNDAGA, J.C.A.

CLAIM: NATURE OF A COUNTERCLAIM

The law is settled that a Counterclaim is a separate and independent action and the burden and stand of proof is the same as the main claim. The Defendant/Counterclaimant must also discharge the burden by cogent and credible evidence: Okechukwu & Anor vs. Nwosu & Anor (2018) LPELR-44893 (CA), page 27, paras D – E, Amacha Enterprises (Nig) Ltd vs. Keystone Bank (2019) LPELR-48258 (CA), page 25, paras B – C. PER ABUNDAGA, J.C.A.

Before Our Lordships:

Jummai Hannatu Sankey Justice of the Court of Appeal

Uzo Ifeyinwa Ndukwe-Anyanwu Justice of the Court of Appeal

James Gambo Abundaga Justice of the Court of Appeal

Between

ALHAJI BUKAR GONIMI 2. MODU KAWU 3. MALLAM HASSAN 4. UMARA ALHAJI USMAN 5. MALLAM MODU 6. BULAMA MALA 7. ALHAJI AUDU 8. MOHAMMED ALLAIN BOLORI 9. MALLAM MODU YAGANABE 10. ALHAJI KORE 11. ALHAJI USMAN 12. BABA GANA MALA APPELANT(S)

And

HAJIYA AMINA MAKINTAMI RESPONDENT(S)

JAMES GAMBO ABUNDAGA, J.C.A. (Delivering the Leading Judgment): This appeal is predicated upon the Judgment of the High Court of Borno State delivered by Hon. Justice H. Msheila in Suit No. M/216/2002 on 7th August, 2013.

The Respondent commenced her action against Bukar Gonimi (1st Appellant) alone in Suit No. M/216/2002. On the other hand, the Appellants, excluding the 1st Appellant commenced their separate action in Suit No. M/24/2002 against the Respondent. The two suits were assigned to different Courts. They were however subsequently brought before one Judge who consolidated them. Realising that the two suits were over the same subject matter, and that the plaintiffs in Suit No. M/24/2002 also had a Counter claim, in Suit No. M/216/2002 the order for consolidation was later varied to make the plaintiffs in Suit No. M/24/200 to be Counterclaimants in Suit No. M/216/2002, after an earlier order joining the sole defendant in Suit No. M/216/2002 to Suit No. M/24/2002. With the variation of the consolidation, order the Amended Statement of Claim of the plaintiffs in Suit No. M/24/2000 was made a Counterclaim to the Amended Statement of claim of

the Respondent in Suit No. M/216/2002.

That was the state of the parties and pleadings when the Judgment in the action was delivered on 07/08/2013.

In brief, the facts of the case as stated in the Judgment of the trial Court is as can be seen on page 80 lines 14 – 32 of the record of appeal. For ease of reference, I will attempt a recap of the facts leading to this appeal. The Respondent as Proprietress of Maiduguri Innovative School applied to Borno State Government for a piece of land to build classrooms. The Borno State Government granted the request and allocated the land covered by certificate of occupancy No. BO/121313 to her. She immediately commenced construction but was disrupted by the Appellants who claimed ownership of the said land too. The contention of the Respondent was that the land was acquired by Borno State Government some twenty years or more back before the grant to her. The Appellants on their part claimed that they inherited the land from their fathers who in turn inherited same from their grandfather. That they have been living and farming on the land all their lives. They claimed that their grandfather was the founder

of the land as the first settler. It is also the Appellants’ story that when the Respondent commenced construction on the land, they stopped her but she harassed them with police. That some of them obtained certificates of occupancy over their respective plots of the land. Their contention is that their land was compulsorily acquired and allocated to the Respondent without them being intimated, not to talk of compensation being paid to them. They therefore counterclaimed ownership of the land. The trial culminated in the lower Court giving Judgment in favour of the Plaintiff/Respondent on her amended statement of claim, and dismissing the Appellants’ Counter claim, as contained in the Appellants’ Amended Statement of claim in Suit No. M/24/2002 which by order of the lower Court for consolidation with Suit No. M/216/2002 was converted into the Appellants’ Counterclaim.

Dissatisfied with the Judgment of the trial Court, the Appellants appealed to this Court vide their notice of appeal which was filed on 5th November, 2013. By an order of this Court granted on 30/11/2017, the notice of appeal was further amended after an earlier

amendment. The further amended Notice of Appeal which was filed on 31st October, 2016 was deemed properly filed and served on 30/11/2019. The further amended Notice of Appeal contains 12 (twelve) grounds of appeal, inclusive of the omnibus ground of appeal.

At the hearing of the appeal on 17th September, 2020, the amended Appellants’ brief of argument settled by M. S. Umar, Esq., which was filed on 31st October, 2016 and deemed properly filed and served on 30/11/17 was adopted by A. A. Sangei, Esq. who led other counsel, M. S. Umar, A. L. Mohammed and I. H. Abdullahi. D. Saleh, Esq. adopted the Amended Respondent’s brief of argument settled by Nankham Ayuba Dammo, which was filed on 12/7/2017 and deemed properly filed and served on 30/11/17.

The Appellants distilled five issues in their brief of argument. The issues are as hereunder reproduced:
1. Whether or not the Certificate of Occupancy No. BO/41313 admitted in evidence as Exhibit “HAM 1” which is not a certified true copy can be tendered by a person other than the maker, if the answer is in negative whether or not the Court can admit same in evidence or attach any

weight to it and hold that the Respondent has established prima facie interest or title over the Land in dispute. (Distilled from ground 1 of the original grounds and ground 1 of the additional grounds of appeal).
2. Whether or not the lower Court was right when it shifted the burden of prove (sic) in a declaratory claim to the Appellants when the respondent is the plaintiff (Distilled from grounds 2, 3, 6, 7 and 9 of the grounds of appeal).
3. Whether or not having regards to the pleadings and evidence before the lower Court the Appellants have proved their counter claim to displace the claim of the Respondent. (Distilled from grounds 5, 8 and 10 of the original grounds of appeal).
4. Whether having regards to the pleadings and evidence before the lower Court the description of the land in dispute was ever made an issue before the lower Court. (Distilled from grounds 4).
5. Whether looking at the pleadings and evidence before the lower Court the Appellants have not sufficiently establish (sic) traditional history to warrant ownership of the land in dispute. (Distilled from grounds 2 and 3).

The Respondent adopted the issues distilled

for determination of the appeal in her Amended Respondent’s brief of argument.

These issues in my respectful view are apt for the determination of the appeal. Therefore I adopt them as the issues for determination. However, I intend to consider issue 1 separately while issues 2 – 5 will be considered contemporaneously.
Issue One
Whether or not the Certificate of Occupancy No. BO/41313 admitted in evidence as Exhibit “HAM 1” which is not a certified true copy can be tendered by a person other than the maker, if the answer is in negative whether or not the Court can admit same in evidence or attach any weight to it and hold that the Respondent has established pre mafacie (sic) interest or title over the Land in dispute.

It is argued for the Appellants that Exhibit “HAM 1”, being an original copy of the certificate of occupancy issued by Borno State Government which bears the signature of the Permanent Secretary, Ministry of Land and Survey can only be tendered by the maker. That it was however tendered by the maker, and therefore the lower Court was wrong to rely on it to hold that she has established a

prima facie interest or title over the land in dispute. It is submitted that an original document is only admissible in evidence when it is tendered by its maker. That where for any reason whatsoever the presence of the maker who has personal knowledge of the matter dealt with by the statement contained in the original document is not available to tender it, then the only option available is to produce a certified true copy of it which can be tendered by any witness.

Counsel relies on Section 112 of the Evidence Act, 2011. Also relied on by counsel are: Uduma vs. Arunsi & Ors (2012) NWLR (Pt. 1298) 144 para E, Giwa vs. Yarbun (2011) All FWLR (Pt. 565) 254 at 283, paras A – C.

For the Respondent, it is submitted that the contention of the Appellants that Exhibit “HAM 1” was wrongly tendered by the Respondent and admitted in evidence by the Court is erroneous and misconceived. Counsel submits for the Respondent that it has been held that the only categories of public documents that are admissible in evidence are either the original document itself, or in the absence of the original, the certified true copy. Counsel relies for

this submission on the case of PDP vs. INEC (2014) 17 NWLR (Pt. 1437) 525 at 563.

It is further submitted that where the original of a document made by a public officer is in the custody of a private individual to whom the document was issued the production of the original in evidence is admissible. Cited in support of this submission are: – Ukana vs. C.O.P (1995) 8 NWLR (Pt. 416) 705, Kubau vs. Rilwanu (2014) 4 NWLR (Pt. 1397) 284 at 318 and Daggash vs. Bulama (2004) 14 NWLR (Pt. 892) page 144.

It is contended that Exhibit “HAM 1” is the Original Certificate of Occupancy No. Bo/41313 issued to the Respondent in the name of “Maiduguri Innovative School” as its proprietor and Representative, and it was in that capacity that she tendered it and it was admitted in evidence. That the said Exhibit “HAM 1” does not qualify as a public document as to require only the Certified Copy to be tendered. Further submitted is that it is a document made and issued to a private individual which is in her possession, and not in the custody of the officer who made it. That it is relevant and did establish prima facie the title of the

Respondent. That the trial Court was therefore right to admit it in evidence, and relied on it.

Resolution
Section 85 of the Evidence Act, 2011 provides that the contents of documents may be proved either by primary or secondary evidence. Section 86(1) of the Evidence Act, 2011 defines primary evidence as the document itself produced for the inspection of the Court. Section 88 of the Evidence Act, 2011 provides that documents shall be proved by primary evidence except in cases mentioned in the Act. The Evidence Act in Section 89 thereof lists the cases in which secondary evidence instead of primary evidence may be given in relation to a document.
Nothing in these sections prevents the admissibility of the original of public document in evidence. However, the desirability of such an original being tendered by the maker, except for exceptions provided for in the Evidence Act cannot be over emphasised. See Section 83 of the Evidence Act, 2011.
The contention in this Appeal is whether Exhibit “HAM 1” is a public document that must be tendered by the maker. In submitting that it must be tendered through the maker and not the

Respondent, the Appellant’s Counsel relied on Uduma vs. Arunsi & Ors (supra) and Giwa vs. Yarbun (supra). In his parallel submission Respondent’s Counsel relied onPDP vs. INEC (supra), Ukana vs. C.O.P (supra), Kubau vs. Rilwanu (supra) and Daggash vs. Bulama (supra). Exhibit HAM1 is the original of the Certificate of Occupancy No. BO/41313 issued to the Respondent in the name of “Maiduguri Innovative School” as its Proprietor and Representative. A similar contention arose in the case of PDP vs. INEC & Ors (2014) LPELR-23808 (SC); (2014) 17 NWLR (Pt. 1437) 525. In that case, the Supreme Court held interalia:
“… There is no doubt that Exhibit W05 was written by Independent National Electoral Commission and addressed to the 25th Respondent who had custody of it up to the point of tendering same. Was this document of a character that ought to have been certified before tendering … By Section 103 of the Act, all documents other public documents are classified as private documents. Exhibit “W05,” the subject of this issue was the original correspondence between the 25th Respondent and Independent

National Electoral Commission. The said letter was in the custody of the 25th Respondent and remained so up to the point it was tendered. It is my view that there was no need to certify the original copy of the letter even though it was issued to him by a public officer who keeps the original of a public document who certifies a copy of it which can be tendered where the original cannot be tendered …”
In the case of CSP L. L. Anagbado vs. Alhaji Idi Faruk (2018) LPELR-44909 (SC) the apex Court held:-
“As His Lordship found in the leading judgment, Exhibits P2, P4, P6 and P7 are original copies of public documents. They are surely admissible. It is only in the absence of such original public documents that only properly certified copies thereof are admissible as secondary copies [of such public documents] “but no other kind of secondary evidence,” G and T. I. Ltd and Anor v Witt and Bush Ltd (supra); Araka v Egbue [2003] 33 WRN 1; Minister of Lands, Western Nigeria v Azikiwe [1969] 1 All NLR 49. Others include: Nzekwu v Nzekwu [1989) 2 NWLR (pt 104) 373; Tabik Investment Ltd and Anor v Guarantee Trust Bank Plc [2011] 6 MJ.S.C. (Pt. 1) 1, 21;

Dagaci of Dere v Dagaci of Ebwa [2006] 30 WRN 1; Iteogu v LPDC (2009) 17 NWLR (pt. 1171) 614, 634 etc.” Per NWEZE, J.S.C. (P.28, paras. B-F).
See also Gambo Idi vs. The State (2017) LPELR-42587 (SC), per Eko, J.S.C. (Pp. 40 – 42, paras F – C), Bankole vs. Bankole (2012) LPELR-7988 (SC), per Mshelia, JCA (Pp. 8 – 9, paras F – E).
Therefore, as can be seen the cases cited by Appellant’s Counsel, even though good law, are not applicable to this case.
The obvious conclusion is that Exhibit “HAM1” is admissible, and was rightly admitted in evidence and relied on for the determination of issue(s) to which it is relevant. Issue one is hereby resolved in favour of the Respondent, and against the Appellants.

Issues 2, 3, 4 and 5
Arguments of counsel
Issue Two
Whether or not the lower Court was right when it shifted the burden of proof in a declaratory claim to the Appellants when the respondent is the plaintiff.

Appellants’ Counsel
It is submitted for the Appellants that in a declaratory relief, the onus is on the plaintiff to establish his case on the strength of his case

and not to rely on the weakness of the defence, and that it is so even where the defendant fails to call evidence or testify. Reliance is placed on the case of Gundiri vs. Nyako (2014) NWLR (Pt. 1391) p. 221 ratio 1. It is therefore contended that the burden of proof is on the Respondent who was the plaintiff at the lower Court to establish her title to the property by cogent evidence to dislodge the Appellants’ claim. That the Respondent however failed to do so. That she failed to satisfy any of the conditions that are required to be met. That out of the five methods by which title can be proved, she sought to prove her title by production of title documents. That the mere issuance of a certificate of occupancy does not and cannot confer title in respect of the land in dispute on a person where such title either existed or was available to be transferred to anyone. It is pointed out that the Respondent who testified that the land in dispute was acquired by the State Government and allocated to her did not bother to know whether there were people on the land or not. It is submitted in effect that the evidence of the Respondent who is the principal

witness cannot dislodge the evidence of the Appellants who pleaded and testified to the effect that they owned the land and had been in possession for over 80 years, the reason, it is submitted is that at the time grant was made the Appellants were deemed holders of customary title. Counsel refers the Court to the evidence of DW1, DW2 and DW3 at pages 38 – 50 of the record of appeal, and pages 38 – 40, of the record for the evidence of PW1. We are also referred to Exhibit HAM1 and to Exhibits MK4, MK5, MK6, MH9, MH10, UAU11, UAU12, UAU13, and UAU14. Further submitted is that the Respondent did not bother to find out how the government got the land before it was allocated to her by the said government. It was further submitted that the Appellants clearly established their counterclaim, and had shown that they were in undisturbed possession of the land which they were using for residential and farming purposes.

That possession where proved is title against the whole world where there is no one with better title. That the evidence led by the Appellants was not challenged, and called upon the Court to act on it. In support, Counsel cites the case

of EFET vs. INEC (2011) 54 NSCQR 883 – 922.

On the holding of the lower Court that there was no evidence of partition of the communal land, Counsel submits that the case of Olodo vs. Josiah (2010) 18 NWLR (Pt. 1225) 653 relied by the trial Judge is not applicable because there is no dispute between the members of the same family.

Respondent’s Counsel
It is submitted for the Respondent on issue two that the law is that it is he who asserts the existence or non – existence of a fact or particular thing that has the burden of proof, and that the burden of proof in civil cases shifts as the facts preponderates. That in claims for declaration of title to land, where the defendant Counterclaims, it is the duty of the plaintiff to establish his claim, thereafter the burden shifts to the defence to “show” the contrary. In support of this submission, Counsel relies on several cases, including Akpang vs. Amiye (2015) 18 NWLR (Pt. 1490) 149 at 168, FGN vs. Interstella Comms Ltd (2015) 9 NWLR (Pt. 1463) 1 at 41, Alaribe vs. Okwuonu (2016) 1 NWLR (Pt. 1492) 41 at 62 – 63).

Counsel further submits that the decision

of the trial Court is in line with the requirement of the burden of proof.

Issue Three
Whether or not having regards to the pleadings and evidence before the lower Court the Appellants have proved their counter claim to displace the claim of the Respondent.

Appellant’s Counsel
Counsel submits that the Appellants by their pleadings and evidence proved their Counterclaim. He referred to the evidence of the witnesses called by the Appellants and the Exhibits tendered in proof of their case. It is submitted that the evidence called by them is enough to displace the claim of the Respondent that the land was allocated to her without the Appellants’ earlier right having first been revoked.

It is submitted that there are five ways of proving ownership of land, citing Mogaji vs. Cadbury (Nig) Ltd (1985) 2 NWLR (Pt. 7) 393 at 396, Idundun vs. Okumagba (1976) 1 NWLR 200.

That proof by one of the ways is sufficient. That the evidence adduced by the Appellants in proof of their root of title was not challenged and should be accepted by the Court. Cases cited in support include the case of Newbreed Organization Ltd vs. Erhomosele

(2008) All FWLR (Pt. 307) 1076 at 1188.

Further submitted is that the land was acquired by the Borno State Government and allocated to the Respondent and the Maiduguri Innovative School as contended by the Respondent in contravention of Section 28(1) of the Land Use Act because it was not revoked and allocated for overriding public interest, that the purported acquisition and allocation for the purpose of building houses known as Federal Low Cost, and allocating a part of it to the Respondent is not proper, and not within the requirement of Sections 28(1) and (2) of the Land Use Act. Counsel relies on the case of – The Administrators/Executors of the Estate of General Sani Abacha vs. Eke Spiff (2009) All FWLR (Pt. 467) p. 24 – 28.
Counsel urged the Court to resolve the issue in favour of the Appellants.

Respondent’s Counsel
On issue three, Respondent’s Counsel identifies that by the Appellants’ pleading and evidence, the Appellants relied on traditional history and possession and customary right of occupancy as their source of title. It is submitted that for Appellants to succeed in their

Counterclaim vide traditional history, the traditional history must be sufficiently pleaded and proved. That it must dwell on how the land was founded, who founded it and when it was founded, and what custom allows for the bestowing of title on the person who founded the land, and the forbears up to the present claimant, their names and lineage. Cases cited on this submission includes Chime vs. Ude (1993) 3 NWLR (Pt. 279) p. 78, Awodi vs. Ajagbe (2015) 3 NWLR (Pt. 1447) 578 at 604.

Referring to some paragraphs of the Counterclaim, it is submitted that the Appellants did not also plead the root of title of the Bulama and the Lawan that purportedly granted them some of the portions of the land in dispute. That they did not also lead evidence to prove and establish who founded the land they purported to have inherited and, or where granted, and how and when it was founded and by what custom they are entitled to the land, that no evidence of such was led by the Appellants. Counsel refers to the finding of the trial Judge at page 87 of the record and submitted that the finding cannot be faulted.

It is also submitted that the Appellants did not also call

evidence to establish their possession of 60 – 80 years.
The Court is urged to resolve issue three in favour of the Respondent.

Issue Four
Whether having regards to the pleadings and evidence before the lower Court the description of the land in dispute was ever made an issue before the lower Court.

Appellants’ Counsel
For the Appellants, it is submitted that a claimant of title to land must prove the identity of the land. However, Counsel submits that once the defendants as in the instant case have admitted the identity of the land either through pleadings or oral evidence, then the identity of the land has been established. Here, reliance is placed on the averments in paragraph 4 of the Appellants’ Counterclaim. Counsel therefore submitted that the opinion of the trial Judge that the Appellants did not establish the identity of their land is not based on the pleadings and evidence before the Court.

Respondent’s Counsel
It is submitted for the Respondent that contrary to the contention of the Appellants the identity of the lands they are claiming became an issue given their various evidence and

testimonies on record. That three of the Appellants testified that the land is a communal land and they applied separately and were issued customary certificates of occupancy – Exhibits “MK7”, “MH10”, and “UAU14”.

Further submitted is that it is the Appellants evidence that the land in dispute is a communal land. He refers us to the evidence of DW2 and DW3 whereas DW1 testified that he inherited the land from his father who inherited it from his grandfather, that there is no evidence that the communal land was plotted by the family or community. That it is necessary to identify which portions they are claiming since it is not the entire land given to the Respondent (4.222 Ha) that they are claiming. That the lands they are claiming becomes an issue, more so that the Respondent denied the existence of Appellants’ land. Refers to Karimu vs. Lagos State Government (2012) 5 NWLR (Pt. 1249) 620 at 641, Momoh vs. Umoru (2011) All FWLR (Pt. 588)797 at 846.
This issue, the Respondent urges, should be resolved against the Appellants.

Issue Five
Whether looking at the pleadings and evidence before

the lower Court the Appellants have not sufficiently establish (sic) traditional history to warrant ownership of the land in dispute.

Appellants’ Counsel
It is submitted for the Appellants that the evidence of PW3 that the interest of the grandfather of the Appellants by name Adam who first cleared the land was revoked is inadmissible in the absence of documentary evidence. That the revocation letter has no foundation because there is no revocation notice. The Court is referred to the case of Ononuju & Ors vs. AG Anambra State & Ors (1998) 11 NWLR (Pt. 573) 204 at 321 paras D – E.

It is submitted that the requirement for valid revocation were not satisfied by the Borno State Government in the requirement of “public purpose”, which is one of the requirements, Counsel refers the Court to the case of Joshua Oto & Ors vs. J. M. Adojo & Ors (2003) 7 NWLR (Pt. 820) 636 at 668 paras F – H, and case of Gold Mark (Nig) Ltd & Ors vs. Ibafon Co. Ltd & Ors (2012) 10 NWLR (Pt. 1308 291 at 356, para B. It is further submitted that the lower Court did not take into account the fact that the Appellants

adduced credible, cogent and reliable evidence in proof of their case, that the certificate of occupancy does not conclusively confer title on an individual.

The Court is urged to resolve this issue in favour of the Appellants.
On the whole, the Court is urged to allow the appeal, and to enter Judgment for the Appellants.

Respondent’s Counsel
For the Respondent, it is submitted under this issue that PW3 gave credible evidence of acquisition. The Court is also referred to Exhibit “BGH2” tendered through the said PW3, the said Exhibit “BGH2” is located at page 38 of the record of appeal. That the list of beneficiaries of the compensation at the back of Exhibit “BGH2” shows that one Alhaji Adam was paid compensation. That Appellants’ grandfather was called Alhaji Adam (Alias “Adam”). That on the state of pleadings and evidence the Appellants cannot claim that they were not paid compensation. The Court is urged to resolve this issue in favour of the Respondent, and in the end result, to dismiss this appeal.

Resolution of issues 2, 3, 4 and 5
It is settled law that the primary duty on a plaintiff in a claim of title to land is to show the Court clearly the areas of land to which his claim relates so that the land can be identified with certainty. In other words, in an action for declaration of title to land, the onus is on the plaintiff to prove title to a defined area to which the declaration can be attached: Dada vs. Dosunmu (2006) LPELR-909 (SC), at Pp. 56 – 58, paras F – C. See also Fabunmi vs. Agbe (1985) LPELR-1221 (SC), at p. 53, paras – C-D, Maishanu & Ors vs. Anchan (2007) LPELR-8336 (CA), at p. 14 paras A – D, Akulaku & Ors vs. Yongo (2002) LPELR-392 (SC), Pp. 36 – 37, paras B – A.

Anyanwu & Ors vs. Uzowuaka & Ors (2009) LPELR-515 (SC) Pp. 34 – 35, paras D – C.

Now, in this appeal, both the Appellants and the Respondent must start their proofs of title to the land by discharging the onus of proof of identity of the land which they all bear.

The fact that they both bear this burden has not been disputed. It is a matter of settled law since their claim and Counterclaim all relate to the land.

In the respective submissions made on behalf of the respective parties in their briefs of argument, the Appellants did not dispute the discharge of this onus by the Respondent. However, the Respondent did. The Appellants have a contrary view, and refers to the pleadings. The Court therefore has a duty to examine the pleadings and evidence led, especially that the trial Court found in its Judgment that the Appellants did not define the area that they are claiming. I refer to page 90 lines 30 – 38 and page 91, lines 1 – 4.

In the amended statement of claim, the Respondent clearly defined the land she claimed. See particularly paragraph 4 of the said amended statement of claim where it was averred as follows:<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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“In line with the state policy on Education the Borno State Government granted the Maiduguri Innovative School’s request and application for land and allocation to the school, land situate at the Pampomari Ward and issued a Certificate of Occupancy No. Bo/41313 to the School. The certificate of occupancy and the survey plan of the land are hereby pleaded.”The certificate of occupancy above was tendered and admitted in evidence as Exhibit “HAM1”. It was tendered and admitted without objection by the Appellants. See page 38 of the record of appeal. PW3 (Baba Gana Hassan, a Deputy Director and Deeds Registrar in the Ministry of Land and Survey, and whose schedule includes registration of instruments, identified Exhibit ”HAM1” as the certificate of Occupancy over the land in dispute. He told the Court that the land mass covered by the certificate of occupancy is 4.22 hectares. That it formed part of the Borno State Housing Corporation land acquired sometimes in 1981 for the construction of Pampomari Housing Estate. He also tendered files No. BO/41313 and BO/2610 relating to the acquisition of the land. The

files were admitted in evidence as Exhibits “BGH2” and “BGH3”. See pages 42 – 43 of the record of appeal.

It needs to be recalled that the amended statement of claim was originally filed in Appellants’ suit filed as No. M/24/2002 against the defendant (Respondent). Upon the subsequent consolidation of Suit No. M/24/2002 with the Respondents Suit No. M/216/2002, the Appellants amended statement of claim in their Suit (No. M/24/2002, was converted to be their Counterclaim to the Respondent’s initial amended statement of defence which was converted to amended statement of claim. In the said Appellants amended statement of claim, subsequently converted to Counterclaim, the Appellants averred in paragraph 3 as follows:
“The plaintiff avers that some of them inherited the respective plots of land they are resident therein from their fathers and grandfathers using same as farmland before while some were given respective plots by the Bulama (Ward head) over 15 – 20 years ago which entire land in dispute is situate at Bolori 1 around Pampomari area which village is traditionally called Shuwari II in

Maiduguri.”
The above paragraph 3 is among those admitted by the Respondent’s hitherto amended statement of defence in paragraphs 2 and 3 thereof in Suit No. M/24/2002, see page 3 of the record of appeal. If these paragraphs are considered along with paragraph 4 of the Amended Statement of claim of the Respondent in Suit No. M/216/2002, one cannot be left in any doubt that the land in dispute is very well known to the parties (the Appellants and Respondent).
The reason the trial Court gave for holding that the Appellants could not by pleadings and evidence define the land they are claiming is that the Appellants witnesses in their evidence told the Court that they did not know the measurement or quantum of the land they were claiming. (See pages 90 – 91 of the record of appeal). The lower Court relied on the decision of the apex Court in the case of Nwokidu vs. Okanu (2010) 3 NWLR (Pt. 1811) 362 at pages 391 – 392, where the Court held that where a plaintiff failed to prove the boundaries of the land he asserts to be in dispute or did not satisfactory describe the dimension and locality, the proper order to make is one of

dismissal.
In the respect of the land in this appeal, there is a certificate of occupancy (Exhibit “HAM1”) and the land mass is given as 4.22 hectares. Notwithstanding the evidence of the witnesses as aforestated in the Judgment of the trial Court, can it in all honesty and all practical purposes be said that between the Appellants and the Respondent, the identity of the land in dispute between them is not known? The answer to this was, in my humble view given in the case of Ayuya & Ors vs. Yonrin & Ors (2011) LPELR-686 (SC), where the Court held:
“It is common occurrence in land matters for parties to refer to the same piece or parcel of land by different names and also to indicate in their respective plans different features but the bottom line remains the fact that the parties know the land in dispute otherwise there would be no dispute at all; what is usually in dispute is the ownership of the particular land being claimed by the plaintiff. It follows therefore that where a plaintiff claims ownership of a piece or parcel of land against his neighbor and describes the boundaries of the said land in a survey plan which is

tendered and admitted in evidence, that survey plan clearly refer to the particular piece or parcel of land in dispute and it cannot be said that the identity and extent of the said land is unknown. What the plaintiff/claimant now needs to do is to prove/establish his title to the said disputed land by one of the five ways/methods of proving ownership or declaration of title to land and to also testify as to the features etc on the land in issue. Where the Court agrees with him then he wins and is awarded title to the land in issue irrespective of the contrary case presented by the defendant as to the mode of “acquisition of the title, the identity and extent of the disputed land. In the instant case both parties filed survey plans and called evidence as to the features and extent of the disputed land.”
Per ONNOGHEN, J.S.C. (Pp. 35-37, paras. E-A).
I think in this appeal, with the certificate of occupancy and the site plan describing the land, and giving the land mass as 4.22 hectares, the inability of the witnesses to give the measurement and quantum of their separate portions of the land can only go to the probative value to attach to their

evidence, and thus, their claim of title to the land, and not that they could not identify the land. The identity of the land claimed by the Appellants is not in issue, I hold.

The next issue to resolve in the submission of counsel is whether the Respondent proved her title to the land to be entitled to the judgment, and whether the Appellants did not establish their title, and thus their counterclaim was rightly dismissed by the trial Court.

Now let me start with the burden of proof.
The burden of proof in land matters is on the plaintiff. He must in discharging that burden rely on the strength of his own case, and not rely on the weakness of the defendant’s case. The authorities on this are legion. Suffice it to refer to the following cases:- Commissioner of Lands, Mid Western State vs. Edo-Osagie & Ors (1973) LPELR-2933 (SC), Pp. 32 – 33, paras E – F, Aremu vs. Adetoro (2007) LPELR-5646 (SC), page 9 paras B – D, Agbeje & Ors vs. Ajibola & Ors (2002) LPELR-237 (SC), page 16 para & D – E.

The Appellants are Counterclaimants. The law is settled that a Counterclaim is a separate and independent

action and the burden and stand of proof is the same as the main claim. The Defendant/Counterclaimant must also discharge the burden by cogent and credible evidence: Okechukwu & Anor vs. Nwosu & Anor (2018) LPELR-44893 (CA), page 27, paras D – E, Amacha Enterprises (Nig) Ltd vs. Keystone Bank (2019) LPELR-48258 (CA), page 25, paras B – C.

It is settled law that there are five ways by which title to land can be proved. These ways are:
(1) Proof by traditional history or traditional evidence.
(2) Proof by grant or production of title document.
(3) Proof by acts of ownership extending over a sufficient length of time, numerous and positive enough to warrant the inference that the persons are true owners of the land.
(4) Proof by acts of long possession.
(5) Proof by possession of connected or adjacent land in circumstances rendering it probable that the owner of such land would in addition be the owner of the land in dispute. See the following cases on this:-Iseogbekun & Anor vs. Adelakun & Ors (2012) LPELR-15516 (SC), Pp. 28 – 29, paras G – D, Idundun & Ors vs. Okumagba (1976) LPELR-1431

(SC), Pp. 23 – 26, paras D.

The Respondent pleaded and adduced evidence to prove her title by production of title document, in this case, she pleaded that the land was granted to her by Borno State Government, which acquired the land for housing estate, and on her application for land and allocation, she was granted the land, and in respect of which she processed and got a certificate of occupancy. The Appellants challenged her claim, and pleaded that the land is theirs which land they claimed, some they inherited from their parents, while others were given by “Bulama” and “Lawan”. They also challenged the alleged acquisition of the land on the basis that due process was not followed, that it was not acquired for public purpose as provided in Section 28(1) of the Land Use Act, and that they being the owners were not duly compensated. The Respondent denied the Appellant’s claim and pleaded that the land does not belong to their forbears as they claimed.
The Appellants are not disputing the fact of the allocation of the land in dispute to the Respondent, Not at all. What they dispute is that the land is theirs, and

that same was acquired from them in contravention of the provision of the Land Use Act, in particular Section 28(1) of the Land Use Act. In law, what is admitted need no proof. See Ndukwe vs. LPDC (2007) LPELR-1978 (SC), page 64, paras C – D, Our Line Ltd vs. SCC (Nig) Ltd & Ors (2009) LPELR-2833 (SC), page 37, paras B – C, Solana vs. Olusanya & Ors (1975) LPELR-3097 (SC), page 10 paras A – b, Temile & Ors vs. Awani (2001) LPELR-3140 (SC), page 24, paras E – G.
Now, whether the acquisition and subsequent allocation to the Respondent has been proved is dependent on the successful proof of the Appellants’ title to the land, the law being that it is, only the owner of a piece of land that can properly challenge its wrongful or unlawful acquisition. See on this, the case of Iddo Local Govt vs. Agura (2018) LPELR-46055 (CA), Pp. 19 – 25, paras C – D. See also the case of Elegushi vs. Oseni (2005) 14 NWLR (pt. 945) 348 at 375, paras F – G, Kokoro-Owo vs. Lagos State Govt (2001) 11 NWLR (Pt. 723) 237. In the case of Gold Mark (Nig) Ltd & Ors vs. Ibafon Co. Ltd & Ors (2012) LPELR-9349 (SC), the Court

held:
“A Person who is not the proven owner or occupier of land in respect of which notice of acquisition or revocation is issued has no locus standi in law to seek nullification of the acquisition. Elegushi vs. Oseni (2005) 14 NWLR (Pt. 945) Page 348.” Per Adekeye, J.S.C., (p. 61, paras E – F). See also the case of Adeleke vs. Akinyele Local Govt (2011) LPELR-8945 (CA), Pp. 13 – 17, para D.
The issue to determine at this juncture is, whether the Appellants have established their title to the land in dispute. The Appellants pleaded thus in paragraph 3 of their amended statement of claim, later converted into Counterclaim:
“The plaintiff avers that some of them inherited the respective plots of land they are resident therein from their fathers and grandfather using same as farm land before while some were given respective plots by the Bulama (Ward head) and the Lawan (Village head) over 15 – 20 years ago which entire land in dispute is situate at Bolori 1 around Pampomari area which village is traditionally called Shuwari II in Maiduguri.”
In paragraphs 4 and 5 of the Appellants’ amended

statement of claim (located at page 3 of the additional record) (converted into the Appellants Counter claim it is pleaded:
“4. The plaintiffs aver that the ward head and village head of the area have the knowledge of the existence of the plaintiffs by inheritance and acquisition through village head and ward head.”
“5. The plaintiffs aver as a result of the modern development Mallam Umar Alhaji C of O No. 000001, Usman Mallam, Modu Kawu and Mallam Hassan Kojo C of O No. 000349, Mallam Modu Kawu C of O No. 000350 applied and converted their lands to customary right of occupancies (sic) from the Maiduguri Metropolitan Council and at hearing they shall be relied on in evidence.”
The Appellants, as can be seen in these paragraphs rely on traditional history as well as grant.
The law is that it is not enough to say that a person or group of persons settled in a particular place, their names and the relationship of their descendants claiming through them as well as what each of them did on the land are material particulars that must be proved – Consolidated Tin Mines Ltd & Anor vs. Mangu (2017) LPELR-43297

(CA), Pp. 40 – 41, paras D – A, Alabelapa vs. Ajisefini (2017) LPELR-43234 (CA), Pp. 39 – 40, paras D – A, Anyafulu & Ors vs. Meka & Ors (2014) LPELR-22336 (SC), Pp. 30 -31, paras E – A.
The Appellants, as can be seen in their Amended Statement of claim/Counterclaim did not plead who amongst them inherited the land from their fathers, directly, and who inherited through their fathers who also inherited from their own fathers. They did not provide information as to how those from when they inherited the land got the land, whether they founded the land, or were given. They did not plead the names of those their fathers and grandfathers. Furthermore, as pleaded in paragraph 3 above some of them inherited their farmlands from their fathers, some from their grandfathers, while others got theirs as grants by the Bulama (Ward head) and Lawan (Village head).
The rules of pleadings requires that the names of those who got from their fathers and grandfathers ought to be provided, with their particulars; and the names of those who got theirs by grant from the Bulama and Lawan ought also to be provided.

It is trite that in a civil matter contested on pleadings, the pleadings are the foundation upon which a party builds his case. The purpose of pleadings is to compel parties at the earliest opportunity to define and give notice of the facts upon which they intend to contest the case. Pleadings must not be vague or evasive and must contain details of material facts – Okwuru vs. Ogbee & Ors (2015) LPELR-40682 (CA), Pp. 10 -13, paras D – E.
In the case of Yahaya & Anor vs. Dankwanbo & Ors (2016) LPELR-48364 (SC), the importance and nature of pleadings was further stressed by the apex Court, where it was held:
“The party’s pleading is the most important requirement of his case before the Court. It must be well explicit, clear and specific to the point. It must also be consistent bearing in mind that the outcome of an appeal is a product of the original pleading as set out at the trial Court. It is one and the same case from its inception right through the various stages of the appeal and does not change.” Per OGUNBIYI, J.S.C. (Pp. 70-71 paras. F-A).
Three witnesses testified in support of the Appellants claims. They testified as DW1 – DW3.

Their evidence is bereft of material facts that the law requires to be pleaded and proved where a plaintiff relies on traditional history to prove title – How the land was founded, the names of their fathers and grandfather, which they did not plead in their Amended Statement of claim (Counterclaim). This is aside from the fact that they did not state, as I earlier pointed out, those of them who inherited the land from their fathers and grandfather, and those who got theirs through grant by Bulama and Lawan; therefore making their claims vague. That is not all. The Appellants did not by their pleading show how the land is communally owned, whereas DW1 – DW3 who are the witnesses called in support of and Counterclaim claimed that the land in dispute is communal land.
What is communal land then? In the case of Ogunleye vs. Oni (1990) LPELR-2342 (SC), communal land was defined as:
“Communal land, as the word denotes, is land belonging to the community, village or family and never to an individual nor does it attach itself to title.” See the case of S. Adetona & 2 Ors vs. T. Ajani (1959) WRNLR 213 at 216”, per Belgore, J.S.C.

(p. 28, paras C – D.”
And as to whom the title to family and communal land is vested, the apex Court in the case of Alli vs. Ikusebiala (1985) LPELR-428 (SC) held:
“The immanent theory of the inalienability of land in our indigenous societies has resulted in the formulation of the legal principle that the title to family or communal land is vested in the community as a whole – See Lewis v. Bankole (1909) 1 NLR. 82 at p. 104; A.G. v. Holt (1910-1915) 2 NLR. 1 at p. 3; Oloto v. Dawodu (1904) 1 NLR. 57; Akeju v. Suenu (1935) 6 NLR. 37 at p. 90. Title to communal or family land was, and still never vested in the chief or Mogaji, or head of the family. The family or the community is the unit for the purpose of ownership – See Vanderpuye v. Botchway (1951) 13 WACA. 164, 168.” Per KARIBI-WHYTE, J.S.C. (P. 13, paras. B-E).
If it is Communal land as given in evidence by the witnesses called by the Appellants, there is no pleading and evidence as to how the said DW1 – DW3 got the authorisation to process and obtain their respective customary right of occupancy, tendered and admitted in evidence as MK4 (for DW1), “MH10” (for

DW2) and “UAU14” (for DW3).
The pleading of the Appellants and their evidence are at serious conflicts. The Appellants’ case is neither here nor there. Throughout the evidence of the three witnesses, none of them mentioned the other Appellants in the proof of their Counterclaim – whether the other Appellants got their land through inheritance from their fathers and grandfathers, or got it through grant from Bulama (Ward head) or Lawan (Village head), and between them, who got the grant from Bulama, and who got from Lawan. No evidence was called in proof of that either, as the three who testified told the Court that they inherited the land from their fathers and grandfathers, and yet they claimed that it is communal land. Even if there is such evidence, it would be irrelevant since the facts relating to those facts are not pleaded.
The law is trite that parties are bound by their pleadings, and any evidence which is at variance with the averments in the pleadings go to no issue; and should be disregarded by the Court. SeeLemomu & Ors vs. Alli – Balogun (1975) LPELR-1779 (SC), Pp. 15 – 16, paras F – D,

Emegokwue vs. Okadigbo (1973) LPELR-1124 (SC), Pp. 5 – 7 paras E – D.
The fall out of this principle of law is that most of the aspects of the evidence adduced by the Appellants three witnesses are irrelevant, same not supported by the pleading. I have elsewhere in this Judgment specified those facts which ought to be pleaded but were not pleaded by the Appellants. In the category of evidence rendered irrelevant and impotent by insufficiency of pleading are the customary right of occupancy tendered by DW1, DW2 and DW3, also hereinbefore referred to in this Judgment. These Exhibits lack probative value to confer title to the land in dispute in favour of the Appellants.
The trial Court did not in its Judgment relate all the evidence adduced to the pleading. I have done this at great length in this Judgment. I am justified in this step. The law avails me the power as an appellate Court to do so. On this, I refer to the case of Osun State Independent Electoral Commission & Anor vs. A.C & Ors (2010) LPELR-2818 (SC), where the Court held:
“The power of the Court of Appeal with respect to the determination of appeal before it is by way

of re-hearing, the word rehearing in this context means a hearing on printed records by re-examining the whole evidence both oral and documentary tendered before the Trial Court and forwarded to it. It means an examination of the case as a whole. The Court of Appeal is entitled to evaluate the evidence and may reject conclusions of the Trial Judge from facts which are not perverse. In other words, the appellate Court is entitled to exercise all the powers of a Court of first instance,. See: Jadesimi v. Okotie-Eboh (1986) 1 NWLR (Pt.16) 268 and Obi v. INEC (2007) 11 NWLR (Pt. 1046) 565 at 639. Section 16 of the Court of Appeal Act.” Per MUNTAKA-COOMASSIE, J.S.C. (P. 60, paras. C-F).
See also Dada & Ors vs. Bankole & Ors (2008) LPELR-907 (SC), Pp. 30 – 31, paras G – A.
I dare to say that no superior Court of record can properly appraise and evaluate evidence before it without relating it to the pleadings. See the cases of Buhari vs. INEC & Ors (2008) LPELR-814 (SC), p. 151, paras C – D, Olateju vs. Sanni (2010) LPELR-4752 (CA) per Nweze, JCA (as he then was) (Pp. 72 – 74, paras B – A, Egbuche vs. Egbuche

(2013) LPELR-22512 (CA), p. 70 paras B – D.
The conclusion I find inescapable to reach on the pleading and evidence before the Court is that the Appellants did not establish their title to the land in dispute, either by traditional history or traditional evidence, or by grant.

Now, it is settled law that where a plaintiff relies on long possession following traditional evidence and fails to prove the traditional evidence upon which the possession is based he cannot get a declaration of title – Eronini & Ors vs. Iheuko (1989) LPELR-1161 (SC), p. 13, paras C – E. See also the case of Obinali Isiohia & Ors vs. Nathaniel Elechi (2018) LPELR-44988 (CA), where it was held:
“Where a plaintiff by his pleading and evidence relies on traditional history for his root of title to land, he fails or succeeds on that history…”, per Mbaba, JCA (Pp. 25 – 32, paras D – E.
The Appellants’ claim based on long possession cannot also avail them.
I am not unaware that PW3, in his evidence told the Court that compensation was paid to Adam, the Appellants grandfather, a claim the Appellants

refuted.
Be that as it may, it might be suggested that PW3’s evidence is against the interest of those who called him, that is, the Respondent; and would tend to prove that the Respondent admitted that the Appellants owned the land. However, as I have earlier found from the pleadings and evidence before the Court from the record of appeal, there is no clarity from the pleading and the evidence called by the Appellants as to who among them inherited the land, and who got it through grant from “Bulama” and “Lawan.”
There is also insufficiency of pleading and evidence on the requirements of proof of title to land through traditional history or traditional evidence.
Now, declaratory reliefs, as the law clearly states must be proved by cogent and reliable evidence. It cannot be granted even on admission or default of the adversary. Thus, the aspect of PW3’s evidence referred to above cannot be helpful to the Appellants case.
I shall now turn to consider whether the lower Court was right in granting the Respondent’s claim and declaring title to the land to her. The Appellants who disputed the

Respondent’s title to the land on the ground that the land was unlawfully allocated to them, in clear contravention of Section 28(1) of the Land Use Act failed in their bid for declaration of title to the land. As earlier stated on the onset of this Judgment, a non title holder of the land lacks the locus to challenge the acquisition of same.Iddo Local Govt vs. Agura (supra), Elegushi vs. Oseni (supra), Kokoro – Owo vs. Lagos State Government (supra), Gold mark (Nig) Ltd & Ors vs. Ibafon Co. Ltd (supra).
The law is that a certificate of occupancy properly issued raises presumption of ownership in favour of the holder. In the case of Grace Madu vs. Dr. Betram Madu (2008) LPELR-1806 (SC), the Court held:
“This Court in its decisions in OSAZUWA V. OJO (1999) 13 NWLR (pt.634) 286; SHOGO V. ADEBAYO (2000) 14 NWLR (pt.686) 121 and EZEANAH V. ATTA (2004) 4 M.J.S.C. 1 (2004) 7 NWLR, held that a Certificate of Occupancy properly issued as in the instant case where there is no dispute that the document was properly issued by a competent authority raised that the holder is the owner is in exclusive possession of the land. The Certificate also raises

the presumption that at the time it was issued, there was not in existence a customary owner whose title has not been revoked. It should however be noted that the presumption is rebuttable because if it is proved by evidence that another person had a better title to the land before the issuance of the Certificate of Occupancy in which case the Certificate of Occupancy will stand revoked by the Court.”
Per ADEREMI, J.S.C. (Pp. 24-25, paras. D-C).
See also the cases ofOgunleye vs. Oni (1990) LPELR-2342 (SC), p. 58 paras A – D, Abba & Anor vs. Gaiya (2016) LPELR-41164 (CA), per Adefope – okojie, JCA (p. 35, paras D – F.
On these authorities, as between the Appellants and the Respondent, the Respondent is presumed to be the owner of the land based on Exhibit “HAM1”. The Appellants have obviously failed in their to prove a better title that could defeat the Respondent’s title.
I now arrive at the conclusion that issues 2, 3 and 5 are resolved in favour of the Respondent and against the Appellants.
Now, notwithstanding the resolution of issue 4 in favour of the Appellants, the resolution of issues 1,

2, 3 and 5 in favour of the Respondent determines the appeal in their favour.

Therefore, I find no merit in this appeal. It is accordingly dismissed resulting in the affirmation of the Judgment of the trial Court delivered by Hon. Justice H. Mshelia on 07/08/2013.
No orders as to costs.

JUMMAI HANNATU SANKEY, J.C.A.: I have had the advantage of reading in draft the Judgement just read by my learned brother, Abundaga, J.C.A. I entirely agree with his reasoning and conclusions.

The findings of facts the lower Court and the law applied thereto cannot be assailed and so I find no reason to interfere with them.
As my learned brother, Abundaga, J.C.A. has amply set out in his Judgement, I also find no merit in this Appeal. I dismiss it accordingly and abide by the consequential Orders made therein.

UZO IFEYINWA NDUKWE-ANYANWU, J.C.A.: I read before now, the judgment just delivered by my learned brother ABUNDAGA JCA. I agree with his reasoning and conclusion. This appeal is unmeritorious and therefore dismissed. The judgment of the lower Court is hereby affirmed. No order as to cost.

Appearances:

S. Umar, Esq. For Appellant(s)

Nankham Ayuba Dammo, Esq. For Respondent(s)