IBRAHIM v. SHINKAYE & ANOR
(2022)LCN/16828(CA)
In The Court Of Appeal
(ABUJA JUDICIAL DIVISION)
On Saturday, September 03, 2022
CA/A/174/2017
Before Our Lordships:
Haruna Simon Tsammani Justice of the Court of Appeal
Elfrieda Oluwayemisi Williams-Dawodu Justice of the Court of Appeal
Danlami Zama Senchi Justice of the Court of Appeal
Between
SALIHU IBRAHIM APPELANT(S)
And
1. DAYO SHINKAYE 2. MINISTRY OF ENVIRONMENT AND PHYSICAL AND PHYSICAL DEVELOPMENT, KOGI STATE RESPONDENT(S)
RATIO
TEST TO DETERMINE WHETHER A LAND IS PROPERLY DESCRIBED
It is trite law that the test as to whether the land is properly described is based on whether the Court would be certain and a surveyor can identify and produce a survey plan from such description. If the answer is yes, the land will be said to be properly described even if the defendant feels otherwise or even calls it a different name. – See ALADESANMI & ORS V. HOLDEN PROPERTIES (NIG) LTD (2018) LPELR-49357(CA), MAIKANTI & ORS V. 7UP BOTTLING CO (2013) LPELR-20297(CA), OHAZULIKE & ORS V. IWEOKWU & ANOR (2018) LPELR-43964(CA) and LAWSON V. AFANI CONTINENTAL CO. (NIG) LTD & ANOR (2001) LPELR-9155(CA). PER SENCHI, J.C.A.
WHETHER OR NOT THE APPELLATE COURT CAN TAKE JUDICIAL NOTICE OF ANOTHER COURT’S ANNUAL VACATION
As Courts of various jurisdictions embark on annual vacation at various times of the year, it is trite that this Court cannot take judicial notice of another Court’s annual vacation and a party asserting that a particular Court is on vacation is required to prove same by evidence. – see EASTERN BREWERIES PLC, AWO OMAMMA & ORS V. NWOKORO (2012) LPELR-7949(CA). PER SENCHI, J.C.A.
THE POSITION OF LAW ON THE DUTY OF A CLAIMANT IN AN ACTION FOR DECLARATION OF TITLE TO LAND
The position of the law is that in an action for declaration of title to land, the first duty of any claimant of title to land is to show exactly and precisely a defined and identifiable area to which the claim relates. In other words, land to which a declaration is to attach, must be sufficiently and satisfactorily identified to wit; the claimant must establish with exactness the description, area, size and location of the land. Thus, before a declaration of title to land is granted, there must be credible evidence describing and identifying the land with certainty. Where a claimant fails to prove the identity of the land which he claims then his claim for declaration of title must fail and be dismissed at that stage. – See the Supreme Court cases of UKAEGBU V. NWOLOLO (2009) LPELR-3337(SC), NWOKOROBIA V. NWOGU (2009) LPELR-2127(SC), EKPEMUPOLO V. EDREMODA (2009) LPELR-1089(SC) and AIYEOLA V. PEDRO (2014) LPELR-22915(SC).
It is trite law that the identity of land claimed would however not be a disputed issue unless the defendant raises it in his statement of defence by denying knowledge of the location of the land. – See the decision of this Court in ORAH V. TANKO (2021) LPELR-56301(CA) and SULEMAN & ORS V. UKANA & ORS (2019) LPELR-46827(CA). PER SENCHI, J.C.A.
WAYS OF PROVING TITLE OF OWNERSHIP TO LAND
The position of the law is that a plaintiff seeking declaration of title to land must prove title to that land claimed in one of the following ways in order to succeed;
(1) by traditional evidence;
(2) by the production of documents of title duly authenticated;
(3) by acts of persons claiming land such as leasing, entering etc. which acts must extend over a sufficient period of time;
(4) by acts of long possession and enjoyment of land
(5) by proof of possession of connected or adjacent land.
See the cases of IDUNDUN V. OKUMAGBA (1976) 1 NWLR PT. 200 P. 210, EDEBIRI V. DANIEL (SUPRA) AT P. 27 PARAS. D-G and NWOKOROBIA V. NWOGU (2009) LPELR-2127(SC) AT P. 31 PARAS. C-E per Onnoghen JSC.
Successful proof by way of only one of the 5 methods would be sufficient to discharge the burden on the claimant for declaration of title. See the case of OLAGUNJU V. ADESOYE (2009) 9 NWLR PT. 1146 P. 225. PER SENCHI, J.C.A.
THE POSITION OF LAW WHERE A CLAIMANT RELIES ON PROOF BY PRODUCTION OF TITLE DOCUMENTS
Where a claimant relies on proof by production of title documents, the law is that production perse of documents of title alone is not sufficient to discharge the onus on the plaintiff to prove the title he claims. See MADU V. MADU (2008) LPELR-1806(SC) AT PP. 36-37 PARAS E-A where the Supreme Court restated its position in LAWSON V. AJIBULU (1997) 6 NWLR PT. 507 P. 14. It is trite position of law that the mere production of title documents in a case for declaration of title to land does not ipso facto entitle a party to such declaration. The Court has a duty to look at the title documents of parties in order to ascertain the validity and effect of same before granting declaration of title. – See the case of ROMAINE V. ROMAINE (1992) 4 NWLR PT. 238 P. 600 where the Supreme Court per Nnaemeka-Agu, J.S.C. (delivering the lead judgment) held thus;
“I may pause here to observe that one of the recognised ways of proving title to land is by production of a valid instrument of grant: see Idundun v. Okumagba (1976) 9-10 S.C.246; Piaro v. Tenalo (1976) 12 SC. 31, P.37; Nwadike v. Ibekwe (1987) 4 N.W.L.R. (part 67) 718. But it does not mean that once a claimant produces what he claims to be an instrument of grant, he is automatically entitled to a declaration that the property which such an instrument purports to grant is his own. Rather, production and reliance upon such an instrument inevitably carries with it the need for the Court to inquire into some or all of a number of questons, including:
(i) whether the document is genuine and valid;
(ii) whether it has been duly executed stamped and registered;
(iii) whether the grantor had the authority and capacity to make the grant;
(iv) whether the grantor had in fact what he purported to grant; and
(v) whether it has the effect claimed by the holder of the instrument.”
See also the cases of
AKINDURO V. ALAYA (2007) LPELR-344(SC) ATP. 1R5 PAAS A- F, W.A.C. LTD. V. YANKARA (2008) 4 NWLR PT. 1077 P. 323 and FHA V. EKPUNOBI & ORS (2021) LPELR-55741(CA) AT PP. 31 – 33 PARAS. D-A. PER SENCHI, J.C.A.
DANLAMI ZAMA SENCHI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Kogi State (sitting at Lokoja) delivered by O.S. Otu, J. on 30/9/2015 in Suit No. HCL/36/2012.
The brief facts of this case from the Record of Appeal are as follows:
The 1st Respondent had by writ of summons and statement of claim commenced an action as claimant at the lower Court against the Appellant and 2nd Respondent as defendants. By Amended Statement of Claim dated 28/1/2014 (at page 191 of the Record of Appeal), the 1st Respondent sought declaration of title to a piece of land along Ganaja Road Lokoja No. KG. 10026, special and general damages as well as injunction. The Appellant originally filed a statement of defence and a counter-claim by which he sought declaration of title to Plots No. 55 and 57 Block 65 on TPS 149 designed by the 2nd Respondent Ministry, injunction and damages. The 1st Respondent filed a Reply and Defence to the counter-claim in response to which the Appellant filed a reply. The Appellant however subsequently filed an Amended Statement of Defence on 19/6/2014 (page 214 of the Record). The 2nd Respondent also filed its statement of defence (at page 98 of Record).
The 1st Respondent’s case at the lower Court was that the 2nd Respondent had granted him Plot No. 2 Block R TPS 59 Extension Layout in Lokoja in 1999 (which was upgraded to TPS 149). He however subsequently discovered the Appellant trespassing and claiming title to the land. The Appellant’s case on the other hand was that the plot he claims was part of land that had been excised to Ganaja Community (by the Kogi State Government) in 2004 and the said Community in turn allocated the plot to the Appellant in 2005 pursuant to which the 2nd Respondent issued him an approval of grant of statutory right of occupancy. For the 2nd Respondent’s part, its defence was that the offer of the plot to the 1st Respondent had lapsed and any right of occupancy granted to him was in error as the plot had already been excised to Ganaja Community who allocated same to the Appellant.
At the end of trial and after a visit to the locus in quo conducted on 7/8/2015, the lower Court delivered its judgment on 30/9/2015 wherein it gave judgment for part of the 1st Respondent’s claim and dismissed the Appellant’s counter-claim.
The Appellant being dissatisfied with the lower Court’s decision appealed against same to this Court. By an Amended Notice of Appeal dated 1/2/202 land filed on 11/2/2021 the Appellant raised 22 grounds of appeal.
In his Amended Appellant’s Brief of Argument filed on 11/2/2021 (and deemed properly filed by this Court), the Appellant raised and argued 6 issues for determination from the grounds of appeal, to wit;
1. Whether the learned trial Judge was not wrong to visit and take proceedings at the locus during Annual Vacation without an application from either of the parties, more particularly, since he was not the vacation Judge. (Distilled from Grounds one, two, three and four).
2. Whether the learned trial Judge was not wrong when he visited the locus in quo without adhering to the twin principles of visit to locus in quo and not giving Counsel to the Appellant the opportunity to cross-examine the 1st Respondent’s witnesses at the locus. (Distilled from Grounds five, six, and eight).
3. Whether the learned trial Judge was right in law to hold that there is no dispute regarding the identity of the land – subject matter of dispute. (Distilled from Grounds seven and thirteen).
4. Whether upon consideration of legally admissible evidence at trial, the lower Court can be said to have properly evaluated the evidence of parties before arriving at her judgment. (Distilled from Grounds nine, ten, eleven, twelve, fourteen, fifteen, sixteen, eighteen and twenty-two).
5. Whether the learned trial Judge was not wrong in law to raise fundamental questions suo-motu and answer them without giving the Appellant an opportunity to address the Court on them. (Distilled from Ground nineteen).
6. Whether the trial Court was right and just to dismiss the Appellant’s counterclaim when same was proved at trial and without any credible defence to same. (Distilled from Ground twenty-one).
The 1st Respondent adopted the issues as formulated by the Appellant and argued same in his Amended Brief of Argument dated 6/11/2020 and filed 9/11/2020.
The Appellant filed a reply brief on 11/2/2021.
Appellant’s Arguments on Issues:
Arguing issue no. 1, the Appellant’s learned Counsel submitted in his brief of argument that the High Court of Kogi State commenced its annual vacation on 3/8/2015 and resumed normal Court sitting on 21/9/2015. He referred this Court to page 368 of the Record of Appeal. He contended that any sitting by any Judge of the Kogi State High Court (other than the vacation Judge) during this vacation period is ultra vires as even the vacation Court is limited to entertaining certain matters upon application of both parties. It is submitted therefore that the lower Court, not being the vacation Court and without an application by parties, had no jurisdiction to proceed on the visit to the locus on 7/8/2015 to take proceedings upon which it relied in its judgment. He relied on a plethora of decided cases including the Supreme Court’s decision in ITAYE V. EKAIDERE LPELR-1558(SC). He argued that having adjourned for judgment, the lower Court could not turn around to conduct proceedings at the locus in quo. Counsel submitted that the lower Court acted outside its jurisdiction by conducting the visit to locus in quo.
On issue no. 2, Appellant’s Counsel contended that the laid down principles for visit to locus in quo are (a) the Court may adjourn trial to locus, take evidence and return to Court to conclude evidence and (b) after close of evidence, adjourn to visit the locus for inspection, and then take address of counsel on the said inspection before judgment. He relied on Section 127 (2)(a) & (b) of the Evidence Act 2011 as well as the case of NNADI V. AMADI (2011) 4 NWLR pr. 1238 P. 553. He contended that any procedure different from that provided by the Evidence Act is extra-legal. He argued that the Appellant was not given opportunity by the lower Court to cross-examine the 1st Respondent’s witnesses at or after the visit to locus nor was counsel even permitted to address on the visit as the next thing that followed was judgment of the Court. He submitted that the lower Court failed to adhere to principles of visit to locus and thus acted without jurisdiction. He posited further that the lower Court in its judgment went on to abandon and ignore what he heard in open Court for what he saw at locus contrary to the general principles relating to purpose of visit to locus in quo.
In respect of issue no. 3, the Appellant, through his Counsel, submitted that the essence of visit to locus in quo is not to generate fresh evidence but to confirm the existence or otherwise of evidence at trial. He relied on MU’AZU V. UNITY BANK (2014) 3 NWLR PT. 1395 P. 512. He contended that the lower Court made observations based on proceedings at the locus in quo which is completely contrary to the pleadings and evidence of parties before it.
The Appellant’s submission in respect of issue no. 4 is to the effect that the lower Court would not have given judgment for the 1st Respondent if it had properly evaluated the evidence before it. He contended that the lower Court did not proffer convincing reasons for believing the testimony of PW1 over that of DW3. He argued that the lower Court fell short of its duty to evaluate the evidence of both parties when it held that it was not disputed by the 2nd Respondent that the 1st Respondent paid the premium on the same date of the offer of the land to him. Counsel to the Appellant contended that the 1st Respondent failed to prove his entitlement to the declaratory reliefs he claimed and the lower Court ought to have dismissed his claims. He argued that PW1 contradicted himself on his evidence that TPS 59 was upgraded to TPS 149. He posited that Exhibits B, G and DE5 all show different dimensions and beacon numbers for the land and it was not for the lower Court to decide which was relevant. He contended that the lower Court did not evaluate the Appellant’s evidence in arriving at its decision and no reason was given for believing the 1st Respondent and disbelieving the Appellant. He argued that this Court has powers to evaluate the evidence from the record and enter judgment for the Appellant as the findings of the lower Court is perverse.
On issue no. 5, it is the Appellant’s contention that the lower Court suo motu raised issues in its judgment particularly at pages 360 and 367 of the Record of Appeal without calling on parties to address it on same which amounted to a denial of fair hearing on the Appellant’s part.
On the last issue no. 6, the Appellant posited that his counter-claim was not for Plots No. 34 and 35 but for Plots 55 and 57 on TPS 149. He argued that the lower Court cannot make a case for the Appellant and use that as a basis for dismissing his counter-claim.
Learned Counsel concluded the Appellant’s submissions in his brief by urging this Court to allow the appeal, set aside the decision of the lower Court, dismiss the 1st Respondent’s claim and enter judgment in favour of the Appellant’s counter-claim.
1ST RESPONDENT’S ARGUMENTS ISSUES:
Arguing issues nos. 1 and 2 together, learned Counsel to the 1st Respondent submitted that in his brief of argument that the visit to locus in quo was lawfully conducted by the lower Court. Referring this Court to the Kogi State High Court Civil Procedure Rules, Counsel contended that as an exception to the rule against sitting during Court vacation, the fact that parties and their Counsel were present during the visit to locus in quo establishes their consent. He argued that the Appellant cannot now turn around to challenge the procedure. He contended that it is settled law that the Court may suo motu visit the locus in quo.
On issues nos. 3 and 4, learned Counsel to the 1st Respondent submitted that the lower Court properly evaluated the evidence before arriving at its judgment. He argued that the oral evidence adduced by the 1st Respondent is consistent with the documents he tendered and the findings during the visit to the locus in quo while the Appellant’s oral and documentary evidence are not consistent with the findings during the visit to the locus in quo.
Making submissions on issue no. 5, the 1st Respondent posited that the questions posed by the lower Court are rhetorical and do not call for answers as their answers are obvious from the evidence led by the parties. That it is therefore not necessary for the lower Court to invite parties to address it on the questions raised.
In respect of issue no. 6, the Respondent contended that it is trite that for a declaration of title as sought by the Appellant in his counter-claim to be granted, a claimant must succeed on the strength of his own case and not on the weakness of the defence. He argued that from its judgment, the lower Court did what the law required of it with respect to the counter-claim and came to the right decision on it.
Counsel to the 1st Respondent finally urged this Court to dismiss the appeal with substantial cost.
APPELLANT’S REPLY BRIEF:
The submissions of the Appellant in his reply brief is to the effect that his complaint is not the stage at which the visit to locus in quo was conducted by the lower Court but that it was conducted during the vacation period. He referred to Order 9 Rules 3, 4 and 5 of the Kogi State High Court (Civil Procedure) Rules 2006 and contended that the exception to the prohibition on Court sitting during its annual vacation is the urgency of the matter coupled with an application exparte for its urgent hearing. He reiterated that visit to locus in quo must be conducted in accordance with laid down procedure and laws.
RESOLUTION OF ISSUES:
The summary of the arguments of the respective parties in this appeal having thus been put on record, I shall now consider the issues as formulated (which I also adopt for the purpose of considering this appeal).
Issue No. 1
1. Whether the learned trial Judge was not wrong to visit and take proceedings at the locus during Annual Vacation without an application from either of the parties, more particularly, since he was not the vacation judge. (Distilled from Grounds one, two, three and four).
Now the records show that at the conclusion of trial in this case and final addresses of parties’ counsel on 8/7/2015, the lower Court adjourned the matter to 21/9/2015 for judgment. Records however show that a visit to locus in quo was conducted by the lower Court on 7/8/2015. The Appellant has contended that this date fell within the annual vacation of the Kogi State High Court.
As Courts of various jurisdictions embark on annual vacation at various times of the year, it is trite that this Court cannot take judicial notice of another Court’s annual vacation and a party asserting that a particular Court is on vacation is required to prove same by evidence. – see EASTERN BREWERIES PLC, AWO OMAMMA & ORS V. NWOKORO (2012) LPELR-7949(CA).
The Appellant has done just that by including a copy of the High Court of Kogi State notice of ‘Annual Vacation 2015′ dated 6/7/2015 and signed under the hand of the Chief Judge of Kogi State at page 368 of the Record of Appeal. The said notice clearly establishes that the Kogi State High Court was on vacation from 3/8/2015 to 20/9/2015.
It doesn’t appear to be in dispute amongst parties that as at 7/8/2015 when the lower Court conducted the visit to locus in quo, it was actually on annual vacation and it was not the vacation Judge.
Order 9 of the Kogi State High Court (Civil Procedure) Rules 2006 provides for sittings of the Court and vacation. Rules 4 and 5 thereof provide as follows;
4. (1) The sitting of the Court for the dispatch of causes shall be held on every week-day except that the Court shall not sit:
(a) on any public holiday;
(b) during the week beginning with Easter Monday;
(c) during the period beginning on Christmas Eve and ending on 2nd January next following.
(2) There shall be an annual vacation of the Court to commence on such date in August and of such duration, not exceeding six weeks, as the Chief Judge may by notification in the Gazette appoint.
5. (1) Notwithstanding the provisions of Rule 4, any action may be heard by a Judge in Court during any of the periods mentioned in Sub-rule (1)(b)or (c) of Rule 4 or Sub-rule (2) where the action is urgent.
(2) An application for an urgent hearing shall be made by motion ex-parte and the decision of the Judge on the application shall be final.
The foregoing rules clearly mean that no Judge of the Kogi State High Court shall sit, conduct or continue proceedings in a matter except on certain conditions which are (1) it is urgent and (2) an application ex-parte for such urgent hearing has been made to the Court.
Thus, where a Court of the Kogi State High Court (such as the lower Court) purports to sit or conduct proceedings during the period of the Court’s annual vacation, such proceedings would have been conducted without jurisdiction if no application for such matter to be conducted urgently during vacation was made.
I will be remiss in my duty in this appeal if I do not mention the Supreme Court’s decision in MILITARY GOV OF LAGOS STATE & ORS V. ADEYIGA & ORS (2012) LPELR-7836(SC) where it was held that a Court had the discretion to suo motu sit during Court vacation where it considers it urgent. I must however distinguish this decision as inapplicable to the instant case before this Court as the Rules of Court considered by the Supreme Court in that case differ from the rules herein in that it provides for two options for sitting during vacation. The Supreme Court held that one option under those rules being considered gave the discretion to sit during vacation to the Court when urgent and the other option was with the consent of parties. In the instant appeal before this Court however, the aforementioned rules of the lower Court gives only one option for sitting during vacation. To validly conduct Court proceedings during vacation, there must have been an application made exparte for urgent hearing of the matter which the lower Court must consider.
Interpreting similar provisions under similar circumstances as the instant one, the Supreme Court held as follows per Obaseki JSC (delivering the lead judgment) in ITAYE & ORS V. EKAIDERE & ORS (1978) LPELR-1558(SC);
“It is clear to us that the effect of Order 25 Rule 5 and the notification, Midwestern Notice 131 of March, 1975 was to deprive the learned trial Judge of the authority to sit and decide the matter now on appeal before us during the period of vacation in the absence of any leave granted pursuant to an application made by both parties to him for leave to continue the hearing of trial during the period. As there was no such application, the proceedings i.e. hearing the judgment delivered on the 25th day of August, 1975 are a nullity. More importantly, the provision of Section 33 of the High Court Law 1964 No.4 now Cap 65 of Laws of the 1976 recognizes that during vacation the Court is not open for the hearing of general legal business pending therein.”
In the case of ONYECHI & ANOR V. ONYECHI (2013) LPELR-21208(CA) this Court per Jega JCA (of blessed memory) held that;
“It is glaring that the effect of the above provisions defines the root of any matter deserving urgent or expeditious hearing. It is this root that confers jurisdiction on the High Court to hear and determine any application during the vacation period. In the instant appeal, there was no application filed ex-parte seeking for urgent hearing by the Respondent and which was pending before the trial Court, and based on which the trial Judge sat and made the ex-parte order complained of. The law is that before any matter or application is taken during the period of the long vacation, there must be an application for an urgent hearing which shall be made by motion ex-parte and the decision of the Judge on such an application shall be final. It is the grant of the motion ex-parte that activates the jurisdiction of the Court to hear and determine any matter or application during the period of the long vacation.”
See also WILLIAMS ESQ. & ANOR V. ADOLD/STAMM INT NIG LTD & ANOR (2013) LPELR-20356(CA).
Similarly, in PDP & ORS V. MUNTARI (2021) LPELR-56163(CA), this Court held that in order for Court proceedings to validly hold during the vacation, the provisions of the rules providing conditions for such sitting must be complied with and a judge who sits over a case during vacation without satisfying the preconditions acts without jurisdiction and the proceedings as well as any order(s) made are a nullity and liable to be set aside.
In the instant case, there is nothing to show from the Record of Appeal that any application was made exparte to the lower Court to urgently conduct the proceedings during its annual vacation. The proceedings (visit to locus in quo) conducted by the lower Court on 7/8/2015 during Court vacation was conducted suo motu by the lower Court. The lower Court had no such power to conduct proceedings during Court vacation without an application made exparte that the matter be so urgently conducted during vacation. In the circumstances, the proceedings (visit to locus in quo) of 7/8/2015 during its Court vacation was conducted by the lower Court without jurisdiction and ultra vires. The proceedings having been conducted by the lower Court in breach of conditions precedent and thus without jurisdiction, the breach cannot be treated as a mere irregularity and the mere presence of the Appellant and his Counsel at such proceedings can cure or waive the defect. – see ONYECHI & ANOR V. ONYECHI (SUPRA).
Consequently, the proceedings (visit to locus in quo) of 7/8/2015 conducted by the lower Court during its annual vacation without an application for urgent hearing amounts to a nullity. Accordingly, the holding of the lower Court at lines 25-30 of page 358 and lines 1-2 of page 359 of the Record of Appeal is hereby set aside for being a nullity.
Issue no. 1 is therefore resolved in favour of the Appellant and against the 1st Respondent.
Issues Nos. 2 and 3:
2. Whether the learned trial Judge was not wrong when he visited the locus in quo without adhering to the twin principles of visit to locus in quo and not giving Counsel to the Appellant the opportunity to cross-examine the 1st Respondent’s witnesses at the locus. (Distilled from Grounds five, six, and eight).
3. Whether the learned trial Judge was right in law to hold that there is no dispute regarding the identity of the land – subject matter of dispute. (Distilled from Grounds seven and thirteen).
Issues Nos. 2 and 3 would be considered together as they relate to the procedure for conducting visit to locus in quo as was conducted by the lower Court on 7/8/2015.
I have already stated under issue no. 1 that the proceedings conducted by the lower Court on 7/8/2015 in which it visited the locus in quo was a nullity having been conducted without jurisdiction by reason of having been conducted during Court vacation without an application for urgent hearing during vacation. A further consideration of the procedure adopted by the lower Court in conducting its visit to locus in quo at said proceedings would appear as an academic exercise in the circumstances.
Nevertheless, I shall quickly consider the issue of the procedure of visit to locus in quo adopted by the lower Court.
The lower Court’s power to conduct visit to locus in quo and the procedure for such visit is provided for by Section 127 of the Evidence Act 2011.
Section 127(1) and (2) particularly provides thus;
“127. (1) If oral evidence refers to the existence or condition of any material thing other than a document, the Court may, if it deems fit-
(a) require the production of such material thing for its inspection, or
(b) inspect any moveable or immovable property, the inspection of which may be material to the proper determination of the question in dispute.
(2) When an inspection of property under this section is required to be held at a place outside the Courtroom, the Court shall either:
(a) be adjourned to the place where the subject- matter of the said inspection may be and the proceeding shall continue at that place until the Court further adjourns back to its original place of sitting, or to some other place of sitting; or
(b) attend and make an inspection of the subject-matter only, evidence, if any, of what transpired there being given in Court afterwards, and in either case the defendant, if any, shall be present.”
From the foregoing provisions, a trial Court conducting a visit to locus in quo has two options as to how to conduct the visit. Such trial Court may either adjourn to the locus for further hearing of the case as prescribed by law until it adjourns back to the Court room or it may simply move to the locus and make an inspection of the subject matter and return to the Court for evidence, if any, of what transpired at the inspection to be taken. Whichever option the Court adopts, the defendant must be present at such proceedings. See EZEANI V. ANIUNOH (2012) LPELR-19940(CA), MWANA V. GOMWALK (2014) LPELR-23329(CA) and MAMMAN & ORS V. KOFAR-BAI (2015) LPELR-25966(CA).
From the records of the lower Court of the proceedings of 7/8/2015, it appears that the second option was preferred and adopted by the lower Court as the record does not show that evidence was taken at the locus. The record shows that the Court carried out an inspection in the presence of all the parties and observations were made in its notes. The Court did not adjourn for any evidence to be taken of observations thereafter in Court.
Now, under the second option provided under Section 127(2)(b) of the Evidence Act 2011, the lower Court need not take any evidence of what transpired back in Court. The lower Court could simply proceed to rely on its observations in the course of delivering its judgment.
It is only where evidence of witnesses is taken at the scene of the visit to locus in quo or later in Court that parties must be given the opportunity of hearing the evidence of the witnesses, cross-examining them and commenting on the evidence. See the Supreme Court’s decision in ENIGWE & ORS V. AKAIGWE & ORS (1992) LPELR-1145(SC). See also this Court’s decision in BABAYO & ANOR V. THE REGISTERED TRUSTEES OF THE UNITED METHODIST CHURCH OF NIG. & ANOR (2019) LPELR-49278(CA). There is nothing in the provisions of the Evidence Act 2011 that specifies that a visit to the locus can only be conducted at a particular period or stage of a case. The principle was thus stated by the Supreme Court in ENIGWE & ORS V. AKAIGWE & ORS (SUPRA) that there is no rule of law which determines at what stage in a trial a visit of inspection must be made. See also SHEKSE V. PLANKSHAK & ORS (2008) LPELR-3042(SC).
It is also settled principle of law that a trial Court should not only accede to application for visit to locus in quo, it can and should do so suo motu. See AJAO & ORS V. ADIGUN (1993) LPELR-284(SC), ABDULLAHI V. ADETUTU (2019) LPELR-47384(SC) and ADEPETUN V. FASIMOYE & ANOR (2022) LPELR-56632(CA).
In the instant case, as no evidence was taken at or after the visit to locus in quo, there was no need for the Appellant to cross-examine any witness or address the lower Court. It follows therefore that the Appellant was not denied fair hearing as there was no witness to cross-examine or evidence to address the lower Court on.
The mere fact that the visit to the locus in quo was conducted suo motu after address of counsel and before judgment by the lower Court does not impeach the credibility of the visit conducted by the lower Court.
As far as the procedure for visit to locus in quo goes, the lower Court was well within its rights to rely on observations or its record of what transpired at the visit to locus in quo in the course of its judgment. – See ENIGWE & ORS v. AKAIGWE & ORS (SUPRA).
In the circumstances, the procedure for the lower Court’s visit to locus in quo and the lower Court’s reliance on its observations in its judgment was proper in itself. Issues Nos. 2 and 3 are therefore resolved against the Appellant and in favour of the 1st Respondent.
Issue No. 5:
5. Whether the learned trial Judge was not wrong in law to raise fundamental questions suo-motu and answer them without giving the Appellant an opportunity to address the Court on them. (Distilled from Ground nineteen).
In its judgment at pages 360 and 367, the lower Court appears to have posed questions particularly on the issue of upgrade, beacon numbers and the 2nd Respondent’s duties. I do not believe the facts and issues pertaining to these are new.
The questions posed by the lower Court are therefore those which it considered relevant guide for it in the determination of the issues for determination before it. I have considered the questions posed by the lower Court. They are not altogether unrelated to the facts and issues before the Court which the parties have already had an opportunity to address the Court on vide their final written addresses. I therefore do not share the Appellant’s sentiments that the lower Court ought to have called upon parties to address it on those questions or that such failure to call for address amounted to a breach of his fundamental right to fair hearing.
Issue No. 5 is thus resolved against the Appellant and in favour of the 1st Respondent.
ISSUES NOS. 3, 4 AND 6:
3. Whether the learned trial Judge was right in law to hold that there is no dispute regarding the identity of the land – subject matter of dispute. (Distilled from Grounds seven and thirteen).
4. Whether upon consideration of legally admissible evidence at trial, the lower Court can be said to have properly evaluated the evidence of parties before arriving at her judgment. (Distilled from Grounds nine, ten, eleven, twelve, fourteen, fifteen, sixteen, eighteen and twenty-two).
6. Whether the trial Court was right and just to dismiss the Appellant’s counter-claim when same was proved at trial and without any credible defence to same. (Distilled from Ground twenty-one).
I shall consider issues nos. 3, 4 and 6 together as they essentially query whether the lower Court’s conclusions would ultimately have been the same and correct if the proper and legally admissible evidence had been considered.
Now the 1st Respondent’s claim before the lower Court was for declaration of title to piece of land.
The Appellant has contended that the 1st Respondent failed to prove the identity of the land he claimed.
The position of the law is that in an action for declaration of title to land, the first duty of any claimant of title to land is to show exactly and precisely a defined and identifiable area to which the claim relates. In other words, land to which a declaration is to attach, must be sufficiently and satisfactorily identified to wit; the claimant must establish with exactness the description, area, size and location of the land. Thus, before a declaration of title to land is granted, there must be credible evidence describing and identifying the land with certainty. Where a claimant fails to prove the identity of the land which he claims then his claim for declaration of title must fail and be dismissed at that stage. – See the Supreme Court cases of UKAEGBU V. NWOLOLO (2009) LPELR-3337(SC), NWOKOROBIA V. NWOGU (2009) LPELR-2127(SC), EKPEMUPOLO V. EDREMODA (2009) LPELR-1089(SC) and AIYEOLA V. PEDRO (2014) LPELR-22915(SC).
It is trite law that the identity of land claimed would however not be a disputed issue unless the defendant raises it in his statement of defence by denying knowledge of the location of the land. – See the decision of this Court in ORAH V. TANKO (2021) LPELR-56301(CA) and SULEMAN & ORS V. UKANA & ORS (2019) LPELR-46827(CA).
Considering the averments in parties’ pleadings, the lower Court in its judgment (at page 357 of the Record of Appeal) rightly found that parties have vehemently disputed the identity of the land in dispute. After a review of the evidence before it, the lower Court came to the conclusion that despite the Appellant’s argument, there is no dispute regarding the identity of the land (see page 359 of the Record).
I want to believe that what the lower Court meant by its conclusion on the issue of the identity of the land claimed is that the identity of the land is no longer in dispute having been resolved by evidence.
Unfortunately, the lower Court in making its findings on the issue of identity of the land in dispute also relied on observations made at the visit to locus in quo which it had conducted at it proceedings of 7/8/2015. I have earlier in this judgment set aside the proceedings conducted by the lower Court on 7/8/2015 as a nullity. Such proceedings cannot be relied on. Consequently, I shall have to consider the issue of identity of the land in dispute to determine if it had truly been resolved.
The claim of the 1st Respondent to title to land at the lower Court was essentially based on title documents. In his Amended Statement of Claim, he pleaded documents by which he alleged that he was granted title to the land in dispute by the 2nd Respondent. Exhibits E and B were eventually admitted in evidence as documents of grant of title. I shall return to these shortly.
The Appellant has picked on Exhibits B, DE5 and G to contend discrepancies in features of the land claimed by the 1st Respondent.
Let me first of all state for the record that the 1st Respondent did not plead, tender or rely on the survey plan Exhibit DE5. From the records, Exhibit DE5 was tendered through the 1st Respondent under cross-examination by the Appellant’s Counsel. For all intent and purpose, Exhibit DE5 does not define the 1st Respondent’s claim. Regarding the site plan contained in Exhibit G, I must agree with the lower Court that it is merely a sketch map that accompanied the Environmental Impact Assessment Report (Exhibit G).
Now in proof of his claim in the instant case, the 1st Respondent tendered and relied on title documents Exhibits E and B which he claimed were issued to him by the 2nd Respondent which is the Ministry in charge of lands in Kogi State on behalf of the Government of Kogi State. These appear to be the documents that define the 1st Respondent’s claim to title to the disputed land.
Exhibit E was admitted in evidence as Provisional Allocation of plot under Statutory Right of Occupancy to the 1st Respondent. The plot of land so allocated is described therein as Plot No. 2 Block R on TPS 59 Ext., Lokoja.
Exhibit E speaks for itself. Paragraph ii(b) thereof indicates that an ‘Approval for grant of statutory right of occupancy’ is to be formally conveyed to the 1st Respondent if he accepts the offer of the allocation.
Exhibit B is an ‘approval for grant of a statutory right of occupancy’ subsequently issued to the 1st Respondent by the 2nd Respondent. The property granted to the 1st Respondent by the 2nd Respondent is more particularly described as ‘Plot No. 2 Block R TPS Ext. at Lokoja of about 2400sqm bounded by beacon No. KL.4681, KL.4691, KL.4670, KL.4678, KL.4679 and KL.4650 respectively’.
The land to which the 1st Respondent’s alleged claim to title relates has been described with precision in relation to the Town Planning Scheme. I am of the view that land has been described with certainty and is ascertainable in the circumstances. With the description provided, a surveyor would be able to identify and produce a survey plan.
It is trite law that the test as to whether the land is properly described is based on whether the Court would be certain and a surveyor can identify and produce a survey plan from such description. If the answer is yes, the land will be said to be properly described even if the defendant feels otherwise or even calls it a different name. – See ALADESANMI & ORS V. HOLDEN PROPERTIES (NIG) LTD (2018) LPELR-49357(CA), MAIKANTI & ORS V. 7UP BOTTLING CO (2013) LPELR-20297(CA), OHAZULIKE & ORS V. IWEOKWU & ANOR (2018) LPELR-43964(CA) and LAWSON V. AFANI CONTINENTAL CO. (NIG) LTD & ANOR (2001) LPELR-9155(CA).
It would be absolutely pretentious to say that the land claimed by the Appellant is not properly described in the circumstances.
Further to the above, PW1 is a Director, Town & Regional Planning in the Ministry of Lands, Housing & Urban Development, Kogi State. He tendered Town Planning Schemes 59 and 149 which documents were admitted in evidence as Exhibits A and A1 respectively. Part of his testimony is that the 2nd Defendant had upgraded TPS 59 Extension to TPS 149 Layout thus incorporating all the features of the original TPS 59. That the 1st Respondent’s land originally known as Plot No. 2 Block R TPS 59 Extension Layout is now Plot No. 57 Block 65 TPS 149 Lokoja.
Part of the 2nd Respondent’s case, in support of which its witness DW2 testified, is that the Plot No. 2 Block R on TPS 59 Ext allocated to the 1st Respondent was part of Blocks on TPS 149 which DW2 said the Government of Kogi excised to the Ganaja Community. Under cross-examination, DW2 stated that he knows PW1 as the Director of Urban and Regional Planning of the 2nd Respondent Ministry.
Now, PW1 is a Director while DW2 is a Deeds Registrar in the Ministry in charge of lands in Kogi State (the 2nd Respondent) on behalf of the Kogi State Government. Their testimony is to the effect that Plot No. 2 Block R TPS 59 Ext (allocated to the 1st Respondent by the 2nd Respondent) is now part of TPS 149. The testimony of PW1 goes further to say that Plot No. 2 Block R TPS 59 Extension Layout is now Plot No. 57 Block 65 TPS 149 Lokoja following an upgrade of TPS 59 to TPS 149.
The Appellant has questioned why the lower Court should believe the testimony of PW1. The real question however is; why not? I have carefully perused PW1’s answers under cross-examination. He was not discredited in any way. Neither is there any more competent and compellable contrary evidence to contradict his testimony.
As it is, PW1’s evidence (as a director of the 2nd Respondent) that Plot No. 2 Block R TPS 59 Extension Layout originally allocated to the 1st Respondent by the 2nd Respondent is now Plot No. 57 Block 65 T PS 149 Lokoja following an upgrade of TPS 59 to TPS 149 by the 2nd Respondent is credible and ought to be relied upon by the Court. This is so because the 2nd Respondent is the Ministry in charge of such matters on behalf of the Government of Kogi State (the custodian of lands in Kogi State). A credible evidence has been held by this Court to mean evidence that is worthy of belief and oozing out from a reliable source. See AGI V. ACCESS BANK PLC (2013) LPELR-22827(CA).
It follows therefore from the evidence that the land being claimed by the 1st Respondent (as Plot No. 2 Block R TPS 59 Extension Layout) and that to which the Appellant lays claim (Plot No. 57 Block 65 TPS 149) are the same.
Consequently, I am of the firm view that identity of the land in question can no longer be said to be in dispute. The lower Court was therefore right in this regard in coming to this conclusion.
Having come to that conclusion, the relevant question therefore is whether on the preponderance of evidence, the 1st Respondent has proved his claim to the declaration of title to the land in dispute as held by the lower Court.
The position of the law is that a plaintiff seeking declaration of title to land must prove title to that land claimed in one of the following ways in order to succeed;
(1) by traditional evidence;
(2) by the production of documents of title duly authenticated;
(3) by acts of persons claiming land such as leasing, entering etc. which acts must extend over a sufficient period of time;
(4) by acts of long possession and enjoyment of land
(5) by proof of possession of connected or adjacent land.
See the cases of IDUNDUN V. OKUMAGBA (1976) 1 NWLR PT. 200 P. 210, EDEBIRI V. DANIEL (SUPRA) AT P. 27 PARAS. D-G and NWOKOROBIA V. NWOGU (2009) LPELR-2127(SC) AT P. 31 PARAS. C-E per Onnoghen JSC.
Successful proof by way of only one of the 5 methods would be sufficient to discharge the burden on the claimant for declaration of title. See the case of OLAGUNJU V. ADESOYE (2009) 9 NWLR PT. 1146 P. 225.
Parties in this case essentially relied on documents of title in support of their respective claims to title to the disputed land.
Where a claimant relies on proof by production of title documents, the law is that production perse of documents of title alone is not sufficient to discharge the onus on the plaintiff to prove the title he claims. See MADU V. MADU (2008) LPELR-1806(SC) AT PP. 36-37 PARAS E-A where the Supreme Court restated its position in LAWSON V. AJIBULU (1997) 6 NWLR PT. 507 P. 14. It is trite position of law that the mere production of title documents in a case for declaration of title to land does not ipso facto entitle a party to such declaration. The Court has a duty to look at the title documents of parties in order to ascertain the validity and effect of same before granting declaration of title. – See the case of ROMAINE V. ROMAINE (1992) 4 NWLR PT. 238 P. 600 where the Supreme Court per Nnaemeka-Agu, J.S.C. (delivering the lead judgment) held thus;
“I may pause here to observe that one of the recognised ways of proving title to land is by production of a valid instrument of grant: see Idundun v. Okumagba (1976) 9-10 S.C.246; Piaro v. Tenalo (1976) 12 SC. 31, P.37; Nwadike v. Ibekwe (1987) 4 N.W.L.R. (part 67) 718. But it does not mean that once a claimant produces what he claims to be an instrument of grant, he is automatically entitled to a declaration that the property which such an instrument purports to grant is his own. Rather, production and reliance upon such an instrument inevitably carries with it the need for the Court to inquire into some or all of a number of questons, including:
(i) whether the document is genuine and valid;
(ii) whether it has been duly executed stamped and registered;
(iii) whether the grantor had the authority and capacity to make the grant;
(iv) whether the grantor had in fact what he purported to grant; and
(v) whether it has the effect claimed by the holder of the instrument.”
See also the cases of
AKINDURO V. ALAYA (2007) LPELR-344(SC) ATP. 1R5 PAAS A- F, W.A.C. LTD. V. YANKARA (2008) 4 NWLR PT. 1077 P. 323 and FHA V. EKPUNOBI & ORS (2021) LPELR-55741(CA) AT PP. 31 – 33 PARAS. D-A.
As already observed earlier, the 1st Respondent tendered and relied on title documents Exhibits E and B which he claimed were issued to him by the 2nd Respondent Ministry on behalf of the Government of Kogi State.
His case was that he applied and was allocated the disputed land on 15/7/1999 vide Exhibit E by the 2nd Respondent Ministry. Exhibit E supports this as it is a Provisional Allocation of the disputed land to the 1st Respondent by the 2nd Respondent. It is the 1st Respondent’s case in support of which he gave oral testimony that he paid the premium of N7,000 as required in Exhibit E on the same date i.e. 15/7/1999 for which he was issued receipt No. KG370081. Exhibit H was admitted in evidence as said receipt. Exhibit H is a Kogi State Revenue Collector’s Receipt dated 15/7/1999 evidencing the payment of the sum of N7,000 as premium for land by the 1st Respondent. The 1st Respondent’s case is that he was thereafter issued Exhibit B ‘Approval for grant of a Statutory Right of Occupancy’ dated 24/9//2010 over the disputed land by the 2nd Respondent.
Now, it is the Appellant and the 2nd Respondent’s defence that the 1st Respondent did not have valid title to the land in dispute. They (particularly the 2nd Respondent) say that the a location made vide Exhibit E to the 1st Respondent by the 2nd Respondent in respect of the land in dispute lapsed because Respondents failed to comply with the condition therein requiring him to pay the premium of N7,000 within 90 days of the allocation. The 2nd Respondent’s case is that as at the time the 1st Respondent paid the premium in 2010 vide Exhibit DE7, the land in dispute had already been excised to the Ganaja Community Lokoja in 2004 by the Kogi State Government vide Exhibit DE1. That Exhibit B by which a Right of Occupancy was granted to the 1st Respondent by the 2nd Respondent was therefore issued in error. This was the testimony of DW2 the 2nd Respondent’s staff.
Now, there is Exhibit H showing that the 1st Respondent promptly paid the N7,000 premium for the land in dispute on 15/7/99 in compliance with the conditions of the allocation of the land (Exhibit E). There is also Exhibit DE7 relied upon by the 2nd Respondent which shows that the 1st Respondent paid the required premium in 2010 well outside the 90 days period given for such payment by Exhibit E.
In his evidence in chief, the 1st Respondent insisted at trial that he promptly complied with the conditions in Exhibit E but the 2nd Respondent purportedly misplaced his file and he was thus constrained to satisfy the conditions a second time pursuant to which he was issued Exhibit B. Under cross-examination by the 2nd Respondent’s Counsel, he again insisted that he paid the premium of N7,000 immediately Exhibit E was issued to him but could not lay his hand on the original and the 2nd Respondent could not trace his file which necessitated him having to pay another N7,000 premium. He however later found Exhibit H being his earlier payment.
When confronted with Exhibit H (premium payment in 1999) under cross-examination, the 2nd Respondent’s witness (DW2) did identity it as payment of N7,000 made on the same date (15/7/1999) when the allocation was made. There was no contention by the 2nd Respondent that the document was forged.
It is my view that the 1st Respondent has explained the existence of Exhibit DE7 as payment which he subsequently had to make after evidence of the first payment Exhibit H could not be found or traced.
As it stands, the integrity and credibility of Exhibit H as payment by the 1st Respondent in 1999 has not been effectively impeached. The resultant effect is that the Court must believe and act on it. It is settled law that documentary evidence, which is not effectively challenged in any manner pejorative to its integrity and authenticity, must be believed and acted upon by the Court. – See GWACHAM V. ILONDU & ANOR (2016) LPELR-42095(CA).
It is therefore settled that the 1st Respondent did pay the premium of N7,000 on 15/7/1999 on the same date the allocation was made to him vide Exhibit E. He therefore did comply with the terms of the allocation of the disputed land made to him vide Exhibit E. His allocation was confirmed vide the grant of a right of occupancy vide Exhibit B in 2010.
It is however further the Appellant’s defence and case that he is the rightful owner of the land in dispute as he had been allocated same in 2005 by the Ganaja Community Lokoja to whom the Kogi State Government had excised a large area of land including the land in dispute in 2004.
In support of his claim to title to the disputed land, the Appellant primarily relied on Exhibits DE1, DE2 and DE3.
Exhibit DE1 is a letter dated 23/12/2004 by which the Kogi State Government (acting through the 2nd Respondent) excised land on TPS 149 particularly covering blocks of land including Block 65 to the Ganaja Community, Lokoja.
Exhibit E2 is a letter dated 25/1/05 by which the Ganaja Community Land Allocation Committee offered Plots Nos. 55 and 57 Block 65 TPS 149 to the Appellant.
Exhibit DE3 is a letter dated 26/2/2007 of ‘Approval for Grant of a Statutory Right of Occupancy’ in respect of the said Plots Nos. 55 and 57 Block 65 TPS 149 to the Appellant by the 2nd Respondent Ministry.
The 1st Respondent contended at the lower Court that the said Plots Nos. 55 and 57 in Block 6 were not part of the land excised to the Ganaja Community by the Kogi State Government/2nd Respondent and as such, the land in dispute falls outside the land which the Ganaja Community could lawfully allocate to the Appellant. The 1st Respondent further contended that Plots 55 and 57 were therefore not the plots granted to the Appellant by the Ganaja Community but Plots 34 and 35.
In view of the state of pleadings and evidence, the consideration of the title of Ganaja Community to the land in dispute is of utmost importance as it is through Ganaja Community that the Appellant claims to have derived title. This is because the law is that where the title of a party’s predecessor in title is challenged and contested, then such a party is enjoined by the law to prove the title of his predecessor in title and failure to so prove is fatal to his case. See HENSHAW V. EFFANGA & ANOR (2008) LPELR-4075(CA) and MATTHEW V. OTABOR & ANOR (2015) LPELR-24422(CA).
I have looked at Exhibit DE1 by which land was excised to the Ganaja Community by the 2nd Respondent. Exhibit DE1 states particularly at 1 as follows:
1. That the area excised for the use of the community covets blocks 4, 66, 65, 62, 64, 1, 2, 3, 5, and 67 only (see attached layout plan).
Block 65 (in which the land in dispute admittedly is) is mentioned as one of the blocks in which the land excised falls.
Although both the Appellant and the 1st Respondent testified as to whether the land in dispute (Plot No. 57) falls within the land excised to the Ganaja Community in 2004, I consider the evidence of PW1 and DW2 far more relevant both being staff of the Respondent/Ministry which had excised land to the Ganaja Community in the first place.
The evidence of PW1 (director of the 2nd Respondent) is that the land in dispute, Plot 57 is within an area of Block 65 which does not fall within part of the land excised to the Ganaja Community. He produced the Town Planning Sheme 149 (Exhibit A1) to show that Plots 55 and 57 fall outside the area verged red which he said was the total area excised to Ganaja Community.
Under cross-examination, he stated that his office is in charge of preparing and designing town planning schemes. He stated that the implementation of the excision of the plots as stated by the Government should be in accordance with the layout and the red markings on TPS 149 (Exhibit A1) was designed along with the plan. Under further cross-examination, he stated that the area verged red is the one excised to Ganaja Community but Block 65 is not totally within the area verged red. That the only area not issued to the Community are Plots 55 and 57 as parts of Block 65 which are outside the area verged red is not part of the land excised to Ganaja Community. He stated that the letter (Exhibit DE1) from the Ministry (2nd Respondent) shows what was excised to the community but that the said letter has to be married to TPS 149 (Exhibit A1) to get a clearer picture. He said Exhibit A1 is the layout attached to the letter to Ganaja Community (Exhibit DE1) but he does not know why the letter does not mention the blocks verged red as being those excised to the Ganaja Community.
DW2 (Deeds Registrar of the 2nd Respondent) on the other hand testified under examination-in-chief that the land in dispute allocated to the 1st Respondent falls within the Blocks allocated to the Ganaja Community.
Under cross-examination, DW2 was confronted with Exhibit A1 and he admitted same as the 2nd Respondent’s TPS Plan No. 149. He identified a red ink on Exhibit A1 and stated that Exhibit DE1 is to go with Exhibit A1. He stated that although Exhibit DE1 did not refer to any verged part as excised to Ganaja Community but the 2nd Respondent had urged the Community to verge it so it is visible to everyone as the part given to Ganaja Community. He said Exhibit DE1 referred to Block 65 which is part of the land excised to the Ganaja Community and it is not possible for anyone to say that any of the plot in Block 65 is not part of the land excised to Ganaja Community.
Under cross-examination, DW2 said that
“Exhibit DE1 is the letter conveying the excision of land to Ganaja Community, is subject to the layout plan and Exhibit A1 is the layout plan. The part verged red in Exhibit A1 is to make it clear. There are many plots with (sic) Block 65 excised to Ganaja Community. Plots 55 and 57 are outside the area verged red but Exhibit A1 is not correct.”
I have carefully read Exhibit DE1 by which land was excised to Ganaja Community by the 2nd Respondent. Although Block 65 (in which the disputed land Plot 57 is located) is mentioned as being part of the area excised, an attached layout plan is mentioned as the point of reference to properly understand what was excised. It is clear from the evidence of parties (particularly PW1 and DW2) that Exhibit A1 is the layout plan referenced and is to be read in conjunction with Exhibit DE1. Exhibit A1 is thus part of Exhibit DE1.
Parts of Exhibit A1 is verged red and both witnesses PW1 and DW2 are ad idem that the part verged red is the part of the land excised to the Ganaja Community. Although Exhibit DE1 does not specifically state that an area verged red is the land excised, Exhibit A1 has been specifically referenced in Exhibit DE1 for more clarity on the extent of the land excised to the Ganaja Community. It follows therefore that the area verged red in Exhibit A1 is the area excised to the Ganaja Community by the 2nd Respondent vide Exhibit DE1.
Now both PW1 and DW2 identified plots 55 and 57 as being outside the area verged red in Exhibit A1. Although DW2 mentioned that Exhibit A1 is not correct in this respect, Exhibit A1 is a document which he twice wholeheartedly admitted as the 2nd Respondent’s document without any pressure whatsoever under cross-examination by the Appellant’s and 1st Respondent’s Counsel.
As it is therefore, by a combined reading of Exhibits DE1 and A1, Plots 55 and 57, even though they are in Block 65, do not fall within the area of land excised to the Ganaja Community by the 2nd Respondent in 2004. Plots 55 and 57 Block 65 TPS 149 having not been excised to Ganaja Community, the said community cannot lay claim to said plots as it had acquired no title to same. Consequently, the Ganaja Community could not have validly allocated interest in the said Plots 55 and 57 to anyone (including the Appellant).
It is trite position of the law that in alienation of interest in land, it is only the person who has such interest that can alienate. Conversely, a person who has no interest in land cannot equally give interest in such land. The principle is expressed in the latin maxim ‘Nemo Dat Quod Non Habet’ which loosely means that one cannot give what one does not have. See OYELOLA & ORS V. BABALOLA & ANOR (2015) LPELR-41839(CA).
It would therefore mean that the 1st Respondent has proved better title to the land in dispute in the circumstances.
Ex abundanti cautela, in case I am wrong and the land in dispute Plot 57 does fall within the area excised to Ganaja Community, the question then arises as to which interest granted by the 2nd Respondent is valid. Is it that granted to the 1st Respondent vide Exhibit E and B or that granted to the Ganaja Community vide Exhibit DE1? Both cannot validly exist at the same time, hence, one must necessarily give way to the other.
The position of the law is trite that where, as in the present case, there are two or more competing documents of title upon which parties to a land dispute rely for their claim of title to such land both documents originated from a common grantor, the doctrine of priorities will apply. The doctrine of priorities is expressed in the well recognised maxim, ‘qui prior est tempore, potiorest jure’, which means ‘he who is first has strongest right’. This in essence means that the interest first created in the land by the common grantor is the better (and therefore the valid) interest and claim in both the Law and Equity. This has been established by a long line of decided cases. See
AUTA V. IBE (2003) LPELR-640(SC);
AYANWALE V. ODUSAMI (2011) LPELR-8143(SC);
GIDADO V. LAWAL (2014) LPELR-22903(CA); and
BEYIOKU & ORS V. KOLAWOLE & ANOR (2021) LPELR-56252(CA).
In the instant case, the allocation vide Exhibit E by the 2nd Respondent in respect of the disputed land was made to the 1st Respondent on 15/7/1999. I have already stated that the 2nd Respondent’s (and Appellant’s) defence that the said allocation lapsed for non-fulfilment of conditions has not been established. Exhibit E is therefore valid and subsisting.
On the other hand, the grant by excision of the land in dispute to the Ganaja Community Lokoja vide Exhibit DE1 is dated 23/12/2004.
It is therefore clear that the allocation of the land in dispute to the 1st Respondent in 1999 came first and is earlier in time to the excision of the land to Ganaja Community which came much later in 2004. On the application of the doctrine of priorities, the 1st Respondent’s title to the land in dispute defeats that of Ganaja Community. While the title of the 1st Respondent to the land in dispute stands valid, that of Ganaja Community stands invalid and is set aside.
What is the effect of this on the Appellant’s claim of title to the disputed land? The title of the Appellant’s predecessor in title having failed and given way to that of the 1st Respondent, it follows that the Appellant’s claim to title over the land in dispute must also fail as he cannot possibly have derived a better title than his predecessor in title (Ganaja Community). The failure of Ganaja Community’s title to the land is fatal to the Appellant’s claim of title to same. See HENSHAW V. EFFANGA & ANOR (SUPRA).
In the circumstances, the lower Court was eventually correct when it came to the conclusion in its judgment that neither the 2nd Defendant nor Ganaja Community had the power to allocate the disputed plot, which had already vested in the 1st Respondent since 15/7/1999 (see page 363 of the Record). The lower Court was right to have held that the 1st Respondent had proved his claim on the preponderance of evidence and was entitled to the judgment of Court. This finding of the trial Court is correct and it cannot be disturbed by this Court.
In view of the success of the 1st Respondent’s claim of title to the disputed land, it follows that the Appellant’s acts on the said land amounts to trespass which entitled the 1st Respondent to damages against the Appellant. The lower Court was right to have found as such.
With respect to the Appellant’s Counter-claim, I am of the view that there was no competent counter-claim before the lower Court to consider in the first place and the lower Court was right in dismissing the Appellant’s counter-claim.
On how to plead a counter-claim, Order 26 Rule 15 of the Kogi State High Court (Civil Procedure) Rules 2006 provides as follows;
15. Where any defendant seeks to rely upon any facts as supporting a right of set-off or counter-claim, he shall, in his statement of defence, state specifically, that he does so by way of set-off or counter-claim as the case may be, and the particulars of the set-off or counter-claim shall be given.
I have carefully perused the Appellant’s Amended Statement of Defence (at pages 214 – 218 of the Record of Appeal). There is nowhere in the Amended Statement of Defence where the Appellant expressed any intention to counter-claim. The Appellant therefore did not plead any counter-claim. What the Appellant appears to consider as his counter-claim is a document which he titled ‘1st Defendant’s counter-claim’ (at page 54 of the Record) and which he had filed separately from his original Statement of Defence. However, not even his original statement of defence (at page 31-34 of the Record) pleads any counter-claim.
As the Appellant did not plead any counter-claim in his Amended Statement of Defence, it follows that he had none for the Court to consider. The implication is that the main issue that should have concerned the lower Court and should concern this Court is whether or not the 1st Respondent had sufficiently proved his claim to declaration of title (and this has been resolved in the affirmative). – See ADAWON V. ASOGBA & ORS (2007) LPELR-3970(CA).
The law is trite that although a Counterclaim is a separate and independent action, a Court is not bound to consider it separately from the substantive claim where the questions for determination in both the main claim and the counter-claim are the same. See ASALU & ORS V. DOSUNMU & ORS (2019) LPELR-49113(CA).
Having found in favour of the 1st Respondent and against the Appellant in the main claim for declaration of title, the lower Court was in its rights to have dismissed the Appellant’s counter-claim for declaration of title as haven not been proved.
Consequently, issues nos. 4 and 6 are hereby resolved against the Appellant and in favour of the 1st Respondent.
Thus, this appeal lacks merit and it is hereby accordingly dismissed.
Consequently, the part of the lower Court’s decision entering judgment for the 1st Respondent in the judgment delivered by O.S. Otu, J. on 30/9/2015 in Suit No. HCL/36/2012 is hereby affirmed.
HARUNA SIMON TSAMMANI, J.C.A.: My learned brother, Danlami Zama Senchi, JCA gave me the benefit of reading in advance, the judgment just delivered.
My learned brother has exhaustively considered the issues that arose for determinations in this appeal, and admirably resolved same. I agree with the reasoning and conclusions by my learned brother and have nothing useful to add.
On that note, I also agree that the appeal lacks merit.
It is accordingly dismissed. I abide by the consequential order made.
ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A.: I had the advantage of reading the draft of the lead judgment just delivered by my learned brother, Danlami Zama Senchi, JCA. I agree with the reasoning and conclusion reached and abide by the orders made therein.
I therefore also find the appeal lacking in merit and it is hereby dismissed. I affirm the decision of the judgment of the lower Court delivered by O. S. Otu, J. on 30/09/2015 in Suit No. HCL/36/2012.
I made no order as to costs.
Appearances:
F. O. Ekpa, Esq. For Appellant(s)
Sylvester O. Imhanobe, Esq. with him, Abdullahi Ibrahim – for 1st Respondent
Toyia Balogun, (Legal Officer MOJ Kogi State) – for 2nd Respondent. For Respondent(s)
