MOMODU v. IBRAHIM (2021)

MOMODU v. IBRAHIM

(2021)LCN/15196(CA)

In The Court Of Appeal

(BENIN JUDICIAL DIVISION)

On Thursday, May 06, 2021

CA/B/372/2009

Before Our Lordships:

Oyebisi Folayemi Omoleye Justice of the Court of Appeal

Biobele Abraham Georgewill Justice of the Court of Appeal

Frederick Oziakpono Oho Justice of the Court of Appeal

Between

ARUNA MOMODU APPELANT(S)

And

HAJIA KUBURATU IBRAHIM RESPONDENT(S)

RATIO

WHETHER INADMISSIBLE EVIDENCE THAT WERE INADVERTENTLY ADMITTED CAN BE EXPUNGED AT ANY STAGE

A Court of law is under a duty to act only on admissible evidence in arriving at its findings and decisions. Thus, issue three deal strictly deals with the power of a Court to discountenance or expunge at the stage of writing its judgment evidence, which though inadvertently already admitted, but which turns out to be inadmissible in law since a Court of law is under a duty to act and therefore, can act on admissible evidence only in deciding cases before it. Thus, at whatever stage, including the judgment writing stage, it appears to a trial Court that evidence though already admitted was inadmissible in law, it is under a duty to expunge such inadmissible evidence so that the rights and liabilities of the parties is determined on admissible evidence only. See Michael Hausa V. The State (1994) 7 8 SC 144.

WHETHER INADMISSIBLE EVIDENCE THAT WERE INADVERTENTLY ADMITTED CAN BE EXPUNGED AT THE JUDGMENT WRITING STAGE

WHETHER THE ADMISSIBILITY OF AN INADMISSIBLE EVIDENCE CAN BE CHALLENGED AT ANY STAGE

… it does appear to me that since in law a Court has the duty to act only on admissible evidence, it also has the power to expunge or discountenance at the judgment writing stage any piece of evidence though already admitted but which turns out to be inadmissible in evidence so that it could act only on admissible evidence in reaching its decisions. Indeed, such an objection can even be raised for the first time on appeal. In Mrs. Elizabeth Anyaebosi V. R.T. Briscoe (Nig.) Ltd. (1987) 6SC 15. See also Nwabuoku V. Onwordi (2002) FWLR (Pt. 123) 341; Kossen Nig. Ltd. V. Savannah Bank Nig. Ltd. (1995) 9 NWLR (Pt. 421) 1. PER BIOBELE ABRAHAM GEORGEWILL, J.C.A.

POSITION OF THE LAW REGARDING THE FORM OF PUBLIC DOCUMENT ADMISSIBLE IN EVIDENCE; WHETHER PAYMENT OF LEGAL FEES IS A CONDITION PRECEDENT FOR THE ADMISSION OF A PUBLIC DOCUMENT

In law, the only form of public document admissible in evidence, except if the original is tendered, is a certified true copy only and no other form of secondary evidence of a public document is admissible in evidence. It is also the mandatory requirement, except where an exemption is made, that such certification shall be made only upon payment of requisite fees. See Section 104(1) of Evidence Act 2011. In Guaranty Trust Bank V. Tabik Investment Ltd & Anor (2005) 3 FWLR (Pt. 217) 301 @ p. 311, this Court had emphatically held inter alia thus: “It is clear that the section has not made any exemption from the payment of legal fees by any person who requires to secure a certified true copy of any public document in custody of a public officer including members of the police force. If there are exemptions, the section or any section related thereto should specifically provided for such exemptions. Payment of legal fees therefore is a condition precedent for the admission of a public document except where any other statute exempts some persons, institutions or authorities from effecting such payments”. PER BIOBELE ABRAHAM GEORGEWILL, J.C.A.

WHETHER THE PAYMENT OF LEGAL FEES FOR CERTIFICATION OF PUBLIC DOCUMENT IS MANDATORY

In law the payment of requisite legal fees for certification of public document, except where an exemption is granted, is mandatory. See Section 104(1) of Evidence Act 2011. See also Guaranty Trust Bank V. Tabik Investment Ltd & Anor (2005) 3 FWLR (Pt. 217) 301 @ p. 311. PER BIOBELE ABRAHAM GEORGEWILL, J.C.A.

WHETHER A RESPONDENT WHO FAILED TO FILE A CROSS APPEAL OR RESPONDENT’S NOTICE, CAN RAISE ANY ISSUE THAT IS NOT RELATED TO THE GROUNDS OF APPEAL FILED

.. I am of the considered opinion that since the Respondent neither filed a Cross Appeal nor Respondent’s Notice, he was not at liberty to raise any issue bearing no relevance to the grounds of appeal. Consequently, this submission having no relation to any of the Appellant’s grounds of appeal is hereby discountenanced. See Association of Senior Civil Servants of Nigeria V. JUSUN (2014) LPELR – 24185(CA). PER BIOBELE ABRAHAM GEORGEWILL, J.C.A.

ON WHOM RESTS THE BURDEN OF PROOF IN CIVIL PROCEEDINGS WHERE THE TWO PARTIES ARE LAYING CLAIM AND COUNTER – CLAIM TO THE TITLE TO THE LAND IN DISPUTE

… I bear in mind that generally in civil proceedings the burden of proof, though said not to be static, is on the Claimant who usually asserts his rights and who may lose if no evidence was called. Incidentally, in the instant appeal both the Respondent as Claimant and the Appellant as 2nd Defendant laid claim and counter – claim to the title to the land in dispute and were therefore, each under a duty to lead credible evidence in proof of the title they each claimed to the land in dispute. See Ewo V. Ani (2004) 3 NWLR (Pt. 861) 610; Osawaru V. Ezeiruka (1978) 7 – 9 SC 135. See also Onwuama V. Ezeokoli (2002) 94 LRCN 246; Enekwe V. IMB Ltd. 146 LRCN 842; Garuba V. Yahaya (2007) 145 LRCN 549. PER BIOBELE ABRAHAM GEORGEWILL, J.C.A.

POSITION OF THE LAW REGARDING WAYS BY WHICH TITLE TO LAND MAY BE PROVED

My lords, it is the law that in a claim for declaration of title to land, a party claiming title to land must do so by proving with credible evidence one or more of the five methods of proving title to land, namely: A. Evidence of traditional history of title; B. Production of genuine and valid documents of title: C. Acts of Ownership numerous enough: D. Acts of possession over a long period of time and E. Act of possession of adjacent land long enough to make it probable that the owner of the adjacent land is also the owner of the land in dispute. Thus, both the Appellant and the Respondent had open to them one or more of the above five methods to prove their title to the land in dispute. It is also the law that proof of any of one of these methods by credible evidence would be sufficient to ground an action for declaration of title to land. In Ezukwu V. Ukachukwu (2000) 1 NWLR (Pt 642) 657 @ p. 679 it was reiterated inter alia thus: “A Claimant of title to land, of course need not rely on more than one of the five methods. No. Where, however, he relies on a pleaded method or way as a root of his title, then, if the pleaded root fails, the alleged acts of ownership or possession derivative of the root necessarily ought to fail. Why? Because the title or the root title needs must be, firstly established before the exercise of the rights of ownership may exercisable…” See also Idundun V. Okumagba (1976) 6 – 10 SC 48. See also Arum V. Nwobodo (2013) All FWLR (Pt. 688) 870 p. 893; Romaine V. Romaine (1992) NWLR (Pt. 238) 650. PER BIOBELE ABRAHAM GEORGEWILL, J.C.A.

POSITION OF THE LAW REGARDING CONDITION TO BE SATISFIED BY A PERSON FOR HIM TO BE DEEMED TO BE IN POSSESSION OF A LAND IN DISPUTE

Interestingly, when it comes to the issue of possession of land in dispute, the law is well settled that he who proves title to land is equally entitled to possession of the land in dispute. However, where the title claimed is equitable in nature, then proof of possession, actual or constructive, in addition to payment of purchase price of the land, is a sine qua non for successful proof of title to land. To give rise to the inference or presumption of possession, a person who relies on legal title document must prove that the title document is valid and that the person who granted it has the authority and capacity to convey the title it purports to convey. So settled is this position of the law that a person with a valid and better title to land is by law deemed to be in possession even where he is not in de – facto physical possession of the land as against a person without any color of right to the land. In Carrena V. Akinlase (2008) 14 NWLR (Pt. 1107) @ p. 262, the Supreme Court emphatically pronounced inter alia thus: “A person who has title over a piece of land, though not in de – facto physical possession, is deemed, in law, to be the person in possession. This is because the law attaches possession to title and ascribes it to the person who has title. Such possession is the legal possession, which is sometimes also called constructive possession.” See also Gankon V. Ugochukwu Chemical Ind. Ltd (1993) 6 NWLR (Pt. 297) 55; Grace Madu V. Dr. Betram Madu, (2008) 6 NWLR (Pt. 1083)319; Aromire V. Awoyemi (1972) 2 SC 1; Kareem V. Ogunde (1972) 1 SC 182. PER BIOBELE ABRAHAM GEORGEWILL, J.C.A.

POSITION OF THE LAW REGARDING WHO POSSESSION WILL BE ASCRIBED TO WHERE TWO PARTIES CLAIM TO BE IN POSSESSION OF LAND IN DISPUTE

In law therefore, where two parties, as in the instant appeal the Appellant and the Respondent, claim to be in possession of land in dispute, the law ascribes possession to the party with the better title and similarly where rival titles are being relied upon by rival claimant and counter claimant, the party with a better title is entitled to succeed. Thus, if there be dispute as to which of two persons is in possession, the presumption is that the person having the better title to the land is in lawful possession and therefore, no matter the length of time of unlawful and or unauthorized entry and occupation of land, it cannot in law metamorphose or ripen into legal possession of the land. See Oyadare V. Chief Keji (supra) @ p. 571. See also Bennet Ude Agu V. Ozo Moses Nnadi (1999) 2 NWLR (Pt. 589) 131. See Ojomo V. Olaide Ibrahim (1999) 12 NWLR (Pt. 631) 415; Solomon V. Mogaji (1982) 11 SC 1. PER BIOBELE ABRAHAM GEORGEWILL, J.C.A.

EFFECT OF AN UNCHALLENGED AND UNCONTROVERTED EVIDENCE BY THE ADVERSE PARTY

My lords, in considering the evidence of the parties as led through their witnesses and the findings of the Court below, I thought I should remind myself at once that in law evidence of a party which is unchallenged and uncontroverted by the adverse party is good evidence on which the Court should act. See Saipem SPA V. India Tefa (2001) FWLR (Pt. 74) 377 p. 394. See also Igbinovia V. Agboifo (2002) FWLR (Pt. 103) 505 @ p. 514. PER BIOBELE ABRAHAM GEORGEWILL, J.C.A.

BIOBELE ABRAHAM GEORGEWILL, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Judgment of the High Court of Edo State, Auchi Judicial Division Coram: F. S. Erhonsele J. in Suit No. HAU/8/2002: Hajia Kuburatu Ibrahim V. Comfort Ahamioje & Ors delivered on 19/4/2007, in which some of the claims of the Respondent as Claimants against the Respondent as 2nd Defendant and the 1st Defendant before the Court below were granted.

The Appellant was peeved with the said Judgment and had appealed against it vide his Notice of Appeal filed on 1/6/2007 on six Grounds of appeal at pages 186 – 188 of the Record of Appeal. The Record of Appeal was compiled and transmitted to this Court and deemed as properly compiled and transmitted on 9/2/2021. Subsequently, an Amended Notice of Appeal on seven grounds of appeal was filed on 24/6/2020 with the leave of this Court but was deemed properly filed on 6/11/2020. The Appellant’s Amended brief was filed on 13/5/2019. The Respondent’s Amended brief was filed on 17/12/2020.

At the hearing of this appeal on 9/2/2021, O. B, Uade Esq, learned counsel for the Appellant adopted the Appellant’s

Amended brief as his arguments and urged the Court to allow the appeal and set aside the Judgment of the Court below and dismiss the claims of the Respondent against the Appellant and grant the counter claim of the Appellant against the Respondent. On her part, Mrs. Eva Osamuyi Musoe, holding the brief of S. K. Mokidi Esq. learned counsel for the Respondent adopted the Respondent’s Amended brief as her arguments and urged the Court to dismiss the appeal and affirm the Judgment of the Court below.

By a Writ of Summons filed on 2/4/2002 and by an amended Statement of Claim filed on 27/1/2005, the Respondent as Claimant against the Appellant as 2nd Defendant and one other person as 1st Defendant claimed the following reliefs, to wit:
1. A declaration that the Plaintiff is entitled to the Statutory Right of Occupancy over the piece or parcel of land with an area measuring approximately 488.420m2 with the uncompleted building, two flat bungalow, situate along old Auchi/Okene Road, Sabo Iyakpi within the jurisdiction of this Court, which said land with the building is particularly delineated and edged pink on a survey plan No. MOO/ED/09/95 of

27/1/95.
2. An order of this Court for account of all the rents, levy and/or money collected from tenants in respect of the building on the said piece or parcel of land.
3. An order of this Court that the rents and/or any money so collected from tenants on the said building be paid to the Plaintiff.
ALTERNATIVELY:
4. The sum of N1,000,000 being special and general damages against the 2nd Defendant for acts of trespass on the said parcel of land together with the building situate along old Auchi/Okene Road, Sabo Auchi.
5. An order of perpetual injunction against the 2nd Defendant, his agents, servants and/or privies from further acts of trespass on the said parcel of land together with the said building. See pages 9 – 12 and 43 – 48 of the Record of Appeal.

Upon service, the Appellant as 2nd Defendant Counter – claimed against the Respondent for the following reliefs, to wit:
1. A declaration that the 2nd Defendant is entitled to the Statutory Right of Occupancy over the land/house in dispute measuring approximately 50ft by 100ft and covered by plan No. BDPA/AUC 8/80 with Beacon Nos PF 4983, BV 488, BU 489 and PF 4984

respectively,
2. The sum of N500,000 being general damages for acts of trespass on the land.
3. An order of perpetual injunction against the Plaintiff, her agents, servants and/or privies from further acts of trespass on the said parcel of land together with the house thereon. See pages 82 – 83 and 108c of the Record of Appeal.

BRIEF STATEMENT OF FACTS
On the one hand, the case of the Respondent as the Claimant before the Court below, as can be gleaned from the averments in the Amended Statement of Claim, the evidence, both oral and documentary led before the Court below as in the Record of Appeal, was that she bought the land in dispute together with the building thereon from one Comfort Ahamioje, the 1st Defendant before the Court, who was the original owner of the land, in October 1994 and was let into possession and that the land forms part of a larger parcel of land belonging to the said Comfort Ahamioje which she surveyed in 1979. On taking possession she also surveyed it in her name. However, sometime in 2001 the Appellant entered the land and despite warnings from the Respondent, went ahead and converted the two flats of three

bedrooms each into 18 rooms which he rented out, in his name, to students of Auchi Polytechnic and refused to vacate the land, hence the Suit filed by the Respondent against the Appellant and her own vendor before the Court below. See pages 9 – 12, 43 – 48, 61 – 65, 68 – 72 and 73 – 76 of the Record of Appeal.

On the other hand, the case of the Appellant as 2nd Defendant/Counter – Claimant before the Court below, as can be gleaned from the averments in the Amended Statement of Claim, the evidence, both oral and documentary led before the Court below as in the Record of Appeal, was that he bought the land in dispute including the house, which was at a roofing level, from one Akimu Charles Momodu, the 1st son of the Vendor to the Respondent, and 1st Defendant before the Court below for the sum of for N140,000.00 and upon which the sale a copy of the survey plan of the land in dispute was handed over to him. However, in 1977, the 1st Defendant who was the original owner had gifted the land in dispute to her son, Akimu Charles Momodu and had handed over the original copies of the building and survey plans to him, and which land he later sold to the

Appellant. See pages 80 – 82, 83 – 85, 88 – 90, 91 – 93 and 108A – 108D of the Record of Appeal.

On her part, the 1st Defendant before the Court below, who was the original owner of the land in dispute, though duly served with the Writ of summons and Statement of Claim of the Respondent as Claimant, neither filed any process nor was she represented by counsel nor participate in the entire proceedings before the Court below. She did not appear in Court and did not file any process.

At the trial, in proof of her case and in defense to the counter – claim, the Respondent as Claimant testified on her behalf and called two witnesses, who testified as PW1, one Busil Imoebu, also known as Briamah Musa, and PW2, one Alhaji Jafaru Braimah, and tendered some documents admitted in evidence as Exhibits A, B, C and D and closed her case. In his defense and in proof of his counter claim, the Appellant as 2nd Defendant/Counter-Claimant testified for himself after calling two witnesses, who testified as DW1, one Adenoge Momodu and DW2, one Mrs. Rose A. Akinu Momodu, one and thereafter he also testified on his behalf and tendered some documents admitted

in evidence as Exhibits F, F1, F2, G and H and closed his defense. At the close of their respective cases, learned counsel for the parties addressed the Court below and on 19/4/2007, the Court below delivered its judgment, in which it granted some of the claims of the Respondent as Claimant against the Appellant as 2nd Defendant and the 1st Defendant and dismissed the counter – claim of the Appellant against the Respondent, hence this appeal. See pages 125 – 183 and 186 – 188 of the Record of Appeal.

ISSUES FOR DETERMINATION
In the Appellant’s Amended brief, two issues were distilled as arising for determination from the seven grounds of appeal. namely:
1. Whether the Court below was right in law to reject and expunge Exhibits F, F1, and F2?
2. Whether from oral and documentary evidence, the Court below was right to declare title to the disputed land in favor of the Respondent, who was the Claimant?

In the Respondent’s Amended brief, three issues were distilled as arising for determination in this appeal. namely:
1. Whether the Court below was right to have held that on the strength of the evidence, the Respondent led credible

evidence in support of her title to the land in dispute? (Distilled form Grounds 1 and 2)
2. Whether the Court below was right to have held that the Appellant’s grantor had no title over the property he sold to the Appellant and therefore, the Appellant did not prove his title to the land? (Distilled from Grounds 2, 3, 5 and 6)
3. Whether the Court below was right to have expunged Exhibits F, F1 and F2 from the proceedings, and if not, whether this has occasioned a miscarriage of justice?

I have taken time to consider the claim and counter claim of the parties as well the totality of their evidence, both oral and documentary as in the printed Record of Appeal. I have also considered the submissions of counsel in their respective briefs in the light of the findings and decisions reached in the judgment of the Court below and I am of the view that the proper issues arising for determination in this appeal are the three issues for determination as distilled in the Respondent’s Amended brief, a consideration of which, in my view, would invariably involve a consideration of the two issues as distilled in the Appellant’s Amended brief. I hereby

adopt and set down the Respondent’s three issues as the issues for determination. However, I shall commence with the consideration of Respondent’s issue three together with Appellant’s issue one. Thereafter, I shall consider Respondent’s issues one and two together with Appellant’s issue two.

ISSUE THREE
Whether the Court below was right to have expunged Exhibits F, F1 and F2 from the proceedings, and if not, whether this has occasioned a miscarriage of justice?

APPELLANT’S COUNSEL SUBMISSIONS
On his issue one, learned counsel for the Appellant had submitted that Court had no basis to reject and or expunge Exhibits F, F1 and F2. the building and survey plans of the vendor to the Appellant in that they originally formed part of Exhibit H, the Revenue Collector’s Receipt, and merely detached under cross examination. against which there was no allegation of forgery by the Respondent, and contended that the Court below was wrong to have used Exhibit H as a basis to expunge Exhibits F, F1 and F2 and giving judgment in favor of the Respondent against the Appellant and urged the Court to hold that the Respondent having not pleaded and given

any particulars of forgery against Exhibit H, all evidence given to that effect being on facts not pleaded should go to no issue and to set aside the decision of the Court below wrongfully expunging Exhibits F, F1 and F 2 and to allow the appeal and set aside the perverse judgment of the Court below. Counsel relied on Ukpo V. Adede (2002) 3 NWLR (Pt. 755) 671 @ p. 687; Alalade V. Morohundiya (2002) 16 NWLR (Pt. 792) 81 @ pp. 102-103.

It was also submitted that the contention of the Respondent and which was upheld by the Court below that Exhibit H dated 17/1/2007 being different from the date of 16/1/2007 for the certification on Exhibits F, F1, and F2 and therefore, cannot be meant for the payment of the certification of Exhibits F, F1 and F2 was misconceived and in error and contended that there was evidence by the Appellant that Exhibit H was issued to his Counsel when he applied for the certification of Exhibits F, F1 and F2 and urged the Court to hold that in the absence of any allegation of fraud against Exhibit H, there was no such duty on the Court below to investigate forgery and to set aside the finding of forgery against Exhibit H and the

resultant expunging of Exhibits F, F1 and F2 by the Court below and allow the appeal. Counsel relied onAdike V. Obiareri (2002) 4 NWLR (Pt. 758) 570 @ pp. 572-573; FBN. V. Mainasara (2005) 2 NWLR (Pt. 909) 42 @ PP. 62 – 63.

It was further submitted that once a document is substantially in the form and purports to be duly executed in the manner directed by the law in that behalf, a Court shall presume the document to have been duly certified and genuine and contended that Exhibits F, F1 and F2 were shown to have been substantially in the form and purports to be duly executed in the manner directed by law and urged the Court to hold that Exhibit H being duly endorsed as receipt of payment for the certification of Exhibits F, F1 and F2, building plans, was enough and the difference in the dates was immaterial and to set aside the wrongful expunging of Exhibit H by the Court below and to restore Exhibits F, F1, F2 and H to the record and to use same as some of the vital pieces of evidence to determine the rights of the parties to the land in dispute. Counsel referred to Section 14 (1) Evidence Act Cap. 112 LFN, 2004 and Law & Practice of Evidence in Nigeria

by Afe Babalola SAN (2001).

It was also further submitted that Exhibits F, F1 and F2, are the only documentary evidence of the actual land and property in dispute and bearing the name of the vendor to the Appellant and contended that it ought to have been used as the yardstick by which the truth or otherwise of the oral testimony of witnesses should have been determined by the Court below and urged the Court to hold that the exclusion of such vital admissible evidence by the Court below was wrongful and to set aside the wrongful exclusion and restore these Exhibits F, F1, F2 and H, admitted even by consent of the parties, to the record and to allow the appeal. Counsel relied on Dawodu V. Majolagbe (2001) 2 NWLR (Pt. 703) 234 @ p. 243; Inshe V. Ansa (2001) FWLR (Pt. 80) 1529; Narindex Trust Limited & Anor V. NICMB Limited (2001) FWLR (Pt. 49) 1546 @ p. 1565.

RESPONDENT’S COUNSEL SUBMISSIONS
On issue three, learned counsel for the Respondent had submitted that the Court below was right to have expunged Exhibits F, F1 and F2 from its record having been improperly admitted and contended that in law certification of public document shall be upon

payment of legal fees and since there was nothing on the face of Exhibits F, F1 and F2 to indicate that they were paid for and in the absence of evidence of exemption from making such payment they did not meet the mandatory condition for their admissibility in law and urged the Court to so hold and to affirm the correct decision of the Court below expunging Exhibits F, F1 and F 2 and to dismiss the appeal. Counsel referred to Section 111(1) of Evidence Act and relied on Guaranty Trust Bank V. Tabik Investment Ltd & Anor (2005) 3 FWLR (Pt. 217) 301 @ p. 311.

It was also submitted that Exhibit H was nowhere pleaded both as to its existence and the facts it sought to prove and was therefore, rightly expunged by the Court below and contended that there was nowhere the Court below relied on the fact of forgery or being fraudulently obtained and urged the Court to hold that Exhibit H issued on 17/1/2007 was not and cannot be, as rightly found by the Court below, a payment receipt for certification of Exhibits F, F1 and F2 purportedly already done on 16/1/2007 and to affirm the correct finding of the Court below and dismiss the appeal.

It was further submitted that the contention by the Appellant that the Court below relied mainly on the rejection of Exhibits F, F1, F2 and H to find in favor of the Respondent on title to the land in dispute was highly misconceived and contended that on the contrary, the Court below had upon a dispassionate evaluation of the totality of the evidence led by the parties reached the conclusion that the Appellant bought nothing from his vendor before proceeding to consider as it was bound to do in law on the issue of admissibility or otherwise of Exhibits F, F1, F2 and H and urged the Court to so hold and to jettison the erroneous contentions of the Appellant.

RESOLUTION OF ISSUE THREE
My lords, issue three deals basically with the question whether Exhibits F, F1, F2 and H earlier admitted in evidence by the Court below was subsequently at the judgment writing stage, wrongly or rightly expunged by the Court below and what is the effect in law of such expunging if it turns out to be wrong?

A Court of law is under a duty to act only on admissible evidence in arriving at its findings and decisions. Thus, issue three deal strictly deals with the power of a Court to

discountenance or expunge at the stage of writing its judgment evidence, which though inadvertently already admitted, but which turns out to be inadmissible in law since a Court of law is under a duty to act and therefore, can act on admissible evidence only in deciding cases before it. Thus, at whatever stage, including the judgment writing stage, it appears to a trial Court that evidence though already admitted was inadmissible in law, it is under a duty to expunge such inadmissible evidence so that the rights and liabilities of the parties is determined on admissible evidence only. See Michael Hausa V. The State (1994) 7 8 SC 144.

Now. on the one hand, it was contended for the Appellant that Exhibits F, F1, F2 and H were all admissible in evidence and having been so admitted in evidence were wrongfully expunged by the Court below in its judgment on the untenable ground that there were difference in their dates and also that Exhibit H was fraudulently obtained or a forgery when there was no allegation of forgery against it by the Respondent and therefore, the Court below was in grave error when in its judgment it decided to expunge and discountenance

Exhibits F, F1, F2 and H. On the other hand. it was contended for the Respondent that Exhibits F, F1, and F2, being undoubtedly public document are admissible in evidence if duly certified upon the required legal fees paid and that Exhibit H, the purported payment receipt dated 17/1/2007 for the purported certification of Exhibits F, F1 and F2, purportedly certified on 16/1/2007, rendered Exhibits F, F1 and F2 inadmissible in evidence having not been duly certified as required by law upon payment of the required legal fees,

I have reviewed the proceedings of the Court below and looked calmly at Exhibits F, F1, F2 and H and considered the submissions of counsel for the parties and it does appear to me that since in law a Court has the duty to act only on admissible evidence, it also has the power to expunge or discountenance at the judgment writing stage any piece of evidence though already admitted but which turns out to be inadmissible in evidence so that it could act only on admissible evidence in reaching its decisions. Indeed, such an objection can even be raised for the first time on appeal. In Mrs. Elizabeth Anyaebosi V. R.T. Briscoe (Nig.) Ltd.

(1987) 6SC 15. See also Nwabuoku V. Onwordi (2002) FWLR (Pt. 123) 341; Kossen Nig. Ltd. V. Savannah Bank Nig. Ltd. (1995) 9 NWLR (Pt. 421) 1.

My lords, in the instant appeal, the Appellant had tendered Exhibits F, F1 and F2, which the parties are ad idem are public documents, on the basis of Exhibit H, being the requisite payment for their certification. However, and curiously too, whilst Exhibits F, F1 and F2 were endorsed to have been certified on 16/1/2007, Exhibit H, which is the revenue receipt for the payment of their certification as required by law was dated and issued on 17/1/2007, that is a day after Exhibits F, F1 and F2 were stated to have been duly certified. In law, the only form of public document admissible in evidence, except if the original is tendered, is a certified true copy only and no other form of secondary evidence of a public document is admissible in evidence. It is also the mandatory requirement, except where an exemption is made, that such certification shall be made only upon payment of requisite fees. See Section 104(1) of Evidence Act 2011.
In Guaranty Trust Bank V. Tabik Investment Ltd & Anor (2005) 3 FWLR (Pt.

217) 301 @ p. 311, this Court had emphatically held inter alia thus:
“It is clear that the section has not made any exemption from the payment of legal fees by any person who requires to secure a certified true copy of any public document in custody of a public officer including members of the police force. If there are exemptions, the section or any section related thereto should specifically provided for such exemptions. Payment of legal fees therefore is a condition precedent for the admission of a public document except where any other statute exempts some persons, institutions or authorities from effecting such payments”.
I have taken a calm look at Exhibits F, F1 and F2 in relation to the date of 16/1/207 when it was endorsed to have been certified, as well as Exhibit H, the revenue receipt by which the payment for the certification of Exhibits F, F1 and F2 was made on 17/1/2007 and in the absence of any endorsement on the face of Exhibits F, F1 and F2 of any fees paid for their certification on 16/1/2007, and in the further absence of any evidence that these public documents were exempted from such legal fees being paid for their

certification. I hold that Exhibits F, F1 and F2 were clearly in want of due compliance with Section 104 (1) of the Evidence Act 2011. It follows therefore, and as rightly held by the Court below. Exhibit H issued on 17/1/2007 is not and cannot be payment of the requisite legal fees as required by law for the certification of Exhibits F, F1 and F2, and thereby rendered Exhibits F, F1 and F2 as uncertified public documents and therefore, inadmissible in evidence. In law the payment of requisite legal fees for certification of public document, except where an exemption is granted, is mandatory. See Section 104(1) of Evidence Act 2011. See also Guaranty Trust Bank V. Tabik Investment Ltd & Anor (2005) 3 FWLR (Pt. 217) 301 @ p. 311.

It was also contended for the Appellant that Exhibit H was also expunged by the Court below on the ground of forgery or being fraudulently obtained, which was not the case of the Respondent and we were urged to hold that the decision of the Court founded on allegations of forgery not made by the Respondent was perverse and thus liable to be set aside and should be so set aside and Exhibit H restored to the record of the Court

below. The learned counsel for the Respondent had in response contended that there was no such finding by the Court below and we were urged to discountenance such submission as irrelevant and unfounded.

Now, did the Court below reject Exhibits F, F1 and F2 also on the ground that Exhibit H, the revenue receipt for their certification was forged or obtained by fraud as alleged by the Appellant? I think not! The decision of the Court below rejecting and expunging Exhibits F, F1, and F2 was founded on the improbability of Exhibit H issued on 17/1/2007 being the receipt of payment for certification of Exhibit F, F1 and F2 purportedly already done on 16/1/2007 as well as the lack of nexus between Exhibit H and Exhibits F, F1 and F2. This much can glaringly be seen in the judgment of the Court below, where it had stated and held inter alia thus:
“However Exhibit H is a Revenue collector’s Receipt for payment for certification of unspecified building plans that receipt is dated 17/1/2007 it is hard to assume that a receipt dated 17/1/2007 is meant for the payment of a certification that was made on 17/1/2007… there is no nexus whatsoever between the

certification and the receipt… I hold that Exhibit ‘H’ is not payment for certification of Exhibits F, F1 and F2.” See pages 176 of the Record of Appeal.

However, learned counsel for the Respondent also raised the issue of whether or not the facts sought to be proved by Exhibit H, that is the fact of payment of legal fees for the certification of Exhibits F, F1 and F2 were pleaded by the Appellant and I am of the considered opinion that since the Respondent neither filed a Cross Appeal nor Respondent’s Notice, he was not at liberty to raise any issue bearing no relevance to the grounds of appeal. Consequently, this submission having no relation to any of the Appellant’s grounds of appeal is hereby discountenanced. See Association of Senior Civil Servants of Nigeria V. JUSUN (2014) LPELR – 24185(CA). The Respondent was therefore, obliged to navigate his submissions and issues within the circumference as circumscribed by the grounds of appeal of the Appellant, of which the relevant ground of appeal is ground 3, to wit:
“The trial Court erred in law when it expunged Exhibits F, F1, and F2 on the ground that the certification fees

was not shown to have been paid for in accordance with Section 111 (sic – 104)(1) of the Evidence Act 2011.”

I have also considered the submission by learned counsel for the Appellant under his issue one that the Court below relied mainly on the rejection of Exhibits F, F1, F2 and H to find in favor of the Respondent on the title to the land in dispute and I think this submission is not only premature considering his issue two which dealt with the merit of the case but it does not also arise neither from his issue one nor derived from Ground three from which his issue one was distilled. Be that as it may, I have taken a calm, albeit brief look at the judgment of the Court below and it does appear to me that this contention is misconceived in that the Court below evaluated the root of title relied upon by each of the parties on the totality of the evidence led by them before arriving at it conclusions, which whether it is correct or wrong shall be considered and resolved later in this judgment under issues one and two but until then I consider it premature to consider the merit of the findings of the Court below on the title to the land in dispute under

issue three.

My lords. as I conclude with my consideration of issue three, I deem it pertinent to reiterate that payment for certification of public document pursuant to Section 104 (l) of the Evidence Act 2011 is mandatory except an exemption is granted and it must be made contemporaneously with the certification and not subsequently. In law, it is the application and payment of the prescribed legal fees, except where there is an exemption, that ignites the certification of a public document by the Officer in custody of the document. Thus, this is not an issue of forgery but simply an issue of non-compliance with a mandatory requirement of Section 104(1) of the Evidence Act 2011 for a valid certification of public document. The Court below was therefore perfectly in order and correct when it expunged Exhibits F, F1 and F2 for being inadmissible in evidence, even though earlier inadvertently admitted in evidence and marked as Exhibits. In the circumstances therefore, issue three for determination is hereby resolved against the Appellant in favour of the Respondent.

ISSUES ONE AND TWO TAKEN TOGETHER
Whether the Court below was right to have

held that on the strength of the evidence, the Respondent led credible evidence in support of her title to the land in dispute AND Whether the Court below was right to have held that the Appellant’s grantor had no title over the property he sold to the Appellant and therefore, the Appellant did not prove his title to the land?

APPELLANT’S COUNSEL SUBMISSIONS
On his issue two, learned counsel for the Appellant had submitted that on the pleading and evidence led by the parties as to their respective roots of title to the land in dispute, since both parties are ad idem that the 1st Defendant was the original owner of the land in dispute having acquired same from Ibie Community, the only question is whether in 1977 the 1st Defendant actually made a gift intervivos to her eldest son Akimu Charles Momodu, the vendor to the Appellant and contended that from the evidence of Appellant and his witnesses, it was proved as required by law that the 1st Defendant made a gift intervivos of the land in dispute to the vendor to the Appellant in 1977 and urged the Court to hold that in law when two person allege to derive title from a common vendor, it is the first in

time that gets the title since after the sale of the land to the first purchaser, there would be nothing left for the vendor to sell to the second purchaser and to set aside the perverse finding to the contrary by the Court below and allow the appeal. Counsel relied on Adike V. Obiareri (2002) 4 NWLR (Pt 758) 570 @ pp. 597 – 598: Alechenu V. Oshoke (2002) 9 NWLR (Pt. 773) 521 @ p. 540.

It was also submitted that the 1st Defendant having divested herself of her interest in the land in dispute through a gift intervivos of same to her eldest son, the vendor to the Appellant in 1977 therefore, in law had no further interest to purportedly convey to the Respondent in 1994 and contended that in the circumstances as between the Appellant and the Respondent, the vendor to the Appellant had the better title to the land in dispute which he duly conveyed to the Appellant than the Respondent whose purported purchase of the same land in 1994 conferred no title on her and urged the Court to so hold and to allow the appeal and set aside the perverse finding of the Court below granting title to the Respondent.

It was further submitted that the evidence of DW2 was

wrongfully disbelieved and discountenanced by the Court below as she was credible in her evidence and disclosed that her own husband was her source of information as to the gift intervivos made of the land in dispute by the 1st Defendant to him and contended that the finding of the Court below that the evidence of DW2 was hearsay was perverse and urged the Court to hold that there was no basis to disbelieve the evidence of the DW2 and rather to disbelieve the materially contradictory evidence of the Respondent whose Exhibits A, B, C and D did not disclose that what she bought from the 1st Defendant and to allow the appeal and set aside the perverse findings of the Court below, dismiss the claims of the Respondent and grant the counter – claim of the Appellant against the Respondent.

RESPONDENT’S COUNSEL SUBMISSIONS
On issues one and two argued together, learned counsel for the Respondent had submitted that the question to be answered is whether having regard to the fact that both parties are ad idem the 1st Defendant, one Comfort Ahamioje was the original owner of the land in dispute, was the Appellant able to prove the title of his vendor – Akinu

Charles Momodu from whom he purportedly derived his title and contended that on the strength of the evidence adduced, the Court below was right when it held that the Respondent led credible evidence in support of her title to the land in dispute, whilst disbelieving the unproved root of title of the Appellant and urged the Court to hold that as between the Respondent who bought the land in dispute in 1994 from the original owner and the Appellant who purportedly bought the same land in dispute in 2001 from the son of the original owner of the land, coupled with the failure of the Appellant to prove the fact of the purported gift intervivos of the land in dispute to his vendor, it was the Respondent that clearly, as found rightly by the Court below, proved her title to the land in dispute by purchase for the original owner of the land in dispute and to dismiss the appeal and affirm the judgment of the Court below. Counsel referred to Section 136 (1) and (2) of Evidence Act 2011.

It was also submitted that on the totality of the evidence led, it was clear that DW2 who only married the vendor to the Appellant in 1979 two years after the purported gift

intervivos of the land in dispute to her husband was not a witness capable of proving in law the existence of such a gift intervivos of the land in dispute which is the minimum requirement for the Appellant to prove his title as one derived from a person with title to convey to him and contended that in law the evidence of DW2 was inadmissible not merely on the basis of it being hearsay but by virtue of the provision of the Evidence Act 2011 and urged the Court to so hold and to dismiss the appeal and affirm the sound judgment of the Court below. Counsel referred to Section 132 of the Evidence Act 2011 and relied on INEC V. Oshiomole (2009) Vol. 174 LRCN 178 at 213.

It was further submitted that in law, once a party such as the Appellant pleads and traces his root of title to land in dispute to a particular person or source and the averment is challenged, he must satisfy the Court as to the title of the person or source from whom he claims his title and contended that the Appellant who had placed sole reliance on the title of his vendor, the deceased 3rd Defendant, as his root of title, failed miserably to prove how the title of his vendor as derived

from a gift intervivos of the land in dispute by his mother in 1977 and urged the Court to so hold and to dismiss the appeal for lacking in merit and affirm the sound judgment of the Court below granting title to the land in dispute to the Respondent and dismissing the bogus counter – claim of the Appellant to the title to the land in dispute. Counsel relied on Shadudu V Algaita (2006) 2 FWLR (Pt 317) 3261 @ p. 3280.

RESOLUTION OF ISSUES ONE AND TWO
My lords, issues one and two deal with the question of proof of title to the land in dispute as between the Appellant, whose root of title was traced to the title of his vendor as derived from a gift intervivos of the land in dispute from the 1st Defendant, the mother of the Appellant’s vendor, who is the undisputed original owner of the land in dispute and the Respondent, whose root of title was traced to a purchase from the undisputed original owner of the land in dispute. So, as between the Appellant and the Respondent, both of whom laid claim to the title to the land in dispute, proved his or her title to the land in dispute and was therefore entitled to a declaration of title to the land in

dispute, which the Court below granted to the Respondent?

In considering and answering the above pertinent questions on the pleadings and evidence as led by the parties as in the Record of Appeal and in the light of the findings of the Court below in the judgment appealed against, I bear in mind that generally in civil proceedings the burden of proof, though said not to be static, is on the Claimant who usually asserts his rights and who may lose if no evidence was called. Incidentally, in the instant appeal both the Respondent as Claimant and the Appellant as 2nd Defendant laid claim and counter – claim to the title to the land in dispute and were therefore, each under a duty to lead credible evidence in proof of the title they each claimed to the land in dispute. See Ewo V. Ani (2004) 3 NWLR (Pt. 861) 610; Osawaru V. Ezeiruka (1978) 7 – 9 SC 135. See also Onwuama V. Ezeokoli (2002) 94 LRCN 246; Enekwe V. IMB Ltd. 146 LRCN 842; Garuba V. Yahaya (2007) 145 LRCN 549.

My lords, it is the law that in a claim for declaration of title to land, a party claiming title to land must do so by proving with credible evidence one or more of the five methods of

proving title to land, namely: A. Evidence of traditional history of title; B. Production of genuine and valid documents of title: C. Acts of Ownership numerous enough: D. Acts of possession over a long period of time and E. Act of possession of adjacent land long enough to make it probable that the owner of the adjacent land is also the owner of the land in dispute. Thus, both the Appellant and the Respondent had open to them one or more of the above five methods to prove their title to the land in dispute. It is also the law that proof of any of one of these methods by credible evidence would be sufficient to ground an action for declaration of title to land. In Ezukwu V. Ukachukwu (2000) 1 NWLR (Pt 642) 657 @ p. 679 it was reiterated inter alia thus:
“A Claimant of title to land, of course need not rely on more than one of the five methods. No. Where, however, he relies on a pleaded method or way as a root of his title, then, if the pleaded root fails, the alleged acts of ownership or possession derivative of the root necessarily ought to fail. Why? Because the title or the root title needs must be, firstly established before the exercise of the

rights of ownership may exercisable…”
See also Idundun V. Okumagba (1976) 6 – 10 SC 48. See also Arum V. Nwobodo (2013) All FWLR (Pt. 688) 870 p. 893; Romaine V. Romaine (1992) NWLR (Pt. 238) 650.

1107) @ p. 262, the Supreme Court emphatically pronounced inter alia thus:
“A person who has title over a piece of land, though not in de – facto physical possession, is deemed, in law, to be the person in possession. This is because the law attaches possession to title and ascribes it to the person who has title. Such possession is the legal possession, which is sometimes also called constructive possession.”
See also Gankon V. Ugochukwu Chemical Ind. Ltd (1993) 6 NWLR (Pt. 297) 55; Grace Madu V. Dr. Betram Madu, (2008) 6 NWLR (Pt. 1083)319; Aromire V. Awoyemi (1972) 2 SC 1; Kareem V. Ogunde (1972) 1 SC 182.

the length of time of unlawful and or unauthorized entry and occupation of land, it cannot in law metamorphose or ripen into legal possession of the land. See Oyadare V. Chief Keji (supra) @ p. 571. See also Bennet Ude Agu V. Ozo Moses Nnadi (1999) 2 NWLR (Pt. 589) 131. See Ojomo V. Olaide Ibrahim (1999) 12 NWLR (Pt. 631) 415; Solomon V. Mogaji (1982) 11 SC 1.

My lords, since issues one and two for determination in this appeal question the conclusions reached by the Court below on the pleadings and evidence led by the parties, I intend to consider the totality of evidence as led by the parties and the findings of the Court below to look critically at the pieces of evidence to see if the Court below had properly appraised and adequately evaluated them or not in coming to its conclusions now being appealed against by the Appellant. In doing so, I bear in mind that in law unchallenged evidence is good evidence on which a Court should act to make findings of facts. See Nwabuoku V. Ottih (1961) 1 All NLR 487 @ p. 490. See alsoOdulaja V. Haddad (1973) 11 SC 357; Isaac Omoregbe V. Daniel Lawani (1980) 3 – 4 SC 108 @ p. 117.

Now, the case of the Respondent

as presented both in her pleadings and evidence, oral and documentary through herself, PW1 and PW2 was that she bought the land in dispute in 1994 from the 1st Defendant before the Court below together with uncompleted building on it. On 26/10/1994, one Mr. Basil Emenobu also known as Musa Braimoh took her to a plot of land containing a building partly roofed that was put on sale and her investigation showed that it belonged to the 1st Defendant from whom after negotiation and being satisfied of her title she bought the land in dispute at an agreed price of N140,000.00 which she paid over to the 1st Defendant in the presence of Mr. Basil Emoebu as well as one Solomon Ahamioje, a son of the 1st Defendant and one Alhaji Jafaru Braimah. Her evidence was corroborated in every material particulars by the evidence of PW1, Mr. Basil Emoebu, also known as Briamah Musa, and PW2, one Alhaji Jafaru Braimah. She tendered Exhibits A, B, C and D in evidence.

On his part, the case of the Appellant as presented both in his pleadings and evidence, oral and documentary through himself, DW1, one Adenoge Momodu, and DW2, one Mrs. Rose A. Akinu Momodu, was that the land in

dispute originally belonged to the 1st Defendant, also known as Ashetu, but was in 1977 gifted intervivos by her to her first son, Akinu Momodu, also known as Charles, the deceased 3rd Defendant and who in turn in 2001 sold the same to the Appellant for the sum of N1,300,000 in the presence of DW1. However, the vendor to the Appellant died in 2004 but was in his life a soldier and had in his life time told both DW1, his uncle and DW2, his wife since 1979, of the gift of the land in dispute intervivos to him by his mother the 1st Defendant, which gift was later reduced into writing. However, he also told DW1 that the 1st Defendant, his mother, had in 1994 purportedly sold his house without his consent. He tendered Exhibits E, F, F1, F2, G and H in evidence.

It was on the strength of the above respective cases of the parties that the Court below had on 19/4/2007, delivered its judgment granting some of the claims of the Respondent against the Appellant while dismissing the counter – claim of the Appellant against the Respondent. See pages 125 – 183 of the Record of Appeal.

My lords, in considering the evidence of the parties as led through their witnesses

and the findings of the Court below, I thought I should remind myself at once that in law evidence of a party which is unchallenged and uncontroverted by the adverse party is good evidence on which the Court should act. See Saipem SPA V. India Tefa (2001) FWLR (Pt. 74) 377 p. 394. See also Igbinovia V. Agboifo (2002) FWLR (Pt. 103) 505 @ p. 514.

There was ample evidence which the Court below believed that the Respondent purchased the land in dispute together with an uncompleted building on it from the 1st Defendant, the undisputed owner of the land in dispute in 1994 at the purchase price of N140,000.00 and was let into possession of the land in dispute and did exercised acts of both possession and ownership before the vendor to the Appellant went into the said land to complete the uncompleted building thereon and subsequently in 2001 sold the land in dispute together with the building thereon to the Appellant. Both DW1 and DW2 as well as the vendor to the Appellant, in his life time, did not deny ignorance of the sale of the land in dispute by the 1st Defendant to the Respondent but maintained that it the property of the vendor to the Appellant and could

not be validly sold in his absence by his mother, the 1st Defendant to the Respondent.

In the light of the above unchallenged pieces of evidence, the burden shifted unto the Appellant to prove by credible evidence the title of his vendor derived by way of gift intervivos from the 1st Defendant in 1977, from whom he claimed to have derived his title to the land in dispute. The evidence led by the Appellant through himself, DW1 and DW2, lacked any personal knowledge or witnessing of the alleged gift intervivos made of the land in dispute to his vendor by the 1st Defendant. Curiously, and indeed inexplicably, even the documentary evidence of the gift pleaded to be relied upon was nowhere produced and tendered in evidence by the Appellant.

It was on the above state of evidence that the Court below disbelieved the DW2 as to the existence of the alleged gift intervivos of the land in dispute by the 1st Defendant to the vendor to the Appellant, an event DW2 could not have witnessed when it was allegedly made in 1977 having only become married to the vendor to the Appellant in 1979. The Appellant had questioned the basis for the disbelief of the DW2 by the

Court below but having considered the totality of the oral evidence and the nature of gift intervivos in the absence of any document evidencing such transaction, I cannot but agree with the learned counsel for the Respondent that the Court below was perfectly in order and right to have disbelieved the evidence of DW2, as well as DW1, as regard the existence of any such gift intervivos of the land in dispute to the vendor of the Appellant by the 1st Defendant, to which none of them was a witness.

In the circumstances of the proved evidence therefore, the issue of which of the titles claimed as between the Appellant and the Respondent was first in time did not even arise at all. This is so because, the absence of any proof of the existence of the alleged gift intervivos of the land in dispute to the vendor to the Appellant, from whom the Appellant’s title allegedly derived, there is no proof of the root of title of the Appellant to compete with the unchallenged and impeccable title of the Respondent to the land in dispute. Thus, the purported sale in 2001 of the land in dispute by the vendor of the Appellant to the Appellant was one done without any color

of right and therefore, in futility and of no effect whatsoever in law on the face of the subsisting valid and better title of the Respondent to the land in dispute.

Thus, without the vital documentary evidence of the gift or the minimum requirement of eye witness evidence of the gift intervivos, and delivery of possession of the land in dispute in 1977 to the Appellant by the 1st Defendant. Exhibits E, F, F1, F2, G and H of the Appellant alone, even if they were all admissible in evidence, but of which Exhibits F, F1 and F2 were not, they all pall into insignificance on the face of Exhibits A, B, C and D of the Respondent, which taken together clearly and credibly established a far better and valid title in the Respondent to the land in dispute as correctly found as fact the Court below. See paragraph 7 of the Amended Statement of Defense/Counterclaim, where it was averred as follows:
“1st Defendant divided the said land into two equal halves and she and her husband developed one half of the land by building a house thereon. The 1st Defendant assigned by way of a gift or grant intervivos to her first son Akinu Charles Momodu, the other half measuring

50 feet by 100 feet in 1977; a document evidencing the gift was drawn up and is hereby pleaded.”

Regrettably, having pleaded as above, the Appellant failed, throughout the proceedings, to tender the document evidencing the gift of the land to his vendor, Akinu Charles Momodu as was specifically pleaded by him. The only pieces of evidence on the issue was the evidence of DW1 and DW2 who did not witness the event of the gift of the land in dispute to the vendor to the Appellant by the 1st Defendant, his mother in 1977 but who only claimed they were told so by the deceased 3rd Defendant, the vendor to the Appellant.

In law, once a party such as the Appellant pleads and traces his root of title to land in dispute to a particular person or source and the averment is challenged, he must satisfy the Court as to the title of the person or source from whom he claims his title, which duty the Appellant failed to discharge. See Section 136 (1) and (2) of Evidence Act 2011. See also Shadudu V Algaita (2006) 2 FWLR (Pt. 317) 3261 @ p. 3280.

My lords, it is the law that a gift of interest in land must either be backed with written document or evidence of

witnesses and delivery of possession of the land in cases of customary law gift. This is the sure way to sustain and prove its validity in the event of any challenged to its validity. It is therefore the duty of a beneficiary of the gift to prove the existence of such gift by producing the document evidencing such gift or by evidence of witnesses to the making of the gift intervivos.
It is clear therefore, the law that to prove gift of land intervivos, there must be evidence of actual handing over of the land and acceptance thereof in the presence of witnesses, a requirement of law which the Appellant failed woefully to satisfy and therefore rendered his claim of gift of the land in dispute to his vendor by the 1st Defendant bare and unproved. In ‘Nigerian Land Law’ (1992) Nwamife Publishers Ltd, Enugu @ pp. 367 – 369, the learned Author had stated inter alia thus:
“Customary law requires no writing for the transfer of land whether upon sale or by way of gift. In lieu of writing, however, there must be actual handing over of the land to the donee in the presence of witnesses and an acceptance by him of the gift. Acceptance is as much as

customary lay as the delivery of possession in the presence of witnesses; without it the gift is invalid, such acceptance must be made with as much publicity as possible. …Actual delivery is not mere evidence of the gift but is part of the gift itself.”
See also Fredrick Chibuzor & Anor V. Peter Chibuzor (2018) LPELR-46305(CA); Madam Alice Orido V. Theophilus Akinlolu (2012) LPELR-7887(CA); Ayinke V. Ibidunni (1959) 4 FSC 280 @ P. 282; Olajide V. Akinboboye (2018) LPELR – 46166 (CA); Mbonu & Ors V. Nwagbara & Ors (2018) LPELR – 44711(CA).

My lords, in law it is only when there are competing valid but equitable interest, that estates and interest primarily rank in the order of creation, Qui prior est tempore potior est jure; meaning ‘he who is earlier in time is stronger in law.’ Thus where there are competing equitable interests the general rule of equity is that the person whose equity attached to the property first be entitled to priority over the other. Where therefore, the equities are equal and neither Claimant has the legal estate, then the first in time prevails. In Ogunameh V. Adebayo (2008) 25 WRN 1 @ p. 190.

See also Frank Anyi & Ors V. Chief Harry Akande & Ors (2017) LPELR – 41973 (CA), per Georgewill JCA.

On the whole therefore, on the totality of the evidence led by the parties, as in the Record of Appeal, it is my firm view and I so hold that the findings by the Court below arrived at after a very dispassionate evaluation of the entirety of the evidence as led by both sides and correctly finding preponderance and belief in the Respondent’s case than the case of the Appellant. These findings do flow from the proved evidence before the Court below. The Appellant was without any colour of valid right or title to the land and so also was his vendor without any colour of right over the land in dispute to convey to the Appellant, but had gone unto the land to complete the uncompleted buildings thereon without the protection of the law. In law, such mere occupation or even illegal possession by both the vendor to the Appellant as well as the Appellant constitute at best trespass at the suit of the person with a better title, such as the Respondent, and thus pales into insignificance once the person with a better title appears on the scene. See Gankon V. Ugochukwu Chemical Ind. Ltd (1993) 6 NWLR (Pt. 297) 55.

See also Shogo V. Adebayo (2000) 4 NWLR (Pt 686) 121: Ezeanah V. Atta (2004) 7 NWLR (Pt. 873) 468.
In the circumstances therefore, having held that the Court below was right when it held that the vendor to the Appellant had no title to convey and validly confer on the Appellant over the land in dispute, the law is that the attempt to convey the land in dispute together with the buildings thereon by the 3rd Defendant in 2001 to the Appellant was clearly an exercise in futility and therefore, in law not only futile but amounts to a nullity and of no legal effect whatsoever. The law is and has always been “Nemo dat quid no habet”, meaning one cannot give out what he does not have. See Kari V. Ganaram (1997) 2 NWLR (Pt. 488) 400 @ p. 403, where Iguh JSC., had pronounced with emphasis inter alia thus:
“It cannot be doubted that with Exhibit A being valid title in favor of the Appellant, Exhibit Y, which was created subsequently by a common grantor in respect of the same piece or parcel of land cannot be a valid grant.”
See also Okelola V. Adeleke (2004) 13 NWLR (Pt. 890) 307 @ pp. 323 – 324.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>

Now, this is one of those cases that brings to the fore and continues to reinforce the land law principle well settled over hundreds of years ago that a buyer must beware ‘caveat emptor’ in order to avoid the unpleasant consequences of buying nothing but a law suit and an empty worthless document of title incapable of vesting on the buyer any known right, whether legal or equitable, on the land the subject of such bogus purchase.
The law going by the Latin maxim is ‘quid quid platatur solo solo cedit’ meaning whatever is affixed to the land belongs to the land owner. The Court below was therefore, right when it awarded the land in dispute along with the buildings thereon to the Respondent as claimed by the Respondent. See Adejumo V. Olawaiye (2014) 31 WRN 30 @ p. 38.

In the light of all I have found and said above, issues one and two for determination are hereby resolved against the Appellant in favour of the Respondent.

On the whole therefore, having resolved issues one, two and three against the Appellant in favour of the Respondent, I hold firmly that this appeal is devoid of any iota of merit and therefore, liable to be dismissed

in its entirety. Consequently, it is hereby so dismissed.

In the result, the Judgment of the High Court of Edo State, Auchi Judicial Division, Coram: F. S. Erhonsele J, in Suit No. HAU/8/2002: Hajia Kuburatu Ibrahim V. Comfort Ahamioje &Ors delivered on 19/4/2007, in which some of the claims of the Respondent as Claimants against the Respondent as 2nd Defendant and the 1st Defendant before the Court below were granted is hereby affirmed.
There shall be cost of N200,000 against the Appellant in favor of the Respondent.

OYEBISI FOLAYEMI OMOLEYE, J.C.A.: I had the privilege of reading the draft of the leading judgment, in this appeal, just delivered by my learned brother B.A. Georgewill, JCA. I am at one with his Lordship’s line of reasoning and the conclusion reached by him that the appeal is totally devoid of merit.

To lend credence to the said leading judgment, I have the following few words. The background facts relevant to the appeal are as clearly set out in the leading judgment.

Issue number one in the Appellant’s brief of argument is synoptical and strongly similar to issue number three in the Respondent’s brief of

argument. The latter has been adopted for the resolution of the appeal in the leading judgment. On the issue, it is the general principle of law that a Judge has no power to expunge a document he has admitted in evidence as an exhibit, except of course the document is in law inadmissible, thereby making the original decision of the Judge to admit the document in evidence null and void “ab initio”. Way back in the case of: The British India General Insurance Company Nig. Ltd V. Thawardas (1978) LPELR-3165, the Supreme Court held that: “It is of course the duty of Counsel to object to inadmissible evidence and the duty of the trial Court any way to refuse to admit inadmissible evidence, but if notwithstanding this evidence is still through oversight or otherwise admitted, then it is the duty of the Court when it comes to give judgment, to treat the inadmissible evidence as if it had never been admitted”.
In the instant matter, the purported certification of the public documents Exhibits F, F1 and F2 as sought to be proved by Exhibit H was done in defiance of the provision of Section 104 (1) of the Evidence Act, 2011, payment of the required legal fees not

having been made prior to the said certification. Payment of the required legal fees is a pre-condition for the certification of public documents save there is an exemption duly applied for and granted. There is no evidence of any such exemption in this case. What this means is that Exhibits F, F1, and F2 were rendered inadmissible in evidence. This is notwithstanding that the Respondent’s Counsel failed, either ignorantly or deliberately to object to the admissibility of the documents and the trial Court equally misconceived the well-established legal principle in this respect by admitting the said documents at the point they were sought to be tendered in evidence. Be that as it may, the law has made a way of escape to correct and make good such an error of law admitting in evidence inadmissible material for whatever reason. That is, the trial Court when giving judgment has the legally bounding duty to treat the inadmissible evidence as though it had never been admitted, as such evidence must not be considered in the determination of the action. See the cases of: (1) The British India General Insurance Company (Nig.) Ltd. V. Thawardas (Supra); (2) Ayanwale & Ors. v. Atanda & Anor (1988) LPELR- 671 (SC);

(3) Shanu v. Afribank Nig. Plc (2002) 17 NWLR (Pt. 795) p. 185; (4) Nwabuoku & Ors. v. Onwordi & Ors. (2006) 5 SC (Pt. III) p. 103 and (5) Kubor & Anor. v. Dickson & Ors. (2013) 4 NWLR (Pt. 1345) p.534.
The learned trial Judge having found at the time he was writing the judgment under scrutiny that Exhibits F, F1 and F2 are inadmissible but wrongly admitted in evidence, properly expunged the said exhibits. Had he failed to do so, this Court and indeed the Apex Court are equally in the position and entitled to expunge the exhibits even on appeal- see the cases of: (1) Ayanwale & Ors. v. Atanda & Anor (Supra); (2) Nwanji v. Coastal Services Nigeria Ltd. (2004) LPELR- 2106 (SC); (3) Ntuks & Ors. v. Nigerian Ports Authority (2007) 13 NWLR (Pt 1061) p.372 and (4) UBN Plc v. Ajabule (2011) LPELR- 8239 (SC).

Contrary to the misconception of and the proposition made for the Appellant by his Counsel, what the trial Court did, and rightly so, was to expunge the improperly admitted Exhibits F, F1, F2 and by extension Exhibit H from its record and it proceeded to decide the

parties’ respective claim and counter-claim on the remaining properly and legally admissible evidence presented by the parties. In my humble but firm view, the findings and conclusions of the trial Court were based on the other evidence adduced before it by the parties. There is no question in my mind that, the evidence presented by the Respondent in his bid to establish his case was irresistibly cogent, uncontroverted by the Appellant and properly accepted by the trial Court. On the contrary the averments of the Appellant in his counter- claim are quite bare, as they were not buttressed by any tangible evidence, oral or documentary, to establish the root of his alleged title to the property in dispute. The law is well-settled that pleadings do not constitute evidence. Parties are therefore under a burden to establish their claim and counter-claim, as the case may be, by cogent and credible evidence. In the case of: A.C.B. Plc & Anor. v. Emostrade Ltd. (2002) LPELR-207, the Apex Court per Uwaifo, J.S.C (Rtd.) succinctly stated that: “It is a fundamental procedural requirement that when issues are joined on the pleadings, evidence is needed to prove them.

It is the person upon whom the burden of establishing that issue lies that must adduce satisfactory evidence. When there is no such evidence, the issue must be resolved against him and the consequences of that are as decisive of the case presented as the materiality of that issue”. See also that cases of: (1) Odonigi v. Oyeleke (2001) LPELR-2230 (SC); (2) Ezemba v. Ibeneme & Ors. (2004) 14 NWLR (Pt. 894) p.617 and (3) Akande v. Adisa & Anor (2012) LPELR-7807 (SC). In the instant case, the Appellant woefully failed to establish his root of title, either legal or equitable, by any jot of evidence, oral or documentary. Although the Appellant pleaded that the property in dispute was a gift to his vendor by the vendor’s mother and this was allegedly documented. The said mother of the vendor who incidentally was a co-defendant in the case, failed to show up at trial to testify in validation of the claim and the alleged document attesting the gift was also not tendered in evidence.

For the above stated reasons and the very elaborate elucidations contained in the leading judgment, I find the judgment of the trial Court in this matter unassailable. The

learned trial Judge’s reasons as discerned from the judgment are crystal clear and lead reasonably to the conclusion arrived at by him. I therefore also hold that the appeal is bereft of merit and dismiss it accordingly.
I equally abide by all the consequential orders contained in the leading judgment including that of costs.

FREDERICK OZIAKPONO OHO, J.C.A.: I had the opportunity of reading the draft of the judgment just delivered by my learned Brother, SIR BIOBELE ABRAHAM GEORGEWILL, JCA and I am in agreement with the reasoning and conclusions in dismissing this Appeal as completely lacking in merit. While I also subscribe to the consequential orders made thereto, I wish to briefly comment on the controversy generated by the lower Court’s decision in expunging Exhibits F, F1 and F2 tendered by the Appellant in the course of proceedings thereat.

It will be recalled that the said Exhibits F, F1 and F2 are all public documents anchored on Exhibit H, which is the payment receipt for the Certification said to have been done by the Appellant. However, upon a close observation, and as observed by the Court below and in the lucid and well articulated

lead judgment of my learned Brother, there does not seem to be any plausible explanations made as to why Exhibits F, F1 and F2 were endorsed to be certified on the 16th day of January, 2007, while Exhibit H, which is the Revenue receipt for the payment of the certifications of these three (3) documents as prescribed by the law, is differently dated and issued on the 17th day of January, 2007.

In agreement with the lead judgment, in the absence of any endorsement on the face of Exhibits F, F1 and F2 of any fees paid for their certification, I too hereby hold and find that the said Exhibits, to borrow the language of my learned Brother, are clearly “in want of due compliance” in accordance with the provision of Section 104(1) of the Evidence Act, 2011 as Amended.
Against the backdrop of the foregoing, I hereby find once again and do hold that in the absence of any plausible explanations made by the Appellants for the failure to have paid for the requisite certification fees contemporaneously with the certification of the said Exhibits, therefore amounts to a negation of the mandatory provisions of Section 104(1) of the Evidence Act, 2011 as amended.

Once again, I abide by the consequential orders made in the lead judgment and agree that the Appeal is lacking in merit.

Appearances:

B. Uade, Esq. For Appellant(s)

Mrs. Eva Osamuyi Musoe, holding the brief of S. K. Mokidi, Esq. For Respondent(s)