MR. AUGUSTINE OGBAJI v. MRS. MARTHA TERNGUVAN UTAHILE & ORS (2019)

MR. AUGUSTINE OGBAJI v. MRS. MARTHA TERNGUVAN UTAHILE & ORS

(2019)LCN/12933(CA)

In The Court of Appeal of Nigeria

On Thursday, the 28th day of March, 2019

CA/MK/78/2014

RATIO

LAND LAW: A PERSON CLAIMING DECLARATION OF TITLE TO LAND MUST PROVE BY EVIDENCE THAT HE IS ENTITKED TO THE LAND

It is the well-established position of the law that any person claiming a declaration of title to land must prove by evidence that he is entitled to the declaration he seeks; Mbadinuju v. Ezuka (1994) 8 NWLR (Pt. 364) 535 S.C; Umesie v. Onuaguluchi (1995) 9 NWLR (PT. 421), (1995) LPELR-3368(SC); Kazeem v. Mosaku (2007) 2 S.C. 22; Olodo v. Josiah (2010) 18 NWLR (PT 1225) 653.PER ONYEKACHI AJA OTISI, J.C.A.

5 WAYS TO PROVE TITLE TO LAND

As was submitted by the Appellant, fundamental legal prerequisites to prove title to land have been well articulated by the Courts, with a foremost authority found in the case of Idundun v. Okumagba (supra) wherein the Supreme Court prescribed five ways of proving title to land thus:
1. By traditional evidence
2. By various acts of ownership numerous and positive and extending over a length of time as to warrant the inference of ownership.
3. By production of title documents
4. By acts of lawful enjoyment and possession of the land;
5. By proof of possession of adjacent land in circumstances which render it probable that the owner of such land would in addition be the owner of the other land.
See also: Mogaji v. Cadbury Nigeria Ltd (1985) NWLR (PT 7) 393, (1985) LPELR-1889(SC); Irolo v. Uka (2002) 14 NWLR (PT 786) 195. A claimant must plead and prove any of these five different ways of proving ownership of land, though he need not plead and prove more than one of these ways; Biariko v Edeh-Ogwuile (2001) 12 NWLR (PT 726) 235; Olubodun v. Lawal (2008) 6-7 S.C. (PT 1) 1; Yusuf v. Adegoke (2007) 6 S.C. (PT 1) 126; Balogun v Akanji (1988) 2 S.C. 199.PER ONYEKACHI AJA OTISI, J.C.A.

LAND LAW: WHETHERONE SINGLE ROOT OF TITLE IS SUFFIECIENT TO SUSTAIN A CLAIMANT’S CLAIM
Proof of one single root of title is sufficient to sustain the claimants claim for declaration of title to land; Onwugbufor v. Okoye (1996) 1 NWLR (PT 424) 252; Olagunju v. Adesoye (2009) 9 NWLR (PT 1146) 225.PER ONYEKACHI AJA OTISI, J.C.A.

LAND LAW: THE PLAINTIFF IN PROVING TITLE MUST RELY OF THE STRENGHT OF HIS CASE AND NOT THE WEAKNESS OF THE DEFENDANT’S CASE
In proving title, he must rely on the strength of his case and not on the weakness of the defence; Oje v Babalola (1991) 4 NWLR (PT 185) 267; Bello v Eweka (1981) NSCC 48; Kazeem v Mosaku (2007) 2 S.C. 22; Echi v Nnamani (2000) 5 S.C. 62; Eze v Atasie (2000) 6 S.C. (PT 1) 214. PER ONYEKACHI AJA OTISI, J.C.A.

LAND LAW: EXCEPTION TO THE RULE THAT THE PLAINTIFF IN PROVING TITLE MUST RELY OF THE STRENGHT OF HIS CASE AND NOT THE WEAKNESS OF THE DEFENDANT’S CASE

The only exception to this position is that a plaintiff may quite perfectly take advantage of those facts in the case of the defence which support his claims;Buraimoh v. Bamgbose (1989) LPELR-818(SC), (1989) ALL NLR 669; Oduaran v. Asarah (1972) 5 S.C. (REPRINT) 173, (1972) LPELR-2233(SC). The party that is able to prove title to land in issue is deserving of judgment.PER ONYEKACHI AJA OTISI, J.C.A.

JUSTICES

JOSEPH TINE TUR Justice of The Court of Appeal of Nigeria

ONYEKACHI AJA OTISI Justice of The Court of Appeal of Nigeria

JOSEPH EYO EKANEM Justice of The Court of Appeal of Nigeria

Between

MR. AUGUSTINE OGBAJI Appellant(s)

AND

1. MRS. MARTHA TERNGUVAN UTAHILE
2. MINISTRY OF LANDS & SURVEY, BENUE STATE
3. ATTORNEY GENERAL & COMMISSIONER FOR JUSTICE, BENUE STATE Respondent(s)

ONYEKACHI AJA OTISI, J.C.A. (Delivering the Leading Judgment): One Baba Hywaku Adanyi, now deceased, and the 1st Respondent as 1st and 2nd plaintiffs, instituted Suit MHC/353/2012 leading to this appeal, before the High Court of Benue State, sitting at Makurdi, against the Appellant, as 1st defendant, and the 2nd and 3rd Respondents as 2nd and 4th defendants respectively.

The case of the plaintiffs at the trial Court was that over fifty years ago, the now deceased 1st plaintiff, Baba Hywaku Adanyi, founded, settled on and owned a vast parcel of land, including the plot now in dispute, situate behind the present Benue State Civil Service Commission, Makurdi. According to the plaintiffs, sometime in the year 1988 upon the 1st plaintiff?s request, the 2nd Respondent herein, surveyed and plotted the said vast parcel of land founded by the deceased 1st plaintiff. In 1992, the deceased 1st plaintiff sold the plot now in dispute to the 1st Respondent. The 1st Respondent developed the said plot and put tenants therein. The plaintiffs at the trial Court had alleged that in 2003, the building thereon was demolished by the Benue State

Urban Development Board at the instance of the Appellant herein. Upon the said demolition of the building, the plaintiffs lodged a complaint to the 2nd Respondent. The 2nd Respondent looked into the dispute and decided that compensation should be paid to the 1st Respondent by the Appellant. The Appellant however refused to pay the said compensation, upon which the plaintiffs jointly instituted Suit No. MHC/353/2012 against them.

?The Appellant?s defence to the case of the plaintiffs was that ownership of the disputed land resided in him by virtue of the grant of a Right of Occupancy and Certificate of Occupancy No. BNA 1928, Exhibits D and D1, by the 2nd Respondent on 27/05/1991, upon his application, which was made in 1987. The said piece of land was at the time free from any encumbrances as the plot was undeveloped, not occupied or committed to any other person. The Appellant immediately took possession of the disputed land by planting some economic trees thereon unhindered and had been paying ground rents on the said parcel of land in dispute. In 2002, the Appellant noticed some level of development on his land and reported the matter to the 2nd

Respondent upon which a stop notice was issued. The Appellant also reported this development to the Benue State Urban Development Board which found that the development on that piece of land was illegal and demolished same. Upon the demolition, the deceased 1st plaintiff wrote a letter of complaint to the 2nd Respondent. The Appellant?s position was that the 2nd Respondent took a unilateral decision that the Appellant should pay for the demolition, which was unacceptable to him. The Appellant also filed a Counter-Claim, relying on the grant by the 2nd Respondent to claim title to the disputed land.

The defence of the 2nd and 3rd Respondents was that the Benue State Government acquired the whole of the land comprised in the area of the disputed land and allocated to individuals and in particular allocated the disputed plot of land to the Appellant.

?At the conclusion of hearing, the lower Court gave judgment in favour of the 1st Respondent on 23/12/2013 in which it granted the reliefs sought by the 1st Respondent and dismissed the Appellant?s Counter-Claim for being unmeritorious. Dissatisfied by the said judgment, the Appellant lodged this

appeal on 28/1/2014, pages 360 ? 364 of the Record of Appeal. An Amended Notice of Appeal on three grounds of appeal was filed on 16/10/2015 but deemed properly filed and served on 12/4/2016.

The parties exchanged Briefs of Argument pursuant to the Rules of Court. At the hearing of this appeal on 21/1/2019, A.O. Aruta, Esq., with D. A. Awuru, Esq., and N.K. Ucheji, Esq. adopted the Amended Appellant?s Brief filed on 16/10/2015 but deemed properly filed and served on 12/4/2016 and Reply Brief filed on 5/4/2017. The Court was urged to allow the appeal. Bem T. Hanaze, Esq., adopted the 1st Respondent?s Brief filed on 21/9/2016 but deemed on 22/3/2017. Mr. Hamaze urged the Court to dismiss the appeal. S.T. Sokpo, Esq., who appeared for the 2nd and 3rd Respondents, informed the Court that they did not intend to contest the appeal and had filed no Brief.

?The Appellant formulated three Issues for determination of this appeal from the three grounds of appeal, as follows:
1. Whether the learned trial Judge properly evaluate the evidence before it in resolving who as between the 1st Respondent and the Appellant has proved his or her

case to be entitled to judgment of the lower Court. (ground one).
2. Whether the learned trial Judge erred in law when it relied heavily on the evidence of DW1 under cross-examination that the 1st plaintiff was the customary owner of the land in dispute. (ground two).
3. Whether the learned trial Judge misdirected himself when it held that it is equally important that the 1st Plaintiff?s evidence that the land in issue formed a part of a larger land that he had developed and occupied was not challenged under cross examination or discredited. (ground three).

The 1st Respondent adopted the issues as formulated by the Appellant. These issues are all geared toward a determination of whether it was the Appellant or the 1st Respondent who proved title to the land in dispute. In that direction, I shall determine all the said issues as framed, together.

Learned Counsel for the Appellant cited and relied on a long line of authorities, including the case of Idundun v. Okumagba (1976) 9-10 SC 227, where the five methods of proving title to land were pronounced. The 1st Respondent sought declaration of title to the land in dispute relying on the

customary title of the deceased 1st plaintiff while the Appellant in his counter claim relying on the title document granted to him by the 2nd Respondent. It was submitted that where a party relies on traditional history to prove customary title of disputed land, as the 1st Respondent had done in the instant case, the party must as part of history, adduce evidence of how his title was derived, facts relating to the founding of the land, the person who founded the land and exercised original acts of possession, the person or persons on whom the title in respect of the land devolved since the first founding and how subsequently the land devolved on the party relating to traditional history. Reliance was placed on a number of cases, including: Nruamah v Ebuzoeme (2007) ALL FWLR (PT. 347) 738-739; Oko v Okenwa (2010) 3 NWLR (PT. 1181) 406. The evidence must be led systematically in support of the history without leaving gaps, relying on Ajagbe & Ors v Mustafa Oyekola & Anor (2013) LPELR- 19840. It was contended that the 1st Respondent in the instant appeal had failed to prove the traditional title to the disputed land with credible evidence as required.

The 1st plaintiff who would have clarified how he founded the land gave no evidence. His written depositions were rejected as he never adopted them as evidence in support of his pleadings. The requirements constituting proof of traditional title were not established. The Court was urged to hold that from the available evidence before the lower Court there was no existing right on the disputed land before the Appellant was granted title over the parcel of land in issue. The land was dormant and free from all charges and encumbrances as at the time the Right of Occupancy and Certificate of Occupancy No. BNA 1928, Exhibits D and D1, were granted to the Appellant. It was submitted that the learned trial Judge relied on the pleadings of the 1st plaintiff which do not constitute evidence; the parties have a duty to lead evidence during trial in support of their respective pleadings. The cases of Punch (Nig.) Limited v Jumsum (Nig.) Limited (2011) ALL FWLR (PT. 567) 786; Buhari v INEC (2008) 19 NWLR (PT. 1120) 264 at 412; Nzeribe v Anyim (2009) ALL FWLR WLR (PT. 488) 378 at 364 were cited and relied upon. The Court was urged to hold that the 1st Respondent did not

prove her case as there was no evidence in proof of the alleged customary title of the then 1st plaintiff. In land matters the burden is on the 1st Respondent who pleads title to land to prove that title, relying on Section 133 (1) of the Evidence Act, 2011, Olowoyo v Ojo (2012) All FWLR (PT.628) 882-883. It was submitted that this burden was not discharged to warrant the lower Court to give judgment to the 1st Respondent. The plaintiff must succeed on the strength of his case and not the weakness of the defence; citing Balogun v Yusuff (2011) All FWLR (PT 594) 77; Olowoyo v Ojo (supra). It was further submitted that Exhibits A, A1 – A15 tendered by the 1st Respondent as PW1 had no evidential value. It was contended that the deceased 1st plaintiff had no legal or equitable interest in the disputed property to give to the 1st Respondent as at the time Exhibit A, evidencing a sale transaction, was issued. One cannot give what he does not have; citing Ajoku v. Att.-Gen., Rivers State (2006) ALL FWLR (Pt.312) 2147 at 2164. It was further argued that Exhibit A does not qualify as the sales agreement because it offends Sections 4 and 5 of the Land Instruments

(Preparation) CAP 87 Laws of Benue State (2004). Exhibit A reveals that the 1st Respondent only acted as a 2nd witness to the transaction not the buyer. The signature of the buyer is quite different from that of the 1st Respondent. The Court was urged to hold that the lower Court ought to have expunged Exhibits A, A1 – A15 as they were not relevant to the land in dispute. Olowoyo v Ojo (supra) was relied on.

In order to prove his counter claim, the Appellant relied on Exhibits D and D1 which are title documents in respect of the land in dispute. It was argued that the documents were genuine and valid. The standard of proof required of the Appellant was proof on the preponderance of evidence or balance of probabilities, relying on authorities including: Momoh v Umoru (2011) ALL FWLR (PT. 588) 842. A party who derives his title from a competent source will have a better title than the other claimant; relying on Boye Ind. Ltd v. Sowemimo (2010) ALL FWLR (pt. 521) 1462 at 1465. It was argued that the Appellant took possession of the disputed land immediately after the allocation. The land was unoccupied and vacant, and within Makurdi Urban Area. By

virtue of Section 2 (1) (a) of the Land Use Act, 1978, the disputed land was under the control and management of the State Governor who lawfully issued Exhibits D and D1 pursuant to Section 5 of the Land Use Act. The Court was urged to hold that there was no existing right on the disputed land before the Appellant was granted title over the disputed land and commenced development of same in 1990. A person who is granted a valid Certificate of Occupancy over a piece of land holds same to the exclusion of all others. The Court was urged to hold that the Appellant had proved the reliefs sought. A Court can rely on unchallenged evidence and act on same as proof of facts before it, relying on Adekola v Ailara (2011) ALL FWLR (PT. 572) 1730.

It was further submitted that the findings of the trial Court were perverse as they were not made upon any credible and admissible evidence on record to prove the 1st Respondent?s title to the land in dispute. The lower Court relied on evidence of the then 1st plaintiff, which he never adopted as evidence before the lower Court. The lower Court also relied on evidence of DW1 on facts not pleaded. It was submitted that

the lower Court had failed to properly evaluate the evidence before it in resolving who between the Appellant and the 1st Respondent had proved his or her case to be entitled to the judgment of the lower Court. The Appellant by the decision of the trial Court had suffered a grave miscarriage of justice, leading to this appeal.

In response, for the 1st Respondent, it was submitted that the learned trial Judge had properly evaluated the evidence that was adduced before him in deciding that the 1st Respondent had proved her case and was entitled to the judgment of the Court. Civil suits are decided on the balance of probabilities and or the preponderance of evidence; relying on Section 134 of the Evidence Act, 2011 and the case of Osuji v. Ekeocha (2009) ALL FWLR (PT. 490) 614 at 643. The evidence of the 1st Respondent was that the deceased 1st plaintiff founded a vast parcel of land situate behind the Benue State Civil Service Commission, Makurdi, which he had surveyed and plotted sometime in 1988. A plot of the land was sold to the 1st Respondent in 1992. Exhibit A evidenced the sale transaction. Other plots of land from the same parcel of land were sold to several

other persons, documents evidencing the sale transactions were marked Exhibits A12 and A13. Before the Court below, it was not in dispute that the 1st Respondent acquired interest in the disputed plot of land through a purchase from the late 1st plaintiff. It was argued that oral and documentary evidence adduced by the 1st Respondent and admitted by the 2nd and 3rd Respondents established that the late 1st plaintiff founded and held the disputed plot of land and other plots of land connected and adjacent to it. The Appellant gave no evidence in challenge of the traditional history. The late 1st plaintiff?s customary ownership of the disputed land was admitted by the 2nd and 3rd Respondents? witness under cross examination. It was submitted that once it is proved or admitted that the original title vests in one of the parties, the burden of proving that the party has been divested of the ownership rests on the party who asserts that the party has been divested; relying on Oyovbiare & Ors v. Omamurhamu (1999) 7 SCNJ 60 at 69. The 1st Respondent adduced evidence that she developed the disputed plot of land by building a three-bedroom flat on it

and was in active and quiet possession of same until 2003. The Appellant who alleged that he was allocated the plot of land since the year 1991 only appeared on the land in the year 2003 when the 1st Respondent had developed and was already occupying the disputed plot of land. The 1st Respondent also adduced evidence that she erected a dwarf fence on the southern part of the disputed land to stop water from destroying the foundation of her house. The Appellant corroborated the 1st Respondent?s evidence when he testified under cross examination that:
?I saw a structure on the land when I went to it in 2003?. there is presently a dwarf fence on one side of the land;

It was submitted that in view of the evidence adduced before the Court below by the 1st Respondent and materially corroborated in relevant aspects by the Appellant himself and the 2nd and 3rd Respondents, it was well established before the Court below that the 1st Respondent purchased the disputed plot of land from the 1st plaintiff, who had original title thereto, and took possession of same before the Appellant later appeared at the scene. The evidence

that the deceased 1st plaintiff had sold plots of land adjacent and connected to the plot of land in dispute was not challenged. Proof of ownership of plots of land connected to or adjacent the disputed plot of land is a known means of proving title to a plot of land in dispute, citing Idundun v. Okumagba (supra), also relied upon by the Appellant. It was submitted that the lower Court properly evaluated the evidence adduced before the Court and reached a correct decision in finding and holding that the 1st Respondent proved a better title to the disputed land than the Appellant.

In response to the Appellant?s reliance on Exhibits D and D1, it was contended that a document of title does not automatically entitle a party armed with it to ownership of land; citing and relying on Otukpo v. John (2012) 3 SCNJ 119; Ilona v. Idakwo (2003) 112 LRCN 2320. The production of and reliance on a Right or Certificate of Occupancy is not conclusive proof of title to the plot of land covered in the document. It was submitted that the party producing and relying on such document or instrument would need to prove that: (i) the document is genuine and valid;

(ii) the document is duly stamped and executed; (iii) that the grantor had the capacity and authority to make the grant; (iv) that the grantor had in fact what he purported to grant and (v) that the grant has the effect is claimed by its holder. The cases of Romaine v. Romaine (1992) 4 NWLR (PT. 923) 181; Olaniyan v. Fatoki (2013) 17 NWLR (PT. 1384) 447 were cited and relied upon. It was argued that the obligation on the Appellant to prove that the 2nd Respondent had title over the disputed plot of land to grant the Appellant a right or certificate of occupancy over same was not discharged. The 2nd and 3rd Respondents had in their Joint Statement of Defence pleaded that the Benue State Government acquired the disputed plot of land and allocated same to the Appellant. In their Reply to the Joint Statement of Defence of the 2nd ? 4th Defendants, the 1st Respondent and the deceased 1st plaintiff denied the acquisition of the disputed plot of land by the 2nd Respondent or any person. It was contended that the allegation of the Appellant that the disputed plot of land was unoccupied when it was allocated to him was contradicted by the 2nd and 3rd Respondents?

averments that the disputed plot of land was acquired. The 1st Respondent?s Counsel posited that acquisition depicts a prior occupation and or ownership of the subject matter. In spite of the strong denial of the 2nd Respondent?s claim of acquisition of the disputed plot of land, the 2nd Respondent did not produce any documentary or direct oral evidence to prove the alleged acquisition. Reliance was placed on the decision of S.O. Adole v. Boniface B. Gwar (2008) LPELR SC 302/2002; (2008) 11 NWLR (PT.1099) 562; (2008) 34 NSCQR PT. 1 543 in contending that the 2nd and 3rd Respondents? claim of acquisition of the disputed plot of land was not proved as required by law. The claim was vague and filled with unanswered questions such as: from whom was the land acquired; for what purpose was the acquisition, was there service of the requisite notice of revocation of the pre existing title. None of these questions was answered by the evidence adduced by the 2nd and 3rd Respondents. A party alleging acquisition must produce evidence of the alleged acquisition, citingBaba Iya v. Sikeli (2005) ALL FWLR (PT. 289) 1230 at 1234.

The case of Elegushi v. Oseni (2005) ALL FWLR (PT. 282) 1837 was relied on to submit that for the acquisition of an occupier?s land to be valid, the occupier must have been served with a notice revoking his deemed title and another notice acquiring same. But, there was no acquisition of the disputed plot of land by the 2nd Respondent. It was submitted that the 2nd and 3rd Respondents did not possess title to have granted to the Appellant by Exhibits D and D1. A party claiming title to a disputed plot of land must establish his root of title and where such title is derived from a grant as claimed by the Appellant, the title of the grantor must first be established by evidence.

?In response to the contention of the Appellant that the 1st Respondent adduced inadmissible hearsay evidence of the founding of the disputed plot of land, it was submitted that traditional evidence is an exception to the rule against hearsay evidence. The evidence of the 1st Respondent that it was the late 1st plaintiff who informed her of the traditional evidence of the founding of the disputed plot of land was admissible evidence. The provisions of Section 66 of the Evidence Act, 2011;

Obasi & Anor v. Onwuka & Anor (1987) 7 SCNJ 84 were relied upon.

It was the case of the Appellant that he was granted title to the disputed land by the Governor of Benue State who held the land at the time. It was submitted in response that the 2nd Respondent already admitted that the 1st plaintiff was the customary owner of the land. On the powers of the Governor to grant title to land comprised in his State, it was argued that the intendment of the Land Use Act has never been to divest original land owners of their title to land vested in them before the commencement of the Act, unless preconditions set out in the Act have been met. Reliance was placed onS.O. Adole v. Boniface B. Gwar (supra). The Court was urged to hold that the Court below properly evaluated the evidence adduced before the lower Court.
The Appellant mainly rehashed his arguments in support of this appeal in the Reply Brief.

Resolution
It is the well-established position of the law that any person claiming a declaration of title to land must prove by evidence that he is entitled to the declaration he seeks; Mbadinuju v. Ezuka (1994) 8 NWLR (Pt. 364) 535 S.C;

Umesie v. Onuaguluchi (1995) 9 NWLR (PT. 421), (1995) LPELR-3368(SC); Kazeem v. Mosaku (2007) 2 S.C. 22; Olodo v. Josiah (2010) 18 NWLR (PT 1225) 653.

ways; Biariko v Edeh-Ogwuile (2001) 12 NWLR (PT 726) 235; Olubodun v. Lawal (2008) 6-7 S.C. (PT 1) 1; Yusuf v. Adegoke (2007) 6 S.C. (PT 1) 126; Balogun v Akanji (1988) 2 S.C. 199.
Proof of one single root of title is sufficient to sustain the claimant?s claim for declaration of title to land; Onwugbufor v. Okoye (1996) 1 NWLR (PT 424) 252; Olagunju v. Adesoye (2009) 9 NWLR (PT 1146) 225.
In proving title, he must rely on the strength of his case and not on the weakness of the defence; Oje v Babalola (1991) 4 NWLR (PT 185) 267; Bello v Eweka (1981) NSCC 48; Kazeem v Mosaku (2007) 2 S.C. 22; Echi v Nnamani (2000) 5 S.C. 62; Eze v Atasie (2000) 6 S.C. (PT 1) 214. The only exception to this position is that a plaintiff may quite perfectly take advantage of those facts in the case of the defence which support his claims;Buraimoh v. Bamgbose (1989) LPELR-818(SC), (1989) ALL NLR 669; Oduaran v. Asarah (1972) 5 S.C. (REPRINT) 173, (1972) LPELR-2233(SC). The party that is able to prove title to land in issue is deserving of judgment.

The evidence adduced before the lower Court was that the 1st Respondent purchased the land in dispute from the deceased 1st plaintiff.

The Appellant however challenged the title of the deceased 1st plaintiff. With the challenge of the title of the 1st Respondent?s vendor, the 1st Respondent was required, not only to establish her own title, but also to satisfy the Court on the title of her vendor; Sapo v Sunmonu (2010) All FWLR (PT 531) 1408 at 1439. The title of the 2nd Respondent?s vendor, the deceased 1st plaintiff, was rooted in traditional ownership. The settled position of the law is that where a party relies on evidence of tradition in proof of title to land, he must give satisfactory evidence as to how he derived the particular title pleaded and claimed. He is bound to plead and establish facts such as:
1. who founded the land;
2. how he founded the land; and
3. the particulars of the intervening owners through whom he claims;
See: Nruamah v Ebuzoeme (2013) LPELR-19771(SC); Onwugbufor v Okoye (1996) LPELR-2716(SC); Dike v Okoloedo (1999) 7 S.C. (PT 111) 35; Ngene v Igbo (2000) LPELR-1987(SC); Ezeokonkwo v Okeke (2002) 5 S.C. (PT 1) 44. Once a party pleads and traces his root of title to a particular person, he must establish how that person came

to have title invested on him. He must not only establish his own title, but he must also satisfy the Court as to the title of the source from whom he claims to derive his title to the land, more so when his title is challenged; Ogunleye v Oni (1990) 4 S.C. 130, (1990) LPELR-2342(SC); Osafile v Odi (1994) LPELR-2784(SC); Ngene v Igbo (supra).

In line with the Plaintiffs? Joint Statement of Claim, the 1st Respondent deposed as follows:
7. That over fifty (50) years ago the 1st Plaintiff founded, settled on and owned a vast parcel of land situate at behind the Benue State Civil Service Commission, Makurdi.
8. That the 1st Plaintiff developed the aforestated vast parcel of land held same as its customary owner and has given and is still giving out portions of the said land to several individuals who are in occupation of same without dispute from anyone whatsoever.
10. That sometime in 1988 upon the 1st Plaintiff?s request men from the then Ministry of Lands went and surveyed/plotted his vast parcel of land situate behind the Benue State Civil Service Commission (BSCSC), Makurdi and he gave them cement which they used to

make beacons/pillars and planted on his vast land to indicate plots and access roads and the 1st defendant was a member of the team that surveyed the 1st Plaintiff?s land.
11. That sometime in the year 1992 the 1st Plaintiff gave me a parcel of land measuring 100ft x 100ft out of the very many plots of land carved out of his vast parcel of land.

The 1st plaintiff also had written depositions but he was reported to be sick and never appeared to adopt his said written depositions as evidence in support of the pleadings. After several adjournments to enable him appear were abortive, the trial Court rejected his said statement.

The Appellant made heavy weather of the fact that the deceased 1st plaintiff did not appear to adopt his written depositions, arguing that the 1st plaintiff in effect, abandoned his pleadings, in which case there was no evidence on his root of title. This contention is however misconceived. The 1st Respondent and the deceased 1st plaintiff filed a Joint Statement of Claim, pages 5 ? 14 of the Record of Appeal. A party has the burden of proving his case. However he chooses to do so is his prerogative, so long as the aim

is achieved. The 1st Respondent gave evidence in support of their said joint pleadings. The Joint Statement of Claim of the 1st plaintiff and the 1st Respondent cannot therefore be said to have been abandoned.

The evidence on the traditional title to the land in issue of the 1st plaintiff was given by the 1st Respondent. The question is whether the said evidence of the 1st Respondent on her vendor?s root of title constituted hearsay evidence. Section 37 of the Evidence Act, 2011 defines hearsay evidence as follows:
Hearsay means a statement:-
oral or written made otherwise than by a witness in proceeding; or contained or recorded in a book, document or any record whatever, proof of which is not admissible under any provision of the Act, which is tendered in evidence for the purpose of proving the truth of the matter stated in it.
Section 38 of the Act then declares that:-
Hearsay evidence is not admissible except as provided on this part or by or under any other provision of this or any other Act.
Clarifying what may be viewed as hearsay evidence, the Supreme Court, per Tobi, JSC in Ojo v. Gharoro & Ors

(2006) LPELR-2383(SC) said, pages 15 – 16 of the E-Report:
?In the often cited case of the common law tradition of Subramanian v. Public Prosecutor (1956) 1 WLR 965 at 969, the Judicial Committee of the Privy Council held that evidence of a statement made to a person by a person who is himself called as a witness may or may not be hearsay. It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. It is not hearsay and is admissible when it is proposed to establish by the evidence not the truth of the statement but the fact that it was made.
When a third party relates a story to another as proof of contents of a statement such story is hearsay. Hearsay evidence is all evidence which does not derive its value solely from the credit given to the witness himself, but which rests also, in part, on the veracity and competence of some other person. See Judicial Service Committee v. Omo (1990) 6 NWLR (Pt.157) 407. A piece of evidence is hearsay if it is evidence of the contents of a statement made by a witness who is himself not called to testify. See Utteh v. The State (1992) 2 NWLR (Pt.223) 257.?

See also:Edosa v. Ogiemwanre (2018) LPELR-46341(SC).
By the nature of hearsay evidence, it would seem to appear at first glance that the evidence of the 1st Respondent fell under the axe of Section 38. However, a recognized exception to the rule is provided under Section 66 of the Evidence Act, 2011, as follows:
When the title to or interest in family or communal land is in issue, oral evidence of family or communal tradition concerning such title or interest is admissible.
This Court, relying, inter alia, on the case of Olaleye v Adejumo (2005) ALL FWLR (Pt 246) 827, (2005) 10 NWLR (PT 933) 429, considered the provisions of Section 66 of the Evidence Act, 2011 in Edemekong & Ors v. Ekpo & Ors (2013) LPELR-19705(CA), per Garba, JCA, and held as follows, pages 40 ? 43 of the E-Report:
?By these provisions, oral evidence of tradition, which is usually a history narrated by and from persons other than the witness giving the evidence, concerning title or interest in family or communal land is made, admissible, although it is ordinarily hearsay. This was the principle of law enunciated by the

Supreme Court in the case of Olaleye v. Adejumo (supra) when it stated that:-
“Traditional history or traditional evidence is evidence as to rights alleged to have existed beyond the time of living memory proved by members of the community or village who claim to have land as their own or who defend a claim to such land. It can also be described as a somewhat ancient history which is replete with hearsay but which has been elevated to the status of admissible evidence by the statutory provision in Section 45 of the Evidence Act .”
The West African Court of Appeal (WACA) in the case of Commissioner of Lands v. Adigun (1937) 3 WACA, 206 had offered justification for the reception communal tradition in respect of claim for title or interest in land when it stated that:-
“It is the undoubted practice in this country to accept as admissible in cases as to title to family land, evidence of tradition of the family ownership. Literacy among the people of this country does not go back far and the oral tradition as generally the only evidence available as to ownership of land earlier than the memory of living witness.”

Even the Privy Council had recognized the relevance of such evidence in the case of Ibinabina v. Enyimadu (1953) 14 WACA, 171 and as the evidence rests to a large extent on a witness’s recollection as to the tradition to which he speaks, it cannot expected to be as precise and specific as in a case where documentary or direct evidence was available. See Kuma v. Kuma (1936) 5 WACA, 4; Akuru v. Olubadan in Council (54) 14 WACA, 523. See also Morenikeji v. Adegbosin (supra).
Thus, the provisions and the principles of law in the above cases have provided one of the exceptions in Section 38 when hearsay evidence is admissible in respect of oral evidence of traditional history in relation to the claim of title or interest in family or communal land. This has to be so because a claim of title or other interest in such lands is usually and basically based on traditional history from one person to the other over time, often out of memory, up to the claimants. So even under the provisions above, the oral evidence of witnesses in respect of a claim for title to family land, witnesses in respect of a claim for title to family land, (as was the case of the Respondents

before the trial Court though may appear ordinarily hearsay, is admissible in the proceedings and if, sufficient and cogent, can properly be relied on by the trial Court to make findings of facts in the case. In the result, though the evidence of PW5 and 7 specifically referred to by the learned counsel for the Appellants in his submissions, may ordinarily be hearsay, it was admissible in evidence in respect of the claim made by the Respondents under the provisions of now Section 66 (or 45 then) of the Evidence Act. (as was the case of the Respondents before the trial Court though may appear ordinarily hearsay, is admissible in the proceedings and if, sufficient and cogent, can properly be relied on by the trial Court to make findings of facts in the case.?
See also:Oyadiji v. Olaniyi & Ors (2004) LPELR-5419(CA); Danjuma v. Terengi (2010) LPELR-4019(CA); Bako v Audu (2018) LPELR-44394(CA). It is now well established that oral evidence of traditional history in relation to the claim of title or interest in family or communal land is admissible and an exception to the rule against hearsay evidence. The reason, as recognized by the Court, is

because traditional history relating to ownership of land or of a community is usually handed down from one person to another over time. The level of literacy of the people may not have permitted a handed down written account of their history. Therefore, traditional history, often given out of memory of handed down chronicles, is admissible. Where both sides in a matter rely on such traditional history, it is for the Court to determine the more credible version and decide what weight to accord each version, considering also how far such version is supported by other evidence of living people of facts within their knowledge. See also Commissioner of Lands v. Kadiri Adagun (1937) 3 WACA 206. The evidence of the 1st Respondent on the root of title of the 1st plaintiff, her vendor was therefore not hearsay.

The Appellant had also made the point that family members of the 1st plaintiff did not testify. This is however not a faux pas. The requirement of law from a party to a suit is to call relevant evidence in proof of his case. He is not bound to call a particular witness if he can prove his case otherwise; Alli & Anor v. Alesinloye & Ors (2000) LPELR-427(SC), (2000)

4 SC (Pt.1) 111. As was pointed out in Edemekong & Ors v. Ekpo & Ors (supra) the provisions of Section 66 do not require that before such oral evidence is admitted or admissible, it must come from members of the plaintiff’s family. Evidence of tradition would still be admissible where it comes from any other credible and reliable witnesses other than the family members;Alli v Alesinloye (supra).

Evidence on the root of title of the 1st plaintiff as was given by the 1st Respondent as PW1 in line with their pleadings. Under cross examination, she said that it was the 1st plaintiff who informed her of how he founded the parcel of land behind the Benue State Civil Service Commission Office, Makurdi, which included the land in issue herein. As already found, this evidence did not fall within the category of hearsay evidence and could therefore rightly be accepted and acted upon by the trial Court.

DW2, the witness for the 2nd and 3rd Respondents, testified under cross examination by Counsel for the 1st Respondent, page 311 of the Record of Appeal, that:
?The 1st plaintiff was the customary owner of the land he wrote a protest letter to us in 2008 and the letter is in the file.?

DW2 also tendered Exhibit F, the File No BNA 1928, kept in the office of the 2nd Respondent on the land in issue granted to the Appellant as Exhibit D and D1. At page 35 of Exhibit F is a letter dated 24/9/2008, written by the deceased 1st plaintiff. The said deceased 1st plaintiff wrote the 2nd Respondent to complain that he had settled on land, including the land in dispute for over 50 years and constructed a three bedroom apartment on one of the plots but that the Appellant came with a letter in 2003 claiming ownership of the developed plot. The Dispute Committee in Lands and Survey had recommended settlement which the Appellant spurned but proceeded to have his house demolished. A copy of the letter was also tendered as Exhibit A2 by PW1. The 2nd Respondent through its Land Dispute Management Committee looked into the complaint and recommended that compensation should be paid to the late 1st plaintiff by the Appellant. Copies of correspondence to this effect are found at pages 40 and 41 of Exhibit F and also copied to the 1st plaintiff and tendered as Exhibit A4 by PW1. Reports of the Lands Dispute Management

Committee on the complaint were tendered as Exhibits A14 and A15 by PW1.

At page 43 of Exhibit F is found the following document, which states, in part:
VALUATION REPORT IN RESPECT OF UNEXHAUSTED IMPROVEMENTS ON PLOT NO BNA 1928 LOCATED AT MAKURDI
EXECUTIVE SUMMARY
PREAMBLE: To resolve the dispute between the title holder and the contestant, Ihywaku Adanyi, the Dispute Management Committee met and passed resolution that, the title holder should pay compensation to the contestant who was on the site before title was granted. This was upheld by the Ministry?s Management?
BASIS OF VALUATION: Statutory and is regulated by Section 29 of the Land Use Act of 1978. We based on historical records and the building plan attached since the development has been illegally pulled down on the orders of the title holder.
11.0 VALUATION: From our computations, we have adopted rate @ N25, 000 and N5, 000 for the bungalow and the fence respectively. Depreciation is taken @ 20% to arrive at the figure N2, 083,920.00.
12.0 RECOMMENDATION: From the data collected and analysis thereon, it is our consideration and

professional opinion that the capital value of the subject property for the title holder to compensate Ihwaku Adanyi is the sum of N2, 084,000 (Two Million, Eighty Four Thousand Naira) only?
(Emphasis mine)

The decision of the Ministry was communicated to the Appellant by letter dated 4/11/2010. This letter was copied to the late 1st plaintiff and admitted in evidence as Exhibit A5. A file copy of the said letter is also found in Exhibit F.

It was the contention of the Appellant that the evidence given by DW2 under cross examination was not pleaded by the 2nd and 3rd Respondents and ought not to have been relied on by the trial Court. In addressing this issue, it is important to note that this evidence in issue was given under cross examination. It is settled law that evidence elicited from a party or his witness(es) under cross examination which goes to support the case of the party cross examining, constitute evidence in support of the case or defence of that party are admissible. The only catch to this principle is that the evidence so elicited under cross examination must be on facts pleaded by the party concerned for it to be

relevant to the determination of the issue in controversy between the parties; Akomolafe & Anor v. Guardian Press Ltd & Ors (2010) LPELR-366(SC); Adeosun v. Gov of Ekiti State & Ors (2012) LPELR-7843(SC); Anioke v Anioke (2011) LPELR-3774(CA). In the instant case, the evidence elicited under cross examination of DW2 was pleaded by the 1st Respondent. The said evidence elicited under cross examination of DW2 could therefore be relied on by the 1st Respondent and also be acted on by the trial Court, though he was erroneously referred to in the judgment on appeal as DW1, who was the Appellant himself. The trial Court therefore rightly relied thereon.

?It can therefore be extrapolated from the contents of Exhibit F and the testimony of DW2 that the 2nd and 3rd Respondents found out that the deceased 1st plaintiff had been on the land in dispute before the said land was granted to the Appellant, and that there was a bungalow with a fence constructed thereon which were demolished by them upon the complaint of the Appellant. The letter from the Appellant to the 2nd Respondent seeking assistance in removing illegal structures from his Plot No 1928 to

enable him put up his own structure, was tendered by the Appellant and admitted in evidence as Exhibit D9. The evidence of the DW2 thus lent credence to the case of the 1st Respondent and the 1st plaintiff.

?Therefore, the evidence of PW1 to the effect that the deceased 1st plaintiff had founded and had been on a large parcel of land, including the land in dispute, over fifty years ago, as at 2012, when this suit was filed in the lower Court, was not successfully challenged by the Appellant. The evidence before the trial Court was therefore that the 1st plaintiff was on the land in issue long before the Appellant was granted Exhibits D and D1 over the same plot of land. The evidence of DW2 and of Exhibit F both also support the position of the 1st Respondent that there was a three bedroom structure in existence on the land which was demolished upon the complaint of the Appellant. The land in dispute is situate within an urban area. By virtue of Section 34 of the Land Use Act, therefore, the deceased 1st plaintiff was the deemed holder of a right of occupancy over the land in dispute.

?In proof of his counterclaim, the Appellant relied on Exhibit

D, the Right of Occupancy No BN 1928 and the Certificate of Occupancy, Exhibit D1. A Certificate of Occupancy is prima facie proof of title to the land over which it was issued. It is the position of the law that once a person is granted a Certificate of Occupancy over a parcel of land, he is entitled to hold same to the exclusion of any other person unless and until the said Certificate of Occupancy is set aside or it gives way to a better title;Ilona v Idakwo (supra), (2003) LPELR-1496(SC); Madu v Madu (2008) 2-3 S.C. (PT 11) 109, (2008) LPELR-1806(SC); Otukpo v John (supra), (2012) LPELR-25053(SC). In other words, and, as rightly submitted for the 1st Respondent, a certificate of occupancy is not conclusive proof of title to land. In Adole v Gwar (2008) LPELR-189(SC) at page 17 of the E-Report, the Supreme Court, per Onu, JSC said:
?A Certificate of Occupancy issued on the Land Use Act, it must be stressed, cannot be said to be conclusive evidence of any interest or valid title to land in favour of the grantee; it is only prima facie evidence of such right interest or title without more and may in appropriate cases be effectively challenged and

rendered invalid, null and void. See Mohamoud J. Lababedi v Lagos Metal Industries (Nig) Ltd (1973) NSCC 1 at 6.?
The Certificate of Occupancy, properly issued, raises the presumption that as at the time it was issued, there was not in existence a customary owner whose title had not been revoked. This presumption is however rebuttable because if it is proved by evidence that another person had a better title to the land before the issuance of the Certificate of Occupancy, the Certificate of Occupancy will be revoked; Madu v Madu (supra) at page 24 of the E-Report; Omiyale v Macaulay (2009) LPELR-2640(SC), (2009) 7 NWLR (PT 1141) 597; Otukpo v John (supra); Orianzi v AG, Rivers State (2017) LPELR-41737(SC). In his contribution to the lead Judgment in Omiyale v Macaulay (supra), Ogbuagu, JSC said, pages 40 ? 41 of the E-Report:
?The prerequisite for a valid grant of a Certificate of Occupancy, is that there must not be in existence, the valid title of another person with legal interest in the same said land at the time the certificate was issued?For a certificate of Occupancy under the Act to be therefore, valid, there must not

be in existence at the time the certificate was issued, a Statutory or Customary owner of the land in issue or dispute who was not divested of his legal interest to the land prior to the grant. In other words, where a Certificate of Occupancy has been granted to one of two claimants who has not proved a better title (as the Appellant), it must be deemed to be defective, to have been granted or issued erroneously and against the spirit of the Act and the holder (such as the Appellant) would have no legal basis for a valid claim over the land.?

It is now to see if Exhibits D and D1 were validly granted to the Appellant.
DW2, the witness for the 2nd and 3rd Respondents, testified under cross examination by Counsel for the 2nd and 3rd Respondents, page 311 of the Record of Appeal, that:
the land in dispute is within the urban area of Makurdi and on TPS 161. The govt. of Benue State had acquired the land including the one in dispute before allocating same to deserving applicants.?
Under cross examination by Counsel for the 1st Respondent, page 311 of the Record of Appeal, DW2 further said:

?We have document to show that the land was acquired by the Benue State Govt but we have not brought the document to Court because we wer(sic) not given notice to bring it. I see page 11 of Exhibit F; it contain(sic) an estate report i.e the inventory of the things on the land at the time govt acquired it.?
I must confess that I find the evidence of DW2 intriguing. In the first place, the law is that he who asserts must prove; Dasuki v. FRN & Ors (2018) LPELR-43897(SC); Apena & Anor v. Aileru & Anor (2014) LPELR-23305(SC). If the 2nd and 3rd Respondents pleaded and testified that the land in issue was part of land acquired by the Benue State Government, then it was their duty to prove this assertion. No one needed to give them special notice to produce proof of their own assertion. They were required to provide details of whom the land was acquired from. They were also required to prove that the acquisition from the owner of the land followed due process. Having admitted under cross examination that the late 1st plaintiff was the customary owner of the land within Makurdi, an urban area, that means they acknowledged that he was the deemed holder

of a right of occupancy over the land.
There is absolutely no doubt that by the provisions of Section 28 of the Land Use Act, the Governor of a State may revoke the grant of a Right of Occupancy for overriding public interest; CSS Bookshop Ltd v The Registered Trustees of Muslim Community Rivers State (2006) LPELR-824(SC); Kyari v Alkali (2001) LPELR-1728(SC). Section 28 (2) defines overriding public interest thus:
(2) Overriding public interest in the case of a statutory right of occupancy means-
(a) the alienation by the occupier by assignment, mortgage, transfer of possession, sub-lease, or otherwise of any right of occupancy or part thereof contrary to the provisions of this Act or of any regulations made thereunder;
(b) the requirement of the land by the Government of the State or by a Local Government in the State, in either case for public purposes within the State, or the requirement of the land by the Government of the Federation for public purposes of the Federation;
(c) the requirement of the land for mining purposes or oil pipelines or for any purpose connected therewith.
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Sections 28(6) and (7) further provide:
(6) The revocation of a right of occupancy shall be signified under the hand of a public officer duly authorized in that behalf by the Governor and notice thereof shall be given to the holder.
(7) The title of the holder of a right of occupancy shall be extinguished on receipt by him of a notice given under Subsection (6) of this section or on such later date as may be stated in the notice.
Thus, notice of revocation by these provisions, is to be served on a holder of the right of occupancy. Section 51 thereof defines a holder of the right of occupancy as: A person entitled to a right of occupancy?
But, there was no evidence that the acquisition of the land or revocation of the 1st plaintiff?s deemed right of occupancy followed due process. Firstly, the revocation of a right of occupancy must be within the provisions of Section 28(1), for overriding public purpose. Further, notice of the revocation must be served on the holder of the right of occupancy. Failure to serve the required notice in the manner as stipulated in the Act renders the purported revocation or acquisition ineffectual. Judicial pronouncements on this

issue are legion. I shall mention just a few.
In the case of CSS Bookshop Ltd v The Registered Trustees of Muslim Community Rivers State (supra), the Supreme Court, per Mahmud Mohammed, J.S.C. (as he then was) said, pages 30 ? 32 of the E-Report:
?It is not at all in doubt that the provisions of Section 28 of the Act contains comprehensive provisions to guide the governor of a State in the exercise of his vast powers of control of land within the territorial areas of his State particularly the power of revocation of a right of occupancy. One of the preconditions for the exercise of this power of revocation is that it must be shown clearly to be for overriding public interest. In order not to leave the Governor in any doubt as to the conditions for the exercise of his powers, the law went further to provide adequate guidance by defining in clear terms what overriding public interest means in the case of a statutory right of occupancy under the Act in Subsection (2) of Section 28. What this means of course is obvious. Any revocation of a right of occupancy by the Governor in exercise of powers under the Act must be within the confine of the

provisions of Section 28 of the Act. Consequently, any exercise of this power of revocation for purposes outside those outlined or enumerated by Section 28 of the Act or not carried out in compliances with provisions of the section, can be regarded as being against the policy and intention of the Land Use Act resulting in the exercise of the power being declared invalid, null and void by a competent Court in exercise of its jurisdiction on a complaint by an aggrieved party. See Osho v. Foreign Finance Corporation (1991) 4 NWLR (Pt.184) 157; Olohunde v. Adeyoju (2000) 10 NWLR (Pt.676) 562; Dantsoho v. Mohammed (2003) 6 NWLR (Pt.817) 457 at 483 and Ibrahim v. Mohammed (2003) 6 NWLR (Pt.817) 615 at 644 where in the judgment of this Court, Kalgo JSC in the lead judgment had this to say on the exercise of powers of revocation of right of occupancy under Section 28 of the Act –
“Furthermore, the Act itself provides some checks and balances which must be observed before making any grant, the conditions under which such grants can be revoked and follows after such revocation. It provides under S. 28 that the Governor can only revoke a right of occupancy for

overriding public interest which has been defined both in respect of statutory and customary rights of occupancy. If such powers of revocation are to be exercised, the holder of the right of occupancy must be notified in advance. Revocation of a right of occupancy for public purpose or in the public interest does not include the revocation of the right of a grantee for the purpose of vesting it in another. Therefore, since revocation of the grant involves the deprivation of the proprietary rights and obligations of a grantee, all the terms and conditions laid down by the Act must be strictly adhered to and complied with. And so for a revocation of a right of occupancy to be valid in Nigeria, it must be made strictly in compliance with S. 28 of the Land Use Act.?
(Emphasis mine)
In his concurring opinion therein, Tobi, JSC said, pages 52 ? 53 of the E-Report:
?Where right of occupancy is stated to be revoked for public purpose, there is the need to spell out the public purpose in the notice of revocation. See Osho v. Foreign Finance Corporation, supra; Ereku v. Military governor of Midwestern State (1974) 10 SC 59;

Adukwu v. Commissioner for works, Lands and Transport, Enugu State (1997) 2 NWLR (Pt. 489) 588. The reason for revoking a person?s right of occupancy must be stated in the notice of revocation notwithstanding that the Act did not expressly state that the specific ground of the revocation must be stated in the notice. See Adukwu v. Commissioner for Works, Lands and Transport, Enugu State, supra; Nigeria Engineering works Ltd. V. Denap Limited (1997) 10 NWLR (Pt.525) 481.
In exercising the Governor’s power of revocation, there must be due compliance with the provisions of the Act, particularly with regard to giving of adequate notice of revocation to the holder whose name and address are well known to the public officer acting on behalf of the Governor. See Nigerian Telecommunication Ltd. v. Chief Ogunbiyi, supra; Obikoya v. Governor of Lagos State, supra. The purpose of giving notice of revocation of a right of occupancy is to duly inform the holder thereof of the steps being taken to extinguish his right of occupancy. In the absence of notice of revocation of right of occupancy, it follows that the purported revocation of the right of occupancy by the

officer duly authorized by the governor is ineffectual. See Nigerian Telecommunications Ltd. v. Chief Ogunbiyi, supra; A. G. Bendel State v. Aideyan (1989) 4 NWLR (Pt. 118) 646; Nigeria Engineering Works Limited v. Denap Limited (1997) 10 NWLR (Pt. 525) 481.
Above all, revocation must comply strictly with the provisions of Section 28 of the Act. Any non-compliance will result in the revocation a nullity.? (Emphasis mine)
Emphasizing the implication of failure to give notice of revocation pursuant to Section 28 of the Land Use Act, the Supreme Court in the recent case of Olomoda v. Mustapha & Ors (2019) LPELR-46438(SC), per Aka?ahs, JSC said, pages 20 ? 21 of the E-Report:
?The interpretation to be given to Section 28(5) Land Use Act on the power of the Governor to revoke the Right of Occupancy of the person in breach of a condition or covenant is not a mandatory one but rather permissible. In exercising the Governor’s power of revocation, there must be due compliance with the provisions of the Act, particularly with regard to giving of adequate notice of revocation to the holder whose name and address are well known to

the public officer acting on behalf of the Governor. See: Nigerian Telecommunications Ltd v. Chief Ogunbiyi (1992) 7 NWLR (Pt. 255) 543. The purpose of giving notice of revocation of a right of occupancy is to duly inform the holder thereof of the steps being taken to extinguish his right of occupancy. In the absence of notice of revocation of the right of occupancy, it follows that the purported revocation of the right of occupancy by the officer duly authorized by the Governor is ineffectual. See: A-G Bendel State v. Aideyan (1989) 4 NWLR. (Pt 118) 645; Nigeria Engineering Works Ltd v. Denap Limited (1997) 10 NWLR (Pt.525) 481.?
(Emphasis mine)
See also: The Admin. & Exec. of the Estate of Abacha v. Eke-Spiff & Ors (2009) LPELR-3152(SC); Ononuju & Anor v. A.G Anambra State & Ors (2009) LPELR-2692(SC).
?Aside from the ipse dixit of DW2 in line with their pleadings, that the land in dispute was part of land acquired by the State Government as TPS 161, there was no evidence in proof of precisely who the land in dispute was allegedly acquired from. The evidence of PW1 and of DW2 was to the effect that the deceased 1st

plaintiff was already on the land before it was granted to the Appellant. If the land was purported to have been acquired from the 1st plaintiff, then no evidence was adduced in proof that a notice of revocation/acquisition was at all issued and served on the deceased 1st plaintiff in line with statutory provisions. The purported revocation/acquisition was therefore a null act; Orianzi v. The Attorney General of Rivers State & Ors (2017) LPELR-41737(SC); CSS Bookshop Ltd v The Registered Trustees of Muslim Community Rivers State (supra).
The Appellant relied on Exhibits D and D1. The point has been made above that the mere production in Court of a document of title such as a certificate of occupancy does not automatically prove that the land therein conveyed, granted or transferred has become the property of the grantee; Kyari v. Alkali (supra); Ngene v. Igbo (supra). The existence of a certificate of occupancy is merely prima facie evidence of title to the land it covers and no more. In the same vein, mere registration does not validate spurious or fraudulent instrument of title or a transfer or grant which in law is patently invalid or ineffective;

see: Kyari v Alkali (supra) in which the explanation for this position rendered in Romaine v. Romaine (1992) 4 NWLR (Pt.238) 650, (1992) LPELR-2953(SC) per Nnaemeka-Agu, JSC, was cited with approval at page 35 of the E-Report thus:
?As the position was explained by this Court in Romaine v. Romaine (1992) 4 NWLR (Pt.238) 650 per Nnaemeka-Agu, J.S.C.:
“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 enquire into some or all of a number of questions, 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 capacity and authority to make the grant;
(iv) whether the grantor had in fact what he purported to grant and
(v) whether it had the effect claimed by the holders of the instrument”.?
?As has been demonstrated above, the grantor of the

certificate of occupancy had no capacity and authority to make the grant to the Appellant. The learned trial Judge rightly relied on the unchallenged evidence of the 1st Respondent, PW1, and of DW2. The 2nd and 3rd Respondents failed to prove their assertion that there was in fact a revocation/acquisition and that the 1st plaintiff was duly notified as stipulated under Section 28. The 1st plaintiff was the deemed holder of the right of occupancy. He was not notified of a revocation/acquisition of his plot of land. Further, DW2 had testified under cross examination that:
?The govt. of Benue State had acquired the land including the one in dispute before allocating same to deserving applicants.?
It is the position of the law that the revocation of a right of occupancy for public purpose or in the public interest does not include the revocation of the right of a grantee for the purpose of vesting it in another; Orianzi v. The Attorney General of Rivers State & Ors (supra); Osho & Anor v. Foreign Finance Corporation Anor (1991) LPELR-2801(SC). By the provisions of Section 26 Of the Land Use Act, non-compliance with the provisions of the

Land Use Act renders the transaction or instrument purporting to confer interest or right over land null and void. I therefore agree with the learned trial Judge that the Right of Occupancy and the Certificate Of Occupancy, Exhibits D and D1, relied on by the Appellant were null, void and of no effect.

This appeal, which is completely without merit, fails and is hereby dismissed. The judgment and all orders made thereto by the trial Court in this Suit NO MHC/353/2012 are hereby affirmed.
The 1st Respondent is entitled to costs which are assessed at against the Appellant.

JOSEPH TINE TUR, J.C.A.: I have read the judgment by my learned colleague, O.A. Otisi, JCA. The legislature is of the opinion that a learned trial Judge that hears a dispute or controversy upon evidence and relies on addresses of the parties or their learned Counsel can determine the controversy within ninety days thereafter. To ?determine? or ?determination? is legally and judicially defined in Black?s Law Dictionary, 9th edition at page 514 as follows:-

?1. A final decision by a Court or administrative agency (the Court?s determination of the issue). (Cases: Administrative Law and Procedure, 489, Federal Civil Procedure, 928).
Initial determination: The first determination made by the Social Security Administration of a person?s eligibility for benefits. (Cases: Social Security and Public Welfare?..
2. The ending or expiration of an estate or interest in property, or of a right, power, or authority (the easement?s determination after four years) ? determine, vb.?
Osborn?s Concise Law Dictionary, 12th edition, page 144 also defines ?determine? as ?(1) To come to an end; (2) to decide an issue or appeal.? In Words and Phrases Legally Defined Vol. 2 (D-H) by John B. Saunders ?determination? and to ?determine? and their legal connotation are defined and supported by judicial reasoning from jurists of renown from Commonwealth countries which ought to guide learned Judges and Justices in Nigeria in the administration of law and justice in this century at pages 63-64 as follows:-
?A determinable interest comes to an end automatically

upon the occurrence of the terminating event, as for example upon the remarriage of a woman to whom an estate has been granted during her widowhood. This is inevitable, for according to the limitation itself, i.e. according to the words fixing the space of time for which the widow?s right of enjoyment is to continue, her interest ceases with her remarriage and nothing remains to be done to defeat her right. There can, indeed, be no question of defeating what has already come to an end. (Cheshire?s Modern Real Property (10th Edition) 281).
?It is said that ?termination? and ?determination? do not mean the same thing; that ?termination? means the thing coming to its natural end; ?determination? means coming to what I may call a violent end, that is, an end which was not contemplated as the longest duration, such as coming to an end by an unexpected death. I do not think that this is either the popular or the legal distinction between the two terms. Supposing a term were created of fifty years, determinable at the death of ?A?, would it be legally inappropriate to say, that such

term is determinable either by effluxion of time or by the death of ?A And as to the grammatical or popular use of the term it is rather remarkable that, in Todd?s edition of Johnson?s Dictionary, the fourth sense given of the word ?determination? is ?expiration,? ? ?end?. And the lexicographer adds, ?Used only by lawyers; as, from and after the determination of the said lease.? The word ?determination? may properly, and according to legal as well as to ordinary use, signify the coming to an end in any way whatever. That appears to me to be the honest mode of construing the word.? St. Aubyn vs. St. Aubyn (1861), 1 Drew & Sm. 611, per Kindersley, V.-C., at pp. 618, 619.
?The words of the condition (in a bond) are, ?if the determination of the said action shall be in favour of the plaintiff,? etc. We are of opinion that, as there was at the commencement of this action a judgment in favour of the plaintiff, and there was no stay of execution on the judgment, such a state of things amounts to ?a determination? of the action in

favour of the plaintiff within the meaning of the condition.
Where, as in this case, the plaintiff has obtained a judgment in his favour, and is in a condition to enforce it by execution, the action, as far as he is concerned, may be properly said to be determined in his favour.? Burnaby vs. Earle (1874) L.R. 9 Q.B. 490, per Lush, J., at p.493.
?There is a ?con in Chapter 3 of the Income Tax Act, 1952, which relates to ?Appeals and Relief for Mistake? and comprises Section 50 to Section 66. Thus, in Section 50(2) there is the phrase ?An appeal, once determined by the commissioners, shall be final, and neither the determination of the commissioners nor the assessment made thereon shall be altered, except It is plain that there the words ?determined? and ?determination? are equivalent to: decided and decision, and are quite incapable of being understood to mean an assessment or the amount stated in an assessment.? Muir vs. Inland Revenue Commissioners, (1966) 3 All E.R. 38, C.A. per Winn, L.J. at p.48.
NEW ZEALAND ? ?Article 19 (of a

partnership agreement)? says: ?Upon the determination of the partnership the assets of the firm shall be realized The word ?determination appears to me to be used for ?termination?, and usage shows that they are now used interchangeably.? Rushbrook vs. Bridgeman (1910), 29 N.Z.L.R. 1184, per Stout, C.J., at p.1189; also reported 13 G.L.R. 178, at p.180.
DETERMINE:
?I doubt whether it is correct to say that, where, under a settlement, a person, who has a right to appoint an annual sum to one of a number of persons as he may think fit, and duly makes such an appointment, he thereby ?determines? any provision of the settlement. Be that as it may, it is, I think, clear that in the section under consideration (Section 38(1)(a) of the Finance Act, 1938 (repealed; see now Section 38(1)(a) of the Income Tax Act, 1952, as amended by Section 21 of the Finance Act, 1958) the word is used in relation to the determination of a provision in a settlement ?by virtue or in consequence? whereof a sum of money is payable by the ?settlor or the wife or husband of the

settlor?: and that the power to determine any other provision of a settlement does not bring it within the provisions of Section 38(1)(a) at all. Assuming, however, that the respondent has power to appoint to himself as an employee of a company of which he is or has been a director, and assuming that by making that appointment he would determine all the provisions of the settlement in favour of the other possible beneficiaries, the result is that any sum payable by the respondent by virtue of, or in consequence of, the provisions of settlement so determined would be treated as his income. It seems, I think, clear that the words ?otherwise determine? mean the determination of a provision in the settlement whereby a sum of money becomes payable by the settlor, and nothing else.? Inland Revenue Commissioners vs. Dan Fitte (1942) 2 All E.R. 500, per Maccnaghten, J., at p.503.
?It was argued with ingenuity that an interest cannot determine until it has begun, and that an interest cannot begin until it takes effect in possession, and from these premises the conclusion was adduced that the interests which were to determine?

must be only and exclusively interests in possession. In my judgment, no such inference can be drawn from the use of the word ?determine.? There is one very good reason. By definition from the terms of the clause itself the interests which are to determine are all the interests of the son or daughter and his or her issue. They all determine uno flatu and at once. Obviously of those interests only one could be an interest in possession in any event; all the others must ex necessitate be interests in remainder or reversion. Therefore, if the use of the word ?determine? introduces any ambiguity of the kind suggested, the testatrix had made herself her own dictionary and showed that in her view, at all events, an interest in expectancy can ?determine?. If corroboration of that view be needed, some slight support is to be found in the provisions of the Finance Act, 1894, which contains an exemption from death duties with respect to certain expectant interests. Section 5(3) of that Act provides: ?In the case of settled property, where the interest of any person under the settlement fails or determines by reason of

his death before it becomes an interest in possession, and subsection limitations under the settlement continue to subsist, the property shall not be deemed to pass on his death.? There is thus, at all events, statutory authority, if authority be needed, for the view that an interest can be accurately described as ?determining? if it fails while it is yet reversionary in character.? Re Wilson?s Will Trusts, Tyron vs. Bromley-Wilson, (1950) 2 All E.R. 955, C.A., per Jenkins, L.J. at p.961.?
The important words in Section 36(1)-(2), 294(1) and 318(1) of the Constitution is to ?determine? or ?determination?. These words have been judicially interpreted or explained by the Supreme Court in Deduwa Vs. Okorodudu (1976) 1 NMLR 236 per Alexander C.J.N. at pages 243-244 to wit:
?More light is thrown on the meaning of the words ?decision? and determination? in the case of the Automatic Telephone and Electric Co. Ltd. vs. The Federal Military Government of the Republic of Nigeria (1968) 1 All NLR 429 where Ademola, CJN in giving the ruling of the Court said at page 432: ?We have

been referred to the Shorter Oxford Dictionary for the meaning of determination. It means ?a bringing or coming to an end? or (the mental action of coming to a decision,? or ?the resolving of a question?).
In Oaten vs. Auty (1919) 2 K.B. 278, Bray, J., at page 284 interprets the word ?determine? as meaning ?make an end of the matter.? In our own experience in this (Supreme Court), we send a matter back to the High Court for a rehearing and determination; the word ?determination? therein meaning ?ending of the matter.
In Baba vs. Civil Aviation (1991) 6 SCNJ 1, Karibi-Whyte, JSC held at page 25 that:-
?The term determination in this con means reaching a decision. Where, as in this case, the body is merely exploring or investigating the facts with no intention or power to decide, there is, in my view, no determination. So, contrary to the submission of learned Counsel for the appellant, the question of fair hearing in terms of Section 33(1) of the Constitution, 1979 did not arise under the Affini Panel.?

This is the purport of Sections 36(1) and 294(1) of the Constitution of the Federal Republic of Nigeria, 1999 as altered with effect from 29th May, 1999 to wit:-
?36(1) In the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a Court or other tribunal established by law and constituted in such manner as to secure its independence and impartiality.
(2) Without prejudice to the foregoing provisions of this section, a law shall not be invalidated by reason only that it confers on any government or authority power to determine questions arising in the administration of a law that affects or may affect the civil rights and obligations of any person if such law –
(a) provides for an opportunity for the persons whose rights and obligations may be affected to make representations to the administering authority before that authority makes the decision affecting that person; and
(b) contains no provision making the determination of the administering authority final and conclusive.
xxxxxxxx<br< p=””

</br<

294(1) Every Court established under this Constitution shall deliver its decision in writing not later than ninety days after the conclusion of evidence and final addresses and furnish all parties to the cause or matter determined with duly authenticated copies of the decision within seven days of the delivery thereof.?
A party that is aggrieved with such a determination proceeds on appeal to the Court of Appeal under Section 294(2) of the Constitution which provides as follows:-
?294(2) Each Justice of the Supreme Court or of the Court of Appeal shall express and deliver his opinion in writing, or may state in writing that he adopts the opinion of any other Justice who delivers a written opinion:
Provided that it shall not be necessary for all the Justices who heard a cause or matter to be present when judgment is to be delivered and the opinion of a Justice may be pronounced or read by any other Justice whether or not he was present at the hearing.?
The ninety days stipulated under Section 294(1) of the Constitution for rendering a ?decision,? an ?opinion? or for

?determination? in the lower Court is omitted in the Court of Appeal or the Supreme Court in Section 294(2) of the Constitution. A violation of the provisions of Section 294(1) of the Constitution by a Court below is to be remedied under Section 294(5) or (6) of the Constitution to wit:-
?294(5) The decision of a Court shall not be set aside or treated as a nullity solely on the ground of non-compliance with the provisions of Subsection (1) of this section unless the Court exercising jurisdiction by way of appeal from or review of that decision is satisfied that the party complaining has suffered a miscarriage of justice by reason thereof.
(6) As soon as possible after hearing and deciding any case in which it has been determined or observed that there was non-compliance with the provisions of subsection (1) of this section, the person presiding at the sitting of the Court shall send a report on the case to the Chairman of the National Judicial Council who shall keep the Council informed of such action as the Council may deem fit.?
?Section 294(3) and 318(1) of the Constitution reads:-<br< p=””

</br<

?294(3) A decision of a Court consisting of more than one Judge shall be determined by the opinion of the majority of its members.
xxxxxx
318(1) In this Constitution unless it is otherwise expressly provided or the con otherwise requires:-
?Decision? means, in the relation to a Court, any determination of that Court and includes judgment; decree, order, conviction, sentence or recommendation?.
I have headed my determination of the controversy in this appeal as a ?decision? to conform to the provisions of the Constitution.

Paragraphs 1-41 of the Joint Statement of Claim pleaded the facts that have led to the institution of this suit to wit:-
?1. The 1st plaintiff is an aged farmer and lives at behind Benue State Civil Service Commission, Makurdi.
2. The 2nd plaintiff is a civil servant and resides at Kertyo Village, Makurdi, Benue State.
3. The 1st defendant is a staff of College of Education, Oju and was a staff of Ministry of Lands and Survey, Makurdi and lives at behind Benue State Civil Service Commission, Makurdi.

4. The 2nd defendant is the Benue State Ministry responsible for land administration and sundry matters pertaining to land in Benue State.
5. The 3rd defendant is a functionary of the Government of Benue State responsible for town planning and urban development in Benue State.
6. The 4th defendant is the Chief Law Officer of Benue State and responsible for representation of the state in legal matters.
7. The plaintiffs aver that over fifty (50) years ago the 1st plaintiff founded, settled on and owned a vast parcel of land situate at behind the Benue State Civil Service Commission, Makurdi.
8. The plaintiffs state that the 1st plaintiff developed the aforestated vast parcel of land, held same as its customary owner and has given and is still giving out portions of the said land to several individuals who are in occupation of same without dispute from anyone whatsoever.
9. The plaintiffs aver that when the 1st plaintiff settled in the vast area of land situate behind the Benue State Civil Service Commission he was alone in the area and was farming rice and yams in the area.
10. The plaintiffs aver that sometime in 1988 upon the

1st plaintiff?s request men of the then Ministry of Lands went and surveyed/plotted his vast parcel of land situate behind the Benue State Civil Service Commission (BSCSC), Makurdi and he gave the men cement which they used to make beacons/pillars and planted on this vast land to indicate plots and access roads and the 1st defendant was a member of the team that survey the 1st plaintiff?s land.
11. The plaintiffs aver that sometime in the year 1992 the 1st plaintiff gave the 2nd plaintiff a parcel of land measuring 100ft x 100ft out of the very many plots of land carved out of his vast parcel of land. The Agreement evidencing the transaction is hereby pleaded.
12. The plaintiffs aver that the transaction between the plaintiffs was in respect of the plot covered by beacons numbers MKB 2296, MKD 2287, MKB 2286 and MKB 2297 on Town Planning Sheet (TPS) 161 behind Civil Service Commission, Makurdi Benue State.
13. The plaintiffs aver that after the 1st plaintiff gave the said plot of land to the 2nd plaintiff, she developed same by first planting orange, palm and mango trees on the plot; the 2nd plaintiff planted palm trees at the edges of the plot while she planted an

orange tree and two (2) mango trees in the middle.
14. The plaintiffs aver further that the 2nd plaintiff later built three bedrooms flat with toilets and a kitchen in it and dug soakaway pits on the plot she acquired from the 1st plaintiff. The building plan of the said flat is hereby pleaded.
15. The plaintiffs aver that the 2nd plaintiff also erected a dwarf fence on the southern part of the said plot to stop water from destroying the foundation of her house.
16. The plaintiffs aver that when she built the said three (3) bedrooms flat she put some persons in occupation of same for a long time without any contest from any one whatsoever.
17. The plaintiffs aver that sometime in year 2003 the 1st defendant approached and informed the 1st plaintiff that his presence was needed at the Dispute Resolution Committee at the 2nd Defendant?s office.
18. The plaintiffs aver that the 1st plaintiff appeared before the Dispute Resolution Committee of the 2nd defendant only to discover that the 1st defendant who was then a staff of the Ministry of Lands and Survey had surreptiously obtained and was having a Certificate of Occupancy No. BNA

11928 over the same plot of land that he had given to the 2nd plaintiff.
19. The plaintiffs state that the 1st plaintiff was surprised that the 1st defendant who was among those who surveyed his land, he killed a goat for them, gave them transport and some plots of land could secretly obtain documents over his plot without his knowledge or approval.
20. The plaintiffs avers also that when the 1st plaintiff saw that the 1st defendant wanted to collect what he gave to the 2nd plaintiff, he decided to ask the 2nd plaintiff to step aside and let him finish with the 1st defendant before the 2nd plaintiff will continue from there.
21. The plaintiffs state that the Dispute Resolution Committee of the 2nd defendant advised the 1st plaintiff and the 1st defendant to meet with a view to amicably resolving the issue of the plot; a meeting was held wherein the 1st defendant offered to pay the 1st plaintiff Fifty Thousand Naira (N50,000.00) only for the plot but the 1st plaintiff refused and insisted that if the 1st defendant must take the land he should pay the 2nd plaintiff One Million Naira (N1,000,000.00) only.

22. The plaintiffs alleged that following the discussion referred to in the paragraph above, the 1st defendant adjourned the discussion and promised to return on another date with a better proposal.
23. The plaintiffs aver that the 1st defendant never showed up nor sent to them until the 1st defendant engaged the Urban Development Board (the 3rd defendant) who demolished the 2nd plaintiff?s developments on the plot in issue.
24. The plaintiffs aver that when the 2nd plaintiff?s developments on the plot in issue were been demolished by the 3rd defendant at the instance of the 1st defendant, the plaintiffs approached the 3rd defendant who lied to them that the developments were affected by an access road and billed for demolition and were so demolished.
25. The plaintiffs state that it was to their greatest dismay and disappointment that soon after the demolition of the 2nd plaintiff?s developments on the plot in issue the 1st defendant mobilized men on the site who have now built a house on the said land for the 1st defendant.
26. The plaintiffs state that none of them was given or shown a notice stating that the 2nd plaintiff?s developments were to

be demolished or were affected by an access road before the demolition was carried out.
27. The plaintiffs aver that the 1st plaintiff?s deemed statutory right of occupancy over the plot in issue was not and has not been revoked by any person whatsoever and he is therefore entitled to deal with it according to his whims and caprices.
28. The plaintiffs aver that the 1st defendant is a trespasser onto the land given to the 2nd plaintiff by the 1st plaintiff which trespass has occasioned losses, inconvenience and general damages to the plaintiffs especially the 1st plaintiff.
29. The plaintiffs aver that the 1st plaintiff who had stood in for the 2nd plaintiff, upon the demolition of the latter?s development by the 1st and 3rd defendants, wrote an appeal to the 2nd defendant dated 24th September, 2008 requesting for withdrawal of the grant of the plot in issue to the 1st defendant. The letter dated 24th September, 2008 titled An Appeal for Withdrawal of an ?R? of ?O? from Augustine Ogbaji is hereby pleaded.
30. The plaintiffs aver that the 1st plaintiff equally briefed the law firm of Samuel A. Nguekwagh

& Co. who wrote a letter to the 2nd defendant on the 3rd December, 2008 captioned Re-Trespass to the developed structures at the instance of Mr. Augustine Ogbaji: An Appeal for intervention, the said letter is hereby pleaded.
31. The plaintiffs aver that the 2nd plaintiff took and followed the 1st plaintiff on several trips to the 2nd defendant for negotiations/discussions and the 1st plaintiff wrote several letters to the 2nd defendant at several points in time.
32. The plaintiffs aver that as a result of the several meetings, discussions and interactions between the plaintiffs and the 1st and 2nd defendants, the 2nd defendant conveyed her decision over the dispute to both the 1st plaintiff and the 1st defendant through a letter dated the 26th April, 2010. The letter dated 26th April, 2010 addressed to Augustine Ogbaji captioned: Management Decision in respect of Land Dispute between Hywaku Adanyi and Augustine Ogbaji (BNA 1928) Case No.521 is hereby pleaded.
33. The plaintiffs aver that in the said letter of the 2nd defendant dated 26th April, 2010 the 2nd defendant decided that the 1st defendant should pay compensation to the 1st

plaintiff as would be assessed by the valuation unit of the 2nd defendant or have the grant of BNA 1928 to him revoked.
34. The plaintiffs aver that the 2nd defendant submitted her valuation report for compensation vide a letter dated 4th November, 2010 directing the 1st defendant to pay compensation to the 1st plaintiff for the destroyed property/developments in the sum of Two Million, Eighty Four Thousand Naira only (N2,084,000.00) within six (6) months of the letter but same has not been paid and the value of the Naira has so much depreciated. The said letter dated 4th November, 2010 emanating from the 2nd defendant to the 1st defendant is hereby pleaded together with the assessment/valuation details.
35. The plaintiffs aver that the 1st defendant even though communicated, neglected to follow the directive of the 2nd defendant, therefore the 1st plaintiff applied to the 2nd defendant to grant him title over the said plot so that he could give same to the 2nd plaintiff but the application could not be processed for the reason that the 1st defendant has already been granted a right over the same plot of land. The letter from the 2nd defendant

refusing to process the 1st plaintiff?s application No. BNF 4355 dated 23rd November, 2011 is hereby pleaded.
36. The plaintiffs aver that the 1st plaintiff wrote another letter reminding the 2nd defendant of her earlier decision but has not received any positive response to the letter. The said letter dated 28th November, 2011 written by the 1st plaintiff to the 2nd defendant is hereby pleaded.
37. The plaintiffs aver that the 2nd defendant served a letter on the 1st plaintiff requesting him to attend a meeting at the 2nd defendant?s office on 13th March, 2012 in respect of the plot in issue and the 2nd plaintiff attended the said meeting on behalf of the 1st plaintiff but no one else was in attendance. The said letter of the 2nd defendant which is dated the 8th March, 2012 and addressed to the 1st plaintiff is hereby pleaded.
38. The plaintiffs aver that following the non-attendance of the 1st defendant in the meeting of 13th March, 2012 the 1st plaintiff wrote another reminder to the 2nd defendant dated 2nd May, 2012 which is hereby pleaded.
39. The plaintiffs aver that following the reminder written to the 2nd defendant by

1st plaintiff dated 2nd May, 2012 the 2nd defendant again summoned a meeting vide a letter dated 19th July, 2012 fixing 2nd August, 2012 for the meeting and the 2nd plaintiff attended same but did not see any one else in attendance. The letter of 19th July, 2012 is hereby pleaded.
40. The plaintiffs aver that they have both suffered untold hardships, losses, special and general damages as a result of the demolition of the 2nd plaintiff?s developments on the plot in issue by the 1st and 3rd defendants.
41. The plaintiffs aver that the grant of title No.BNA 1928 to 1st defendant is in error, illegal and not in accordance with due process.?

Paragraph 42 of the Joint Statement of Claim set out the reliefs the plaintiffs claimed in the Court below:-
?42. NOW WHEREFORE the plaintiffs are jointly and severally aggrieved and claim jointly and severally against the defendants as follows:-
(a) A declaration that the 1st plaintiff?s title/right over the plot of land bounded by beacons numbers MKB 2296, MKB 2287, MKB 2297 and 2286 on TPS 161 behind Benue State Civil Service Commission, Makurdi has

not been revoked or acquired by any person whatsoever but was given by him to the 2nd plaintiff.
(b) A declaration that the plot of land situate at behind the Benue State Civil Service Commission bounded by beacons numbers MKB 2296, MKD 2287, MKD 2286 and MKD 2297 on Town Planning Sheet (TPS) 161 all that is attached to it belongs to the 2nd plaintiff it having been given to her by the 1st plaintiff.
(c) An order setting aside, canceling or ignoring the title No. BNA 1928 granted to the 1st defendant it having been granted in error and illegally.
(d) An order awarding jointly and severally to the plaintiffs the sum of Fifteen Million Naira (N15,000,000.00) only as general damages against the defendants jointly and severally for their acts of trespass, mischief and illegality over the plot in issue.
ALTERNATIVELY
(e) An order awarding compensation to the plaintiffs jointly and severally against the defendants in the sum of N2,084,000.00 based on the assessment that was carried out by the 2nd defendant in November, 2010.
(f) An order increasing the value of the assessed compensation to N4,000,000.00 considering the level of depreciation in the value of the Naira and loss of interest.?

The defence of the 1st defendant was a general denial of the facts pleaded by the plaintiffs in their Joint Statement of Claim from paragraphs 1-36 to wit:-
?1. The 1st defendant admits paragraphs 3, 4, 5 and 6 of the statement of claim.
2. The 1st defendant deny paragraphs 1, 2 and 7 of the claim and avers that the 1st plaintiff neither found, settle on nor own any parcel of land behind the Benue State Civil Service Commission, Makurdi over 50 years ago or at anytime.
3. The 1st defendant denies paragraph 8 of the claim and avers that the 1st plaintiff has neither owned any customary right over the land in dispute, developed same nor has sold to any person which is in occupation of the land. The 1st defendant shall put the plaintiffs to the strictest proof at the trial.
4. The 1st defendant denies paragraph 9 of the claim and shall put the plaintiffs to the strictest proof at the trial.
5. The 1st defendant denies paragraph 10 of the claim and avers that the 1st defendant has no knowledge nor participated as a member of the 2nd defendant?s team that were alleged to have

survey/plotted the 1st plaintiffs? land at behind the Benue State Civil Service Commission, Makurdi or at any other place. 1st defendant further avers that he was on transfer to Adikpo Zonal Office of the 2nd defendant from 1986 to 1990.
6. The 1st defendant denies paragraph 11 of the claim and contends that his right of occupancy was granted to him in 1991 upon due process.
7. In further answer to paragraph 11, 1st defendant avers that 1st plaintiff has no land to have given to 2nd plaintiff at this time as he also knows as of fact that the 1st plaintiff cannot give to the 2nd plaintiff what he does not have.
8. The 1st defendant denies paragraph 12 of the claim and avers that the 1st plaintiff never owned the plot of land and couldn?t have sold same to the 2nd plaintiff. The 1st defendant further avers that he is the holder of Right of Occupancy evidenced by Certificate of Occupancy No. BNA 1928 bounded by beacon numbers MKB 2286, MKB 297, MKB 2296, and MKB 2287 convering an area of 0.069 hectares on TPS 161 in Makurdi urban area. The 1st defendant?s Certificate of Occupancy has not been revoked by any authority. The

said Certificate of Occupancy is hereby pleaded and shall be relied upon at the trial.
9. The 1st defendant further avers that he followed all the due process by applying for allocation of residential plot to the appropriate authority, which after due processes allocated the said plot of land to him free from any encumbrances as the plot land was not occupied or committed to any other person before him and it was undeveloped.
10. The 1st defendant denies paragraph 13 of the claim and avers that the 2nd plaintiff never at any time planted any economic trees on the land in dispute but that upon the allocation of the plot of land to him he took possession of the same and planted some economic trees, such as mangoes, Melina trees, oranges and palm trees thereon preparing to carry out the erection of a dwelling house he intended on the land, without let, hindrance or challenge from anybody including the plaintiffs.
11. The 1st defendant has consistently paid his ground rents on the said plot of land to date. The Benue State Government receipts are hereby pleaded and shall be relied upon at the trial.
12. The 1st defendant denies paragraphs 14, 15 and

16 of the claim and avers that sometimes in mid 2002, he visited the land and noticed that all the economic trees planted by him on the land had been destroyed and removed and some development commenced on the plot of land. 1st defendant did not meet anybody at the time of the visit on the plot and had to ask around only to discover later on that it was one Emmanuel Gerna that trespassed on the land and cause the destruction in question.
13. The 1st defendant reported the acts of trespass of the said Emmanuel Gerna to the 2nd defendant and the 2nd defendant wrote Emmanuel Gerna STOP NOTICE to stop all acts of development on the land and copied the letter to the 3rd defendant. The letter is dated the 29th July, 2002 and is hereby pleaded.
14. The 1st defendant went to the land to commence development on the land sometimes in October, 2003, when the 1st plaintiff prevented him from entering into the land and he saw the said Emmanuel Gerna carrying out some development on the land. He then complained in writing to the Chairman, Dispute Committee of the 2nd defendant on 29th October, 2003. The letter is hereby pleaded.

15. The 1st defendant further contends that upon further inquiry, he was told that the 1st plaintiff has sold the plot of land in issue to the 2nd plaintiff. He approached the 1st plaintiff who vehemently denied knowing the land or selling same.
16. The 1st defendant admits paragraph 17 of the claim to extent that the 2nd plaintiff was invited to the Dispute Resolution Committee of the 2nd defendant upon the 1st defendant?s complaint and that the 2nd defendant only advised them to settle the matter amicably.
17. 1st defendant denies paragraph 18 of the claim and avers that he obtained Certificate of Occupancy No. BNA 1928 over the plot of land legally by applying for allocation and after due process was allocated same by the authorities.
18. The 1st defendant denies paragraph 19 of the claim and avers that he is neither aware of any surveying of the 1st plaintiff?s land nor did he participated in eating any goat, received any money or plot of land from him and shall require the strictest proof at the trial.
19. The 1st defendant denies paragraph 20 of the claim and avers that the 1st plaintiff is not the owner of the plot of land in dispute and could not

have validly sold same to the 2nd plaintiff.
20. The 1st defendant admits paragraphs 21 and 22 of the claim to the extent that the 2nd defendant only advised them to resolve the matter amicably. The 1st defendant avers that he never met with the 1st plaintiff again nor did he at any time agree to pay any amount of compensation to the 1st plaintiff, as 1st defendant was allocated the plot of land as unoccupied and undeveloped.
21. The 1st defendant denies paragraph 23 of the claim and avers that the 3rd defendant demolished the illegal development on the land and that he is not in a position to direct or control the activities of the 3rd defendant.
22. The 1st defendant denies paragraph 24 of the claim and avers that the demolition carried out by the 3rd defendant is not at his instance as he is neither an officer of the 3rd defendant nor has any control over them. The 1st defendant was not present at the time of the said demolition.
23. The 1st defendant contends in answer to paragraph 25 of the claim that he legitimately developed his plot of land after obtaining the necessary approval from the 3rd defendant. The approval is contained in a

letter to the 1st defendant from the 3rd defendant dated 24th December, 2008 and same is hereby pleaded.
24. The 1st defendant denies paragraph 26 of the claim and avers that it is not the practice of 3rd defendants to carry out demolition where adequate notices are given.
25. The 1st defendant denies paragraph 27 of the claim and shall contend that the 1st plaintiff do not own any deemed right of occupancy over the plot in issue and all acts carried out by him on the land are acts of trespass.
26. The 1st defendant denies paragraph 28 of the claim and contends that he is the rightful holder of a Right of Occupancy over the plot of land and as the owner has the right to develop or deal with the land as he wishes. Therefore, the 1st plaintiff processes no title to transfer to the 2nd plaintiff and is the actual trespasser by selling the plot of land which he knows belongs to 1st defendant to the 2nd plaintiff. The 1st plaintiff is merely a land speculation.
27. The 1st defendant denies paragraphs 29, 30 and 31 of the claim and states that he is not aware of any letter or letters written by the 1st plaintiff by himself or

through his lawyer to the 2nd defendant and that he has never followed the 1st plaintiff to the 2nd defendant for any negotiation or discussion and demands strict proof.
28. The 1st defendant denies paragraphs 32 and 33 of the claim and maintains that he never appeared before the 2nd defendant?s committee at anytime. The 1st defendant further contends that the 2nd defendant couldn?t have threaten to revoke his title over the plot of land as same was granted to him by the 2nd defendant, more so, that, that is not a valid ground for the revocation of Right of Occupancy.
29. The 1st defendant denies paragraph 34 of the claim and avers that he is neither in receipt of the said letter nor did he at any time destroyed any property belonging to the 1st plaintiff or anybody and thus not liable to pay any compensation to the 1st plaintiff or anybody to the tune of Two Million, Eighty-Four Thousand Naira only. The 1st defendant further contends that he is the one entitled to compensation for the destruction of his economic trees to the tune of Fifteen Million Naira (N15,000,000.00) only.
30. In further answer to paragraph 34 of the claim, the

1st defendant avers that he did not witness nor was he involved in any valuation exercise in respect of any property belonging to the plaintiffs or anybody.
31. The 1st defendant denies paragraphs 35 and 36 of the claim and contends that he is not aware of such letters to the 2nd defendant or himself. It is his further contention that the alleged application by 1st plaintiff was refused because the 2nd defendant knows that he has no title to the land and 1st defendant is the rightful owner of the plot of land in issue.
32. The 1st defendant denies paragraphs 37, 38, and 39 of the claim and avers that he was not served with any of the said letters and demands strict proof at the trial.
33. The 1st defendant denies paragraphs 40, 41, and 42 of the claim and shall put the plaintiffs to the strictest proof at the trial and further avers that the grant of title to him is valid and not in error and that he is not liable in any way to the plaintiffs.
34. The 1st defendant further avers that the alleged developments, if any, not conceded were illegal developments for which plaintiffs are not entitled to be paid compensation on.

35. The 1st defendant denies the entire claim of the plaintiffs as same is unfounded, vexatious, premised on frivolities and gold digging and shall urge the Honourable Court to dismiss same for lacking in merit with substantial costs to the 1st defendant.
36. The 1st defendant shall contend that plaintiffs? claim is statue barred and the Honourable Court has no jurisdiction to entertain the same and shall before or at the trial raise preliminary objection to the jurisdiction of the Court to entertain the suit.?

A general denial by the defence of material facts pleaded in a Statement of Claim is not tenable in law. In Messrs Lewis Peat (N.R.I.) Ltd. vs. A.E. Akhimien (1976) 1 FNLR 50, Idigbe, JSC held at page 83 as follows:
?The main contention of the appellants is that the question of capacity, or ? to use the language of the Court of trial ?status? of the appellants, was not ?an issue? in the case in hand, and that in any event it was not an issue on which the successes of the claim rested; the respondent contends the contrary and he relies on paragraphs 1 and 3 of his Statement of Defence. When as a result of exchange of

pleadings by parties to a case a material fact is affirmed by one of the parties but denied by the other, the question this raised between the parties is an ?issue of fact.? We must observe, however, that in order to raise an issue of fact in these circumstances there must be a proper traverse; and a traverse must be made either by a denial or non-admission either expressly or by necessary implication. So that if a defendant refuse to admit a particular allegation in the Statement of Claim, he must state so specifically; and he does not do this satisfactorily by pleading thus: ?defendant is not in a position to admit or deny (the particular allegation in the Statement of Claim) and will at the trial put the plaintiff to proof.? As was held in Harris vs. Gamble (1878) 7 Ch.D. 877, a plea that ?defendant puts plaintiff to proof? amounts to insufficient denial; equally a plea that the ?defendant does not admit correctness? (of a particular allegation in the Statement of Claim) is also an insufficient denial ? See Rutter vs. Tregent (1879) 12 Ch.D. 758. We are, of course, not unmindful of the first paragraph of

the Statement of Defence. Nowadays almost every Statement of Defence contains such a general denial ? See Warmer vs. Sampson (1959) Q.B. 287 at pages 310-311. However, in respect of essential and material allegations such a general denial ought not to be adopted; essential allegations should be specifically traversed. See Wallerstein vs. Moir (1974) 1 WLR 991 at page 1002 per Lord Denning, M.R.; also Bullen, Leake & Jacobs, Precedent of Pleading, 12th Edition, page 83. In this connection also we draw attention to Order 13 Rules 9 & 10 of the Rules of the High Court Western Region of Nigeria Cap.44 of Vol.2 of the 1959 edition of the Laws of Western Region of Nigeria applicable in the former Midwestern State (now Bendel State). We are, therefore, of the opinion that paragraph 3 of the Statement of Defence did not deny the facts alleged in paragraphs 1 & 3 of the Statement of Claim sufficiently enough to raise any issue in respect of the said facts.?
See Ajani vs. Okusaga (1976) 1 FNLR 188 at page 193; Benson vs. Otubor (1975) 1 All NLR (Pt.1) 43 and Atolagbe vs. Shorun (1985) 4 SC 250 at 253.

The 1st defendant?s counter-claim is at pages 59-60 of the printed record of appeal as follows:-
?37. The 1st defendant claims from the plaintiffs jointly and severally as follows:-
(a) Declaration that the 1st defendant is the rightful holder of Right of Occupancy evidenced by the Certificate of Occupancy No. BNA 1928 bounded by beacon numbers MKB 2286, MKB 2297, MKB 2296 and MKB 2287 covering an area of 0.069 hectares on TPS 161 in Makurdi Urban Area.
(b) Declaration that the 1st defendant is entitled to quiet possession occupation and enjoyment of the said piece of land to the exclusion of all others including the plaintiffs/defendants to the counter-claim herein.
(c) Perpetual injunction restraining the plaintiffs/defendants to the counter-claim by themselves, agents, servants, privies, by or through whomsoever from further trespass on the piece of land.
(d) General damages of Ten Million Naira (N10,000,000.00) only for the acts of trespass, mischief and unjustified loss and annoyance caused to plaintiffs/defendants to the counter-claim.?

The parties gave oral and documentary evidence. The learned trial Judge used the documentary

exhibits to evaluate the pleadings and the oral evidence before holding at page 358 lines 1-27 of the printed record as follows:-
?In conclusion, after considering the submissions of Counsel and the evidence led in the trial I am satisfied as to the merit of the root of the 2nd plaintiff?s title and I hereby enter judgment in her favour and in the following orders:-
1. I declare the 2nd plaintiff?s exclusive title over all that piece and parcel of land bounded by beacons Nos. MKD 2296, MKD 2287, MKD 2297 and MKD 2286 on TPS 161 in the record of the Benue State Ministry of Lands and Survey.
2. I make an order hereby setting aside the title document issued to the 1st defendant over the land bounded by beacons Nos. MKD 2296, MKD 2287, MKD 2297 and MKD 2286 on TPS 161 in the record of the Benue State Ministry of Lands and Survey.
3. The defendants shall jointly and severally pay N100,000.00 (One Hundred Thousand Naira only) to the 2nd plaintiff for their unjustified interference with his rights over the said land bounded by beacons Nos. MKD 2296, MKD 2287, MKD 2297 and MKD 2286 on TPS 161 in the Record of the Benue State

Ministry of Lands and Survey.
Having decided the main suit in line with the main relief sought therein, the alternative relief for compensation no longer arises for consideration and it is struck out as such. For the same reason the counter-claim is dismissed for want of merit. This shall be the judgment of the Court in both the main suit and in the counter-claim.?

I shall refer to the 1st defendant who appealed to this Court on 28th January, 2014 as ?the appellant? and the others as ?the respondents? in this appeal.

Grounds one and two in the Notice of Appeal are couched as follows:-
?GROUND ONE:
The learned trial Judge erred in law when he failed to properly evaluate the evidence before him in resolving who as between the appellant and respondent proved his case to be entitled to judgment of the Court in this suit.
PARTICULARS OF ERROR:
1. The 1st respondent claim was for a declaration of 1st plaintiff?s customary/traditional title while the appellant counter-claimed the same piece of land which is within Makurdi Urban Area.
2. The 1st plaintiff did not give any evidence to support his customary title.

3. The 1st plaintiff?s two written depositions were rejected and marked accordingly; as he never adopted them as evidence in support of his pleadings.
4. The Court however erroneously placed reliance the 1st plaintiff?s evidence which he alleged was not challenged under cross-examination.
5. The 1st plaintiff never testified or was not cross-examined as wrongly held by the trial Court.
6. There was no evidence in proof of the alleged customary title of the 1st plaintiff which was the foundation of the 1st respondent?s case.
7. The 1st respondent did not lead evidence in support of her case to prove the traditional title of the 1st plaintiff at all.
8. There were yawing gaps in the evidence of the 1st respondent as to the 1st plaintiff?s traditional title.
9. The 1st respondent?s evidence were incredible.
?10. The trial Court instead of dismissing the respondent?s case entered judgment in favour of the 1st respondent.
GROUND TWO:
The learned trial Judge erred in law when he relied heavily on the evidence of DW1 under cross-examination that the

Ministry of Lands and Survey established that the 1st plaintiff (respondent) was a customary owner of the land in dispute which piece of evidence is at variance with his pleadings adopted before the Honourable Court.
PARTICULARS OF ERROR:
1. The learned trial Judge held that ?the title of the respondent is rooted in that of the 1st plaintiff whom the DW1 acknowledged to be the customary owner of the land. Having admitted in line with the 1st plaintiff?s case that he was the customary owner of the land before the intervention by the defendants
2. The DW1?s evidence under cross-examination that the 1st plaintiff was a customary owner of the land in dispute is at variance with DW1?s pleadings.
3. In the entire pleadings before the lower Court it has not been pleaded by the 2nd respondent that 1st plaintiff was a customary owner of the land in dispute not even the sworn statement of the said DW1 which the lower Court relied solely in giving the judgment in favour of the 1st respondent.
4. The existence of any customary title before the intervention of the 2nd respondent was denied by all the defendants.

5. The 2nd respondent did not say they acquired the area of the land in dispute which is within Makurdi Urban Area from the 1st plaintiff before the lower Court. There is no such evidence before the lower Court.
6. The existence of any customary title before same was granted to the appellant was not proved by the respondents before the trial Court.
7. There was no evidence showing prior occupation of the land in dispute before same was given to the appellant.
8. Merely writing of letter of the 1st plaintiff to the 2nd respondent when the illegal structure of the 1st respondent was demolished by Benue State Urban Development Board is not a proof that he is the customary owner of the land.
9. The appellant was issued with his Certificate of Occupancy in 1991 while the 1st plaintiff purportedly sold same to the 1st respondent in the year 1991.
10. The appellant took possession of the land by planting economic trees.
11. It was the appellant that reported the trespass act of the 1st plaintiff to Dispute Resolution Committee of the 2nd respondent not the otherwise as assumed and held by the lower Court.

12. There was no land available for the 1st plaintiff to give to the 1st respondent.?

Grounds one and two in the Notice of Appeal is a complaint that the learned trial Judge ?erred in law etc, without mentioning the law nor its particulars, namely, the provisions of the Law which the learned trial Judge erred and misdirected or misapplied in determining the dispute contrary to the provisions of Order 7 Rule 2(1)-(2) and 3-4 of the Court of Appeal Rules, 2016 to wit:-
?2(1) All appeals shall be by way of rehearing and shall be brought by notice (hereinafter called ?the notice of appeal?) to be filed in the registry of the Court below which shall set forth the grounds of appeal, stating whether the whole or part only of the decision of the Court below is complained of (in the latter case specifying such part) and shall state also the exact nature of the relief sought and the names and addresses of all parties directly affected by the appeal, which shall be accompanied by a sufficient number of copies for on such parties.
(2) Where a ground of appeal alleges misdirection or

error in law, the particulars and the nature of the misdirection or error shall be clearly stated.
xxxxxxxxx
3. Any ground which is vague or general in term or which discloses no reasonable ground of appeal shall not be permitted, save the general ground that the judgment is against the weight of the evidence, and ground of appeal or any part thereof which is not permitted under this Rule may be struck out by the Court of its own motion or on application by the Respondent.
4. The appellant shall not without the leave of the Court urge or be heard in support of any ground of appeal not mentioned in the notice of appeal, but the Court may in its discretion allow the appellant to amend the grounds of appeal upon payment of fees prescribed for making such amendment and upon such terms as the Court may deem just.?

When a learned trial Judge ?err in law? in the determination of a dispute or a controversy is stated in a plethora of decisions of the Supreme Court. In Chidiak vs. Laguda (1964) NMLR 123, Taylor, JSC held at page 125 as follows:-
?Time and again do cases come up on appeal in which matters are treated in the Grounds of

appeal as misdirection which are no more than findings of fact by the trial Judge. Perhaps it is time to make it clear again what is regarded as a direction. In the case of Bray vs. Ford (2) Lord Watson said that:-
?Every party to a trial by Jury has a legal and constitutional right to have the case which he has made either in pursuit or in defence, fairly submitted to the consideration of that tribunal.?
This is done by the trial Judge directing the Jury, who are the Judges of fact, as to the issues of fact, and what is the law applicable to those issues. A misdirection therefore occurs when the issues of fact, the case for the plaintiff or for the defence, or the law applicable to the issues raised are not fairly submitted for the consideration of the Jury. Where, however, the Judge sits without a Jury, he misdirects himself if he misconceives the issues, or summarizes the evidence inadequately or incorrectly or makes a mistake of law, but provided there is some evidence to justify a finding it cannot properly be described as a misdirection. It is of course desirable, and we consider that it should be

the practice that the particular findings to which objection is to be taken at the hearing of an appeal should be specified in the grounds of appeal, possibly under the ground of appeal alleging that the judgment was against the weight of evidence.?
In N.N.S.C. vs. Establishment Sima (1990) 12 SCNJ 35 the Supreme Court held at page 38 as follows:-
?Now, the appellant right from the Federal High Court to the Court of Appeal and finally to this Court has tenaciously insisted his grounds of appeal from the High Court are grounds of law, merely by tagging them ?error in law?. Mere assertion that a ground of appeal is based on ?error in law? does not make it one if the errors particularized are no more than matters of fact. (Metal Construction (W.A.) Ltd. vs. Migliore (1990) 1 NWLR (Pt.126) 299). The grounds of appeal tagged by the appellant as those based on ?error in law? are no more than mere facts, the decision complained of are those of Court?s discretion based on facts deposed in affidavit evidence. (Ogbechie vs. Onochie (1986) 2 NWLR (Pt.23) 484; Ifediorah vs. Ume (1988) 2 NWLR (Pt.74) 5; Obijuru vs. Ozims (1985) 2 NWLR (Pt.6) 167).

When a ground of appeal is based on facts alone, or on mixed law and fact it could not be filed in the Court of Appeal unless leave is sought and obtained. (See Section 221(1) and (2) of the Constitution, 1979; Oluwole vs. L.S.D.P.C. (1983) 5 SC 1; State vs. Omeh (1983) 5 SC 20; Nwadike vs. Ibekwe (1987) 4 NWLR (Pt.67) 718. Once a ground of appeal is based on facts or mixed law and facts the jurisdiction of both Court of Appeal and Supreme Court is ousted unless leave has been sought and obtained to file the ground (Ojemen vs. Momodu II (1983) 1 SCNLR 188, 205).
The appellant right from the Federal High Court to the Court of Appeal has fought a futile battle to have a stay of proceedings pending appeal because its appeal is incompetent being appeal on grounds of facts for which leave was necessary and none was sought or obtained.
It was for the foregoing reasons that I, on 2nd day of October, 1990 dismissed this appeal with costs of N500.00 to the respondent.?
In Nwadike vs. Ibekwe (1987) 12 SC 14 the Supreme Court held at page 54 as follows:-
?(ii) Several issues that can be raised on legal interpretation of deeds,

documents, terms of art, words or phrases, and inferences drawn therefrom are grounds of law; Ogbechie vs. Onochie (supra) at pp.491-192.?

This appeal turns on the re-evaluation of facts supported by documentary exhibits which is a matter within the province of the learned trial Judge.
Evaluation of oral and documentary evidence is within the province of the learned trial Judge. See Mogaji vs. Odofin (1978) 4 SC 91 at 93-94 per Fatayi-Williams, JSC (as he then was) to wit:-
?When an appellant complains that a judgment is against the weight of evidence, all he means is that when the evidence adduced by him is balanced against that adduced by the respondent, the judgment given in favour of the respondent is against the weight which should have been given to the totality of the evidence before the judge. In other words, the totality of the evidence should be considered in order to determine which has weight and which has no weight at all. Therefore, in deciding whether a certain set of facts given in evidence by one party in a civil case before a Court in which both parties appear is preferable to another set of facts given in evidence

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by the other party, the trial judge, after a summary of all the facts, must put the two sets of facts on an imaginary scale, weigh one against the other, then decide upon the preponderance of credible evidence which weighs more, accept it in preference to the other, and then apply the appropriate law to it; if that supports it bearing in mind the cause of action, he will then find for the plaintiff. If not, the plaintiff?s claim will be dismissed. In certain circumstances, however, the claim is either struck out or the plaintiff is non-suited. Incidentally, in deciding which evidence has more weight than the other, a trial judge sometimes seeks the aid of admissions made by one party to add more to the weight of the evidence adduced by the other party. This is precisely why the totality of the evidence must be considered and why a trial Judge must weigh the conflicting evidence adduced by both parties and then draw his own conclusions. Of course, the procedure set out above will be unnecessary if the plaintiff?s case is so patently bad that no reasonable tribunal could possibly act upon it. In such a case, the trial Judge will dismiss the

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plaintiff?s claim without calling upon the defence.
In short, before a judge before whom evidence is adduced by the parties before him in a civil case comes to a decision as to which evidence he believes or accepts and which evidence he rejects, he should first of all put the totality of the testimony adduced by both parties on that imaginary scale; he will put the evidence adduced by the plaintiff on one side of the scale and that of the defendant on the other side and weigh them together. He will then see which is heavier not by the number of witnesses called by each party, but by the quality or the probative value of the testimony of those witnesses. This is what is meant when it is said that a civil case is decided on the balance of probabilities. Therefore, in determining which is heavier, the judge will naturally have regard to the following: (a) whether the evidence is admissible; (b) whether it is relevant; (c) whether it is credible; (d) whether it is conclusive; and (e) whether it is more probable than that given by the other party.
Finally, after invoking the law, if any, that is applicable to the case, the trial Judge will then come

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to his final conclusion based on the evidence which he has accepted?
It would appear from the above that what the defendants are now complaining about is precisely what this Court has criticized in the above case. In short, the trial Judge in that case condemned the defendant without considering the totality of the case before him and weighing the respective cases of the parties on the imaginary scale of justice!
It is manifest that the trial Judge in the case in hand has also not put the defendants? case on that imaginary scale and found it wanting in weight. We therefore think that his approach to the case is grossly unfair to the defendants. With respect, it appears to us that the trial judge, at the time he found for the plaintiffs, had not considered the defendants? case at all. We think, again with respect, that it is an under-statement to complain that the judgment is against the weight of evidence. What happened is worse than that. No imaginary scale was used in this particular case and the question of weight does not therefore arise.?
See Olubode vs. Salami (1985) 2 NWLR (Pt.7) 282 at 294-298.

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This appeal calls for a re-evaluation of the pleadings together with the oral and documentary evidence adduced before the learned trial Judge. In Kponuglo vs. Kodadja, Lord Alness, sitting in the Privy Council held at page 256 in Privy Council Judgments (1841-1973) by Olisa Chukura, SAN at page 256 to wit:-
?In their Lordships? opinion, the first question logically and chronologically, to consider in the appeal is the traditional evidence regarding the acquisition of a title to the disputed territory. Behind that question lies another, viz.: What weight is to be attached to that evidence? On the first question, the learned Chief Justice, who had the advantage of seeing and hearing the witnesses, held, as their Lordships have already pointed out, not only that the respondent?s case of gift failed, but that the appellants? case of conquest succeeded. The learned Chief Justice, after a careful analysis of the evidence on this topic tendered by the respondent, refused to accept it. On the other hand, he held that the evidence tendered by the appellants was reasonable and consonant with the facts as he found them. The Court of Appeal, while

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minimizing the weight to be attached to such evidence, did not suggest that the learned Chief Justice was wrong in the conclusion which he reached on the evidence, and their Lordships see no reason for thinking that the decision of the learned Chief Justice on the evidence adduced was other than sound. On the question of the weight to be attached to evidence of tradition, their Lordships do not differ from the carefully expressed view of the learned Chief Justice at page 62, lines 29, of the record regarding the function of traditional evidence in such an inquiry as this. Such evidence, in their Lordships? opinion, falls to be considered and weighed, quantum valeat, along with the other evidence in the case.?
His Lordship concluded at page 258-259 as follows:-
?Now while even on questions of fact and credibility, a Court of Appeal must not abdicate its functions, it is nevertheless trite law that, not possessing the advantages of the Judge of first instance, a Court of Appeal should be chary of overruling his opinion on a pure question of credibility. In their Lordships? opinion, no reason for altering the conclusion of the

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learned Chief Justice on this matter was adduced by the respondent in argument. Their Lordships cannot in these circumstances regard the Mahoon incident as established.
The evidence regarding possession would seem to be, in point of fact, neutral. Both parties can lay claim to certain acts of possession within the disputed territory; many of which were, as the learned Chief Justice says, fleeting in their character. But what seems quite clear ? and it is decisive, in their Lordships? view, of this part of the case ? is that the respondent has failed to prove exclusive possession by him such as is necessary to instruct a title to claim the remedy which he seeks. Nor must it be forgotten that, in regard to possession, as in regard to tradition, the attitude of the learned Chief Justice to much of the respondent?s evidence is one of incredulity, and that, commenting on the demeanour of the witnesses, he regards the respondent?s case on this topic as honeycombed with false and even manufactured evidence.
In the circumstances stated, their Lordships are of the opinion that the respondent has failed to discharge the onus of

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establishing beyond reasonable doubt that the title to the disputed area i.e. Bunya land, is his, either by gift or by exclusive possession. They are also of opinion that the respondent has failed to prove that the Delame award is binding on the appellants. That being so, the respondent?s action for damages, and for an injunction, which postulates a title in him to the land, fails in fact and in law. Their Lordships will therefore humbly advise His Majesty that the appeal should be allowed, that the judgment of the West African Court of Appeal should be set aside, and that the judgment of the Chief Justice should be restored, the appellants to have the costs of this appeal, and their costs in the Court of Appeal.?
The learned trial Judge took into consideration the credibility of the testimony of the witnesses in the witness box, a privilege which this Court does not have. See Ajadi vs. Olarewaju (1969) 1 All NLR 382; Agbonifo vs. Aiwereoba (1988) 2 SCNJ 146 at 156; Fatoyinbo vs. Williams (1956) 1 FSC 87 and Adeyemo vs. Popoola (1987) 4 NWLR (Pt.66) 578; Ebba vs. Ogodo (1984) 4 SC 84; Woluchem vs. Gudi (1981) 5 SC 319. The learned trial Judge

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did not fail to evaluate the pleadings, oral and documentary exhibits for this Court to order a retrial. See Adeyemo vs. Arokopo (1988) 6 SCNJ 1; Oke vs. Eke (1982) 12 SC 218; Egri vs. Ukperi (1974) 1 NMLR 22 and Duru vs. Nwosu (1989) 7 SCNJ 154. In Lion Buildings Ltd. vs. Shadipe (1976) 2 FNLR 282, Udo Udoma, JSC held at page 289 in the Supreme Court that:-
?The question then is: What order ought the learned trial Judge to have made in the light of the evidence before him at the trial? According to the learned Counsel for the defendant, the claims of the plaintiffs ought to have been dismissed, but according to the learned Counsel for the plaintiffs, Chief Rotimi Williams, judgment ought to have been entered for the plaintiffs. That brings us to a consideration of the last ground of appeal argued by both Counsel, namely, that judgment is against the weight of evidence.
We think on this question of weight of evidence, we should predicate our examination of the evidence, which was before the learned trial Judge with a quotation from an old judgment of the Full Court of Nigeria as to the principle to which a Court of Appeal

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should act when a judgment is appealed against as being against the weight of evidence, It is a principle which we believe has been rendered sacrosanct by age and from which we venture to suggest not Court should depart. The principle was enunciated in Macaulay Vs Tukuru (1881 ? 1911) I N.L.R. 35, in these words:
?When a judgment is appealed from as being against the weight of evidence, the Appeal Court must make up its own mind on the evidence, not disregarding the judgment appealed from but carefully weighing and considering it and not shrinking from over-ruling it, if, on full consideration, it comes to the conclusion that the judgment is wrong.
If, however, the Appeal Court is in doubt, the appeal must be dismissed since the burden of proof is on the appellant.?
The two grounds of appeal being vague and general in terms are hereby struck out. There is no valid ground to sustain the appeal.
In Austin Richter Coleman vs. Emma Kwaley Shang, Privy Council Decisions (1841-1973) by Olisa Chukura, SAN, 1980 edition, page 780 at page 790:-
?Their Lordships made reference earlier in this opinion to the challenge by the appellant to

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some of the facts which were stated as being ?not in dispute?. It was said that there was no proper proof of either of the marriages by native customary law, or that the deceased was an Osu man, or that the respondent was validly appointed to represent the family. When the Court from whose judgment an appeal is brought states that certain facts were admitted or were not in dispute it would, in the absence of agreement by Counsel on both sides, require very strong evidence or exceptional circumstances JUSTICES would be disposed to go behind such a statement in a judgment, or to judge of its accuracy merely from a perusal of the notes taken in the Courts of the country from which the appeal comes. There is nothing in the present case to justify their Lordships questioning the accuracy of this statement, subject only to the reservation referred to above as to the effect, if any, of such findings on the shares of those proved to be entitled to participate in the distribution.
For these reasons their Lordships will report to the President of Ghana as their opinion that this appeal should be dismissed, and that the appellant should pay the costs thereof.?

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In Kisiedu & Anor. vs. Dompreh & Ors. (1935) 2 WACA 281 at 285-286 as follows:-
?Here at all events is a solid fact upon which a trial Judge might well rely, in arriving at a decision in a case in which vague and uncertain evidence abounds. There were no doubt many other matters deposed to which gave indications pointing some in one direction, some in the other, and from which inferences could be drawn favourable to one view of the facts or the other. Their Lordships do not think it necessary to go through these other matters in detail. Suffice it to say that Deane, C.J., considered them, weighed them, and came to the conclusion that the title to the green land was in Tafo, when Tafo and the Odikro of Adjapoma sold it to Kisiedu, with the result that Dompreh had acquired no title to the green land and was a trespasser thereon.
Their Lordships find it impossible to say that the Court of appeal could, on the materials before them, properly be satisfied that this finding of fact by the trial Judge must be erroneous. No doubt an appeal in a case tried by a Judge alone, is not governed by the

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same rules which apply to an appeal after a trial and verdict by a jury. It is a rehearing. Nevertheless before an appellate Court can properly reverse a finding of fact by a trial judge, who has seen and heard the witnesses, and can best judge not merely of their intention and desire to speak the truth, but of their accuracy in fact, it must come to an affirmative conclusion that the finding is wrong. There is a presumption in favour of its correctness which must be displaced. As Lord Esher, M.R. said in Colonial Securities Trust Co. vs. Massey ((1896) 1 Q.B. 38). ?Where a case tried by a judge without a jury comes to the Court of Appeal, the presumption is that the decision of the Court below on facts was right, and that presumption must be displaced by the appellant.? Their Lordships must, they think, apply the same test, and ask themselves whether in their opinion the presumption in favour of the findings of the trial Judge has been displaced; and they feel bound to answer this question in the negative.
In the appellate Court the importance of Kwesi Kromo?s evidence, as bearing on the incident of 1904, appears to have been overlooked. The whole

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incident is disposed of by Kingdon, C.J., with the observation that ?the explanation given by the appellants that Adjapoma turned to Tafo for financial assistance because Tafo was the wealthy neighbour who was able to give it, is a possible one.? This appears to their Lordships to be an unsatisfactory treatment of a crucial piece of evidence. Webber, C.J., does not even refer to it, but devotes the greater part of his judgment to the question whether Kisiedu had proved that his parcels included the green land.
Their Lordships are unable to discern in these judgments any solid grounds for displacing the presumption which properly exists in favour of the correctness of the facts which have been found by the trial judge; and dealing with the matter as though it came before them directly on appeal from his decision, they find no reason either for displacing that presumption, or for disagreeing with the judgment which he pronounced.
Their Lordships are of opinion that the appeal should be allowed and the judgment of Deane, C.J., restored, and they will humbly advise His Majesty accordingly. The respondents must pay the appellants? costs

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of the appeal to His Majesty in Council, and to the West African Court of Appeal.?
The Rules Giver has not defined when the Court of Appeal Justices, hearing an appeal, may come to the conclusion that a ground of appeal discloses no reasonable ground of appeal and ought to be struck out. However, in Uwazuruonye vs. The Governor of Imo State & Ors. (2012) 11 MJSC 46, Onnoghen, JSC held at page 65 to 66 as follows:
?It is settled law that a cause of action is the fact or combination of facts which gives rise to a right to sue or institute an action in a Court of law or tribunal. The term also includes all things which are necessary to give a right of action and every material fact which has to be proved to entitle the plaintiff to succeed/relief ? See Elabanjo vs. Dawodu (2006) 15 NWLR (Pt.1001); P.N. Udoh Trading Co. Ltd. vs. Abere (2001) 11 NWLR (Pt.723) 114 at 129.
On the other hand, a reasonable cause of action is a cause of action which, when only the allegation in the statement of claim and, I may add, originating process, are considered having some chances of success. See Dantata vs. Mohammed (2000) 7 NWLR (Pt.664) 176 at 203.”

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Where it is found that the statement of claim disclosed no reasonable cause of action, Onnoghen, JSC held at page 69 of the decision as follows:
?In conclusion, I affirm the decision of the lower Court that appellant has not disclosed a reasonable cause of action neither has he established any locus standi to initiate the action. The above being the case, it is clear that the action so constituted in the said circumstances is grossly incompetent and liable to be struck out. It is therefore my view that suit No.HOW/92/95 be and is hereby struck out for want of jurisdiction, with costs which I assess and fix at N100,000.00 against the appellant and in favour of the respondents.
Appeal is dismissed.?
The Supreme Court had to determine inIbrahim vs. Osim (1988) 6 SCNJ 203 the meaning of the above expression in Order 22 Rule 4 of the High Court of Lagos State (Civil Procedure) Rules, Cap. 52, Laws of Lagos State. Uwais, JSC (as he then was) held at page 209 as follows:
?But the phrase ?reasonable cause of action? which is used in Order 18 Rule 19 of the English Rules of the Supreme Court (See

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Volume 1 of the Supreme Court Practice 1979) had been defined in Drummond-Jackson vs. British Medical Association & Ors. (1970) 1 W.L.R. 688 at page 696 C by Lord Pearson who observed:
?First there in paragraph (1)(a) of the rule the expression ?reasonable cause of action?, to which Lindley M.R. called attention in Hubbuck & Sons Ltd. vs. Wilkinson, Heywood & Clark Limited, (1899) 1 Q.B. 86 pages 90-91. No exact paraphrase can be given, but I think ?reasonable cause of action? means a cause of action with some chance of success, when (as required by paragraph (2) of the rule) only the allegations in the pleadings are considered. If when those allegations are examined it is certain to fail, the statement of claim should be struck out.?
This definition was approved by this Court in Chief (Dr.) Irene Thomas & Ors. vs. The Most Revered Timothy Omotayo Olufosoye (1986) 1 NWLR 669 at page 682 (per Obaseki, JSC).?
His Lordship proceeded to hold at page 210 as follows:
?As has been shown, the question whether or not a reasonable cause of action existed in the statement of

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claim filed by the respondent is a question of fact based on the circumstances of the transaction between the appellant and the respondent.?
Obaseki, JSC held at page 213 as follows:
?The law is settled that when an objection is raised that the statement of claim does not disclose a reasonable cause of action, it is the statement of claim that has to be examined and not the statement of defence to ascertain whether there is a reasonable cause of action before the Court. Unless there is a counter-claim, one does not expect to find a cause of action in a statement of defence. It is therefore premature to advert to the defence contained in the statement of defence as the appellant would want us to do.?
Karibi-Whyte, JSC expressed the following opinion at page 217 as follows:
?The expression has been defined in Drummond-Jackson vs. British Medical Association (1970) 1 WLR 688 to mean a cause of action with some chance of success when only the allegations in the pleadings are considered. The question is not whether it discloses a good cause of action but whether it (i.e. the statement of claim,) discloses a reasonable one.?<br< p=””

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In Egbe vs. Adefarasin (1987) 1 SCNJ 1, Oputa, JSC held at page 14 thus:
?Now this Court as well as the Court of Appeal are appellate Courts. They do not try issues. Rather they examine the way issues had been tried by trial Courts in order to ensure that the case was properly tried. It is thus very necessary to look at the findings of the trial Court on the various issues agitated before.?
On brief writing his Lordship reasoned at page 16 as follow:
?Before going into the merits of the grounds canvassed in the brief, it may be necessary to observe that a brief should as far as it is possible be dispassionate and not emotional, be objective, accurate and clear. In the ?introduction? effort should be made to state the facts of the case on appeal as clearly and as concisely as is consistent with the duty of Counsel as a minister in the sacred temple of justice. To this end Counsel should not be too personally involved with the case he is briefed to prosecute. Afortiori Counsel should endeavour to brief another Counsel when cases concern them personally otherwise objectivity and detachment can hardly be maintained.

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In this case the appellant, a very eminent Counsel, undertook to conduct his case himself. He who descends into the arena of conflict cannot avoid the dust of the encounter. With the best will in the world he will not have that detachment expected of an advocate who merely argues the case as distinct from vouching the case. In his introduction the appellant in his brief alluded to certain facts which do not form part of this case either as pleaded or as established by the evidence of the 9 witnesses who testified. To say the least the statement and insinuation in the introduction to the appellant?s brief were totally uncalled for and I may add, not in accord with the highest tradition of the Bar. The introduction contained what a brief should not contain and the brief itself omitted the most essential part of a brief namely, ?Questions for Determination?.
I will not proceed to consider the grounds canvassed in the brief and elaborated by oral argument in Court.?
The principles are that it is not every error or mistake that a learned trial Judge commits that should be a ground for setting aside the verdict on appeal.

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In Amayo vs. Erinmwingbovo (2006) All FWLR (Pt.318) 612, the Supreme Court held at page 628 paragraphs ?C?-?D? as follows:-
?It is patently clear from the above that apart from Exhibits ?OE1? and ?OE4? there were other cogent and credible evidence which the learned trial Judge relied upon in finding for the plaintiff/respondent. So although Section 34 of the Evidence Act, Cap.112, Laws of the Federation of Nigeria, 1990 and the conditions prescribed therein have not been met, no miscarriage of justice had been occasioned. It is well settled law that it is not every error or mistake in a judgment that will lead to a judgment being reversed or set aside. An appellate Court will do so only where the error or mistake has led to a miscarriage of justice, and without the error a different decision would have been arrived at by the trial Court. See Bankole vs. Pelu (1991) 8 NWLR (Pt.211) 523; Mora vs. Nwalusi (1962) SCNLR 73, and Alli vs. Alesinloye (2000) FWLR (Pt.15) 2610, (2000) 6 NWLR (Pt.660) page 177.?
See Alli vs. Alesinloye (2000) FWLR (Pt.15) 2610 and Bankole vs. Pelu (1991) 8 NWLR (Pt.211) 523.<br< p=””

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Order 4 Rules 9(1)-(2) of the Court of Appeal Rules, 2016 provides as follows:-
?9(1) On the hearing of any appeal, the Court may, if it thinks fit, make any such Order(s) as could be made in pursuance of an application for a new trial or to set aside a verdict or judgment Of the Court below.
(2) The Court shall not be bound to order a new trial on the ground of misdirection, or of the improper admission or rejection of evidence, unless in the opinion of the Court some substantial wrong or miscarriage of justice has been thereby occasioned.”
The appellant has the onus of showing how the learned trial Judge committed any substantial wrong or that the decision led to a miscarriage of justice for this Court to interfere with the findings or verdict of the learned trial Judge to be entitled to “final judgment” under Order 4 Rule 9(3) of the Court of Appeal Rules, 2016 to wit:-
“(3) A new trial may be ordered on any question without interfering with the finding or decision on any other question; and if it appears to the Court that any such wrong or miscarriage of justice as is mentioned in Sub-rule (2) Of this Rule

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affects part only of the matter in controversy or one or some only of the parties, the Court may order a new trial as to the party only, or as to that party or those parties only, and give final judgment as to the remainder.”

The appeal lacks merit and is dismissed. I abide by the ancillary orders made by my learned brother, Otisi, JCA.

JOSEPH EYO EKANEM J.C.A.: I read in advance the judgment of my brother, Otisi, JCA, which has just delivered. I agree with the reasoning and conclusion therein. I will however add a word or two of mine for emphasis.

The case of the late 1st plaintiff and 1st respondent was founded on traditional history and sale of the land in dispute by the 1st plaintiff to the 1st respondent. Where a case is founded on traditional history, the party making out the case is required to plead and prove:
1. Who founded the land.
2. How he founded the land.
3. The particulars of intervening owners through whom he claims. See Ngene v Igbo (2000) LPELR – 1987 (SC) and Sogunro v Yeku (2017) 9 NWLR (Pt. 1570) 290, 316.

The late 1st plaintiff and 1st respondent in their joint

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statement of claim pleaded that the land in dispute was founded and settled on by 1st plaintiff over 50 years before then and that he sold the land to the 1st respondent. The 1st respondent testified in line with the pleading. It is a misconception of the law to say that the evidence of the 1st respondent is hearsay evidence. This is because traditional history is an exception to the hearsay rule.
See Section 66 of the Evidence Act. In the case of Sogunro v Yeku supra. 315 Nweze, JSC, commenting on traditional history stated that,
“…the law, in its wisdom allows such evidence, most probably, in view of the fact that much part of our past is practically unrecorded?. Clear evidence of the wisdom of the law in this regard could be found in Section 44 of the Evidence Act (applicable at the material time; now Section 66 of the Evidence Act, 2011) which delisted this category of evidence from the hearsay rule and elevated it to the status of admissible evidence.”

Again, it is inconsequential that family members of the deceased 1st plaintiff did not testify. Traditional history can be given by witnesses who by their close association,

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interaction or special relationship with land owner or land ? owning family are enough to give and relevant traditional evidence in respect of ownership of the land. See Oyekola v Ajibade (2004) 17 NWLR (Pt. 902) 354, 381 and Edemekong v Ekpo (2013) LPELR – 19705 (CA). The 1st respondent falls into that category of persons

The traditional evidence of the 1st respondent stood uncontradicted and unchallenged. It was bound to succeed on its own. Further, the evidence of DW2 in cross examination solidified the traditional evidence of the 1st respondent when he stated that,
“The 1st plaintiff was the customary owner of the land…”
The 1st plaintiff therefore had a deemed right of occupancy over the land in dispute which he could transfer to the 1st respondent, as he did.
There is no evidence to prove the assertion that the land was acquired by the Benue State Government. Therefore the right of Occupancy and the Certificate Of Occupancy issued to the appellant in respect of the land were completely worthless and illusory.
Inllona v Idakwo (2003) 11 NWLR (Pt. 830) 53, 83 the Supreme Court held that,
“Where there is subsisting right of occupancy, it is good against any other right. The grant of

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another right of occupancy over the same piece of land will therefore be merely illusory and invalid…”
In Ogunleye v Oni (1990) LPELR – 2342 (SC) 43-44 Obaseki, JSC, opined that
“It should be clear that any person without title to a parcel of land in respect of which the certificate of Occupancy was issued acquires no right or interest which he did not have before.”
Since the appellant had no title or interest in the land prior to the issuance of the worthless certificate of occupancy to him, he acquired no right over the land and could therefore not successfully resist the claim of the 1st respondent.
It should not be conceived that the Land Use Act is a gargantuan monster that gobbles up pre-existing rights Over land. Rather, the Act recognizes pre-existing titles that now morph into rights of occupancy. Such rights cannot be taken away except in strict compliance with the Act.

I therefore agree with my learned brother that the appeal is without merit. I also dismiss it and affirm the judgment of the trial Court. I abide by the order as to costs made in the lead judgment.

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Appearances:

A.O. Aruta, Esq. with him, D. A. Awuru, Esq. and N.K. Ucheji, Esq.For Appellant(s)

Bem T. Hanaze, Esq. for the 1st Respondent.

S.T. Sokpo, Esq. (Principal State Counsel, Ministry of Justice, Benue State) for the 2nd and 3rd RespondentsFor Respondent(s)

Appearances

A.O. Aruta, Esq. with him, D. A. Awuru, Esq. and N.K. Ucheji, Esq.For Appellant

AND

Bem T. Hanaze, Esq. for the 1st Respondent.

S.T. Sokpo, Esq. (Principal State Counsel, Ministry of Justice, Benue State) for the 2nd and 3rd RespondentsFor Respondent

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