MR. PAUL EKHAGUERE v. MR. EKHOSUEHI IGBINOMWANHIA (2010)

MR. PAUL EKHAGUERE v. MR. EKHOSUEHI IGBINOMWANHIA

(2010)LCN/4200(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 1st day of June, 2010

CA/B/203/2002

RATIO

OWNERSHIP OF LAND: WAYS BY WHICH OWNERSHIP OF LAND MAY BE PROVED AND WHETHER A PLAINTIFF NEED TO PROVE ALL THE METHODS FOR HIS CLAIM TO SUCCEED

The Supreme Court has long laid down the five ways by which ownership of land may be proved. These are: (1) By traditional evidence, (2) By production of documents of title, (3) By providing acts of ownership (such as selling, leasing, renting out or farming on all or part of the land) extending over a sufficient length of time, or which are numerous and positive enough as to warrant the inference that the person is the true owner. (4) By providing acts of long possession and enjoyment of the land. (5) By proof of possession of connected or adjacent land in circumstances rendering it probable that claimant is also owner of such adjacent land. In the case of: Eze v. Atasie (2000) 6 S.C. (Pt. 1) p. 214 at p. 228, paras. 25 – 30, the apex Court yet held per Ejiwunmi, JSC (of blessed memory) that: “It follows that a plaintiff seeking to prove his ownership of a piece of land must identify one… of the five methods…. to sustain his claim. Having done so, he is not allowed to shift his ground of proof … See Mogaji & Ors. v. Cadbury Nig. Ltd. & Sons (1985) 2 NSCC 959. PER OYEBISI F. OMOLEYE, J.C.A.

DECLARATION OF TITLE: WHETHER THE BURDEN TO PROVE TITLE IN A CASE OF DECLARATION OF TITLE TO LAND RESTS ON THE PLAINTIFF AND EFFECT OF HIS FAILURE TO DISCHARGE THAT BURDEN

The law is settled that in all cases where a plaintiff is seeking for declaration of title to land, the burden lies on such a plaintiff to prove his case or his evidence and not on the weakness of the defence. The plaintiff will fail if he fails to discharge that burden. This is in tune with the provisions of Section 135 of the evidence Act, that he who assets the existence of a particular set of facts must prove same. See the cases of: (1) Ezemba v. Ibeneme (2004) 7 SCNJ p. 141. (2) Osuyi v. Ekeocha (2009) All FWLR (pt. 490) p.614 and (3) Essien v. Etukudo (2009) All FWLR (Pt. 496) p.1886. Hence where two person are claiming title adversely to each other, title resides in him who can establish a better title. See the cases of: (1) Pius Amakor v. Benedict Obiefuna (1974) 3 S.C. p. 67; (2) Echi v. Nnamani supra; (3) Ogunbiyi v. Adewunmi (1988) 12 S.C. (Pt. III) p. 144 and (4) Uchendu v. Ogboni (1999) 4 S.C. (Pt. II) p. 1. PER OYEBISI F. OMOLEYE, J.C.A.

PERVERSE DECISIONS OF COURT: WHEN A DECISION WILL BE HELD TO BE PERVERSE

The courts over the years have laid down the attributes of a perverse decision of court. These attributes were clearly restated in the case of: Osuyi v. Ekeocha supra at pages 644 – 645 paras. E – B per Adekeye, JSC as follows: A decision will be held to be perverse where: (a) It is speculative and not based on any evidence; or (b) The court took into account matters which it ought not to have taken into account, or (c) The court shut its eyes to the obvious; Adimora v. Ajufo (1988)3NWLR (Pt. 80) 1; Makanjuola v. Balogun (1989) 3 NWLR (Pt. 108) 192; Atolegbe v. Shornn (1985)1NWLR (Pt. 2) 360; Duru v. Nwosu (1989) 4 NWLR (Pt. 113) 24; Ihewuezi v. Ekeanya (1989) 1 NWLR (pt. 96) 239; Adeosun v. Jibesin (2000)11NWLR (Pt. 724) 290. PER OYEBISI F. OMOLEYE, J.C.A.

INTERFERENCE WITH FINDINGS OF FACT: CIRCUMSTANCES WHERE AN APPELLATE COURT WILL INTERFERE WITH THE DECISION OF A TRIAL COURT.

Where a trial court has carried out satisfactorily its function of proper and dispassionate appraisal of evidence given in support of each party’s case, an appeal court will be left with no option but to affirm such a decision. Where the findings and conclusions have been found, to be perverse or where wrong inferences have been raised or drawn from accepted facts or wrong principle have been applied to facts … when the consequential orders do not flow from the conclusions of the trial court in the judgment, it was the duty of the lower court to reevaluate and re-assess the offensive order made by the trial Court, unsupported by the evidence adduced by both parties: Woluchem v. Gudi (1981) 5 SC 291; Egba v. Ogodo (1984)SC 42; Akinloye v. Eyiyola (1968) NMLR 92; Thompson v. Arowolo (2003) FWLR (Pt. 164) 315; (2003) 7 NWLR (pt.818) 163; Fatoyinbo v. Agboola (1974)10 SC 111. PER OYEBISI F. OMOLEYE, J.C.A.

LOCUS STANDI: MEANING OF THE TERM “LOCUS STANDI”

The term ‘locus standi’ or ‘right’ or ‘standing’ had been defined as denoting legal capacity to institute actions in a court of law.It is not dependent on the success or merit of a case, it is a condition precedent to adjudication by a court to determine a case on the merits. PER OYEBISI F. OMOLEYE, J.C.A.

LOCUS STANDI: WHAT WILL BE CONSIDERED IN DETERMINING WHETHER A PLAINTIFF HAS THE RIGHT TO INSTITUTE AN ACTION

It is an established principle of law that the right of a plaintiff to institute an action is gathered from the statement of claim and not from the evidence that is subsequently led in the suit. See the cases of: (1) Owodunni v. Reg. Trustees of Celestial Church of Christ (2000) 6 SCNJ p. 399; (2) Adenuga v. Odumeru (2003) All FWLR (Pt. 158) p. 1288; (3) Buhari v. Haddy Smart (Nig.) Ltd. (2010) 11 W.R.N. p. 10 and (4) Inakoju v. Adeleke (2007) 4 NWLR (pt. 1025) p423. PER OYEBISI F. OMOLEYE, J.C.A.

LOCUS STANDI: IMPORTANCE OF A PARTY HAVING LOCUS STANDI ON THE JURISDICTION TO ADJUDICATE UPON SUCH CLAIM

Before Their Lordships

AMINA ADAMU AUGIEJustice of The Court of Appeal of Nigeria

OYEBISI FOLAYEMI OMOLEYEJustice of The Court of Appeal of Nigeria

CHIOMA EGONDU NWOSU-IHEMEJustice of The Court of Appeal of Nigeria

Between

MR. PAUL EKHAGUERE
(Substituted by Order of Court made On 17th February, 2004)Appellant(s)

AND

MR. EKHOSUEHI IGBINOMWANHIARespondent(s)

OYEBISI F. OMOLEYE, J.C.A. (Delivering the Leading Judgment) This is an appeal against the judgment of the High Court of Edo State, holden in Benin (hereinafter referred to as the lower Court), delivered on 16th April, 1999 per Hon. Justice C.O. Idahosa.
It is apposite to state that the original Appellant in this matter was Mrs. Izogie Ekhaguere. After her death, this Court made an order substituting her with her son, Paul Ekhaguere.
The Appellant was the plaintiff, while the Respondent was the 1st Defendant at the lower Court. The Appellant claimed against the Respondent and another, a declaration of title to a parcel of land situate at Ukpera village, damages for trespass and perpetual injunction. The Respondent counter-claimed for a declaration of title to the same land and injunction against the Appellant. The 2nd further amended statement of claim of the Appellant and the 1st further amended statement of defence incorporating the counter-claim of the Respondent are contained in pages 47 to 52 and 53 to 60 of the record of appeal respectively. The parties and their witnesses testified and tendered in evidence documents in support of their respective positions. At the end of trial, the learned trial Judge entered judgment in favour of the Respondent and held inter alia as follows:
“It is hereby declared that the Defendant is the owner and in possession of all those parcels of land bounded by a proposed road, Enoma Street, Erhunwunse Street and NEPA Power Transmission Line delineated and marked in the Plan filed along with the statement of defence.”
The Appellant was displeased with the decision and she appealed against it to this Court vide her notice and grounds of appeal dated 29th June, 1999 with an omnibus ground of appeal that:
“The judgment is against the weight of evidence.”
By the order of this Court on 14th February, 2006, the Appellant filed four additional grounds of appeal. The four additional grounds of appeal without their particulars verbatim read thus:
2. The learned trial Judge erred in law and on the facts when he held that it is to be noted that the defendant having relied on ward 20k Uzebu Plot Allotment Committee as well as the combined Evbuotubu Iguedaiyi Okhokhugbo Plot Allotment Committee … shall be considered as one for the purpose of this case,” which finding is perverse having regard to the record.
3. The learned trial Judge erred in law and on the facts when he held in spite of the findings above, it is clear that the area where the land in dispute is situate is generally known and called Evbuotubu Quarters which ruling is perverse having regard to his findings on the record.
4. The learned trial Judge erred in law and on the facts when he entered judgment in favour of the respondents as per his counter claim after holding that the parcels of land as per Exhibit A belongs to the defendant his younger brother D.W.S and sister.
5. The learned trial Judge erred in law when he adjudicated on the counter claim without jurisdiction since the condition precedent was not complied with before the filing of the counter claim.
In the Appellant’s brief of argument dated 1st March, 2006, four issues were formulated for determination. The four issues state as follows:
1. Having regard to the totality of the evidence, whether the appellant is not entitled to judgment.
2. Whether the Plots Allotment Committee of ward 20k Uzebu and ward 43/B Evbuotubu Iguedaiyi and Okohkhugbo had the jurisdiction to allocate the land in dispute to the respondent when the areas of jurisdiction of both wards were not sufficiently ascertained?
3. Whether the learned trial Judge had the jurisdiction to adjudicate on the respondent’s counter claim when the condition precedent was not complied with by the respondent and when defendant had no locus standi to file the counter claim?
4. Whether the learned trial Judge was right to import extraneous evidence to arrive at his judgment?
The Respondent identified two issues for determination in the Respondent’s brief of argument dated 26th April, 2006 and filed on 27th April, 2006. The two issues read thus:
1. Did the Appellant prove her case to be entitled to the judgment of the lower Court?
2. Was the counter claim of the Respondent properly before the lower court?
I am of the opinion that the two issues as formulated by the Respondent’s learned counsel are very succinct and sufficient for the proper determination of this appeal, I adopt same and will consider them along with issues one, two and three as formulated by the Appellant’s learned counsel.
This is more so that the Respondent’s issues one and two argued together are in tune with issue one of the Respondent. Issue three of the Appellant is in line with issue two of the Respondent.

It is important to state at this juncture as rightly observed by the Respondent’s learned counsel that, issue four of the Appellant would appear to have been abandoned because no argument was proffered in respect thereof in his brief of argument. What is more, issue four did not arise from the grounds of appeal, this is probably the reason no argument was canvassed in support of same in the Appellant’s brief of argument. In the circumstance, issue four is struck out.

ISSUE ONE
Did the Appellant prove her case to be entitled to the judgment of the lower Court?
It was submitted by the learned counsel for the Appellant that, the root of title of the Appellant was properly established in accordance with the laid down procedure of acquiring land under Bini native law and custom. On this position, he relied on the case of: Okeaya-Inneh v. Aguebor (1970) 1 All NLR p. 9. That it was the appropriate Ukpera village Plot Allotment Committee Ward 43/B that recommended her application to acquire the land in dispute to the Oba of Benin. And that the Oba of Benin approved the recommendation and the parcel of land was duly allotted to her vide Exhibit B tendered in evidence by her. It was contended for the Appellant that, the plot allotment committee which purportedly granted the same land to the Respondent’s father had no jurisdiction so to do. This is because under Bini native law and custom, a parcel of land can not be within the jurisdiction of two allotment committees. Where a committee allots land without jurisdiction, such allocation is null. He relied on this standpoint on the cases of:
1. Aigbe v. Edokpolor (1977) 2 S.C. p. 35 and
2. Awoyegbe v. Ogbeide (1988) 1 NWLR (Pt. 73) p. 695.
The learned counsel for the Appellant further argued that, the content of the Oba’s approval is presumed to be correct because the Oba’s approval can not emanate from a ward which he did not establish. He submitted that since there was no evidence that Exhibit B which was in existence for a period of over twenty years was forged, a presumption of regularity enures in its favour.
In response, the learned counsel for the Respondent stated that, the property in dispute was acquired through Ward 20/K Uzebu plot allotment committee which had the requisite jurisdiction to allot the disputed land at the time of its acquisition. Later, when the property was ceded to a newly created Evbotubu committee, the property was duly recertificated with the said new committee by the Respondent. It was further stated that, the Evbotubu committee and Ukpera committee were in the same ward 43/B but each had its own area of jurisdiction.
The learned counsel for the Respondent restated the legal principle that, in an action for declaration of title to land, the onus of proof is on the plaintiff to establish his/her entitlement. In support of this legal principle, he referred to the case of: Echi v. Nnamani (2000) 8 NWLR (Pt. 667) p.1. He submitted that the Appellant failed to discharge this onus and is not entitled to her claim of title in the property in dispute. That a document of title without more is not conclusive proof that will automatically entitle the holder to a declaration of tile. On this stance, reliance was plead on the cases of:
(1) Kachalla v. Banki (2001) 10NWLR (Pt. 721) p. 442 at p.460 and
(2) Romaine v. Romaine (1992) 4 NWLR (Pt.238) p. 650.
The basic question that has arisen in this appeal and under this issue is, whether the Appellant led evidence to support her claim? The Supreme Court has long laid down the five ways by which ownership of land may be proved. These are:
(1) By traditional evidence,
(2) By production of documents of title,
(3) By providing acts of ownership (such as selling, leasing, renting out or farming on all or part of the land) extending over a sufficient length of time, or which are numerous and positive enough as to warrant the inference that the person is the true owner.
(4) By providing acts of long possession and enjoyment of the land.
(5) By proof of possession of connected or adjacent land in circumstances rendering it probable that claimant is also owner of such adjacent land.
In the case of: Eze v. Atasie (2000) 6 S.C. (Pt. 1) p. 214 at p. 228, paras. 25 – 30, the apex Court yet held per Ejiwunmi, JSC (of blessed memory) that:
“It follows that a plaintiff seeking to prove his ownership of a piece of land must identify one… of the five methods…. to sustain his claim. Having done so, he is not allowed to shift his ground of proof … See Mogaji & Ors. v. Cadbury Nig. Ltd. & Sons (1985) 2 NSCC 959.”

The law is settled that in all cases where a plaintiff is seeking for declaration of title to land, the burden lies on such a plaintiff to prove his case or his evidence and not on the weakness of the defence. The plaintiff will fail if he fails to discharge that burden. This is in tune with the provisions of Section 135 of the evidence Act, that he who assets the existence of a particular set of facts must prove same. See the cases of:
(1) Ezemba v. Ibeneme (2004) 7 SCNJ p. 141.
(2) Osuyi v. Ekeocha (2009) All FWLR (pt. 490) p.614 and
(3) Essien v. Etukudo (2009) All FWLR (Pt. 496) p.1886.
Hence where two person are claiming title adversely to each other, title resides in him who can establish a better title. See the cases of:
(1) Pius Amakor v. Benedict Obiefuna (1974) 3 S.C. p. 67;
(2) Echi v. Nnamani supra;
(3) Ogunbiyi v. Adewunmi (1988) 12 S.C. (Pt. III) p. 144 and
(4) Uchendu v. Ogboni (1999) 4 S.C. (Pt. II) p. 1.

There is no doubt in the instant case that on analysis, the facts of the case concerns competing claims to the ownership of the same parcel of land, each claiming to have documents of title from the same source, that is, the Oba of Benin vide the plot allotment committees constituted by him. For the Appellant to succeed on the state of pleadings, she must satisfy, the court by credible, satisfactory, clear, cogent, acceptable and uncontradicted evidence of his case. That is, that the disputed land was within the area of scope of the Ukpera Plot allotment committee which allocated the land to her.
The learned trial Judge at page 140 of the record of appeal found properly in my view that:
It is pertinent to note that in this case the main issue between the parties has been which of the two wards … Ukpera Allotment Committee Ward 43/B on the one hand and the Ward 20/K Uzebu Plot Allotment Committee and or Evbuotubu Iguedaiyi Okhokhugbo Plot Allotment Committee on the other hand, had the right to recommend applications for land in the area of the land in dispute…
Based on the testimonies of the witnesses, documentary evidence and the visit to the “locus in quo” by the learned trial Judge even though there appeared to be no doubt as to the identity of the land in dispute, the lower Court found that the area where the land is situated, is known as Evbuotubu and not Ukpera. This finding is predicated on the testimonies of DW1, DW2 and DW3 which were supported by those of PW1 and PW2, the witnesses of the Appellant herself. Consequently, the trial Court held, and I agree with it that, although the total area of the jurisdiction of ward 20/K Uzebu/Evbuotubu Plot Allotment Committees, the land in dispute is situated within their area of jurisdiction. And that, it is the said committee that had the right to recommend applicants for land allocation in the area of the land in dispute. This is the reason I do not share the view of the learned counsel for the Appellant that, because the lower court held that the jurisdiction of the Plot Allotment Committees which recommended Exhibits J, K and K1 to the Oba of Benin for approval could not be sufficiently ascertained, it follows that the condition precedent for valid grants in respect thereof could not vest proper title of the disputed land in the Respondent’s father. The above stated findings are quite unambiguous and I find that there is no contradiction in same.
Consequent upon the above stated finding, I have no hesitation in agreeing with the trial Judge, when he held concerning the claim of the Appellant as follows:
“I am satisfied that the plaintiff has failed to show that the Ukpera Plot Allotment Committee known as Enogie and Elders of Ukpera Village area Ward 43/B Benin District, was the appropriate ward or committee that had the jurisdiction to recommend applicants for parcels of land in the area where the land in dispute is situate.”
In the case in hand although the Appellant pleaded documents of title, it is manifest from the evidence led that she failed to establish her claim to the disputed land.
The learned counsel for the Appellant submitted that the decision of the trial Court is perverse. I must also disagree with him with due respect.
The courts over the years have laid down the attributes of a perverse decision of court. These attributes were clearly restated in the case of: Osuyi v. Ekeocha supra at pages 644 – 645 paras. E – B per Adekeye, JSC as follows:
A decision will be held to be perverse where:
(a) It is speculative and not based on any evidence; or
(b) The court took into account matters which it ought not to have taken into account, or
(c) The court shut its eyes to the obvious;
Adimora v. Ajufo (1988)3NWLR (Pt. 80) 1; Makanjuola v. Balogun (1989) 3 NWLR (Pt. 108) 192; Atolegbe v. Shornn (1985)1NWLR (Pt. 2) 360; Duru v. Nwosu (1989) 4 NWLR (Pt. 113) 24; Ihewuezi v. Ekeanya (1989) 1 NWLR (pt. 96) 239; Adeosun v. Jibesin (2000)11NWLR (Pt. 724) 290.

In Nigeria’s judicial system, civil suits are decided on the balance of probabilities, on the preponderance of evidence. The connotation of this, is that, the totality of the evidence of both parties is bound to be taken into account and appraised. The credible evidence led by both parties is thereafter weighed on an imaginary judicial scale by the trial court in order to see which of the parties’ evidence has more weight or preponderates and it is that party who succeeds in the case. Therefore, it is the trial Court that has the power to make findings on specific facts especially, as usually is the case, when such findings as in the instant matter, involve the credibility of opposing witnesses and their conflicting testimonies. To put it in different words, it is the duty of the trial Court to consider the assertions of both sides carefully and decide on the balance of probabilities which of the assertions it will accept.
In my humble but firm view, the learned trial Judge properly found that being claims for declaration to title to land, the Appellant failed to succeed on the strength of her case for want of cogent and acceptable evidence. The evidence of the Appellant was more in favour of or rather strengthened the case of the Respondent that the land in dispute was acquired by the Respondent’s late father from the Plot Allotment Committee that had jurisdiction to grant the land in accordance to the prevailing Bini native law and custom at the time of the grant. The judgment of the trial Court being appealed demonstrates a dispassionate evaluation of the evidence of the parties based on their pleadings and oral evidence before the trial Court. And the conclusion reached by it was based thereon.
Therefore in the instant matter, I hold that the conclusion is far from being perverse, it is a right conclusion. In the circumstance, I am not persuaded to interfere with the above stated findings and conclusion of the trial Court. I hold that this issue must be and it is hereby resolved against the Appellant and in favour of the Respondent.

ISSUE TWO.
Was the counter claim of the Respondent properly before the lower Court?
It was argued in favour of the Appellant that the Respondent’s counter claim was filed out of time and without leave of the lower Court.
Hence, the lower Court did not possess the requisite jurisdiction to adjudicate upon the said counter-claim. The learned counsel for the Appellant referred to Order 25 Rule 3(4) of the Edo State High Court (Civil Procedure) Rules, 1988, which provides that a respondent must file his/her counter claim within thirty days of the service on him/her of the statement of claim by the plaintiff. He contended that the Appellant’s statement of claim was served on the Respondent on 2nd March, 1996, That the Respondent was obviously out of time in filing his counter claim, hence, he filed a motion for extension of time in that regard but there is no evidence in the record of appeal that the motion was argued and leave granted before the counter claim was filed. Consequently, the counter claim of the Respondent was incompetent. He referred to pages 53 to 55 of the record of appeal.
Furthermore, the Appellant’s learned counsel contended that the Respondent lacks the “locus standi” to prosecute his counter claim. This is because, the Respondent claimed that he inherited the property in dispute from his late father. From the evidence adduced by the Respondent at trial, the property in dispute was shared between himself and his other siblings.
In this regard, he referred to the evidence of the Respondent and DW5 at pages 85 and 87 to 88 of the record of appeal respectively. He submitted that the lower Court’s finding that that the Respondent and his younger siblings inherited the property in dispute from their late father is perverse. This is because under Bini native law and custom, it is the eldest son that solely inherits the property of his deceased father, that is, to the exclusion of all the other children. And that in the instant matter, the Respondent’s younger brother, DW5 who gave evidence that the property in dispute was shared to the Respondent, himself and another sister ought to have applied to the lower Court to be joined as a co-defendant. That failure of the DW5 to apply to be joined as a co-defendant makes him guilty of standing by. On this standpoint, he relied, on the case of: A.-G. Fed. v. A.-G. Abia State No.2 (2002) 6 NWLR (Pt. 764) p. 542. Furthermore, he canvassed that the head of the family, “Okaegbe” ought to have been called by the Respondent to give evidence as to the issue of inheritance in line with Bini native law and custom. He rested his argument on the cases of:
(1) Arase v. Arase (1981) 5 S?. p. 33 at p. 62 and
(2) Idehen v. Idehen (1991) 6 NWLR (Pt. 198) p. 382 at p. 242.

On the other part, the learned counsel for the Respondent submitted that at the time of the compilation of the record of appeal in this matter, it was the responsibility of an appellant in conjunction with the Registrar of the trial Court to compile record. He stated that the Appellant in the instant matter deliberately left out the enrolled order of the trial Court in respect of the motion of the Respondent for extension of time to file the counter claim. On this position, reliance was placed on the case of: Masterpiece Chemical Company Ltd. v. Akpata (2000) 2 NWLR (Pt. 653) p. 459. He argued that if the counter claim was not properly filed and valid, the Appellant would not have filed a reply thereto. Reference was made to the Appellant’s reply to the counter claim which can be found at page 62 of the record of appeal. It was further stated that even if the counter-claim was not filed, since the lower Court found that the Appellant failed to establish her claim, the order of dismissal of her claim was inevitable. And by virtue of Order 3 rule 23 (1) & (2) of the Rules of this Court, in order to achieve the ends of justice, this Court is empowered to amend the final order of a lower Court.
He relied in this wise on the cases of:
(1) Brawal Shipping (Nig.) Ltd. v. Aphrodite (2004) 9 NWLR (pt. 879) p. 462 and
(2) Asaba Emiri v. Imieyeh (1999) 4 NWLR (pt. 599) p. 442.

On the issue of the right of the Respondent to file a counter claim, it was stated that although under Bini customary law, the eldest son of a deceased Bini man succeeds his father and inherits all his properties, the eldest son is at liberty to give any part of the property to the other children of the deceased like the Respondent herein did. The learned counsel for the Respondent’s family members as to the ownership of the property in dispute. The authority of the Respondent to counter claim was not challenged by his siblings. What is more, it was the Respondent alone and not the family that the Appellant sued, hence, the Respondent was in order to counter-claim personally.
On the first limb of this issue, I fail to agree with the assertion in favour of the Appellant that the Respondent’s counter claim was filed out of time and without the leave of the trial Court and therefore incompetent.
Rather, I am at one with the Respondent’s position that, not only was it the duty of the Appellant to ensure that the record of appeal was properly compiled, the Appellant has indeed compromised and waived her right by not complaining about the so-called irregularity. Rather, as rightly pointed out by the Respondent’s counsel, the Appellant having filed a reply to the counter claim is deemed to have acquiesced and overlooked the alleged irregularity.
Suffice it to say at this junction that, I am not unmindful of the fact that the competence of the counter claim is an issue of jurisdiction which can be raised at any stage of the proceedings and even on appeal for the very first time. Hence, the fact that no objection was raised in the lower Court does not preclude on objection being taken here, such an objection can only be upheld if the Appellant was prejudiced and has suffered a miscarriage of justice. In the case of Buhari v. Haddy Smart (Nig.) Ltd. supra at p. 138 lines 30 – 40, Lokulo-Sodipe JCA had the following to say:
“…it is a settled principle of law that it is not every non-compliance with the rules of court that gives rise to absence of jurisdiction. This being so, even if the non-endorsement of the ‘writ’ by the server of the mode and date of service thereon had been found to be fatal, and not to amount to mere irregularities, this can not vitiate the writ…”
The poser at this point is whether or not the success of the counterclaim would have altered the resultant positions of parties, after the trial Court had properly dismissed the claims of the Appellant? I will come to this point later.
On the issue of the right or ‘locus standi’ of the Respondent to file and prosecute the counter claim as well as the competence of the trial Court to adjudicate upon the counter claim I shall quickly state the position of the law in respect thereof. The term ‘locus standi’ or ‘right’ or ‘standing’ had been defined as denoting legal capacity to institute actions in a court of law.
It is not dependent on the success or merit of a case, it is a condition precedent to adjudication by a court to determine a case on the merits.

It is an established principle of law that the right of a plaintiff to institute an action is gathered from the statement of claim and not from the evidence that is subsequently led in the suit. See the cases of:
(1) Owodunni v. Reg. Trustees of Celestial Church of Christ (2000) 6 SCNJ p. 399;
(2) Adenuga v. Odumeru (2003) All FWLR (Pt. 158) p. 1288;
(3) Buhari v. Haddy Smart (Nig.) Ltd. (2010) 11 W.R.N. p. 10 and
(4) Inakoju v. Adeleke (2007) 4 NWLR (pt. 1025) p423.

Locus standi is a matter which borders on jurisdiction. This is because where a party does not have the standing to claim against a defendant, the court is bereft of jurisdiction to adjudicate upon such claim. Jurisdiction is the competence of a court. And any defect in the competence of the court renders the proceedings before it a nullity, a defect in competence is quite extrinsic to adjudication. See the cases of:
(1) Madukolu v. Nkemdilim (1962) 2 All NLR p. 587;
(2) Umenweluaka v. Ezeana (1972) 5 S.C. p. 343 and
(3) Our Line Ltd. v. S.C-C. (Nig.) Ltd. (2009) All FWLR (Pt. 498) p. 210.
In the instant case, in deciding whether the Respondent has locus standi, it is his counterclaim that is necessary to be examined. That alone will determine his locus standi. See page 60 of the record of appeal wherein the Respondent relied on all the paragraphs contained in his statement of defence in support of his counter claim against the Appellant for a declaration that he is the absolute owner and in possession of all the land in dispute and for perpetual injunction against the Appellant.
In the said statement of defence which doubles as the statement of claim in the counter claim, the Respondent averred in paragraph 4 thereof that, he inherited the disputed land and all the other properties of his late father. The Respondent also stated in paragraph 18 thereof that after the final burial rights of his later father have been performed as required under the native law and custom of the Binis at the Respondent’s request, all the said properties were shared with his siblings. And the disputed land is part of his own share of the estate of his late father.
I am afraid, I will have to disagree with the contentions of the learned counsel for the Appellant. This is because, the capacity in which the Respondent counter claimed is clearly stated in the counter claim and the statement of defence which as I stated above, doubles as the statement of claim of the Respondent. See again paragraphs 4 and 18 in respect thereof.
The averments contained in the two paragraphs were not controverted in the Appellant’s Reply to the Respondent’s counter claim. These facts in law, are deemed to have been admitted by the Appellant. The law is established that facts admitted need no further proof.
Further still, I am at one with the argument of the Respondent’s learned counsel that the Appellant can not really be heard to raise an eyebrow regarding the capacity or standing of the Respondent. The reasons are that, the Respondent was solely sued and not in any representative capacity. It is not on record that there was a feud among the Respondent, his siblings and other members of their late father’s extended family. The Appellant has no business meddling in the affairs of the Respondent’s family. The Appellant is crying more than the bereaved. What is more, all these facts were not raised at the stage of trial, the Appellant is legally forbidden from raising them on appeal, the Appellant not having sought and obtained the leave of this Court before raising them. And even if leave of this Court had been sought, it is very unlikely that it would have been acceded to because they border on facts which will require oral evidence to be adduced in support or rebuttal of same.
From all I have stated above, I hold that, the Respondent’s counter claim is properly before the trial Court, the Respondent has locus standi to initiate and the trial Court was clothed with the garment of jurisdiction to adjudicate upon the said counter claim.
Furthermore, on the counter claim, the learned trial Judge held that:
Since the parties were not claiming their grants through the same ward, But as has been submitted by both counsels, (sic) the Defendant made a counter claim and he has an onus to prove his claim…
I am also satisfied that the Defendant’s father had acquired the parcels of land claimed in the counter claim in compliance with the Bini Customs, which parcels of land were eventually inherited by the Defendant, and his younger brothers (sic) D.W. 5 and sister.
See page 140, lines 25 to 30 and page 141, lines 20 to 25 of the record of appeal. The above reproduced findings were based on the evidence adduced in support of the counter claim of the Respondent. The Respondent is entitled to judgment on the counter claim as held by the trial Court.
In answer to my earlier poser, I hold that the Appellant has woefully failed to establish her claim as held by the trial Court which rightly dismissed her claim. Therefore, with the dismissal of the claim of the Appellant, the trial Court having found that the disputed land amongst others was the property of the Respondent’s late father and that the Respondent inherited same, that means, the property in dispute is that of the Respondent.
Hence, as rightly argued by the Respondent’s learned counsel, even if the Respondent did not file the counter claim in the first instance, the judgment of the lower Court in respect of the Appellant’s claim would still have been entered in his favour in the circumstance. Therefore, my answer to the above poser will be in the negative. The Respondent is the owner of the disputed property. The resultant positions of the parties would still be the same with the dismissal of the claim of the Appellant.
For the above reasons and conclusions, issue two is also resolved in favour of the Respondent and against the Appellant.
Consequently, this appeal is failure-fated. It is hereby .dismissed accordingly. The Respondent is entitled to the costs of this appeal which I assess at the sum of Twenty Thousand Naira.

AMINA A. AUGIE, J.C.A: I have read the lead Judgment delivered by my learned brother, Omoleye, JCA, and I agree with him that the appeal clearly lacks merit.
In a claim for declaration of title, the onus is always on the Plaintiff to establish his claim, and it is not open to him to rely on the weakness of the Defendant’s case. See Adewuyi V. Odukwe (2005) 14 NWLR (pt. 945) 473Sc, where the Supreme Court held that the standard of proof in such cases is not different from that required in civil cases generally.
The only difference rests on the fact that the burden of proof is on the Plaintiff who is claiming title, and that it never shifts to the Defendant throughout the trial. “The difference therefore, lies not in the standard of proof, but on the burden of proof’. In this case, there is no question that the Appellant failed to establish his claim to the land, and the lower Court was therefore right to find in favour of the Respondent.
The appeal therefore fails and is hereby dismissed by me. I also abide by the consequential orders in the lead Judgment including cost.

CHIOMA EGONDU NWOSU-IHEME, (Ph.D), J.C.A. I agree entirely with, the lead Judgment delivered by my learned brother, OYEBISI F. OMOLEYE, JCA. There is therefore no need to dwell further on the said Judgment. I also abide by the order as to costs.

Appearances

G.E. Ezomo with him D.O. Aigbekaen, C.P. Agbaeze and S. MartinsFor Appellant

AND

S.I. Osifo with him O. ErhumwunseFor Respondent