MR. TONY MONEME V. MR. ATTA ONOJA & ORS (2011)

MR. TONY MONEME V. MR. ATTA ONOJA & ORS

(2011)LCN/4419(CA)

In The Court of Appeal of Nigeria

On Monday, the 28th day of March, 2011

CA/K/342/2006

RATIO

DECLARATION OF TITLE TO LAND: WHETHER WHERE A PLAINTIFF’S CASE IN A LAND MATTER IS DISMISSED, THE DISMISSAL WILL CONFER TITLE OF THE LAND IN DISPUTE ON THE DEFENDANT

Where a plaintiff’s case in a land matter is dismissed, such a dismissal does not confer title of the land in dispute on the defendant. Per Bulkachuwa JCA in ONUCHE VS ANYEGWU (2001) 6 NWLR (PT. 708) 127 at 135. As the plaintiff had to succeed on the strength of his own case and not on the weakness of the defence, a defendant who claims to be entitled to an area of land on which the plaintiff has established, a semblance of title or right has the onus of proving his own right to the respective area claimed either to have been sold to him or vested in him for some other right. The court will not make any presumption in favour of such defendant and if he fails to do so his claim will not be sustained on grounds of sentiments. ELIAS VS SULEIMAN & ORS (1973) NMLR 193 (SC). PER MARY U. PETER-ODILI, J.C.A.

DECLARATION OF TITLE TO LAND: WHETHER WHERE BOTH PARTIES LAY CLAIM TO THE TITLE OF THE LAND, IT IS POSSIBLE FOR THEM TO FAIL TO SATISFY THE COURT
In an action for declaration of title in which the defendant raised a counter-claim also for declaration of title, it is possible for both parties to fail on the ground that neither of them proved his title. This is because a party must succeed on the strength of his claim whether; the action is brought as a counter-claim in a claim by the plaintiff or as a fresh action. MUSA ANWOYI VS SHODEKE (2001) 6 NWLR (PT. 709) 321 (CA). PER MARY U. PETER-ODILI, J.C.A.

ISSUE OF IDENTITY OF LAND: WHERE THE ISSUE OF IDENTITY OF LAND WILL BECOME RELEVANT; HOW THE PLAINTIFF OUGHT TO DISCHARGE THIS BURDEN AND EFFECT OF THE FAILURE THEREOF
The issue of identity of land in dispute in a claim for declaration of title only becomes relevant after the plaintiff must have cleared the primary huddle which is proof of his root of title to land, he must establish with certainty, the identity of the land he claims. This is usually done by calling as witnesses, those with whom the plaintiff shares common boundaries as well as witnesses to trace the boundary marks along the boundary of the land in dispute, in addition to tracing his root of title to the said disputed land where the plaintiff fails to do so his action must fail, particularly as there would be no land to which the declared title could relate or be attached to with any degree of certainty. ODUNZE VS NWOSU (2007) 13 NWLR (PT. 1050) 1 at 52 – 53 per Onnoghen JSC. PER MARY U. PETER-ODILI, J.C.A.

IDENTITY/ BOUNDARIES OF THE LAND: DUTY OF THE PLAINTIFF TO SHOW THE IDENTITY AND BOUNDARIES OF THE LAND WITH CERTAINTY; CIRCUMSTANCES WHERE IT MAY NOT BE NECESSARY TO SHOW A SURVEY PLAN

The onus is on the plaintiff to show by evidence that the identity and boundaries of the land are certain. This has to precede any attempt at delving into other issues in proving the plaintiff’s entitlement or ownership of the land in dispute. Although a plan may not be necessary in cases where the identity and precise boundaries of the piece or parcel of land in dispute are known to the parties is the dispute; where there is a dispute as to the boundary or identity or both, such, must be proved with certainty. ODUNZE VS NWOSU (2007) 13 NWLR (PT. 1050) 1 at 34 35 per Chukwuma-Eneh JSC; UDEZE VS CHIDEBE (1990) 1 NWLR (PT. 125) 141. PER MARY U. PETER-ODILI, J.C.A.

INTERFERENCE WITH THE FINDINGS OF FACTS OF THE TRIAL COURT: WHETHER AN APPELLATE COURT IS BOUND BY THE FINDINGS OF FACTS MADE BY THE TRIAL COURT AND CIRCUMSTANCES WHERE THE APPEAL COURT WILL INTERFERE WITH THOSE FINDINGS OF FACT

Although an appellate court is bound by the findings of facts of the trial court especially where such depends on which side the trial Judge believed before arriving at those findings, the rule is not an inflexible one. The appeal court can however interfere with those findings of fact if it established that the trial court’s findings were unreasonable or perverse and not the result of the proper exercise of the Judge’s judicial discretion to believe or disbelieve, in which case the Court of Appeal will intervene in the interest of justice. EMINE VS STATE (1991) 7 NWLR (PT. 203) 480 at 495; EKWEALOR VS OBASI (1990) 2 NWLR (PT. 131) 231; UDOFIA VS STATE (1984) 12 SC 139; NNAJIOFOR VS. UKONU (NO.1) (1985) 2 NWLR (PT.9) 686. PER MARY U. PETER-ODILI, J.C.A.

LOCUS STANDI: MEANING OF THE WORD “LOCUS STANDI”

Locus standi denotes legal capacity to institute proceedings in a court of law. It is also used interchangeably with terms like standi and title to sue. It is the averments in the statement of claim that determine a plaintiff’s locus standi. In other words, if the plaintiffs averments disclose that the right or interests of the plaintiff have been or are in danger of being violated or adversely affected by the act of the defendant, the plaintiff would, be deemed to have sufficient interest to have locus standi to sue. U.B.A. PLC VS BTL INDUSTRIES LTD (2006) 19 NWLR (PT. 1013) 61 (SC); THOMAS VS OLUFOSOYE (1986) 1 NWLR (PT. 18) 669; FAWEHINMI VS AKILU (1987) 4 NWLR (PT. 67) 797; BOLAJI VS BAMGBOSE (1986) 4 NWLR (PT. 37) 632; ADESANYA VS PRESIDENT OF NIGERIA (1981) 2 NCLR 358; STATE VS ILORI (1983) 1 SCNLR 94; A-G, KADUNA VS HASSAN (1985) 2 NWLR (PT. 8) 483; OWODUNNNI VS REGISTERED TRUSTEES, C.C.C. (2000) 10 NWLR (PT. 675) 315; MOMOH VS OLOTU (1970) 1 ALL NLR 117; ADESANYA VS PRESIDENT, FEDERAL REPUBLIC OF NIGERIA (1981) 2 NCLR 358; OLORIODE VS OYEBI (1984) SC NLR 390. PER MARY U. PETER-ODILI, J.C.A.

JUSTICES

MARY U. PETER-ODILI Justice of The Court of Appeal of Nigeria

JOSEPH TINE TUR Justice of The Court of Appeal of Nigeria

OBANDE F. OGBUINYA Justice of The Court of Appeal of Nigeria

Between

MR. TONY MONEME Appellant(s)

AND

1. MR. ATTA ONOJA
2. AUTOMATIVE COMPONENT INDUSTRIES LTD
3. BANCO JOINERIES & FURNITURE LTD
4. OLUWATOSIN OLUWAFUMILAYO AMIDA Respondent(s)

MARY U. PETER-ODILI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High court of Justice, Kaduna State holding at Kaduna coram: Honourable Justice G.I. Kurada on the 1st June, 2006. The Appellant who was 1st defendant in the action before that court appealed to this court on 6th June, 2006.
FACTS
The Appellant was the 1st defendant in an action at the trial court in suit No. KDH/KAD/594/99 instituted by the 1st Respondent claiming a declaratory relief in respect of the plot of land measuring 50’x 100′ lying, being and situate at 84 Unguwar Television, Kaduna, N100, 000.00 being general damages for trespass against the appellant, the 2nd, 3rd and 4th respondents jointly and severally and a perpetual injunction restraining the appellant and the Respondents from further trespass to the said plot of land.
The 2nd, 3rd and 4th Respondents in their joint amended statement of defence date d 24th January, 2005 and filed on the 28th day of January, 2005 made a counter claim against the Appellant who was the 1st Defendant in the suit.
The Appellant in his amended statement of defence dated 2nd day of May, 200 2 and filed on the 3rd May, 2002 denied both the 1st – 4th Respondents claims to the plot of land in dispute and asked the court to affirm that he Appellant (1st defendant in court below) was the owner of the disputed land.
The 1s Respondent testified as PW1 and called three witnesses PW2 PW4. The Appellant testified as DW1 and tendered in evidence the first allocation paper as Exhibit ‘A’, final allocation paper as Exhibit ‘4A’ and the certificate of occupancy as exhibit ’48’. He also tendered the letter dated the 17th November, 1992 written to him by the 2nd defendant requesting for permission to construct an access road through the appellant’s land to its land as Exhibit 5 while the receipt and demand notice were admitted in evidence also as Exhibits ‘6’ and’6A’ respectively.
The Appellant was cross-examined by the 1st Respondent’s counsel Mr. Odigie while Mr. Iroagalachi learned counsel for the 2nd – 4th respondents also cross examined the appellant. The appellant then called DW2, Mansur Ahmed to testify.
The 2nd – 4th Respondents testified through DW3, DW4 and DW5 who were cross-examined by the respective counsel of 1st Respondent and the Appellant, The parties then addressed the Court and on the 1st June, 2006 the learned trial judge delivered his judgment dismissing the claim of the plaintiff (now 1st respondent) while allowing the counter claim against the appellant who was the 1st defendant in the suit.
The Appellant being dissatisfied appealed to this Court by a Notice of Appeal which nine (9) grounds thereof I shall restate without their particulars hereunder:-
“GROUNDS OF APPEAL
1. That the learned trial judge erred in law in that he gave judgment in this suit in favour of the counter-claimants and against the appellant when the evidence clearly shows:-
(a) That the plot of land awarded to the Counter- Claimants is not the one covered by the Certificates of Occupancy exhibits 7, 8 and 10 tendered and admitted as exhibits in this suit.
(b) The evidence of DW4 and DW5 clearly show that the disputed plot of land is outside the plots of land covered by exhibits 7, 8, 9 and 10.
(c) That the learned trial judge by granting the Counter-Claimants the plot not covered by exhibits 7, 8, 9 and 10 has hereby extended the plots of land not granted to the Counter- Claimant by the appropriate authority and thereby occasioned a miscarriage of justice in this matter.
2. That the learned trial judge erred in law in that the exceeded his jurisdiction by granting is the Counter-Claimants the plot of land which their instruments of grant exhibits 7, 8, 9 and 10 did not cover and thereby given to counter-claimants the plots of land not granted to them by the appropriate authority.
3. That the learned trial judge erred in law in that he gave judgment in favour of the counter-claimants when- the evidence adduced by the parties and their respective witnesses clearly show the respective interests of the parties in relation to separate and district plots in this suit’
4. That the learned trial judge erred in law in that he erroneously declared invalid the Certificate of Occupancy NO, 011158 dated the 18th March, 1982 and issued to the appellant by the appropriate authority in relation to the plot of land in dispute in this suit.
5. That the learned trial judge misdirected himself as to the facts in this suit when he held as follows-
“I have carefully studied exhibit 10 and is(sic) difficult to see any sense in what DW5 said. Whereas there are beacon numbers indicated and there is a road from Kakuri to Kaduna High Way… the land in dispute is therefore not in doubt and it is the entire piece of land the Court saw… The land in dispute is nothing other than the usual allowance for parking of vehicles”
6. That the learned trial judge misdirected himself as to the facts relating to the root of title of the 2nd Respondent herein as regards the land covered by exhibits 7, 8 and 10 in the suit when he held as follows: –
“Exhibits 9 referred by the learned counsel are a Deed of Assignment in respect of a portion by L12 A after it was sub-divided and assigned to the 2nd Defendant by the 3rd defendant. It is not the root of title of the entire plot.”
7. That the learned trial judge erred in law in that he gave judgment in respect of the disputed plot of land in favour of he 2nd – 4th respondents without giving exhibit 5 (a letter written by the for respondent to the appellant requesting for permission for an access road to be constructed by them through the appellant’s own plot of land which is now in dispute) evidential value that it deserves.
8. That the learned trial judge erred in law when (sic) held as follows:-
“I hold that the 2nd – 4th respondents have established their pleading in paragraph 12 of their statement of defence and counter-claim that the C of O the 1st defendant is brandishing is invalid/forged, same having been obtained by fraudulent misrepresentation of facts by the 1st defendant to Kaduna Local Government.”
9. That the decision is against the weight of evidence adduced in this suit.
RELIEFS BEING SOUGHT FROM TIHE COURT OF APPEAL
An order setting aside the entire judgment of the trial Court in relation to the counter-claim filed in this suit and to dismiss same.”
On the 20th January 2011, date of hearing, the learned counsel for the Appellant C.C.B, Obiekwe adopted their Brief filed on 5/4/07 and deemed filed on 8/5/07. Also adopted is their Reply Brief filed on 22/12/09 and deemed filed on the 27/9/10.
In the Appellant’s Brief were formulated three issues for determination which are thus:-
“1. Whether the learned trial judge arrived at a just decision, in view of the evidence adduced in this suit, in declaring title to the disputed plot of land in respect of the counter-claim in favour of the 2nd – 4th respondents.
2. Whether the learned trial judge was right in awarding the said disputed plot of land in favour of the 2nd – 4th respondents without giving probative value to exhibit 5 and other evidence of admissions against self-interest that were pleaded and relied upon by the appellant in this suit?
3. Whether on the state of pleadings and the evidence adduced in this suit, the learned trial judge has/is correct in declaring invalid on the grounds of forgery and fraudulent misrepresentation of facts the certificate of Occupancy NO. 011185 dated the 18th March, 1982 in relation to the disputed plot of land and issued to the appellant by the appropriate authority in Kaduna State?”
The 1st Respondent did not file any Brief. The 2nd 4th Respondent through Mr. Iroagalachi, learned counsel on their behalf adopted the brief of 2nd – 4th Respondent filed on 10/10/07 and deemed filed on 2/11/09. In the Brief were crafted three issues for determination which are as follows:-
“1. Whether the Appellant has locus standi to challenge the title of the 2nd – 4th Respondents and the judgment of the Court thereto when he did not file a counter-claim to the claim of the Plaintiff or file a defence to the Respondents counter-claim at trial.
2. Whether the 2nd – 4th Respondents proved their counter-claim and the Judgment of the Court thereto proper.
3. Whether the Honourable Lower Court Judge was correct in declaring the Local Govermment Certificate of Occupancies NO. 011158 belonging to the Appellant and NO. 031574 belonging to the 1st Respondent as invalid /forged”
I shall utilise the issues as framed by the Appellant for ease of reference and further tackle Issues one and two together since they are related.
ISSUES 1 AND 2
Whether the learned trial judge arrived at a just decision in view of the evidence adduced in this suit, in declaring title to the disputed plot of land in respect of the counter-claim in favour of the 2nd – 4th respondents.
Whether the learned trial judge was right in awarding the said disputed plot of land in favour of the 2nd – 4th respondents without giving probative value to exhibit 5 and other evidence of admissions against self-interest that were pleaded and relied upon by the appellant in this suit.
Learned counsel for the Appellant, Mr. Obiekwe contended that the parcel of land that formed the basis of the counter-claim in the suit is the one occupied by the appellant, while the parcel of land originally covered by the Certificate of Occupancy NO. NC 305 and all the subsequent divisions therefrom were not in dispute. That on examination of the evidence adduced by the 2nd – 4th respondents to establish the counter-claim against the appellant and the assessment and evaluation of same by the learned trial judge would reveal whether or not the 2nd – 3rd respondents were entitled to judgment in this matter. That the evidence of DW5, Mr. Francis Joshua, a Land Surveyor with the Ministry of Lands and Survey, Kaduna showed the land subject of the counter-claim was different from that covered by the Certificate of Occupancy NO. 305. Learned counsel said the disputed plot of land is outside the beacons indicated in Exhibits 7, 8 and 10 and so the award of the judgment in the counter claim to 2nd – 4h Respondent was not from the evidence before the Court below, And the proper evaluation of the evidence in Court had not been done in accordance with judicial practice. He referred to MICHEAL ROMAINE V. CHRISTOPER ROMAINE (1992) 5 SCNJ 25 AT 36; ALHAJI GONI KYARI V. ALHAJI CIROMA ALKALI & ORS (2001) FWLR (PT. 60) 1481 AT 1707. That the implication of what took place is that the trial court had awarded to the 2nd – 4th respondents a relief not proved. He cited AKINEONE V. AKINBONI (2002) 5 NWLR (PT.767) 564 AT 578; NDIC V. SAVANNAH BANK OF NIGERIA PLC (2003) 1 NWLR (PT.801) 311 AT 367 A – E; NDULUE V. IBEZIM (2002) 12 NWLR (PT.780) 139 AT 766.
It was further submitted for the Appellants that since DW3 did not know the boundaries of the land owned by Mr. Amida from whom the 2nd respondent derived his title in respect of the plot of land covered by exhibits 7, 8 and 10 he was therefore not in a position to say categorically that the disputed plot of land was covered by exhibits 7, 8 and 10 as Amida did not show him the extent of his land. That the 2nd – 4th respondents failed to show the boundaries of the land in dispute and so not entitled to judgment. He referred to ABOYEJI V. MOMOH (1994) 4 SCNJ (PT.77) 302 AT 379; A.W. ELIAS V. ALHAJI B.A. SULEIMAN (1974) NMLR 193 AT 204.
Mr. Obiekwe of counsel for the Appellants said it should be noted that the 3rd and 4th respondents did not give evidence talkless of saying anything about the boundaries of the plot of land in dispute. That their testimonies would have brought out their evidence on oath and cross-examination which failure went against their credit and not a good ground for sustaining their case. He cited A.G. KWARA STATE v. OLAWALE (1993) 1 SCNJ 288 AT 224; SECTTON 135 OF THE EVIDENCE ACT”
Learned counsel for the Appellant said no document was not in evidence by the 2nd-4th respondents in order to ascertain and prove that the particular plot in dispute falls within the industrial layout. That the non-tendering of the said document in evidence amounted to withholding of evidence from the Court and brought into effect Section 149(d) Evidence Act. He referred to UNION BANK OF NIGERIA PLC & ANOR. V. ALHAJI AMINU ISHOLA (2002) FWLR (PT.100) 1253 AT 1281; EMINE & 5 ORS. V. THE STATE (1991) 7 NWLR (PT. 204) 480 AT 494 E – F; ASARTYU v. THE STATE (1987) 4 NWLR (PT.67) 709 AT 776; GAJI V. PAYE (2003) 5 SCNJ 20 AT 35.
Mr. Obiekwe, learned counsel for the Appellant stated on that by paragraph 17 and 20 of the 1st respondent’s statement of claim and paragraphs 10, 15(vi), 18 and 20(a) of the 2nd – 4th respondents joint statement of defence and counter-claim, all the respondents impliedly agreed that the appellant has long been in possession of the disputed land carrying on block moulding activities and so to dislodge such a person with long possession a better title by credible evidence needed be produced. He referred to Section 146 of the Evidence Act, Cap 112 Laws of the Federation 1990; AKINRINLOLA & ORS. V. AKINTERIN & ANOR. (2003) FWLR (Pt.160) 1682 AT 1623.
He went on say that under the presumption order Section 146 of the Evident Act, it is the appellant who is the owner of the plot of land in dispute and the dislodging of this presumption was on the 2nd – 4th respondents by means of a better title and this they failed to do. He cited OKE V. ATOLOYE (1985) 2 NWLR (PT. 578); AKANO V. OKUMADE (1978) 3 SC 729 AT 140; ODEKILEKIIN V. HASSAN (1997) 12 NWLR (PT. 531) 56; AKIBU V. AZEEZ (2003) FWLR (PT. 149) 1490 AT 1512 G – H.
Mr. Obiekwe said Exhibit 5, the letter by 2nd respondent requesting for permission from the appellant to construct an access road through the appellant’s land to its own was an acknowledgment of appellant’s interest in the disputed plot of land. That this admission by a party against his interest is admissible against that person and can be relied upon by the court. He referred to OJIEGBE & ORS. V. OKWARANYIA & ORS. (1962) ALL NLR (PT. 2) 598 AT 603; KAMALU V. UMUMA (1975) 5 NWLR (PT.505) 321 AT 336 PARAS E – G; JOE IGA V. CHIEF JOSEPH AMAKIRI (1976) 11 SC 1; OWIE V. IGHIWI (2005) 3 MJSC 82 AT 99; SEISMOGRAPH SERVICES (NIG) LTD V. CHIEF EYUAFE (1976) 9 & 10 SC 135 AT 146.
Responding, learned counsel for 2nd – 4th Respondents stated that it is trite law that in a land matter, the dismissal of the Plaintiff’s claim does not confer title to the land in dispute to the defendant automatically. That it is required of the plaintiff to prove his title to the land on the strength of his own case and a defendant who lays claim to the same piece of land must also prove his title on the strength of his counter-claim. He cited AWONIYI V. SHODEKE (2000) FWLR (PT.30) 2558 AT 2566 PARA C – D; AIDOKO ONUCHE V. SULE ANYEGWU (2001) NWLR (PT.7O8) 127 AT 135.
Mr. Iroaglachi for the 2nd – 4th Respondents said that where in a land matter, a defendant is seeking declaration of title in his favour as does the plaintiff, the locus standi of the Defendant will depend on his counter-claim and the reliefs sought therein just like the locus standi of the Plaintiff will depend on his statement of claim and the relief sought therein. Learned counsel said the Appellant after he was served with the Plaintiff’s statement of Claim in 1999, filed a statement of defence and when 2nd-4th Respondents filed a counter-claim, the Appellant simply amended his statement of defence to the claim of the Plaintiff as his only response. That Appellant did not file a defence to the counter-claim of 2nd – 4th Respondents and did not also file a counter-claim, claiming the title to the land. Therefore the trial court had only two claims to adjudicate upon namely the claim of the 1st Respondent and the counter-claim of the 2nd 4th Respondents. He stated that the implication of this is that Appellant lacks the locus standi in the matter of this counter-claim. That Appellant cannot therefore query or argue about the size or location of the 2nd – 4th Respondent’s plot of land whether it is within the beacons or not.
Mr. Iroagalachi of counsel for 2nd – 4th Respondents/counter-claimants said apart from the lack of locus, everything pleaded in the said counter claim were not challenged by Appellant through a specific counter averment and with the evidence of the 2nd – 4th Respondents in support of their pleadings, all those averments are taken as the only true position of things.
Mr. Iroagalachi further contended that in an action for declaration of title or right of occupancy to land, the Plaintiff must succeed on the strength of his case and not on the weakness of the defence. He cited the case of MICHAEL ODUNZE & ORS, V. NWOSU & ORS. (2007) 13 NWLR (Pt.1050) 1 AT 52 PARA A -B. That the Respondents 2nd – 4th adequately proved their radical title with the evidence they proffered including those of the Surveyors from Kaduna State Ministry of Lands, DW4 and DW5 in respect of the State layout, grant and sub-division.
In reply on points of law, learned counsel for the Appellant said that the suit was fought and decided on the basis of the pleadings filed by the parties and the evidence adduced thereon. That the question of the locus standi of the Appellant who is a party in the suit now on appeal to challenge the title of the 2nd – 4th Respondents was neither pleaded nor raised in the court below. That whatever was not pleaded, any evidence thereon go to no issue and should be discountenanced. He cited AKIN ADEJUMO & ORS V. ANYANTEGBE (1989) ALL NLR 468 AT 480, OGBODA V. ADELUGBA (1971) ALL NLR 70 AT 74.
Mr. Obiekwe further stated that the matter of Appellant lacking the necessary standing or locus standi is a new issue raised in this appeal and without leave of court which is not allowed and nothing to justify an exception. He referred to AGBAJE V. ADIGUN & ORS. (1993) 1 SCNJ 1 AT 8; HIS HIGHNESS EREJUWA II, THE OLU OF WARRI & 3 ORS V. EGHAREGBEYIWA & ORS, (1994) 4 SCNJ (PT.II) 247 AT 273; FADIORA V. GBADEBO (1978) 3 SC 219 AT 247; NASCO MANAGEMENT SERVICES LTD V. A.N. AMAKU TRANSPORT LTD (1999) 1 NWLR (PT.588) 576; SKEN CONSULT NIGERIA LTD V. UKEY (1982) 1. SC 6 AT 18; OWENA BANK PLC V. OLATUNJI (2002) FWLR (PT.124) 529 AT 606.
Learned counsel for the Appellant in further reply on point of law said before a decree of declaration of title to land can be made, the land to which it is related must be properly identified with certainty such as the 2nd – 4th Respondents in respect of their counterclaim in this matter. He referred to M.O. ODESANYA V. D.A. EWEDEMI (1962) ALL NLR (PT.1) 318; LORDYE V. IHYAMBER (2001) FWLR (PT.31) 2881.
I shall recast verbatim the Amended Statement of Claim and the Amended Statement of Defence including the Counter-Claim. They are as stated hereunder viz: –
“AMENDED STATEMENT OF CLAIM
1. The plaintiff is a businessman carry on business in Kaduna within the jurisdiction of the Honourable Court.
2. The 1st defendant is a businessman also, and resident in Kaduna also within the jurisdiction of the Honourable Court.
3. The 2nd defendant is a limited liability company having its registered office in Kaduna within the jurisdiction of the Honourable Court.
4. The disputed parcel of land is situated at B4, Kanikun Street, Ungwar Television, and Kaduna also within the jurisdiction of the Honourable Court”
5. The Plaintiff sometime on 14th January 1966 purchased a piece of land measuring 100′ x 100′ from one Jatau Goni Maro the bona fide owner in the sum of Forty Pounds (‘8040.00) in the presence of witnesses. The purchase agreement between the plaintiff and Jatau Goni Maro dated 14/01/66 is hereby pleaded and shall be relied upon at the trial of this suit.
6. The Plaintiff states that at the time he purchased the said plot of land, it was known as B4, Kabiu village, Television. Later the area was known as Ungwan Kadara and now it is known as ungwan Television, There was no road linking the plot to Kabiu village, later” Ungwan Kadara (now Ungwan Television). But now there is road known as Kaninkun Street linking the village with the plot of land”
7. The Plaintiff further avers that the he erected (sic) building of 14 rooms on the piece of land and put some tenant therein.
8. He states further that, sometime in 1977, Kaduna capital Development Board (KCDB) demolished some houses, which were said to be less than 50ft from the main road in other to give Kaduna town a face lift. Even though the Plaintiff’s house was not within 50ft prescribed by order, the Board erroneously pulled down the house of the Plaintiff along with some of his neighbors.
9. The Plaintiff avers that himself and some of his neighbors petitioned the Authority concerned over the illegal demolition of their houses. The Plaintiff pleaded the said letter dated the 31/12/79.
10. The Plaintiff avers that after looking into their petition, the Authority issued them resettlement in which they filled and returns to the Authority together with sworn Affidavit. The Plaintiff pleads this form and the Affidavit.
11. The Plaintiff avers that he was reallocated the plot with warning that he must not build his house within soft from the main road in view of the fact the road by the plot to Command Secondary school has to be dualized. This order reduced the plaintiff’s Plot to 100 x 50″‘
12. The Plaintiff states that thereafter he continued to exercise control over the remaining piece of the land and erected barbed wire to fence round the remaining Portion of his land.
13. The Plaintiff avers that sometimes in 1982, the applied to the Kaduna Local Government Council Certificate of occupancy to cover the remaining plot which measured 100′ x 50′. The letter of application addressed to the Secretary to Kaduna Local Government Council dated 15/7/82 is hereby pleaded.
14. That his application for the Certificate of occupancy was approved. The letter conveying the approval addressed to the Plaintiff dated 14/12/82 signed by one Tukur Tanimu is hereby pleaded”
15. The Plaintiff further avers that a Certificate of Occupancy was issued to him bearing No. 031574 dated 14/12/82. The said certificate together with a letter forwarding same to the Plaintiff dated 16/12/82 together with file No. LAN/D/1204 is hereby pleaded.
16. The Plaintiff states that he has been paying grant rent in respect of the piece of land’ Some of the payment receipts with variously dated 11/6/79, 15/7/82 and 17/6/96 are hereby pleaded. All other relevant documents are hereby pleaded and shall be relied upon at the hearing of this suit.
17. The Plaintiff states that sometime in 1995, he noticed that a strange person was moulding blocks on his plot of land. And when he made enquiry, he discovered that it was the 1st Defendant TONY MONEME, when confronted, he claimed that it was the 2nd Defendant Automobile industry Ltd that leased the plot to him. Consequently, the plaintiff filed a suit of criminal trespass against the 1st Defendant at Upper Area Court, Kakuri in Suit NO. UAC /KAD/15/95.
18. The plaintiff avers that the 1st Defendant pleaded that he thought the 2nd Defendant who had leased his own portion to him owned the entire plots. The plaintiff showed the 1st Defendant the barbed wire that serve as demarcation between the plaintiff and one Bankole Amida who later sold his own portion to the 2nd Defendant (ACI Ltd) on-this premise, the 1st Defendant withdrew his tools from the plot and the Plaintiff in turn withdrew the case at Upper Area Court, Kakuri, Kaduna.
19. At the later part of 1995. 1st Defendant indicated his willingness to purchase the Plaintiff’s piece of land as ACI LTD which he said was not enough for the block-industry he intended to establish. The sale could not succeed because the 1st Defendant picked quarrel with one of the plaintiff’s sons. Reuben Atta due to due to the low price the 1st Defendant offered.
20. The Plaintiff avers that since the quarrel as above, the 1st Defendant disappeared only to re-appear on the piece of land and started moulding blocks and commenced fencing round the entire plot.
21. The plaintiff avers that the 2nd Defendant is equally claiming ownership of the said plot on the pre that it bought same from one Bankole Amida.
WHEREOF the Plaintiff claims against the Defendants jointly and severally the following reliefs: –
a. A declaration of title to a plot of land measuring 50′ x 100′ lying, being and situate at No. B4, Angwar Television, Kaduna.
b. N100, 000 general damages for trespass.
c. A perpetual injunction restraining the Defendant by themselves or itself, Agents, Servants and privies from further trespassing upon or in any way deal with the plot of land or interfering with the plaintiff right and possession of same.”
It is necessary to also quote the Amended Joint Statement of Defence and Counter Claim of the 2nd, 3rd and 4th Defendants:-
“1. Save and except as is hereinafter expressly admitted, the 2nd – 4th Defendant deny each and every allegation of facts contained in the statement of claim as each and every such, allegation has been set out paragraph and denied seriatim.
2. The 2nd Defendant does not know the plaintiff and is not in any way able to admit or deny the averment contained in paragraph 1 of the statement of claim.
3. The 2nd Defendant as well as the 3rd & 4th defendant admit paragraph 2 & 3 of the statement of claim without more.
4. Paragraph 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15 16, 17, 18, 19 and 20 of the statement of claim are denied however by all of 2nd, 3rd & 4th defendants
5. In specific reply to the averment contains therein however, 2nd 3rd & 4th defendant state as follows:
a) The 2nd, 3rd & 4th defendant do not know that this land subject of dispute or any other land for that matter was or is described as B.4 Kanikun Street, U/Television or when it was so described and by who as contained in paragraph 4 of the statement of claim.
b) That the 2nd defendant was not born in the year 1966 and was not a party to the transaction between the plaintiff and the said Jatau Goni Maro as averred in paragraph 5 of the statement of claim. The 3rd & 4th defendant do not know the plaintiff or the said Jatua Goni Maro and were not parties to the transaction described.
c) In specific reply to paragraph of the claim which denied the 2nd, 3rd & 4th defendant repeat paragraph 5(a) & (b) of this statement of defence as it applies to B.4 Kabiu Village Television or U/Kada a or now U/Television.
d) That the 2nd, 3rd, & 4th defendant never saw/took part in destroying the said 14 rooms or any other number of rooms belonging to the plaintiff either in this land or in any other land whatsoever and wheresoever’s located as averred in paragraph 7 & 8 of the claim.
e) That the 2nd defendant never acquired any land from either the Kaduna State or Kaduna South Local Government, rather, the 2nd defendant acquired the land from the 3rd defendant (Banco Joinery and Furniture Co. Ltd) whose Director was late Mr. B.O. Amida (represented in this suit by the 4th was granted to the said 3rd defendant by Kaduna State and later subdivided into 1208 & 14275 pursuant to the sale and issued to the 2nd defendant by the Kaduna State Government. All documents relating to the transaction are pleaded and shall be relied on at trial. The 2nd, 3rd & 4th defendants aver that they are not parties to or aware of the averment as contained in paragraph 9 and 10 of the claim. The plaintiff is put to prove the fact and produce the warning letter in court.
6. The 2nd – 4th aver that the plot of land subject of this is a portion of a bigger piece of land belonging to the 3rd defendant covered by C of O No. NC. 305 issued by the Bureau for Lands, Kaduna State along time ago, located near Peugeot Automobile Junction, Angwan Television within Kaduna State industrial layout based on Survey plan TPO 940B amended G. 606 Kaduna State delineated urban land. The C of O, survey plan related document/files both at the lands and the office of the 2nd defendant is pleaded and shall be relied on at trial.
7. When the 2nd defendant wanted a piece of land to set up her factory, she approached one late Mr. B.O. Amida, the director to the 3rd defendant for a part of the land covered by C or O No. 305 and know as the plot L12 then.
8. The 2nd defendant and late Mr. B.O. AMIDA discussed and agreed for the quantity of land consideration to be paid. The C of O No. 305 was therefore sub sequentially sub-divided by the lands into L124 & L12B after a deed of sale was excuted between the 2nd defendant and the 3rd defendant with C of O No. 14275 as L12A and the other in the name of the 2nd defendant with C of O agreement duly executed by the 2nd and 3rd defendant as well as the document relating to the approval by the Bureau for Lands, Kaduna State are pleaded and shall be relied upon at trial. The portion on which the 1st defendant is squatting which the plaintiff is also claiming was part of C of O 14275 after the subdivision of C of O 305.
9. In 1994 late Mr. B.O. Amida became a director to the 2nd defendant between him and the 2nd defendant for additional land, late B.O. Amida agreed to further subdivided the new plot to L12A with O 14275 into and sells one part to the 2nd defendant as additional land to the earlier one C of No. 12008. The subdivided has been done and this portion in dispute is the tip adjoining to the road of the portion further subdivided of C of O 14275 and assigned to the 2nd by 3rd defendant.
10. This was also processed, a deed of assignment executed by the 2nd 3rd defendants and approval sought for and obtained from the Bureau for Lands Kaduna State. The C of O No. 14275 was subdivided and the 2nd and 3rd defendant issues with new C of Os, one on the name of the 2nd defendant and the other in the name of the 3rd defendant. All the document relating to this second transaction which are with the 2nd defendant and those at the lands office are pleaded and shall be relied on at trial including the file at the Lands Office, Kaduna. The two new C of Os product of the further subdivided of C of O No. 14275 one in the name of 2nd defendant and the other Lands Kaduna State as at now because of this case and are pleaded and shall be relied on at trial.
After the sub-division of C of O No. 14275 and transfer of the 2nd additional portion of land to the 2nd defendant, it dawned on the 2nd defendant who was on the fringe tip of this land near the Federal Highway Right of way close to the Express road belonging to the 2nd defendant and is moulding/selling blocks is not even the owner of the plot but rather a squarter on it and therefore the 2nd defendant asked him to leave.
11. The 1st defendant initially claimed that it was late B.O. Amida who allowed him use of the land. The 2nd defendant sought clearance from late B.O Amida and he said it is not and that he allowed him to squart but that he has already asked him to vacate following the self, whom he has agreed, but unfortunately he died before the 1st defendant could respond. Upon hearing of B.O Amida’s death the 1st defendant changed and went and obtained a fake local government C of O and is now brandishing the fake C of O and claiming that he has bought the land.
12. the 2nd – 4th defendant shall contend at hearing that the Local Government C of O No. 011158 and 0315474, which the 1st defendant and plaintiff are brandishing, are invalid, forged and do not exist.
PARTICULARS OF INVALIDITY/FORGERY
i. That the land has never been acquired/owned by Kaduna Sought Local Government or any other Local Government since ever.
ii. The certificate No. 011158 & 0315474 was acquired while a case No. KDH/KAD/4116/96 was pending before Honourable Justice Donli filed by the plaintiff in this case.
iii. That the 2st defendant is a trouble maker and an interloper.
iv. That there is no plot known as plot B.4 Kanikun Street, Television Village Kaduna.
v. That the local Government of Kaduna South C of O Nos. 011:58 belonging to the 1st defendant and No. 031574 belonging to the plaintiff aimed at cheating/ripping of the 2nd defendant.
iv. That the 1st defendant is and the plaintiffs are acting together and in concert to cheat/obtain money from the 2nd defendant.
13a. The 2nd, 3rd & 4th Defendant deny the entire paragraphs 11 and 12 particularly paragraph 12 and the plaintiff is put to strict prove of the averments contained therein.
b. In specific reply to the averment contained therein the 2nd – 4th Defendant states that:
i. The 2nd Defendant denies that the plaintiff has ever set fool or farmed/exercised any control this land. It was late B.O. Amida and the 2ND Defendant who fenced the plot with wire and not the plaintiff.
ii. The land belongs to the 2nd Defendant who is in possession and paying ground rent same having been assigned to her by late B.O. Amida represented by the 3rd and 4th defendant. The ground rent receipts are pleaded and shall be relied on at the trial.
iii. The 2nd respondent is not trespassing on the plaintiff land or the 1st defendant on any other persons land whatsoever howsoever.
iv. That the 1st Defendant is squirting on the 2nd Defendant’s land since and not on the Plaintiff’ land. The photocopy together with negatives film of the entire place is pleaded.
14. In specific reply to paragraphs 13, 14, 15 and 16 the 2nd, 3rd & 4th Defendant state that:
i. They were never parties to the application or desires of the plaintiff and therefore would not know about the averment contained therein. However, the 2nd – 4th Defendants put the plaintiff to the strictest proof of the said application to the subsequent approval.
The said application/approval is a forgery and does not exist as well as the claim to payment of ground rent. The 2nd 4th defendants have been paying genuine ground rent.
iii. The certificate of occupancy No.031574 dated 14/12/82 does not emanate from the proper authority of the Kaduna South Local Government and does not exist or is a forgery.
15. In specific reply to paragraph 17, 18, 19 and 20 the 2nd Defendant as well as the 3rd – 4th state that:
i. They are not parties to the averment in paragraph 17 of the statement of claim. None of the plaintiff and the 1st Defendant informed either the 2nd defendant or the 3rd or the defendants of their discussions. The plaintiff did not inform or ask the 2nd Defendant or the 3rd defendant or the 4th defendant about the claim of the 1st Defendant.
ii. However, the 1st Defendant was also claiming this land against the 2nd Defendant as owner after the death of B.O Amida saying that it was late B.O Amida who sold to him and not as join the 2nd defendant in their earlier suit at the upper Area Court Kakuri No.UAC/KAD/15/95.
iii. The 1st Defendant claims he bought his land which is without description from one SARKI TANKO AUTA SABON YELWA measuring 104ft by 130ft and which is not this land.
iv. By the time the plaintiff and the 1st Defendant arranged to obtain fake Certificates of Occupancy from the same Local Government of Kaduna South about the time to cheat the 2nd Defendant this suit was anticipated and the documents were obtained for use in this suit”
v. The barbed wire under reference in paragraph 18 of the statement of claim was not all put by the said late B.O Ida but by Amida and the 2nd Defendant. It was put to stop the 1st Defendant from trespassing upon more portion of the land after he has been asked to leave by late B.O Amida and later by the 2nd Defendant to restrict the 1st defendant who was expanding his encroachment into more lands after the death of B.O Amida. It was not a boundary between late B.O. Amida and the plaintiff or between the 2nd defendant between the 2nd defendant and the 1st defendant or any other person at all. The plot of the 2nd defendant has boundary with Federal Highway right of way and then the Expressway and no other person has land in between the 2nd defendant and federal right of way and the express road.
vi. That since the 2nd defendant knew the 1st Defendant; the 1st defendant has never at any time withdrawn his tools completely from this land. Rather as the 2nd defendant knew from B.O, Amida that the 1st defendant is a squarter and started demanding that he leaves the land he has only been shifting from one portion of it to another as the 2nd defendant acquired more and more portions of the land from late B.O. Amida and up to where he is now. The plaintiff is put to the strictest proof of the averment contained in paragraph 18 of the claim. Copies of the letters written to the 1st defendant by the 2nd are pleaded and shall be relied on at trials. The 1st defendant is giving notice to produce the originals in court.
vii. The 2nd Defendant or the 3rd and 4th defendant are not parties to or are aware of the averment contained in paragraph 19, 20 and 21 of the claim and the plaintiff did not cross check this with the 2nd defendant of late B.O Amida or the 3rd and 4th defendant.
16a. The 2nd, 3rd & 4th Defendant denies that the plaintiff is entitled to any reliefs sought by him.
b. The 2nd, 3rd & 4th defendants urge the court to reject Kaduna South Local Government C of O No. 031574 belonging to the plaintiff and dismiss the claim of the plaintiff and also reject Kaduna South, Local Government C of O No. 011158 as it relates the 1st Defendant as both certificate are invalid and forged.
COUNTER CLAIM
17. The 2nd, 3rd & 4th defendants repeats all the paragraphs of the statement of defendant as if same form part of this counter claim.
18. The 2nd defendant avers that she saw the 1st defendant moving from one portion of the land cover by C of O No. 14275 before it was subdivided into two to another and up to where he Is presently but does not know why he was moving from place to place on that B.O, Amida did not sell the land to him after all until the 2nd defendant purchased it.
b. The letter written to the 1st defendant by the 2nd defendant were not with the knowledge or consent of the 3rd defendant of B.O. Amida who owned the land and was earlier in time than the date of subsequent purchase of the land by the 2nd defendant from the 3rd.
c. That the 2nd Defendant came to know that the 1st defendant is neither the owner nor a tenant but mere gratuitous shifting squarter of B.O. Amida only after the 3rd defendant had subdivided 14275 and agreed to sell the portion where the 1st defendant was squaring to the 2nd defendant”
d. The correspondences emanating from the 2nd defendant to the 1st are not title documents and from the land division
19. Whereby the 2nd, 3rd & 4th defendants suffer inconvenience and incur losses.
PARTICULARS OF LOSSES
a. Loss of use of the space to commercial block moulding/sales at N120, 000.00 per year from the date of purchase by the 2nd defendant till judgment and onwards instead of a warehouse which the counter claimant/2nd defendant have been trying to build on the space but for the obstruction caused by the defendant”
b. Cost of conducting this sulk and other suits induced by the 1st defendant. All the processes on suit No. KDH/KAD/416/96 are pleaded as well as the records of proceedings of cases at the area courts conducted by the 1st defendant and Attahg Onaja, the plaintiff in respect of this same plot of land and all shall be relied upon at trial.
20. Whereby the defendant as well as the 3rd and 4th defendant urges the court to reject both the C of Os No. 031574 belonging to the plaintiff and C of O No. 011158 belonging to the 1st defendant as they are forgery and void and declare that the land belongs to the 2nd, 3rd defendant through acquisition from the 3rd defendant and not the plaintiff or the 1st defendant based on C of O No. 305 and 14275.
a. AND ORDER directing the 1st defendant to pay the 2nd defendant the sum of N120, 000.00 per annum from date of purchase by the counter claimant till judgment and onwards till the date he vacates the plot being charges for use of the land for commercial block moulding/sales and the sum of N50, 000.00 for general damages
b. AN ORDER OF PERPETUAL INJUNCTION restraining the plaintiff and the 1st Defendant by themselves, agents, servants/ privies, or by any person whomsoever from further trespass and directing the 1st Defendant to vacate the plot immediately at judgment date.”
The learned trial judge did a lot of work in his consideration of the evidence within the con of the pleadings and I believe it would be for a better flow ii I recapture most of that judgment and it is as follows:-
“It is to be observed that the plaintiff amended statement of claim soes not really controvert the averment in the 2nd – 4th defendant statement of defence and counter-claim. On the contrary, the position that he claim only states the plaintiff’s position that he bought a piece and land mearsuring 100′ x 100′ from Jatau Goni Maro, which he built on but the house was demolished by KCDB which later allowed him to rebuild the house but only on plot measuring 100′ x 50′. I have already considered his case in details.
The 1st defendant, on the other hand, filed no defence at all, to counter-claim of the 2nd to 4th defendants. I can therefore say that, there is no evidence or pleading by the 1st defendant, to be considered by Court, in relation to the counter claim.
In summary, the evidence of the DW3 (which I have reproduced in extension) is that the 3rd defendant was given a plot of land covered by C of O No 305 which was subdivided when the 2nd defendant acquired part of it from the 3rd defendant, and that the 2nd defendant was issues C of G No 14275 while the 3rd defendant was issued C of O No 12008 to cover their portions. Exhibit 7 is the C of C No, 305 which shows that plot L12 was divided into plots L124 and L12B. The sketch map at page 4 of the Exhibit shows that it is NC PL 35 and it is a division of plot L12 within Industrial Area based on Plan T.P.O. 94OB, granted to the 3rd defendant Banco Joinery and Furniture Company under Right of Occupancy No. NC 305. The evidence of the DW5 is also that it was plot L12 that was subdivided into plot L12A covered by C of O No NC 14275. THE 2nd to 4th defendants have therefore led evidence which establishes that plot L12 covered by C of O No. 305 was subdivided when the 2nd defendant acquired part of it from the 3rd defendant, that the 2nd defendant was issued C of O No 14275 while the 3rd defendant was issued C of O No 12008 to cover their portions. Exhibit 7 is the C of O No 305 which shows that plot L12 was divided into plots L12A and L12B, the sketch map at page 4 of the exhibit shows that it is NC PL 35 and it is a division of plot L12 within Industrial area based on Plau T.P.O. 940B, granted to the 3rd Defendant Banco Joinery and Furniture Company under Right of Occupancy No. NC 305, the evidence of the DW5 is also that it was plot L12 that was subdivided into plot L12A covered by C of No NC 14275, the 2nd to 4th defendant have therefore led evidence which establishes that plot L12 covered by C of O No. 305 was granted to the 3rd defendant by the State Government.
The evidence of the DW4 that the original owner had applied for plot L12 but it was L12A that was given to him because Government found out that the size of the plot L12 was too big for what he wanted, is not borne all by Exhibit 7 which clearly shows or states at page 4 that it is division of plot L12 granted to the 3rd defendant. The same witness also identified Exhibit 7 as C of O No 305 which was sub-divided with one part given to 3rd defendant and the other part being retained by the former owner,
The DW3 and DW5 also gave evidence that plot No L12A which the 3rd defendant had retained after L12 was divided into L12A and L12B was further’ sub-divided and two new C of Os were issued in the names of the 2nd and 3rd defendants/counter-claimants. The counter-claimant did not plead the numbers of the C of Os but they pleaded that the C of Os are with the Bureau Lands and Survey. The DW5 said that the 2nd defendant applied for an assignment for a title under KD 1315 from Banco Joineries, which was sub-divided and approved over plot No C of O No 14275 issued. He said he singed the final approved Survey plan for the preparation of the C of O he identified Exhibit 10 as the C of O and his signature on page 4 of the exhibit.
The plaintiff in his own pleadings never disputed that there was sub-division of plot L12 and L12A. What he pleaded in paragraph 3(i) and (iv) of his reply to statement of defence is that the land in issue or claimed by the plaintiff does not fall within the Kaduna Industrial layout, and that the land claimed by the plaintiff was never covered by C of O No 14275 both before the sub-division and after the sub-division arising from C of O No 305, and that even if C of O No 14275 covers the land claimed by the plaintiff (which is not conceded) it was to that extent void for want of title. Thus, it is clear in the plaintiff’s pleadings that he acknowledges the existence of C of O No 305 and the sub-division of the plot or land covered by C of O No 305. The plaintiff gave no evidence, anyway on what he pleaded in these paragraphs. The 1st defendant also did not dispute that there was subdivision of the plot covered by C of O No 305. In fact, he filed no defence to the counter-claim. Mr. Iroagalachi is therefore right in submitting that throughout the trial of this case, there is no averments by the plaintiff or the 1st defendant, challenging the averments by the paragraph 5 (a) – (e) of the 2nd to 4th defendant/counter-claimants as to how they came by the land, that is, that it was a state grant.
The submission by Mr. Obiekwe that the 2nd – 4th defendant anchored their sole root of title on a sale by B.O. Amida, based on Exhibit 9, is I think, with due respect to learned counsel, not quite correct. The root of title front their pleadings and evidence is a grant of the land plot L12 covered by C of O No 305 by Government to the 3rd defendant who was later sub-divided into L12A and L12B as evidenced by Exhibit 7. Exhibit 9 referred to by learned counsel is a deed of assignment in respect of a portion of L12A after it was sub-divided and assigned to the 2nd defendant by the 3rd defendant. It is not the root of title of the entire plot.
Mr. Obiekwe also referred to the evidence of the DW5 under cross-examination, when he said the extent of land covered by a C of O is limited by the beacons in that C of O,
“I see Exhibit 10; the parcel of land is the space between the Express road and ACI. The parcel of land is outside the beacons.”
I have carefully studied Exhibit 10 and it is difficult to see any sense in what the DW5 said. Whereas there are beacon numbers indicated, and there is a road from Kakuri to Kaduna Highway, then another access road, the location of ACI is not indicated. The statement that the parcel of land in dispute is the space between Express road and ACI is therefore not borne out by Exhibit 10 from which DW5 seems to be basing his statement. It must also be recalled that the court was moved to visit the land in dispute and parties and their counsel were there. The land in dispute is therefore not in doubt and it is entire piece of land the court saw. There is no space between the express road and the land in dispute-other than the usual allowance for parking of vehicle. I therefore accept the submission of Mr. Odigie that parties in this case are ad idem on the location or identity of the land in dispute but this only as far as evidence at the locus in quo is and the fact that different names concerned are ascribed to it is not fatal to the plaintiff case. It is pertinent to note that after every party described the land in dispute in his own terms, they also went there physical and agreed on the same plot of land to be the one in contest. None of them pointed to a different piece of land. On the authority of SALAMI V. GBODWOOLU (1997) 47 LRCN 1020 AT 1096 cited by Mr. Odigie, I hold the by evidence before the Court the identity of the land in dispute is certain and not in dispute.
By the evidence of the DW3, DW4 and DW5 as well as Exhibits 7, 8, 9 and 10, I hold that on the preponderance of evidence or upon the balance of probability, the 2nd to 4th defendants have proved their root of title and how the 2nd and 3rd defendants came by the land in dispute. The type of proof required of them is that required in every civil claim – no more. See NARINDEX TRUST LTD & 1 V. NIG. INTERCONT. MERCHANT BANK LTD (Supra).
Let me again say that the plaintiff led no evidence in challenge of the counter-claimants’ pleadings as to how they came to be on the land in dispute. All he said (PW1) was that he met the manager of the 2nd defendant who told him that the plot belongs to them but I do not know his name. Amida was not there. He also said that he did not join the 2nd defendant in the previous suit because the 1st defendant first claimed to be owner then later he said one man gave him, then he said the 2nd defendant gave him. The PW2 and PW3 also said nothing concerning the claim of the counter-claimants as to how they became associated with the land in dispute. The 1st defendant on his part filed no defence to the counter-claimant upon which he could have anchored any evidence worthy of consideration as defence to the counter-claim.
In paragraph 12 of the 2nd – 4th defendants statement of defence and counter-claim, they pleaded that “The 2nd – 4th defendants shall contend at hearing that the Local Government C of O No 011158 and 0315474 which the 1st defendant and plaintiff are brandishing are invalid/forged and do not exist.”
These two C of Os are in evidence as Exhibits 48 and 3 respectively. Exhibit 3 is the Local Government C of O issued to the plaintiff while Exhibit 48 is the Local Government C of O issued to the 1st defendant. The DW3 said he has nothing to say about the Local Government C of Os. The DW4 identified Exhibits 3 and 49 as Local Government C of Os. He said the land in issue is in urban area and cannot be a layout for the Local Government; The layout is a state Government layout with beacon numbers demarcating each plot.
I think that it is appropriate at this juncture to again remind myself that the 1st defendant filed no defence to the counter-claim. What this, in my respectful view, means, is that the averment in paragraph 12 of the counter-claim is undisputed by the 1st defendant. The plaintiff in his reply to the statement of defence and counter-claim pleaded that he joined issues on the facts Pleaded in paragraph 12 (among others) of the 2nd – 4th defendant’s statement of defence”
Mr. Iroagalachi submitted that Exhibit 3 is an invalid document in Kaduna State since it was issued after 22nd October, 1980. He relied on Gazette No.15 vol. 24 dated 16th August, 1990 which is notice of Invalidation of void C of O, Land Use Act, 1978. He also relied on ADENE V. DANTUMBU (Supra). In that case, the Supreme Court considered a similar situation as we have in the present case, and it concluded that:
“…With effect from 26th August, 1982, Kaduna Local Government had no power to grant a right of occupancy over the land in dispute since the land is situated in urban area. So that when it purportedly granted the respondent a right of occupancy on 27th April, 1983, it had no power to do so and, therefore, the purported grant is null and void,”
On the authority of this case, I have already held that Exhibit 3, issued by the Kaduna Local Government on 14th December, 1982, well after 26th August, 1982, is null and void.
As regards Exhibit 4B, the C of O No 011158 dated 18th March, 1982, issued to the 1st defendant by the Kaduna Local Government, I have already held that the 1st defendant failed to establish his pleadings that he was allocated the plot in dispute by the Kaduna Local Government, The evidence of the DW2 called by the 1st defendant, contradicts the 1st defendant’s pleadings and evidence on his claim as to how he came on the disputed plot. It is clear from the evidence of DW2, which I believe that the 1st defendant merely applied to the Local Government for a c of o over a parcel of land he claimed he already had, just like the plaintiff who claimed to have acquired the land from Jatau Goni Maro, did. Hence, both C of Os are marked “claim”. The DW2 also said even by the size of the plot in Exhibit 4, which is 130′ x 104′ it shows that it was not a Local Government grant, but a claim. This court has taken judicial notice of the fact that Local Governments only grant or allocate plots of 100’x 50′ each. This has been the case in all cases that have come before me involving plots allocated or granted by Local Governments. I therefore believe the DW2 that Exhibit 48, like Exhibit 3, was granted as claimed land and not by allocation by Local Government. The 1st defendant, from the evidence of the Dw2, only misrepresented to the Local Government that he needed a C of O over a land he had already acquired, whereas he had in fact acquired none; only to now claim in his statement of defence that the Local Government allocated the land to him. I hold that the 2nd – 4th defendants have established their pleading in paragraph 12 of their statement of defence/counter-claim that the C of O the 1st defendant is brandishing is invalid/forged, same having been obtained by fraudulent misrepresentation of facts by the 1st defendant to Kaduna Local Government.
It is the contention of Mr. Obiekwe that by Order 24 Rule 6(1) of the Rules of this Court, the 2nd – 4th defendants are estopped from raising the issue of location of the plot in dispute being in Urban area as it ought to have been pleaded and that no official Gazette or TPO from the office of the Surveyor-General was tendered to buttress the exclusive or industrial status of the area.
I think with respect, that Mr. Obiekwe’s submission that the 2nd – 4th defendants/counterclaimants did not plead that the land in dispute is within urban area is erroneous. They pleaded that fact in paragraph 6 of their amended statement of defence and counter-claim, wherein they pleaded, inter alia, that the land in dispute is “located near Peugeot Automobile Junction, Angwan Television within Kaduna State Industrial Layout based on Survey Plan TPO 940B amended G. 606 Kaduna State delineated urban land.”
Secondly, the evidence of a Surveyor who is an expert in that field can be relied upon to determine if a land is in an urban area. See ADENE V. DANTUMBU (Supra) at page 146. The DW4, a Surveyor from the office of the Surveyor-General of Kaduna state testified that the land is urban land. I do not accept the submission of Mr. obiekwe that the surveyor-General himself must be called to testify that the land in dispute is in an urban area. It is sufficient if a surveyor from his office gives such evidence, Furthermore the court was moved to visit the locus inquo and it saw the land in dispute, which is just less than a metre or so, from the Kaduna to Abuja road. It is my view that by paragraph 1 of schedule to the Kaduna State Legal Notice No.4 of 1990, signed by the Military Governor of the State, the area within 15 kilometres on either side of the Kaduna to Abuja axis extending from Dutsi along Abuja Road enclosing the built up Metropolitan areas of Kaduna and terminating 5 Kilometres beyond Katabu along Zaria Road, is urban area, I think I am duty bound to take judicial notice of this Legal Notice, particularly that the court was moved to go and see the location of the land in dispute. See sections 73 and 74 of the Evidence Act Legal Notice No. 4 of 1990, in my view is a subsidiary Legislation made under the Land use Act and having the force of law, By Section 74 of the Evidence Act, therefore, it is a fact the court must judicially notice and which, by section 73, need not be proved. For the same reason, I do not accept the submission of Mr. Obiekwe that the 2nd – 4th defendants ought to specifically plead the Legal Notice No.5 of 1990, Notice of Invalidation of Void certificates of occupancy, also a subsidiary Legislation made pursuant to sections 2(1) and 3 of the Land Use Act, 1978, and which provides that the Military Governor declared as null and void all Local Government certificates of occupancy issued after the 22nd day of October, 1980, in respect of the territories or Kaduna state designated as urban areas. There was a subsequent Legal Notice in 1982 and the Supreme Court in the ADENE V. DANTUMBU’S case considered the implication of both Legal Notices when it said at page 144, that:
“The question is: does the land in dispute in the present case fall within the area designated “Urban Area” in the 1982 Order or in the earlier Order of 1980?”
The court then held that the trial court was bound to take judicial notice of the Order of 1982, under Sections 72 and 73 (now Sections 73 and 74) of the Evidence Act, That being the case, Legal Notices Nos 4 and 5 of 1990 need not be proved by pleadings and evidence since they are facts the Court must take judicial notice of, and therefore, they need not be pleaded. As a matter of fact, that the land in dispute is within an urban area or that it is urban land is not in dispute. The 2nd – 4th defendants pleaded it and also led evidence on the point, and neither the plaintiff nor the 1st defendant pleaded that it is not within urban area and none of them gave evidence to the effect that it is not within urban area. In the final analysis and for all that I have said hereinbefore, I hold that the 2nd to 4th defendants have, on the preponderance of evidence and upon the balance of probabilities, proved their counter-claim. I therefore make the following declarations:
1. I declare that the Certificate of Occupancy No. 031574 belonging to the 1st defendant is null and void for reasons given hereinbefore in this judgment.
2. I declare that the land belongs to the 2nd and 3rd defendants/counter-claimants and not the plaintiff and the 1st defendant, for reasons given hereinbefore in this judgment.
3. A perpetual injunction is hereby granted restraining the plaintiff and the 1st defendant by themselves, agents, servants, privies or by any person whomsoever from further trespassing on to the said land.
4. I direct that the 1st defendant shall vacate the plot within seven days from today.
As for the claim of the sum of N120, 000.00 per annum from date of purchase by the counterclaimants till judgment and onwards till the date the 1st defendant vacates the plot being charges for use of the land for commercial block moulding/sales, as pleaded in paragraph 20(a) of the statement of defence and counter-claim of 2nd – 4th defendants, I hold that this claim must fail because it is not supported by evidence. What the DW3 said in his evidence is that he wants the 1st defendant to pay the said amount because due to their inability to build a warehouse on the land, they had to hire another warehouse elsewhere at N120, 000.00 per annum from 1995 to date and they want the cost to be paid by the 1st defendant. This evidence is however not based on facts pleaded and therefore goes to no issue. There is even no receipt tendered evidencing the alleged payment of N120, 000.00 per annum from 1995 till date. Not a single receipt was tendered. There is no evidence as to which warehouse they hired. There is also no evidence on the fact pleaded and it is trite that pleadings are by themselves not evidence and do not constitute evidence. The claim therefore fails and it is dismissed.
The counter-claimants also pleaded the sum of N50, 000.00 as general damages, The DW3 in his evidence also asked for N50, 000.00 against the 1st defendant as damages. They gave evidence that they have asked the 1st defendant to quit the land but he has not done so. Certainly they have been inconvenienced by having to prosecute this case. They are therefore entitled to general damages which I assess at N10, 000.00 and award same to the counter-claimants against the 1st defendant. Judgment for 2nd to 4th defendants/counterclaimants.”
Having reproduced the pleadings, the findings and evaluation by the learned trial Judge culminating in his decision in dismissing the claim of the plaintiff and upholding the counter-claim. I would have to make references to judicial authorities as guide to what should or should not be.
Where a plaintiff’s case in a land matter is dismissed, such a dismissal does not confer title of the land in dispute on the defendant. Per Bulkachuwa JCA in ONUCHE VS ANYEGWU (2001) 6 NWLR (PT. 708) 127 at 135.
As the plaintiff had to succeed on the strength of his own case and not on the weakness of the defence, a defendant who claims to be entitled to an area of land on which the plaintiff has established, a semblance of title or right has the onus of proving his own right to the respective area claimed either to have been sold to him or vested in him for some other right. The court will not make any presumption in favour of such defendant and if he fails to do so his claim will not be sustained on grounds of sentiments. ELIAS VS SULEIMAN & ORS (1973) NMLR 193 (SC).
In a counter claim, just like in any other claim for declaration of title to land, the onus lies on the claimant to prove with precision and certainty and without inconsistency the identity of the land to which his claim or counter-claim relates. IYARI VS ALKALI (2001) 11 NWLR (PT. 724) 412 at 439 Per Iguh JSC; ONWUKA VS EDIALA (1989) 1 NWLR (PT. 96) 182; EZEOKEKE VS UGA (1962) 2 SCNLR 199; OLUSANMIN VS OSHASONA (1992) 6 NWLR (PT. 245) 22; UDEZE VS CHIDEBE (1990) 1 NWLR (PT. 125) 141.
In an action for declaration of title in which the defendant raised a counter-claim also for declaration of title, it is possible for both parties to fail on the ground that neither of them proved his title. This is because a party must succeed on the strength of his claim whether; the action is brought as a counter-claim in a claim by the plaintiff or as a fresh action. MUSA ANWOYI VS SHODEKE (2001) 6 NWLR (PT. 709) 321 (CA).
The issue of identity of land in dispute in a claim for declaration of title only becomes relevant after the plaintiff must have cleared the primary huddle which is proof of his root of title to land, he must establish with certainty, the identity of the land he claims. This is usually done by calling as witnesses, those with whom the plaintiff shares common boundaries as well as witnesses to trace the boundary marks along the boundary of the land in dispute, in addition to tracing his root of title to the said disputed land where the plaintiff fails to do so his action must fail, particularly as there would be no land to which the declared title could relate or be attached to with any degree of certainty. ODUNZE VS NWOSU (2007) 13 NWLR (PT. 1050) 1 at 52 – 53 per Onnoghen JSC.

Where the parties to a land dispute own land on another side of a common boundary, the boundary features along it must be clearly shown and proved. In other words, it is necessary to show very clearly the identity of the land and where the boundary between the parties is and what the features on it are. This is done within the con of proving the identity and the boundaries of the land in dispute and the burden in this respect rests squarely on the plaintiffs to be discharged if they have to succeed in the claim. ODUNZE VS NWOSU (2007) 13 NWLR (PT. 1050) 1 at 33 34 per Chukwuma-Eneh JSC.

Admissions by a party against his interest are admissible against that person. Although, in law, admission per se does not constitute conclusive evidence of the matters admitted, they may operate as estoppel for they stand firmly on the subject of the admission against the person making it. In considering the worth of such admissions, the court must take into account the circumstances under which they were made and the weight to be attached thereto. KAMALU VS UMUNNA (1997) 5 NWLR (PT. 505) 321 at 334 335; OJEGBE VS OKWARANYIA (1962) 2 SCNLR 358; NWANKWO VS NWANKWO (1995) 5 NWLR (PT. 394) 153; SEISMOGRAPH SERVICES (NIG) LTD VS EYUAFE (1976) 9 – 10 SC 135; AJIDE VS KELANI (1985) 3 NWLR (PT. 12) 248.
Formal admission may take the form of clear admissions filed or made by a party to a civil proceeding or by his counsel in the course of the trial of a civil suit. This is evident from the proviso to section 75 of the Evidence Act. In law what is admitted need no further proof. This is also provided for in section 75 of the Evidence Act. KAMALU VS UMUNNA (1997) 5 NWLR 505 (SC); NWANKWO VS NWANKWO (195) 5 NWLR (PT. 394) 153 at 171; OKPARAEKE VS EGBUONU (1941) 7 WACA 53 at 55; OWOSHO VS DADA (1984) 7 SC 149 at 163 – 164.
Having put forth the legal principles that apply in this contest and placing them in perspective of the pleadings of the parties and the evidence led. The facts available show that contrary to the contention of the appellant, the identity of the land in dispute as granted in the counter claim is not in doubt or the better title of the plaintiff in the counter claim that cleared the air as to his locus standi in his claim. Also cannot be ignored is the fact that the trial court visited the locus in quo and there from came to the finding that the land in dispute was the same as identified on the spot.
In evidence and accepted by the learned trial judge is that by virtue of Notice of Invalidation of a void Certificate of Occupancy, Land Use Act, 1987 in Gazette NO.15 Volume 24 dated 16th August 1990, the authority of the Local Government over land in the urban area had ceased to exist. Therefore the appellant seeking to brandish Exhibit 3, issued by the Kaduna Local Government on 14th December 1982 since all such land with effect from 26th August 1982 is null and void cannot go far with that posture. That the land is within the urban area outside the domain or scope or authority of a Local Government was seen at the visit of the locus in quo, tallying with the documents relied upon by the 2nd 4th Respondents/Counter-Claimants.
Also found in evidence were admissions by witnesses called by the Appellant who testified against the Appellant’s interest thereby leading to the technical admission of the averments and evidence of the Respondents. The implication now is that the Appellant is on a futile venture and there is nothing this Court can do for him since the evaluation of the evidence was done within the scope of what was before the court below. See ODUNZE V. NWOSU (supra) AT 33 – 34; EKWEALOR V. OBASI (1990) 2 NWLR (PT. 131) 231; BOLAJI V. BANGBOSE (1986) 4 NWLR (PT.37) 632; MOMOH V OLOTU (1970) 1 ALL NLR 117; KAMALU V. UMUNNA (1997) 5 NWLR (PT.505) 321.
From the foregoing it is evident the learned trial Judge properly evaluated the evidence before him and came to the right decision. Indeed I find the two issues resolved positively and in favour of the 2nd – 4th Respondents.
ISSUE NO.3
Whether on the state of the pleadings and the evidence adduced in this suit, the learned trial Judge was/is correct in declaring invalid on the grounds of forgery and fraudulent misrepresentation of facts. The certificate of occupancy No. 011185 dated the 18th March 1982 in relation to the disputed plot of land and issued to the appellant by the appropriate authority in Kaduna State.
Learned counsel for the Appellant referred to paragraph 12 of the statement of defence and counter claim as amended, the 2nd – 4th respondents herein pleaded that the C of O that the appellant as the 1st defendant in the suit is brandishing is invalid/forged same having been obtained by fraudulent misrepresentation of facts by the appellant to Kaduna Local Government. Mr. Obiekwe of counsel said where there is allegation of forgery as made of Exhibit 4B, a criminal offence alleged then the proof of the standard of crime must be beyond reasonable doubt. He cited SECTION 138 (1) & (2) EVIDENCE ACT CAP 112 LFN 1990; OSHINOWO VS. OSHINOWO (2005) ALL FWLR (PT. 281) 1698 at 1717. That the 2nd – 4th Respondents in the court below failed to prove the allegation. He cited the cases of IKE VS OFORKAIA (1992) 9 NWLR (PT. 263) 42; ADEDIJI & ANOTHER VS. KOLAWOLE (2004) ALL FWLR (PT. 214) 91 at 105 E – F; OGUNBIYI VS OGUNDIPE & ORS (1992) 9 NWLR (PT. 263) 34; NWOBODO VS ONOH (1984) 1 SC 1 at 14; IKOKU VS OLI (1962) ALL NLR 195.
Mr. Obiekwe of counsel contended for the Appellant that the learned trial Judge had no basis to have declared exhibit 4B null and void as no material evidence was placed before him to enable him make such a declaration. Also that whether or not the parcel of land is within the Urban or Industrial Area designate, since the land which the Appellant has been in long physical possession of is outside C of O No. 305 from which submissions of Exhibits 7, 8, 9 and 10 were made, the 2 – 4th Respondents cannot question the derivative title of the Appellant as they had no legal interest whatsoever in the land in dispute, He referred to DOSUMU VS ADESOMO JOTO (1987) 9 – 11 5C 74.
That for an averment in pleadings such as paragraph 12 of the amended joint statement of defence and counter-claim to be worthy of any consideration by the court it must be established or proved by credible evidence unless unequivocally admitted by the other party which is not the case here. He cited ODEBUMI VS ABDULLAHI (1997) 2 SCNJ 112 at 126. He further submitted that as the 2nd – 4th respondents did not plead any Gazette as required by Order 24 Rule 6(1) of the Kaduna State High Court Civil Procedure Rules 1987, the learned trial Judge would not have taken judicial notice of any especially as the parties are bound by their pleadings.
In response, Mr. Iroagalachi of counsel for 2nd 4th Respondents referred the court to paragraph 12 of the Statement of Defence in the court below wherein particulars of invalidity, forgery and non existence of the Certificates of Occupancy of the Appellant were pleaded. Also that evidence in proof of the facts pleaded was properly made. That in a situation where both parties are claiming title from the same common source, it is the one with a better title that will succeed. He referred to ALABI & ANOR VS DOHERTY (2005) 18 NWLR P. 411 at 435. That by the Kaduna State Designation of Land in Urban Areas Order, the Local Government in Kaduna State has no powers to own land or allocate land to any person within the area so designated. He referred to Kaduna State Legal Notice No.4, No.5 and No.6 of 1990 which invalidated all allocations done by any Local Government as from 22nd day of October 1980 and Appellant’s certificate was issued in March 1982 and not converted to a State Certificate of Occupancy and so becomes invalid by operation of law. He referred to ADENE VS DANTUMBU (1994) 2 SCNJ 130 at 145.
In reply on point of law, learned counsel for the Appellant said the urban status of the plot of land in dispute was never pleaded by the 2nd – 4th respondents and all the submissions made there under go to no issue. Also that the Kaduna State (Urban Designation of Areas 1982) published in Kaduna State Gazette No.21 Vol. 16 came into force on 26/8/82 and as such has no retroactive effect and did not affect the Appellants C of O (Exhibit 48) issued to him on 14th March 1982.
It is wrong or erroneous for a court to grant an order or relief which is not claimed or sought by the party in whose favour the order was made. In the same vein, the court which is not a “father Christmas” or a social welfare institution should not grant to a party an order, reliefs or declaration in excess of or outside what he claimed or sought for. The rationale of the rule which forbids gratuitous award by the court contrary to the rule of practice and pleadings is to avoid surprises during proceedings and to ensure fair hearing to the parties without showing favour to one or the other. The rule against unsolicited or gratuitous awards by courts is of general application to all cases as it affects or robs the court of jurisdiction to make such awards, AKINBONI VS AKINBONI (2002) 5 NWLR (PT. 761) 564 (CA); EKPEYONG VS NYONG (1975) 2 SC 71; ADEFULU VS OKULAIA (1996) 9 NWLR (PT. 475) 668; LEWIS & PEAT (NRI) LTD VS AKHIMIEN (1997) SC
157; MAKANJUOLA VS BALOGUN (1987) 3 NWLR (PT. 188) 192; OMOTUNDE VS OMOTUNDE (2001) 9 NWLR (PT. 718) 232.

It is now trite law that where a trial court did not adequately evaluate the evidence before it on vital issues, the Court of Appeal is eminently justified in interfering with its findings. That is not the situation in this instance and so the case of GAJI VS PAYE (2003) SCNJ 20 (SC); EBBA VS OGODO (1984) 1 SC NLR 372 do not apply. The evaluation and findings of the Court below are to be seen in the excerpts of the judgment re-cast earlier, the pleadings reproduced and that court did not go outside the necessary materials in his evaluation or findings.
Where a person was content to stand by and see his battle fought by someone else in the same interest instead of applying to be joined as a defendant in the case, he is bound by the result of that case and estopped from re-opening the issues determined therein. In the case in hand the Appellant did not respond to the pleadings in the counter claim. He filed no defence to the counterclaim and so had no defence to the evidence in proof of the counter claim. NDULUE VS IBEZIM (2002) 12 NWLR (PT. 780) 139 at 163 – 164 (SC); OKUKUJE VS AKUIDO (2001) 3 NWLR (PT. 700) 261, Indeed, the counter claim was not contested and the court below was right to accept the evidence proffered by the Counter-Claimant/Respondents.
The answer to the Issues 1 and 2 has taken the wind off this third issue which is also in favour of the Respondents 2 – 4th. There is no faulting the finding and decision of the learned trial Judge that the Certificate of Occupancy touted by the Appellant were fraudulently obtained and lacked validity, since the reasons for the finding are self evident from the judgment.
This appeal lacks merit and I dismiss it.
I order N20, 000.00 costs to the Respondents 2nd – 4th to be paid by the Appellant.

JOSEPH TINE TUR, J.C.A.: I have read the judgment written by MARY U. PETER-ODILI JCA and I concur with the summary of the facts, reasons and conclusions. I shall add the following comments. I have adopted the facts and issues formulated by the appellant and respondents for determination set out in their respective briefs and reproduced in the lead judgment of my Lord, Mary U. Peter-Odili JCA. I have no intention of reproducing them in my concurring.
Paragraphs 4-13 of the Amended Statement of Claim sets out the location and the identity of the land claimed in the High Court of Justice Kaduna by Attah Onoja who was the plaintiff against the 1st Defendant in the trial court as follows:
“4. The disputed parcel of land is situated at 84, Kanikun Street, Ungwar Television, and Kaduna also within the jurisdiction of the Honourable Court.
5. The plaintiff sometime on 14th January, 1966 purchased a piece of land measuring 100’x 100′ from one Jatau Goni Maro the bona fide owner in the sum of Forty Pounds (40.00) in the presence of witnesses. The purchase agreement between the Plaintiff and Jatau Goni Maro dated 14/01/66 is hereby pleaded and shall be relied upon at the trial of this suit.
6. The Plaintiff states that at the time he purchased the said plot of land, it was known as 84, Kabiu village, Television. Later the area was known as Ungwan Kadara and now it is known as Ungwan Television. There was no road linking the plot to Kabiu Village, later Ungwan Kadara (now Ungwan Television). But now there as road known as Kaninkun Street linking the village with the Plot of land.
7. The Plaintiff further avers that he erected building of 14 rooms on the piece of land and put some tenant therein.
8. He states further that, sometime in 1977, Kaduna capital Development Board (KCDB) demolished some houses, which were said to be less than 50ft from the main road in other to give Kaduna town a face lift. Even though the Plaintiff’s house was not within 50ft prescribed by order, the Board erroneously pulled down the house of the Plaintiff along with some of his neighbors.
9. The Plaintiff avers that himself and some of his neighbors petitioned the Authority concern over the illegal demolition of their houses. The Plaintiff pleaded the said letter dated the 31/12/79.
10. The Plaintiff avers that after looking into their petition, the Authority issue them resettlement forms which they filed and return to the Authority together with sworn Affidavit. The Plaintiff pleads this form and the Affidavit.
11. The Plaintiff avers that he was reallocated the plot with warning that he must not build his house within 50ft from the main road in view of the fact the road by the plot to command secondary school has to be dualized. This order reduced the plaintiffs plot to 100’X50”
12. The Plaintiff states that thereafter he continued to exercise control over the remaining piece of the land and erected barbed wire to fence round the remaining portion of his land.
13. The Plaintiff avers that sometimes in 1982, he applied to the Kaduna Local Government Council Certificate of occupancy to cover the remaining plot which measured 100′ x 50′. The letter of application addressed to the Secretary to Kaduna Local Government council dated 15/7/82 is hereby pleaded.
14. That his application for the Certificate of Occupancy was approved. The letter conveying the approval addressed to the Plaintiff dated 14/12/82 signed by one Tukur Tunimu is hereby pleaded.
15. The Plaintiff further avers that a certificate of occupancy was issued to him bearing No. 031574 dated 14/12/82. The said certificate together with a letter forwarding same to the Plaintiff dated 16/12/82 together with file No. LAN/D/1204 is hereby pleaded.
16. The Plaintiff states that he has been paying grant rent in respect of the piece of land. Some of the payment receipts with variously dated 11/6/79, 15/7/82 and 17/6/96 are hereby pleaded. All other relevant documents are hereby pleaded and shall be relied upon at the hearing of this suit.
17. The Plaintiff states that sometime in 1995, he noticed that a strange person was moulding blocks on his plot of land. And when he made enquiry, he discovered that it was the 1st Defendant TONY MONEME. When confronted, he claimed that it was the 2nd Defendant Automobile Industry Ltd that leased the plot to him. Consequently, the Plaintiff filed a suit of criminal trespass against the 1st Defendant at Upper Area Court, Kakuri in Suit No. UAC/KAD/15/95.
18. The Plaintiff avers that the 1st Defendant pleaded that he thought the 2nd Defendant who had leased his own portion to him owed the entire plots. The Plaintiff showed the 1st Defendant the barbed wire that serves as demarcation between the Plaintiff and one Bankole Amida who later sold his own portion to the 2nd Defendant (ACI Ltd) on this premise, the 1st Defendant withdraws his tools from the plot and the Plaintiff in turn withdrew the case at Upper Area Court, Kakuri, and Kaduna”.
From the pleadings it becomes very clear that the Plaintiffs land at the time of the dispute measured 100ft x 50ft and was covered by a Kaduna Local Government Council Certificate of Occupancy issued on 141/2/982. The plaintiff’s root of title is traceable to Jatau Goni Maro the bona fide owner from whom the land was purchased for a consideration of forty pounds supported by an agreement dated 14/01/1966. How Jatau Goni Maro became the bona fide owner was not however pleaded. See Ohiaeri vs Akabeze (1992) 2 SCNJ (pt 1) 76; Igbojimadu vs Ibeabuchi (1998) 1 NWLR (pt 533) 179 at 190-191. On the other hand the 1st defendant appellant claimed that his own piece of land is “measuring over 130ft x104ft and is covered by a certificate of occupancy No.(1) 11158 of 18/3/82” without also pleading how he had acquired the land before applying to be issued a certificate of occupancy by Kaduna Local Government council. The 1st defendant pleaded as follows.
“4. The 1st Defendant vehemently and categorically denies the averments contained in paragraphs 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, and 21 (a) (b) & (c) of the statement of claim as same are most untrue, totally incorrect and gross distortion of facts.
5. In further answers to paragraphs 4, 5, 6, 7, 8, 9, 10 and 11 of the statement of claim, the 1st Defendant avers that:-
(a) He (1st Defendant) does not know any plot of land by the description of b.4 Kaniku street, U/Television or b.4 Kabiu Village Television or Ungwar Kadara but rather shall at the hearing of this suit establish that he is the beneficial and bona fide owner of a parcel of land measuring over 130′ x 704′, and covered by certificate of occupancy No. 011158 dated 18/3/82 known as plot Ib Kaninku Street. Television, Kaduna which both the Plaintiff and the 2nd Dependant are interested in.
6 (c) That the 1st Defendant is neither trespassing on the plaintiff’s land nor that of the 2nd Defendant as far as this land is concerned or in any other. Whatsoever or, however as the land was duly allocated to the 1st Defendant by the Kaduna Local Government in 1982. The allocation papers as given by the Kaduna Local Government then is hereby pleaded and will be relied upon at the hearing of this suit.
7(i). That he the 1st Defendant applied to the Kaduna Local Government for certificate of occupancy in respect of the Land in question, and was given as far back as 18/03/82. The certificate bears certificate of Occupancy No. 011158. The Certificate of Occupancy is hereby pleaded and will be relied upon at the hearing of this suit”.
Thus from the pleadings of the 1st defendant it is clear that the piece of land claimed by the plaintiff, namely 100ftx50ft is subsumed or eclipsed in the 130ft x 104ft land claimed by the 1st defendant/appellant.
The 2nd, 3rd and 4th Defendants/Respondents pleaded that they derived title to the land in dispute from one Mr. B.O. Amida (deceased), represented in the suit by the 4th defendant/Respondent as follows:
“5. That the 2nd defendant never acquired any land from either the Kaduna state or Kaduna south Local Government, rather, the 2nd defendant acquired the land from the 3rd defendant (Banco Jomery and Furniture Co. Ltd) whose Director was late Mr. B.O. Amida (represented in this suit by the 4th defendant) on an existing c of o No. 305 which was granted to the said 3rd defendant by Kaduna State and later subdivided into 12008 & 14275 pursuant to the sale and issued to the 2nd defendant by the Kaduna State Government. All documents relating to the transaction are pleaded and shall be relied on at trail. The 2nd, 3rd & 4th defendants aver that they are not parties to or aware of the averments as contained in paragraphs 9 and 10 of the claim. The plaintiff is put to test to prove the facts and produce the warning letter in Court.
6. The 2nd-4th defendants aver that the plot of land subject of this suit is a portion of a bigger piece of land belonging to the 3rd defendant covered by C of O No. NC. 305 issued by the Bureau for Lands, Kaduna state along time ago, located near Peugeot Automobile Junction, Angwan Television within Kaduna State Industrial Layout based on survey plan TPO. 940B amended G.606 Kaduna state delineated urban land.
The C of O, survey plan related documents/files both at the lands and the office of the 2nd defendant are pleaded and shall be relied on at trial.
7. When the 2nd defendant wanted a piece of land to set up her factory, she approached one late Mr. B.O. Amida, the director to the 3rd defendant for a part of the land covered by C of O No. 305 and known as the plot L12 then.
8. The 2nd defendant and late Mr. B.O. Amida discussed and agreed for the quantity of land required by the 2nd defendant and the consideration to be paid. The C of O No. 305 was therefore subsequently sub-divided by the lands into LI2A & LI2B after a deed of sale was executed between the 2nd defendant and the 3rd defendant with C of O No. 14275 as L12A and the other in the name of the 2nd defendant with C of O No. 12008 as L12B both C of O’s and the deed of agreement duly executed by the 2nd and 3rd defendant us well as the documents relating to the approval by the Bareau for Lands, Kaduna State are pleaded and shall be relied upon at trial. The portion on which the 1st defendant is squatting which the plaintiff is also claiming was part of C of O 14275 after the subdivision of C of O 305.
9. In 1994 late Mr. B.O Amida became a director to the 2nd defendant and after some further discussions between him and the 2nd defendant for additional land, late B.O. Amida agreed to further subdivide the new plot L12A with O 14275 into and sell one part to the 2nd defendant as additional land to the earlier one C of O No. 12008. The subdivided has been done and this portion in dispute is the tip adjoining to the road of the portion further subdivided out of C of O 14275 and assigned to the 2nd by 3rd defendant.
10. This was also processed, a deed of assignment executed by the 2nd and 3rd defendant and approval sought for and obtained from the Bureau for Lands Kaduna State. The C of O No. 14275 was subdivided and the 2nd and 3rd defendants issued with new C of Os, one in the name of the 2nd defendant and the other in the name of the 3rd defendant. All the documents relating to this second transactions which are with the 2nd defendant and those at the lands office are pleaded and shall be relied on at trial including the file at the Lands Office, Kaduna. The two new C of Os products of the further subdivided of C of O No. 14275 one in the name of 2nd defendant and the other in the name 3rd defendant are with Bureau for Lands Kaduna State as at now because of this case and are pleaded and shall be relied on at trial. After, the subdivision of C of O No.14275 and transfer, of the 2nd additional portion of land to the 2nd defendant, it dawned on the 2nd defendant that 1st defendant who was on the fringe tip of this land near the Federal Highway Right of way close to the Express road belonging to the 2nd defendant and is moulding/selling blocks is not even the owner of the plot but rather a squarter on it and therefore the 2nd defendant asked him to leave.
11. The 1st defendant initially claimed that it was late B.O. Amida who allowed him use of the land. The 2nd defendant sought clearance from late B.O Amida and he said it is not and that he allowed him to squart but that he has already asked him to vacate following the sell, which he has agreed, but unfortunately he died before the 1st defendant could or respond. Upon hearing of B.O Amida’s death the 1st defendant changed and started claiming the small tip of the land and went and obtained a fake local government C of O and is now brandishing the fake C of O and claiming that he has bought the land.
12. The 2nd-4th defendants shall contend at hearing that the Local Government C of O No. 011158 and 0315474, which the 1st defendant and plaintiff are brandishing, are invalid/forged and do not exist”.
The 2nd, 3rd and 4th defendants/respondents pleadings’ shows they are claiming title to all the lands being claimed by the plaintiff/1st respondent and the 1st defendant/appellant and they described their land to be “…within Kaduna State Industrial Layout based on survey plan TPO.940B amended G.606 Kaduna State delineated urban land … ” in paragraph 6 of the Joint Statement of Defence. 2nd, 3rd and 4th defendants/respondents further pleaded the following facts in paragraphs 19-20 of their joint counter-claim.
19. Whereby the 2nd, 3rd & 4th defendant suffers inconvenience and incurs losses.
PARTICULARS OF LOSSES
a. Loss of use of the space to commercial block moulding/sales at N120, 000.00 per year from the date of purchase by the 2nd defendant till judgment and onwards instead of a warehouse which the counter claimant/2nd defendant have been trying to build on the Space but for the obstruction.
b. cost of conducting this suit and other suits induced by the 1st defendant. All the processes on suit No. KDH/KAD/416/96 are pleaded as well as the records of proceedings of cases at the area courts conducted by the 1st defendant and Attah Onoia, the plaintiff in respect of this same plot of land and all shall be relied upon at trial.
20. Whereby the 2nd defendant as well as the 3rd and 4th defendants urges the court to reject both the C of Os No. 031574 belonging to the plaintiff and C of o No. 011158 belonging to the 1st defendant as they are forgery and void and declare that the land belongs to the 2nd, 3rd defendant through acquisition from the 3rd defendant and not the plaintiff or the 1st defendant based on C of O No. 305 and 14275.
a. AN ORDER directing the 1st defendant to pay the 1st defendant to pay the 2nd defendant the sum of N120, 000.00 per annum from date of purchase by the counter claimant till judgment and onwards till the date he vacates the plot being charges for use of the land for commercial block moulding/sales and the sum of N50, 000. 00 for general damages.
b. AN ORDER OF PERPETUAL INJUNCTI0N restraining the plaintiff the plaintiff and the 1st Defendant by themselves, agents, servants, privies’ or by any person whomsoever from further trespass and directing the 1st Defendant to vacate the plot immediately at judgment date”.
The plaintiff sought and was granted leave and did file a Reply and Statement of Defence to the 2nd-4th Defendants’ Reply and Defence to Counter Claim on 25/10/2005 as follows:
“PLAINTIFF’S REPLY AND DEFENCE TO COUNTER CLAIM REPLY
1. The plaintiff herein joins issues with the facts pleaded in 2nd-4th Defendant(s) Statement of Defence, more especially paragraphs 6, 8, 9, 11, 12, 13 & 16.
2. In further response to paragraphs 6, 8, 9, 11, 12, 13 & 16, the plaintiff avers.
2. That the land in issue or claimed by the plaintiff does not fall within the Kaduna industrial Layout and shall put the 2nd-4th defendants to strict proof thereof.
(ii) That the plaintiff has been exercising both legal and physical possession over the said piece of land.
(iii) That the land claimed by the plaintiff was never covered by C of O No. 14275 both before the subdivision and after the subdivision arising from C of O No. 305.
(iv) That even if C of O No. 14275 covers the land claimed by the plaintiff (which is not conceded) it was to that extent void for want of title.
(v) That plaintiff C of O is devoid of forgery of any kind, valid and is premised on a valid title”.
DEFENCE TO COUNTER CLAIM
The plaintiff white joining issue with the 2nd-4th defendant counter claim shall rely on the facts pleaded in its statement of claim and reply in defence”.
Rather than filing a separate Defence to the Counter-Claim learned counsel to the 1st Defendant/appellant sought and was granted leave to amend his Statement of Defence to plead the following facts in paragraphs 13-18 of the Amended Statement of Defence.
REPLY TO 2ND DEFENDANTS COUNTER-CLAIM
13. In reply to the purported counter claim by the 2nd Defendant. The 1st Defendant repeats all the paragraphs of the 1st Defendant Statement of Defence as if same form part of this reply and state as follows:-
(a). That the 1st Defendant never at any time either in the past or in the present trespassed on any land belonging to the 2nd Defendant.
(b) That the 2nd Defendant knows that the land on which the 1st Defendant hence its series of letters to the 1st Defendant in 1992 seeking his permission for access Road through this plot in dispute. The letters are hereby pleaded.
(c) That sometime in 1995, sequel to illicit pressure on the Kaduna South Local Government by the 2nd Defendant, the Local Council in just to fulfill all formalities sought further clarification from the District Head as the ownership of the said parcel of land, which reply dated 15/12/95 shall be used and relied on at the hearing of this suit. Notice is hereby given to Kaduna Local Council to produce the original of same.
14. The 1st Defendant denies all the allegations of fraud/forgery as set out against him by the 2nd Defendant and states specifically that his Certificate of Occupancy over the land i.e. Certificate of Occupancy No. 011158 was acquired since 1982 and not during the period of this suit and the 1st Defendant vehemently denies cheating/ripping off the 2nd Defendant with his Certificate of Occupancy over the land as he owns the land.
15. That 1st Defendant denies acting together and in convert with the Plaintiff as alleged by the 2nd Defendant.
16. The 1st Defendant in view of his forgoing averments as contained in paragraphs 13-15 of his averments of defence hereby urges Court to refuse the declaration sought by the 2nd, 3rd & 4th Defendant to the effect that the land belongs to them as it is the property of the Defendant.
17. The 1st Defendant further urges the Court to ignore the 2nd, 3rd & 4th Defendants’ calling paragraphs 19 & 20 of its Counter Claim against the Plaintiff/1st Defendant as contained in its Statement of Defend as the land belongs to the 1st Defendant and not the 2nd Defendant and/or the Plaintiff.
18. In view of the above averments of the 1st Defendant, the 1st Defendant should be duty declared the rightful owner of the plot in dispute by this Honourable Court”‘
From the pleadings of the 1st defendant/appellant it became evident that no where did the appellant/1st defendant join issue with the 2nd – 4th Defendants/Respondents as to whether the land in dispute was situate in Kaduna Urban Area or not. Only the plaintiff/1st Respondent joined issue as to the location of the land in the counter-claim.
A counter-claim is a separate cause of action. See Ogbonna v Attorney General of Imo State (1992)2 SCNJ (Pt.1) 26. Therefore a party served a counter-claim has to file a defence to the counter-claim else it will be deemed he or she has admitted liability to the counter-claim. The counterclaimant would be entitled to ask the Court for judgment on the counter-claim where no defence is filed or pleaded except if it relates to matters that judgment can not be had on pleadings. It is also possible for a plaintiff to counter-claim against the defendant/claimant. See Renton Gibbs & Co. vs. Neville (1900) 2 Q.B. 181. The counter-claim filed by the 2nd, 3rd and 4th defendants/respondent was rightly treated for all purposes for, which justice required, as an independent action. See Bowen L.J. in Amon vs Bobbet (1889) 22 Q.B.D 548 and order 4 rule 2(1) (2) and (3) of the Kaduna State High court (civil Procedure Rules 1987 cap 68 Laws of Kaduna state of Nigeria 1991. what is not denied needs no further proof. See section 75 of the Evidence Act 1990. In his oral testimony the 1st Defendant/appellant explained how he came to acquire the land as follows:
“…In 1998, I acquired the land from the then Kaduna Local Government. I applied to the Local Government for the land and they sent in their men to come and inspect the place. After that they sent in, first allocation paper, thereafter, second allocation paper together with the C of O. I can identify these documents by my name in all of them, and the dates. They are in respect of No. 1B Kanikong Street. These are the documents. ”
See page 106 lines 11-17 of the printed records.
The first and final allocation papers and the Certificate of occupancy were put in as Exhibits 4, 4A and 48 respectively. This piece of evidence does not support the evidence of Mansur Ahmed (Dw2) the Land Officer of Kaduna South Local Government under cross-examination thus:
“CROSS EXAMINATION BY IDOKO
The area is an old settlement. A person need not have a customary right over a piece of land in the place before he can apply for either Local Government or State C of O. I now say it is correct that a person must have a customary right before he can apply for a C of O. I don’t know the type of right the 1st Defendant had over the piece of land before he applied for a C of O, see Exhibit 48, it shows that it was s claim because “claim’ is written on it.”
1st Defendant/appellant could not therefore trace title to any person or authority having customary title over the old settlement where the disputed land is situate before applying to Kaduna Local Government Council to issue him a Local Government Certificate of Occupancy.
On 8/4/2003 the Court, Counsel, the parties, and witnesses visited the portions of the land in dispute. Mansur Ahmed the Land Officer for Kaduna South Local Government Area gave evidence as DW2 identifying the land in dispute. Tony Iroagalochi Esq for the 2nd-4th defendants/respondents cross-examined Dw2. Thereafter the counsel, the witnesses and the learned trial judge retired to the court to continue with the proceedings. In the court Bulus Banquo Audu a surveyor with Kaduna State Government testified as Dw4. At page 127 lines 27 to page 128 lines 1-5 of the printed record Dw4 gave evidence as follows:
“Dw4: I see Exhibit 7, the sketch attached to it is on page 4 and it is a survey plan that is normally attached to a C of O when it is issued, the plot is located in Kaduna South near the yam market. By the sketch the plot’ is a layout and urban land presently, it is Kaduna State layout. It cannot be a layout for the Local Government because there cannot be two layouts in an urban area. Moreover, there are beacons demarcating the extent of each plot”
Learned Counsel to the 1st defendant/appellant namely, C.C. Obiekwe cross-examined without discrediting Dw4’s testimony that the lands in dispute were not under Kaduna Urban Area.
Section 6 (1) (a) and (b) of the Land Use Act 1978 provides as follows:
“6(1) It shall be lawful for a Local Government in respect of land not in an urban area:-
(a) To grant customary rights of occupancy to any person or organization for the use of the land in the Local Government Area for agricultural, residential and other Purposes;
(b) To grant customary rights of occupancy to any person or organization for the use of the land for grazing purposes and such other purposes ancillary to agricultural purposes as may be customary in the Local Government area concerned. ”
Section 51(1) of the Land Use Act supra defines “Urban Area” to mean “such area of the State as may be designated as such by the Governor pursuant to Section 3 of this Act”. The learned trial Judge held at page 202 lines 1-20 of the printed record as follows:
“By the plaintiff’s pleadings end as well as the pleadings and evidence or the defendants, the land in dispute is situate along Kaduna to Abuja Road by Television Village. The Court visited and saw the land. Thus, it is undoubtedly within an urban area by virtue of paragraph 1 of Schedule to Kaduna State Legal Notice No. 4 of 1990, it being within 15 kilometres of the Kaduna to Abuja Road axis. While I agree with Mr. Odigie that the plaintiff’s case is not rooted on Exhibit 3, I must also agree with Mr. Iroagalachi that Exhibit 3 is an invalid document. Exhibit 3 is dated 14th December, 1982. In ADENE V. DANTUMBU (supra) at page 149, the Supreme Court, Per Uwais, JSC, as he then was, held that:
“… With effect from 26th August, 1982, Kaduna Local Government had no power to grant a right of occupancy over the land in dispute since the land is situated in urban area. So that when it purportedly granted to the respondent a right of occupancy on 27th April, 1983, it had no power to do so and, therefore, the purported grant is null and void.”
What it simply means is that Exhibit 3 is null and void because the Kaduna Local Government had no power to grant it as at 14th December, 1982, when it granted it to the plaintiff I think that the issue is not whether it is Government land or not but whether it is urban area, in which case the Local Government has no power to grant right of occupancy”.
By this finding it follows that what applied to the plaintiff/1st Respondent also applied to the 1st Defendant/appellant since the Kaduna Local Government Council had no title over the land to pass to them on the principle of Nemo dat quod non habet, namely. You cannot give what you do not have. I am in agreement with the learned trial Judge when he held at page 220 lines 17-31 and p. 221 lines 1-9 of the printed record that:
“As regards Exhibit 48, the C of O 011158 dated 18th March, 1982, issued to the 1st defendant by the Kaduna Local Government, I have already held that the 1st defendant failed to establish his pleadings that he was allocated the plot in dispute by the Kaduna Local Government. The evidence of the DW2 called by the 1st defendant, contradicts the 1st defendant’s pleadings and evidence on his claim as to how he came on the disputed plot. It is clear from the evidence of DW2, which I believe, that the 1st defendant merely applied to the Local Government for a C of O over a parcel of land he claimed he already had, just like the plaintiff who claimed to have acquired the land from Jatau Goni Maro, did. Hence, both C of Os are marked “claim”. The DW2 also said even by the size of the plot in Exhibit 4, which is 130′ x 104′ it shows that it was not a Local Government grant, but a claim. This Court has taken judicial notice of the fact that Local Government only grants or allocate plots of 100’x50′ each. This has been the case in all cases that have come before me involving plots allocated or granted by Local Governments. I therefore believe the Dw2 that Exhibit 4D, like Exhibit 3, was granted as claimed land and not by allocation by Local Government. The 1st defendant, from the evidence of the Dw2, only misrepresented to the Local Government that he needed a C of O over a land he had already acquired, whereas he had in fact acquired none; only to now claim in his statement of defence that the Local Government allocated the land to him. I hold that the 2nd-4th Defendants have established their pleading in paragraph 12 of their statement of defence/counter-claim that the C of O the 1st Defendant is brandishing is invalid/forged, same having been obtained by fraudulent misrepresentation of facts by the 1st Defendant to Kaduna Local Government’ ”
These findings are amply supported by the evidence on record. Furthermore, the holding at page 221 lines 10-27 and page 222 lines 1-30 of the printed record represent the true position of the law. His Lordship held as follows:
“It is the contention of Mr. Obiekwe that by Order 24 Rule 6(1) of the Rules of this Court, the 2nd-4th defendants are estopped from raising the issue of location of the plot in dispute being in urban area as it ought to have been pleaded and that no Official Gazette or TPO from the office of the Surveyor-General was tendered to buttress the exclusive or industrial status of the area. I think, with respect, that Mr. Obikwe’s submission that the 2nd-4th defendants/counter-claimants did not plead that the land in dispute is within urban area, is erroneous. They pleaded that fact in paragraph 6 of their amended statement of defence and counter-claim, wherein they pleaded, inter alia that the land in dispute is “located near Peugeot Automobile Junction, Angwan Television within Kaduna State Industrial Layout based on Survey Plan TPO940B amended G.606 Kaduna State delineated urban land.” Secondly, the evidence of a Surveyor, who is an expert in that field, can be relied upon to determine if a land is in an urban area. See Adene vs Dantumbu (supra) at page 146. The Dw4, a Surveyor from the office of the Surveyor General of Kaduna state testified that the land is urban land. I do not accept the submission of Mr. Obiekwe that the Surveyor-General himself must be called to testify that the land in dispute is in an urban area. It is sufficient if a surveyor from his office gives such evidence.
Furthermore, the Court was moved to visit the locus in quo and it saw the land in dispute, which is just less than a metre or so, from the Kaduna to Abuja road. It is my view that by paragraph 1 of Schedule to the Kaduna State Legal Notice No.4 of 1990, signed by the Military Governor of the State, the area within 15 kilometres on either side of the Kaduna to Abuja Road axis extending from Dutsi along Abuja Road enclosing the built up Metropolitan areas of Kaduna and terminating 5 kilometres beyond Katabu along Zaria Road, is urban area. I think I am duty bound to take judicial notice of this Legal Notice, particularly that the Court was moved to go and see the location of the land in dispute. See Sections 73 and 74 of the Evidence Act. Legal Notice No.4 of 1990, in my view is a Subsidiary Legislation made under the Land Use Act and having the force of law. By Section 74 of the Evidence Act, therefore, it is a fact the Court must judicially notice and which, by Section 73, need not be proved. For the same reason, I do not accept the submission of Mr. Obiekwe that the 2nd-4th Defendants ought to specifically plead the Legal Notice No.5 of 1990, Notice of Invalidation of Void Certificates of Occupancy, also a subsidiary Legislation made pursuant to section 2(1) and 3 of the Land Use Act, 1978, and which provides that the Military Governor declared as null and void all Local Government Certificates of Occupancy issued after the 22nd day of October, 1980, in respect of the territories of Kaduna State designated as urban areas. There was a subsequent Legal Notice in 1982 and the supreme court in the Adene vs Dantumbu’s case considered the implication of both Legal Notices when it said at page 144, that:
“The question is: does the land in dispute in the present case fall within the area designated “Urban Area” in the 1982 Order or in the earlier Order of 1980?”
The Court then held that the trial Court was bound to take judicial notice of the Order of 1982, under Sections 72 and 73 (now sections 73 und 74 of the Evidence Act. That being the case, Legal Notice Nos 4 and 5 of 1990 need not be proved by pleadings and evidence since they are facts the Court must take judicial notice of and therefore, they need not be pleaded. As a matter of fact, that the land in dispute is within an urban area or that it is urban land, is not in dispute'”
The location of the land in dispute determines the jurisdiction of the court. See Dweye v Iyomahan (1983) 2 SCNLR 135-138.
Section 5(1) (a) of the Land use Act 1978 provides as follows:
“5(1) It shall be lawful for the Government in respect of land, whether or not in an urban area-
(a) To grant statutory rights of occupancy to any person for all Purposes”
From the evidence adduced at the trial the 2nd-4th defendants/counterclaimants proved by credible evidence their counter-claim to the land in dispute. They proved superior title to oust the possession of the Plaintiff/1st Respondent and appellant/1st defendant by oral and documentary evidence. See Ilona vs Idakwo (2003) 3 FWLR (pt 171) 1715. The acts of trespass on the land by the appellant/1st defendant cannot be elevated to acts of lawful possession as to defeat the bona fide title of the 2nd-4th defendants/Respondents on their land. See Agboyeji vs Momoh (1994) 4 NWLR (pt 34) 646 and Chukwueke vs Okoronkwo (1999) 1 SCNJ 44 at 52.
On the whole, I hold that the 2nd-4th defendants/counter-Claimants/Respondents proved their counter-claim and were entitled to judgment. This appeal lacks merit and it is hereby dismissed. I abide by the orders made for costs by my Lord, MARY U. PETER-ODILI, JCA.

OBANDE F. OGBUINYA, J.C.A.: I have had the opportunity of reading, in draft, the leading judgment delivered by my learned brother, Mary U. Peter-Odili, JCA. I agree with her reasons and conclusions. In the leading judgment, the facts leading to this appeal, the grounds, issues and arguments herein are comprehensively set out. It will, therefore, be pointless to repeat them.
In their respective briefs of argument, learned counsel for the appellant and that of the second – fourth respondents expressed discordant views on the locus standi of the appellant to file the appeal. The learned counsel for the appellant, in his reply brief, contended that it was wrong for the second – fourth respondents to raise, for the first time, the issue of lack of locus standi of the appellant without obtaining leave of the court. He relied on these cases: Agbaje v Adigun (1993)1 SCNJ 1; Erejuwa II of Warri v Egharegbeyiwa (1994)4 SCNJ (Pt.11) 241; Fadiora v Gbadebo (1978) 3 SC 219; Nasco Management Services Ltd. v A.N.I. Amaku Transport Ltd. (1999) 1 NWLR (Pt.588) 576; Sken Consult (Nig) Ltd v Ukey (1982) 1 SC 6; Owena Bank Plc v Olatunji (2002) FWLR (Pt. 124) 529.
Was the learned counsel for the appellant right in that submission? I return a negative answer. The reason is a familiar one. The law has since inched away from learned counsel’s view point. At present, the law is that a party does not need to seek for and obtain leave of court before raising any new issue on appeal when the fresh point touches on jurisdiction. The Supreme Court has given its blessing to this current state of the law in a litany of cases. In the case of Elugbe v Omokafe (2004) 18 NWLR (Pt. 905) 319 at 334, a situation or scenario similar to this played out and Katsina-alu, JSC, (as he then was), held:
“It is generally the law that fresh matters cannot be raised on appeal without leave of the court. But the issue of jurisdiction has always been considered exceptional. Therefore, the Court of Appeal was in error not to have allowed the parties to fully address it on the question of jurisdiction raised before it.”
Subsequently, in the case of Moses v State (2006) 11 NWLR (Pt. 992)458 at 503, Ogbuagu, JSC, re-echoed this recent position of the law when he stated:
“… The consequence is long settled in a number of decided authorities to the effect that an appeal court will not ordinarily entertain issues that are fresh and not brought and decided before a lower court, without the leave of the court having been had and obtained. Let me add quickly, that the only exceptions are where the issue of jurisdiction is raised as a fresh point, leave is not necessary.”
See, also, Owners MN Gongola Hope v S.C. (Nig.) Ltd (2007) 15 NWLR (Pt. 1056) 189; I.B.W.A. v Sasegbon (2007) 16 NWLR (Pt.1059) 195; UTB Ltd v Dolmetsch Pharm (Nig.) Ltd. (2007) 16 NWLR (Pt.1061)520; Aderibigbe v Abidoye (2009)10 NWLR (P1.1150)592.
It would appear that the Supreme Court cases cited by the learned counsel for the appellant and those I have mentioned are diametrically opposed to themselves on this point only. I have perused those cases learned counsel relied upon in his argument. They are earlier decisions of the Supreme Court on this point. Those I have cited, to buttress my stance, are more recent ones. The law is that where decisions of a court, the Supreme Court herein, are antithetical to one another on a point, the latter decision will prevail as the law. The apex court has sanctified this in the case of Osakue v FCE, Asaba (2010) 10 NWLR (Pt. 1201) 1.
It is not in doubt that issue of locus standi is a jurisdictional question. That had been put to rest in the case of Emezi v Osuagwu (2005) 12 NWLR (Pt. 939) 340 at 361/ (2005) 30 WRN 1 at 19, when Akintan, JSC, stated:
“… The correct position of the law therefore is that where a plaintiff is held to lack locus standi to maintain his action, as I have found in this case, the finding goes to the jurisdiction of the court and denies it jurisdiction to determine the action”.
See, also, A.-G., Anambra State v A.-G., Fed. (2007) 13 NWLR (Pt.1047) 4.
On this premise, I hold the considered view that the learned counsel for the appellant was not in the least correct in his submission as it flies in the face of the current position of the law. I, therefore, hold that the second – fourth respondents are permitted by law to raise the issue of locus standi of the appellant for the first time in this court without leave.
I proceed to deal the knotty issue of whether or not the appellant filed a defence to the counter-claim of the second – fourth respondents. It is pertinent to resolve this vexed point in that it was on that basis that the learned counsel for the second fourth respondents, stoutly, argued that the appellant had no locus standi to challenge the judgment of the lower court.
The sterling judgment of the learned trial Judge is dotted with the allusion that the appellant (first defendant therein) filed no defence to the counter-claim of the second – fourth respondents. See pages 216, 217 and 219 of the record. I do not subscribe to that opinion of the learned trial Judge. In holding this divergent view, I draw on the appellant’s (first defendant’s) amended statement of defence on pages 43-48 of the record. The averment in paragraph 13 of that defence comes in handy and it reads:
“13. In reply to the purported counter-claim by the 2nd defendant as it affects the 1st defendant in its statement of defence. The 1st defendant repeats all the paragraphs of the 1st defendant statement of defence as if same form part of this reply and state as follows:-”
The appellant then went on to make further averments in paragraphs 13-18 of that defence.
In the face of the averments in paragraphs 13-18 of that defence and the adoption of the other averments in paragraphs 1-12 of that defence, it cannot be reasoned, with all due respect to the learned trial Judge, that the appellant filed no defense to the counter-claim of the second – fourth respondents. The appellant’s defence, to all intents and purposes, is appended to that defence. That was the same way the second – fourth respondents attached their counter-claim to their defence and adopted their averments in that defence as part and parcel of the counter-claim. See pages 52-60 of the record.
I must observe that both parties are right in that configuration of the processes. By law, a counter-claim is an independent action which the law allows a defendant to incorporate in his defence, see Ogbonna v A.-G., Imo State (1992) 14 NWLR (Pt.220) 647 at 675. It is my, humble, view that the appellant was a defendant to that counter-claim. Since the law allows a counterclaimant to join his counter-claim to his defence, a defendant to a counter-claim, to my mind, will not offend the law if he attaches his reply to his defence as did the appellant. After all, the essence of counter-claim is “for convenience and speed” in the determination of a matter, see Ogbonna v A.-G., Imo State (supra).
Interestingly, however, the learned trial Judge rightly, to my mind, proceeded to consider the counterclaim of the second – fourth respondents irrespective of his constant view that the appellant filed no defence to it.
On account of the foregoing highlights, particularly the cold fact that the appellant duly filed a reply/defence to the counter-claim, I hold that the appellant is infused with all the necessary capacity to challenge the counter-claim of the second fourth respondents and the judgment of the court below grounded on it.
Be that as it may, I have examined the appellant’s reply to the counter-claim with a fine toothcomb. In due obeisance to the law, I have looked at the reply holistically in order to get a flowing gist of the appellant’s defence to the counter-claim, see Okochi v Animkwoi (2003) 18 NWLR (Pt.851) 1. Curiously, throughout the length and breadth of the appellant’s prolix reply, he never specifically and frontally denied or punctured the root of the title of the second – fourth respondents as encapsulated in paragraphs 5(e), 6, 7 , 8, 9, 10 and 11 of the counter-claim. See pages 52-55 of the record. By failing to directly traverse those averments, the substratum or nucleus of the case of the second – fourth respondents, the appellant is deemed to have admitted them. Admission is the best evidence. Facts admitted need no further proof, see section 75 of the Evidence Act, Cap E14, Laws of the Federation of Nigeria, 2004.
In Salawu v Yusuf (2007)12 NWLR (P1.1049) 707 at734, Tobi, JSC, said of admission:
“… Admission of a party in law is the best evidence, in the sense that the opposing party need not make any effort to prove the admitted fact. A court of law is entitled to give judgment based on admission by a party if the admission is relevant to the facts in issue. … In civil cases, admission by a party is evidence of facts asserted against him. Unless explanations are given which satisfy the court that admissions should not be so regarded, due probative weight should be given to them as such … A party who admitted a fact in his pleading is bound by such admission and is estopped from denying the fact admitted.”
See, also, Bunge v Gov., Rivers State (2006) 12 NWLR (Pt. 995) 573.
Besides, the second – fourth respondent’s tendered exhibits 7, 8, 9 and 10, certified true copies of Certificate of Occupancy and letters issued to the second and third respondents by the Kaduna State Government. These are documentary evidence which are the best evidence in any proceedings, see Agbarch v Mimra (2008) 2 NWLR (Pt. 1071) 378; SSGMBH v T.D. Ind. Ltd. (2010) 10 NWLR (Pt. 1206) 589. This is owing to its permanence for ages as against the transient oral evidence that emanate from the vocal cords of human beings, see Aiki v Idowu (2006) 9 NWLR (Pt. 984) 47.
The learned counsel for the appellant argued that the urban status of the land/plot in dispute was not pleaded by the second fourth respondents in their counterclaim. He, therefore, picked holes in all the arguments canvassed thereon. I beg to differ with the learned counsel in that contention. As demonstrated by the court below, on page 221, the urban location of the disputed plot was pleaded in paragraph 6 of the second – fourth respondents’ counter-claim.
I am at one with the learned counsel for the appellant that the Kaduna State Legal Notice No.4 of 1990, contained in a gazette, must be pleaded and admitted in evidence before it can be utilized by the court. This grounded on the recent decision of the Supreme Court in the case of Our Line Ltd. v S.C.C. (Nig.) Ltd. (2009) 17 NWLR (Pt.1170) 382. The effect of that is the urban status of the plot cannot be deciphered from that legal notice.
Nevertheless, given the averment in paragraph 6 of the counter-claim, which was not debunked or refuted by the appellant, and the documentary evidence, exhibits 7, 8, 9 and 10, which indicate the position of the plot, it is clear that it is within urban area of Kaduna. In essence, to my mind, the court below still arrived at the correct decision, but, perhaps, through wrong reasoning. After all, wrong reason does not vitiate a decision, see Hilary Farms Ltd v M/V “Mahtra” (2007) 14 NWLR (Pt. 1054) 210; Grosvenor Casinos Ltd. v Halaoui (2009) 10 NWLR (Pt.1149) 309; Dairo v UBN Plc (2007) 16 NWLR (Pt.1059) 99; A.I.C. Ltd. v NNPC (2005) 1 NWLR (Pt. 937) 563. On this score, I will not tinker with the proper finding of the lower court – which the plot in dispute is in urban area. In the light of the foregoing, I resolve the appellant’s issue one against him.
Under issue three, learned counsel also picked quarrel with the manner the court below invalidated the Certificate of Occupancy No.031514, exhibit 48, issued to the appellant by the Kaduna Local Government Area. In view of the above finding, that the plot is in Kaduna urban area, the resolution of this issue poses no difficulty. To begin with, by virtue of section 5 of the Land Use Act, Cap L5, Laws of the Federation of Nigeria, 2004, the Local Government, that issued exhibit 4B to the appellant, is divested of the vires to make grants with respect to lands in urban areas. It is the State Government, personified by a Governor that has the power to grant certificate of occupancy in respect of land in both rural and urban areas under that section. The power of the local government to grant certificate of occupancy is in respect of lands in the rural areas under section 6 of the Act.
The law is now, firmly, settled that a certificate of occupancy, issued to a person, is not conclusive of that person’s interest or title over the land it is granted. It is not absolute certificate. It is susceptible to nullification on justifiable grounds. In the case of Adole v Gwar (2008) 11 NWLR (Pt.1099) 562 at 590, Onu, JSC, stated:
“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, also, Provost, LACOBD v Edun (2004) 6 NWLR (Pt. 870) 476.
Let me place on record that it is not automatic that once a party produces documents of title over a parcel of land, court must, as a matter of routine, make declaration in his favour on footing of those documents. A court is entitled to make further inquiries in respect of those documents with view to ascertaining their authenticity or otherwise. Thus, in the case of Romaine v Romaine (1992) 4 NWLR (Pt. 238) 650 at 662, Nnaemeka-Agu, JSC, stated:
“I may pause here to observe that one of the recognized ways of proving title to land is by production of valid instrument of grant … But it does not mean that once a claimant produces what he claims to be an instrument of grant, he is automatically entitled to a declaration that the property which such an instrument purports to grant is his own. Rather, production and reliance upon such an instrument inevitably carries with it the need for the court to inquire into some or all of a number of 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 authority and capacity to make the grant;
(iv) Whether the grantor had in fact what he purported to grant; and
(v) Whether it has the effect claimed by the holder of the instrument.”
See, also, Dabo v Abdullahi (2005)7 NWLR (Pt.923) 181.
I dare say, the appellant’s exhibit 48 is caught in the web of questions (iii) and (iv) above. This is because the grantor of that exhibit (4B), the Local Government Area, had not the plot in question and, de jure had no capacity to assign it to the appellant. After all, in law, nemo dat quod non habet – nobody gives out what he does not have, see Ibrahim v Osunde (2009)6 NWLR (Pt.1137) 382; Omiyale v Macaulay (2009)7 NWLR (Pt.1141) 597. In the end, I resolve issue three against the appellant.
Flowing from the reasons I have advanced, coupled with detailed reasons adduced in the leading judgment, by my learned brother, I too hold that the appeal is devoid of merit. I dismiss it. I abide by the orders made in the leading judgment.