MRS. ISLAMIYA BAKARE v. MADAM MISTURA SHAKE SHINABA ORS. (2012)

MRS. ISLAMIYA BAKARE v. MADAM MISTURA SHAKE SHINABA ORS.

(2012)LCN/5771(CA)

In The Court of Appeal of Nigeria

On Monday, the 24th day of December, 2012

CA/L/955/08

RATIO

LAND LAW: WAYS OF PROVING TITLE TO LAND

The law is well settled that there exist five methods by which ownership of land may be established. They are:
(1) Proof of by traditional evidence.
(2) Proof by production of document of title
(3) Proof by acts of ownership extending over a sufficient length, of time, numerous and positive enough as to warrant the inference that the persons exercising such acts are the true owners of the land.
(4) Proof by acts of long possession.
(5) Proof by possession of connected or adjacent land in circumstances rendering it probable that the owner of such land would in addition be the owner of the land in dispute.
See Idundun v. Okumagba (1976) 9 – 10 S.C. 227. PER SIDI DAUDA BAGE, J.C.A.

LAND LAW: FACTS TO ESTABLISH WHERE EVIDENCE OF TRADITION IS RELIED IN PROOF OF TITLE

Where evidence of tradition is relied on in proof of title to land, it is settled that the Plaintiff to succeed is bound to plead and establish facts such as:
(1) who founded the land,
(2) how he founded the land,
(3) and particulars of intervening owners through whom he claims.
See:- Akinloye v. Eyiyola (1968) NMLR 92; Piaro v. Tenalo & Anor (1976) 12 SC 31 at 41; Onwugbufor v. Okoye (1996) 1 NWLR (pt. 424) 252.
The rule is however subject to some exception depending on the nature of the case as pleaded. See Anukum v. Anukum (2008) 5 NWLR (pt.1081) 455. The Supreme Court Held that:-
“Ownership of land may be proved by traditional evidence but that the burden and standard of proof of each case depends on the nature of the case as pleaded.” PER SIDI DAUDA BAGE, J.C.A.

WORDS AND PHRASES: MEANING OF A COUNTER-CLAIM

A Counter-Claim by law is a separate cause of action. The Black’s Law Dictionary Eighth Edition defines a Counter-Claims as:-
“A claim for relief asserted against an opposing party after an original claim has been made: espia defendant’s claim in opposition to or as a set off against the plaintiff claim.” PER SIDI DAUDA BAGE, J.C.A.

ORDER: WHEN WILL AN ORDER OF RETRIAL BE THE PROPER ORDER TO MAKE

What order then becomes appropriate for this court to make in the present circumstance Hon. Justice Iyizoba JCA, of this Court, in the case of Akoledowo v. Ojubutu (2012) 16 NWLR (pt. 1325) 1 at 26 paras. A – B stated as follows:-
“Whether a trial Court failed in its primary duty of making findings of facts on issues joined, on the pleadings, and the evidence is such that an appellate Court cannot make findings and come to a decision on all relevant issues an order of retrial is the proper order the appellate Court should make. See: Okeowo v. Migliore (1979) 11 SC 138; Mafimisebi v. Ehuwa (2007) 2 NWLR (pt.1018) 385; Kareem v. U.B.N. Ltd. (1996) 5 NWLR (pt. 451) 634.” PER SIDI DAUDA BAGE, J.C.A.

LAND LAW: WHETHER MERE TENDERING OF DOCUMENTS OF TITLE IS ENOUGH TO PROVE TITLE IN A CASE OF COMPETING CLAIMS OF TITLE

It is settled that the mere tendering of documents of title is NOT enough to prove title in a case of competing claims of title – See Ashiru v. Olukoya (2006) 11 NWLR (Pt. 990) 1 SC, where the Supreme Court categorically stated –
“Where the title of the grantor is in issue, production of documents of title without more is not sufficient proof of title to land since in such a situation, it is the duty of the claimant to go further to not only plead and trace the root of title of the grantor or vendor but prove same on the balance of probability. Where the claimant fails to discharge this onus, his claim must fail.” PER AMINA ADAMU AUGIE, J.C.A.

JUSTICES

AMINA ADAMU AUGIE Justice of The Court of Appeal of Nigeria

IBRAHIM MOHAMMED MUSA SAULAWA Justice of The Court of Appeal of Nigeria

SIDI DAUDA BAGE Justice of The Court of Appeal of Nigeria

Between

MRS. ISLAMIYA BAKARE
(For herself and on behalf of AbdulGafar Shinaba Paranch of Yussuf Shinaba family) Appellant(s)

AND

(1) MADAM MISTURA SHAKE SHINABA
(2) ALHAJI (CHIEF) WAHEED A. GIWA
(3) ALHAJI (ENGR.) SIKIRU A. SHINABA
(For themselves and on behalf of AbdulSalami Shinaba Branch Yusuff Shinaba family)
(4) REGISTRAR OF TITLES Respondent(s)

SIDI DAUDA BAGE, J.C.A. (Delivering the Leading Judgment): This is an Appeal against the Judgment of Hon. Justice E. A. Lufadeju (Mrs.) of the High Court of Lagos State, Lagos Judicial Division, delivered on the 12th of January, 2007 in Suit No.LD/2358/2002.
The Claimant in her Writ of Summons dated 8th October, 2003 and amended pursuant to the order of the lower Court made on the 6th of October, 2003. The Claimant had sought for the following reliefs:-
(1) A DECLARATION that the landed property situate lying and being at No.19/21 Apatira Street, Lagos Island belonged to late Yussuf Shinaba and jointly belong to the Abdul Salami Shinaba and Abudul Gafar Shinaba branches of the Yussuf Shinaba family.
(2) AN ORDER of the Honourable Court partitioning the Landed property situate, lying and being at No.19/21, Apatira Street, Lagos Island into 2 equal parts between the Abdul Salami and Abdul Gafar Shinaba branches of the Yussuf Shinaba family.
(3) AN ORDER of the Honourable Court directing the 1st to 3rd Defendants to render accounts of the rents collected from the tenants on the 6 rooms and 3 shops on the ground floor of the landed property at No.19/21, Apatira street, Lagos Island from October, 2001 till date and divide the said rents into 2 equal parts for the Abdul Salami Shinaba and the Abzdul Gafar Shinaba branches of the Yussuf Shinaba family.
(4) AN ORDER of the Honourable Court directing the 4th Defendant to register the ownership title in the landed property situate at No. 19/21 Apatira Street, Lagos Island in the names of Yussuf Shinaba family or the Alhaji Abdulsalami Shinaba and Abdul Gafar Shinaba branches of the Yussuf Shinaba family.
The amended Statement of Claim is dated 8th October, 2002 and states thus:-
“1. The Plaintiff is one of the children of late Alhaja Raliat Opere who died on 19/6/2003. The Plaintiff pleads the obituary.
2. The late Alhaja Raliat Opere is one of the great grand children of late Yussuf Shinaba, the original owner of the landed properties at No.22/24 Faji Street and 19/21, Apatira Street, Lagos Island.
3. The late Yussuf Shinaba begat 7 children namely:
(a) Late Abdul Salami Shinaba (the grandfather of the Defendants).
(b) Late Abdul Gar Shinaba (The grandfather of late Alhaja Raliat Opere and great grandfather of the Plaintiff).
(c) Late Muritala Shinaba.
(d) Late Abdul Quadri Shinaba.
(e) Late Madam Ashimawu Anibaba (Nee Shinaba).
(f) Late Madam Asiawu Giwa (Nee Shinaba).
(g) Late Madam Humuani Agoro (Nee Shinaba).
4. The Defendants are respectively some of the grand children of late Abdul Salami Shinaba.
5. The Late Yussuf Shinaba bequeathed the landed property of No.19/21, Apatira Street, Lagos to both the Abdul Salami Shinaba and Abdul Gafar Shinaba jointly under Yoruba Native law and customs.
6. The Plaintiff avers that the late Yussuf Shinaba bequeathed the landed property at No.22/24, Faji Street, Lagos to his children – Muritala Shinaba, Abdul Quadri Shinaba, Madam Ashimowu Anibaba, Madam Asiawu Giwa and Madam Humuani Agoro jointly under Yoruba Native law and customs.
7. The Plaintiff states that the late Abdul Salami Shinaba begot 3 wives and had 12 children amongst whom was late Anosu, whilst the late Abdul Gafar Shinaba had only a daughter, Madam Azeezat (the grandmother of the Plaintiff).
8. The Plaintiff further states that the late Yussuf Shinaba lived in the landed property at No.19/21, Apatira Street, Lagos Island throughout his life time.
9. Upon and after the death of late Yussuf Shinaba, the late Abdul Salami and some of his family as well as Madam Azeezat occupied different parts of the property as residence.
10. Upon the death of Abdul Salami Shinaba, a family meeting of both Abdul Salami and Abdul Gafar Shinaba branches was called by late Alhaji Anosu Shinaba (one of the children of late Abdul Salami Shinaba) sometime in 1975 to discuss on the need to lease the landed property to a Building Developer for redevelopment into a modern building.
11. The Plaintiff states that the said meeting was attended by late Alhaji Anosu Shinaba, Madam Azeezat (the grandmother of the Plaintiff), Madam Ajobi, Mr. Tunde and Mr. Suraju, amongst others.
12. At the meeting it was mutually agreed upon that a reputable Building Contractor be granted a leasehold of the property for redevelopment and that the late Alhaji Anosu Shinaba was mandated to execute the Lease Agreement on behalf of the Shinaba Family.
13. In June, 1975 the late Alhaji Shinaba executed a Lease Agreement of the landed property for 18 years in favour of Alhaji Raufu Tijani for himself and on behalf of the Shinaba family. The Plaintiff pleads the Lease Agreement date 19th day of June, 1975.
14. The Plaintiff further states that the Building Contractor built a Storey building consisting of 4 shops and 6 rooms on the ground floor and 12 rooms on the 1st floor.
15. The 2 branches of Shinaba family were given the upper floor of the redeveloped one storey building out of which the Plaintiff’s grandmother was given 3 rooms, whilst the Defendants branch was given 8 rooms because of their number. It was mutually agreed that the remaining room be let out and rents collectable there from be used for the maintenance of the said upper floor.
16. At the expiration of the Lease Agreement and following the failure and or refusal of the Building Contractor to hand over the ground floor and shops thereon to the Family, the Plaintiff’s mother, 2nd and 3rd Defendants for themselves and on behalf of the Shinaba Family instituted a legal action against the said Building contractor and another at the High Court of Lagos in Suit No.LD/4842/95 – Alhaji W.A. Giwa, Madam R. Opere (the Plaintiff’s mother) and Mr. S. A. Shinaba v. Alhaji Raufu Tijani & Another which ended in 1999. The Plaintiff shall rely on the respective processes therein.
17. The Plaintiff further avers that after recovering the ground floor of the property consisting of 6 rooms and 4 shops from the Building Contractor, the 2nd and 3rd Defendants jointly summoned the Shinaba Family meeting to discuss further actions and or steps to be taken on the property.
18. At the meeting it was agreed that all tenants put in possession of the apartments on the ground floor be ejected; that new tenants be given possession of the apartments and that the building be repaired from the rents collected from the tenants.
19. At the said meeting the Plaintiff’s mother (late Alhaja Radiat Opere), 2nd and 3rd Defendants were jointly mandated to implement the decisions on behalf of themselves and the Shinaba family.
20. Pursuant to the decisions reached at the said meeting, the Plaintiff’s mother, 2nd and 3rd Defendants jointly took legal action for the recovery of possession of some of the apartments against some of the tenants name Isiaka Awotundun, Mosheed Sekoni and Mr. Ayo at Chief Magistrate Court No.2, Lagos. The Plaintiff pleads the copy of the respective processes at the trial.
21. Thereafter both the 2nd and 3rd Defendants let the vacant apartments to willing tenants and purportedly used the rents paid by the new tenants to carry out the purported repairs of the building without any further consultation and or discussion with the Plaintiff’s mother as to the total rents collected from the new tenants and the total amount so spent there from.
22. Sometime in the year 2001, the Plaintiff’s mother informed the 2nd and 3rd Defendants of her wish to inform the family to have 2 rooms from the ground floor in replacement of the remaining 2 rooms inherited by the Plaintiff’s mother from her mother on the top of the building.
23. In response to the wish of the Plaintiff’s mother, the 2nd and 3rd Defendants jointly advised the Plaintiff mother to hold on with the request till the expiration of the 2 years tenancy of the new tenants.
24. Thereafter the 2nd and 3rd Defendants came to inform the Plaintiff’s mother that there would be a family meeting at the residence of Pa. Ajadi Saka Rabiu Shinaba (now deceased) on the property.
25. About October, 2001 the family meeting was held at the residence of the late Pa. Ajadi Shinaba where the plaintiff branch of Yussuf Shinaba Family was denied of ownership rights and interests in the property.
26. In November, 2001 the Plaintiff’s mother was served with a letter from G. O. Sotayo – Aro & Co. on the matter. The Plaintiff pleads the letter dated 20/11/2001.
27. Pursuant to the said decision of the late Abdul Salami’s branch, the Plaintiff’s mother engaged the firm of K. O. Bakare & Co. to take up the appropriate legal steps on the matter.
28. The Plaintiff states that the firm of K. O. Bakare & Co. thereafter caused a letter dated 28/8/2002 to be written and served on the law firm of G. O. Sotayo-Aro & Co. and the 4th Defendant. The plaintiff pleads the said respective letters at trial.
29. In furtherance of the determination of the Abdul Salami Shinaba’s branch to deny the Abdul Gafar Shinaba’s branch of ownership rights and interests in the landed property, the 2nd and 3rd Defendants converted one of the shops on the ground floor into a room, let same out to a prospective tenant without giving the Plaintiff’s mother or any member of the Abdul Gafar Shinaba’s branch anything there out nor render account of same.
30. The Plaintiff states that as at this date, the ground floor of the building consists of 7 rooms and 3 shops as against 6 rooms and 4 shops originally built and handed over to the family by the Building Contractor.
31. The Plaintiff further states that the late Madam Azeezat was throughout her lifetime an illiterate and partially deaf, while the Plaintiff’s mother was also an illiterate.
The 1st to 3rd Defendants then filed Statement of Defence and Counter-Claim which was also amended.
The final Amended Statement of Defence and Counter-Claim is dated 9th January, 2006 and states thus:-
1. The first, second and third Defendants hereinafter referred to as “These Defendants” admit paragraphs 1, 3, 4, 7, 10, 11, 12, 13, 14, 16, 17, 18, 19, 20, 21, 24, 25, 26, 27, 28, 29, 30 and 31 of the Statement of Claim.
2. These Defendants deny the following paragraphs in the said Statement of Claim: 2, 5, 6, 8, 9, 15, 22, 23 and all the Claimant’s claims and put the Claimant to the strict proof of all the documents in the said paragraphs.
3. These Defendants admit that late Abdul Salami Shinaba and late Abdul Gafar Shinaba were brothers and sons of late Yusuf Shinaba.
4. These Defendants aver that the Claimant is a great grand-daughter of late Abdul Gafar Shinaba while they are grandchildren of late Abdul Salami Shinaba.
5. These Defendants state that the landed property in dispute is situate and lying at 19/21 Apatira Street, Lagos Island, Lagos State.
6. These Defendants admit that the said landed property contains a storey building with 3 shops and 7 rooms on the ground floor and 12 rooms on the first floor.
7. These Defendants plead that the original owner of the said landed property in dispute was late Abdul Salami Shinaba under and by virtue of a Crown Grant dated the 20th day of February, 1899 and registered as No.31 at page 61 in volume 34 of Register of Deeds at the Lagos State Land Registry, Lagos State, Nigeria.
8. These Defendants aver that the landed property in dispute devolved on them by inheritance exclusively.
9. These Defendants declare that the Claimant’s mother was allowed to occupy the three rooms in the said land in dispute by permission of the descendants of late Abdul Salami Shinaba for her life only.
10. The Defendants repeat that the ownership of the property in dispute has always been with the Abdul Salami Shinaba and his descendants including these Defendants.
11. Whereof these Defendants plead that the Claimant’s claim should be dismissed with heavy costs.
COUNTER-CLAIM
12. These Defendants rely on all the paragraphs in their Statement of Defence and Counter-Claim as follows:
(a) Declaration that the land in dispute belongs exclusively to the Descendants of the registered owner, late Abdul Salami Shinaba.
(b) Possession of the three rooms being presently occupied by the Claimant without the consent and permission of the 1st and 3rd Defendants herein.
Subsequently, the Claimant filed a Reply to the Amended Statement of Defence of the 1st to 3rd Defendants and also a Statement of Defence to the Counter-Claim. It is dated 18th January, 2006 and states as follows:-
1. The Claimant states in reply to paragraph 7 that the subject-matter of this suit originating belonged to late Imam Yussuf Shinaba, the father of both Abdul Salami Shinaba and Abdul Gafar Shinaba.
2. The Claimant further states that during his lifetime, the late Yussuf Shinaba used the frontage part of the landed property as a mosque between 1881 and 1889.
3. The said mosque was later transformed and became known as Faji Mosque, Lagos with late Yussuf Shinaba as its pioneer Imam. The Claimant pleads the Turbanning Ceremony of the new Chief of Faji Mosque, Lagos 2003 Brochure at trial.
4. The Claimant further states that the duo of Abdul Salami Shinaba and Abdul Gafar Shinaba jointly inherited the said landed property from the estate of Yussuf Shinaba.
5. The Claimant also states that there was no time the said landed property was covered by a Title document during the lifetime of Yussuf Shinaba and his children – beneficiaries but the Crown Grant dated 20th day of February, 1899 was surreptitiously obtained by the children of Abdul Salami Shinaba on the landed property in the sole names of their father/grandfather from the 4th Defendant through misrepresentation of facts and fraud.
PARTICULARS OF MISREPRESENTATION OF FACTS AND FRAUD
(a) The late Abdul Salami Shinaba in whose names the crown grant dated 20th day of February, 1899 on the property was issued was not the original owner of the landed property.
(b) The original owner of the landed property was late Imam Yussuf Shinaba who was the father of both late Abdul Salami Shinaba and late Abdul Gafar Shinaba, amongst other children.
(c) The late Imam Yussuf Shinaba used the frontage part of the landed property as a mosque between 1887 and 1889 before the said mosque was relocated to Atiku Street, Lagos and named Faji mosque, Logos.
(d) The late Abdul Salami Shinaba concealed the above salient facts in the application for the Crown Grant dated 20th day of February, 1889 and misrepresented the facts to the registering authorities.
6. The Claimant states in reply to paragraphs 8 and 10 that the landed property was inherited by both Abdul Salami Shinaba and Abdul Gafar Shinaba from their late father, Yussuf Shinaba and as such belongs to both the Abudul Salami Shinaba and Abdul Gafar Shinaba branches jointly.
7. The Claimant further states that it was on the basis of the joint beneficial ownership interests in the landed property which made representatives of both branches manage same from the time of inheritance till November, 2001 when the Abdul Salami branch introduced a new idea by claiming the total ownership of the landed property.
8. The Claimant states in reply to paragraph 9 of the Amended Statement of Defence that her mother, late Abdul Raliat Opere never lived in the 3 rooms she occupied throughout her life through the permission of the descendants of late Abdul Salami Shinaba.
9. The Claimant further states that late Alhaja Opere inherited the 3 rooms from her late mother, Azeezat as her own allotted portion of the landed property.
10. Whereof the Claimant shall contend at the trial that the defence of the 1st to 3rd Defendants is an after thought, vexatious, unmeritorious and should be dismissed with substantial cost.

AMENDED STATEMENT OF DEFENCE TO THE COUNTER-CLAIM OF THE 1ST TO 3RD DEFENDANTS
(1) The Claimant repeats paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30 and 31 of the Amended Statement of Claim.
(2) The Claimant also repeats paragraphs 1, 2, 3, 4, 5, 6, 7, 8 and 9 of the Reply to the Amended Statement of Defence.
(3) The Claimant states and shall contend at trial that the claims of the 1st to 3rd Defendants are caught up by the doctrines of estoppel by conduct and laches and acquiescence.

PARTICULARS OF ESTOPPEL BY CONDUCT
(a) Both the grandmother of the Claimant as the representative of the Abdul Gafar Shinaba branch and the grandparents of the 1st to 3rd Defendants amongst the other children of Abdul Salami Shinaba as representatives of the Abdul Salami Shinaba branch jointly managed and lived in the landed property undisturbed throughout their respective life time.
(b) Upon their respective demise, the mother of the Claimant as the representative of the Abdul Gafar Shinaba branch and the grandchildren of late Abdul Salami Shinaba led by Alhaji Amosu Shinaba as the representatives of the Abdul Salami Shinaba branch jointly managed the landed property undisturbed by any person or persons including any member of the Abdul Salami Shinaba branch.

PARTICULARS OF LACHES AND ACQUIESCENCE
(a) The landed property, subject-matter of the suit, was at all material time immemorial jointly inherited and managed by both the Abdul Salami and Abdul Gafar Shinaba branches of Imam Yussuf Shinaba family without any disturbance and or mistrust up till November, 2001.
(b) As a mark of the joint ownership of the landed property as at the time the landed property was contracted out to a property Developer in June, 1975, the decision to do so was unanimously taken by the 2 branches.
(c) At the expiration of the leasehold interests of the property Developers in the property and following their neglect and or failure to give the property to the joint beneficial owners, it was the 2 branches that decided to and actually instituted suit No.LD/4842/95 – Alhaji W. A. Giwa & 2 others v. Alhaji Raufu Tijani & Another on the matter.
(d) After recovery of possession of the landed property from the property Developers and in pursuant of the decision of the joint beneficial owners to eject all the sitting tenants thereat, the joint branches instituted suit Nos RT/L/401/99 – Mr. S. A. Shinaba & 2 others v. Alhaji Raufu Tijani & Another, amongst others.
(e) Since before and after the redevelopment of the landed property, members of the Abdul Gafar branch severally lived in part of the landed property as co-beneficial owner without any disturbance from any person or persons.
4. The Claimant states that the 1st to 3rd Defendants and or the Abdul Salami Shinaba branch are not entitled to the possession of the 3 rooms mutually allotted to the Abdul Gafar Shinaba branch or any part thereof.
5. The Claimant also states that by virtue of the joint customary inheritance of the landed property by both the Abdul Salami and Abdul Gafar Shinaba branches of Yusuff Shinaba family and the joint ownership and possession right of both branches since over a century ago, the claims of the Abdul Salami Shinaba branch for declaration of title thereon is caught up by the statute of limitation.

PARTICULARS OF STATUTE OF LIMITATION
(o) The Abdul Salami Shinaba branch never pleaded any document or documents existing between both the branch and the representative of the Abdul Gafar Shinaba branch showing that the Abdul Gafar Shinaba branch is a tenant at Will therein.
(b) The law relating to declaration of title in titled landed property such as the subject-matter sets the time limit within which such claim could be made before the court of law.
6. WHERE OF the Claimant shall contend that the Counter-Claims of the Abdul Salami Shinaba’s are grossly misconceived, vexatious and an outright abuse of the processes of the Honourable Court and should be dismissed with substantial costs in favour of the Claimant.
The 4th Defendant did not enter an appearance nor filed any process. When the matter could not be settled at the Pre-trial conference same was assigned to this Court for trial.
At the hearing of the case which commenced on 18th May, 2006, the Claimant gave evidence in support of her claims, while the 1st to 3rd Defendants also called one witness namely: Mr. Tajudeen Ojutiku.
The witnesses adopted their oral depositions and same were admitted as part of their testimony before the Court.
The summary of the facts of the case is as follows: (See paragraphs. 1.0 – 3.1 of the Appellants brief of argument:-
By the Writ of Summons dated the 6th day of September, 2012 the late (deceased) original Claimant, Alhaja Raliat Opere instituted the substantive suit at the lower Court for herself and on behalf of the Ahdul Gafar Shinaba Branch of the Yussuf Shinaba Family against the Respondents on the landed property at No.19/21, Apatira Street, Lagos Island.
Following the death of Alhaja Raliat Opere on the 19th day of June, 2003 and pursuant to the order of the Honorable Court made on the 6th day of October, 2003, the present Appellant was substituted for late Alhaja Raliat Opere as the Claimant. In furtherance of same, the Amended Statement of Claim and Amended Writ of Summons severally dated the 8th day of October, 2003 were refer to pages 9 – 14 of the Record.
Pursuant to the introduction of the applicable High Court of Lagos State (Civil Procedure) Rules, 2004, the Appellant filed List of Witnesses, Statement of Facts of Witnesses on Oath and List of Exhibits respectively dated the 11th day of February, 2005 with documents intended to be relied on of trial.
On response to the Amended Statement of Defence and Counter-Claim of the 1st, 2nd, and 3rd Defendants dated the 9th day of January 2006, the Appellant filed an Amended Reply to the Amended Statement of Defence and Amended Statement of Defence to the Counter-Claim of the 1st to 3rd Defendants dated the 18th day of January, 2006, Additional List of Exhibits dated (sic)day of January 2006 and Additional Statement of Fact of Witnesses on Oath deposed to on the 18th day of January, 2006.
On the part of the 4th Respondent, there was no formal appearances entered for it and on its behalf and neither was any defence filed by the 4th Respondent.
At the conclusion of trial, the Honorable Court in its considered judgment dismissed the claims of the Appellant in their entirety but granted the Counter-Claims of the 1st to 3rd Respondents.
It is against the considered Judgment of the Honourable lower Court delivered in the suit that an appeal was filed before this Honorable Court as per the Notice of Appeal dated 17th day of January, 2007.
From the 3 grounds contained in the Notice of Appeal, the Appellant distilled the following two (2) issues for the determination of this Court as follows:-
(a) Whether the Honorable Lower Court was right and properly evaluated the pleadings and evidence before it in coming to the conclusion that the Appellant did not controvert the Crown Grant dated the 20th day of February, 1899 tendered by the 1st to 3rd Respondents and admitted as Exhibit D.
(b) Whether having regards to the provisions of Section 13, 14(i) (a) 15 and 20(1) and (2) of the applicable Rent Control and Recovery of Residential Premises Law No.6 of (1997) as amended, the 1st – 3rd Respondents complied with the aforesaid provisions on issuance and services of statutory notice through Exhihit B3 as held by the Honourable Lower Court and by extension entitled to an order of possession of the 3 rooms allotted to the Appellant family?
On the other hand the 1st – 3rd Respondents also formulated the following two (2) issues for determination to wit:-
a) Whether going by the unassailable evidence of title led the Respondents in defence of the action, and in prove of their counterclaim, at the trial Court, the trial Court was not justified in dismissing the action and then finding for the Respondents.
b) Whether the Appellant herein was able to show prove joint title with, or better title than, the 1st to 3rd Respondents to have enable the trial Court enter judgment for them.
Or
Should this Appeal be upheld in favour of the Appellant who was not able to show or prove joint title with, better title than, the 1st to 3rd Respondents before the trial Court.
This Court has examined the two sets of issues formulated by the parties, and the issues set out by the Appellant will guide the determination of the Appeal.

ISSUE ONE
(1) Whether the Hon. Lower Court was right and properly evaluated the pleadings and evidence before it in coming to the conclusion that the Appellant did not controvert the Crown Grant dated 20th day of February, 1899 tendered by the 1st to 3rd Respondents and admitted as Exhibits D.
Learned Counsel to the Appellant submitted that, the settled positioning of the Law is that the trial Court is by law primarily entitled to evaluated evidence at trial. And except where the trial Court fails to properly appraise, assess and evaluate the entire evidence made before it at trial, this Honorable Court as an Appellate Court and in its Appellate jurisdiction is in as good a position as the trial Court to properly appraise, assess and evaluate such evidence to arrive at its own conclusions See:- Ejike Anusiem & Anor. v. Charles Anusiem (1993) 2 NWLR (pt. 276) 485 at 501.
Learned Counsel further submitted that to show that the lower Court did not properly appraise and assess the evidence placed before it failed to consider pleaded facts in various paragraphs of the Amended Statement of Claim, Amended Reply to the Amended Statement of Defence of 1st – 3rd Respondents, various Exhibits which showed the Landed property, subject-matter of litigation, actually belonged to Yussuf Shinaba as against Abdul Salami. More importantly the Crown Grant dated the 20th day of February, 1899 through which the 1st to 3rd Respondents claimed that the Landed property was registered in the name of their progenitor, Abdul Salami Shinaba, never contained the name of Abdul Salami Shinaba at all.
Learned Counsel to the Appellants further submitted that contrary to the holding of the trial Court that the 1st to 3rd Defendants admitted that the 3 rooms which the Claimant’s mother occupied until her death were given to her for life, and that Exhibits B1 and B2 do not confer ownership of the property on the Claimant, no fact that the 1st to 3rd Defendants either on their own or as the decendants of Abdul Salami Shinaba gave the 3 rooms to the Claimant’s mother was either pleaded by the 1st to 3rd Respondents nor evidence of same led at all by the 1st to 3rd Respondents at trial. On the contrary it is only the evidence of how the Appellant’s mother became seized of the 3 rooms she occupied till death that were not only pleaded by the Appellant but evidence credibly led there on at trial. On how to establish traditional evidence of title by conclusive evidence, See Oba Yekinni Elegusi & Ors. v. Sarata Oseni & Ors. (2005) 12 NJSC page 51.
Learned Counsel submitted further that the Appellant has not only established traditional evidence of co-ownership of the landed property, but has conclusively proved same through her oral and documentary evidence before the trial Court. The Court however did not appraise, assess and evaluate the salient facts and evidence before it.
Learned Counsel further submitted that, assuming but not conceding that the trial Court was right in basing its reasoning for granting the 1st Counter-Claim on Exhibit D, the failure of the Court to consider the facts pleaded and evidence led against the said document as contained in paragraphs 1, 2, 3, 5 of the Amended Statement of Defence to the Counter-Claim of the 1st to 3rd Defendants particularly on pleas of estoppel by conduct, laches and acquiescence and statute of limitation together with Exhibits B, B1, B4 and E amounts to non proper appraisal, assessment and valuation of the evidence at trial by the Court. This legal defect can be corrected by this Honorable Court. See:-
Alhaji Rabiu Zangina & Anor. v. Commissioner of Works Housing Land and Survey, Borno State Ors. (2001) 9 NWLR (pt. 718) 460.
In reply to the submissions above, learned Counsel to the 1st to 3rd Respondents submitted that the 1st to 3rd Respondents had proved their root of title to the acknowledged owner of the land Abdul Salami Shinaba, through traditional evidence and by production of the Crown Grant. See:- Idundun & Ors. v. Okumagba (1976) 10 S.C. 277; Balogun v. Akanji (2005) ALL F.W.L.R (pt. 262) 405.
Learned Counsel to the Respondents further submitted that at the trial in the lower Court all the five (5) methods of proving ownership of Land were established by the Respondents based on such prove, the trial Court decided that the Respondents had established their ownership of the Land in dispute.
Learned Counsel submitted further that by paragraphs 7, 8, 9 and 10 of their Amended Statement of Defence and Counter-Claim 1st to 3rd Respondents also pleaded their root of title and relied on the Crown Grant which was admitted as exhibit D.
Learned Counsel further submitted that the grant of possession to the 1st to 3rd Respondents was right in law. The position of the law is that possession would only be granted to the party who is able to establish by preponderance of evidence that he is the owner of the property in dispute. The 1st to 3rd Respondents were clearly able to establish by preponderance of evidence that the property in dispute belongs to them being and representing the dependants of Abdul Salami Shinaba, the deceased registered owner of the property in dispute. The Appellant was obviously not able to show or prove better title. See:- Okhuarobo v. Aigbe (2002) 9 NWLR (pt. 771) 29 at 61 paras F-H.
Learned Counsel further submitted that where a party proves himself to be, or establishes his title to the true owner, possession, no matter how long cannot found a claim in title against the true owner. Possession therefore, cannot be granted to another when there is an established true owner. See:- Mogaji v. Cadbury Ltd. (1985) 7 S.C. 59.
Possession in itself is a good title against the whole world except the true owner of the Land. See:- Akano v. Okunade (1978) 3 SC 129; Atife v. Oghomienor (2004) 13 NWLR (pt. 890) 327 at 347 – 350 paras F-A; Dokubor v. Omoni (1999) 8 NWLR (pt. 616) 647.
Learned Counsel further submitted that long possession cannot found a claim of title against the true owner. A grant of Land for a limited purpose and for a limited time “my mother was told to live in the 3 rooms rent free for life” can never ripen or equate to absolute ownership of the land adverse to the grantor. See:- Atunrase v. Sunmola (1983) 1 NWLR (pt. 1) 105; Odube v. Fowler (1993) 7 NWLR (pt. 303) 637.
Learned Counsel further submitted that the Appellant could not even plead or give evidence of how and when Yusuf Shinaba, purportedly, bequeathed the property in dispute jointly to the Abdul Salami Shinaba and Abdul Gafar Shinaba. Respondent refused to give details of the bequeath to wit; when it was made, how it was made who witnessed it and when it took effect. See:- Atufe v. Oghomienor (supra) at 347 paras. C-D.
Learned Counsel submitted further that no witness was called from the larger Shinaba family to discredit the Crown Grant tendered by the 1st to 3rd Respondents. Also that a Crown Grant is like the Certificate of Occupancy of now and the document speaks for itself.
Learned Counsel further submitted that, all that the DW1 said or produced in evidence accords with the principles enunciated in Idundun & Ors v. Okumagba (supra) and this Court is urged to affirm the decision of the trial Court.
The Appellants in their Reply Brief filed on 1/6/12, contended that, the arising issue from the joint 1st – 3rd Respondents Brief of Argument is whether the landed property at No.19/21, Apatira Street, Lagos Island and purportedly covered by the Deed of Crown Grant dated 20th day of February, 1899 can be said to have belonged to the Abdul Salami Shinaba Branch of the Yussuf Shinaba exclusively particularly in the face of the admitted and undisputed Exhibits B, B1, B4 and E before the trial Court. Contrary to the submissions of learned Counsel in paragraphs 3.04, 3.06, 3.08, of the 1st – 3rd Respondents Brief of Argument, the sole ground upon which the 1st – 3rd Respondents grounded their Counter-Claim to the landed property before the trial Court, on the proof by grant or the production of document of title which is Exhibit D.
Learned Counsel further submitted that the error of the trial Court was to have held that even in spite of the said Exhibit D issued in 1899, the 1st – 3rd Respondents Branch acknowledged the Appellants Branch as a Co-owner of the landed property through exhibits B, B1 (the joint writ or plaint against Tenant to apply to recover possession in suit Nos. RT/L/401/99 and RT/L/402/99) and E (the photocopy of the Lease dated the 19th June 1975 in which the Appellants branch representative was a signatory) as well as the non cross-examination of the Appellant on any of the said documents at trial.
Learned Counsel submitted further that, it is in line of the above patent errors that the cases of Balogun v. Akanji (supra) Okhuarobo v. Aigbe (supra) Atufe v. Oghomienor (supra) Atunrase v. Sunmola (supra) Odueko v. Fowler (supra) and Mogaji v. Cadbury Limited (supra) cited by the 1st to 3rd Respondents in their joint Brief of Argument cannot apply and avail to the present appeal. This is because regardless of Exhibit D, there exists evidence through Exhibits B, B1 and E that both the Appellant’s branch and 1st – 3rd Respondents branch of the Yussuf Shinaba family are the joint owners of the landed property and jointly managed the Landed property for many decades without let or hindrance until shortly before the filing of the case which led to this appeal.
On the part of the Court the submissions of Counsel is carefully examined.

As a general background the trial Court on page 244 of the Record of Appeal in its Judgment, at the 2nd paragraph, stated as follows:-
“From the Evidence before the Court, it is clear that both parties are cousins (i.e. the Claimant and the 1st to 3rd Defendants). It is not dispute that Abdusalami Shinaba, the progenitor of the 1st to 3rd Defendants and Abdul Gafar Shinaba the progenitor of the Claimant are brothers and children of Yussuf Shinaba.”
This fact as correctly stated by the trial Court is not disputed at all by the parties to this Appeal. From the record also before this Court, the property in dispute i.e. No.19/21 Apatira Street, Lagos Island was established by Yussuf Shinaba, the father to Abdul Salami and Abdul Gafar Shinaba. It is also not disputed that the Appellant’s grandmother and mother had lived in 3 rooms of the disputed property as descendants of Abdul Gafar Shinaba. What however was in dispute at the trial Court, and still the subject of this Appeal is that, the occupation of 3 rooms by the grandmother and mother of the Appellant did not devolve as a result of being progenies of Yussuf Shinaba, having lost that right via a Crown Grant of 1899 (Exhibit D) in favour of Abdul Salami Shinaba. The progenies of Abdul Salami Shinaba, only allowed their cousins the grandmother and mother of the Appellant to live in the 3 rooms through their life time only. After their death, the 3 rooms devolved back to the 1st – 3rd Respondents as surviving progenies of Abdul Salami Shinaba.
The trial Court on page 244 of the record of appeal accepted this claim of the Respondents at paragraph 7, wherein it states
“From the evidence before the court even though the Claimant’s grandmother and mother had the permission of the Descendants of Abdul Salami Shinaba, the registered owner of the property in dispute to live there for life, the Claimant did not and neither did she say she had furthermore, since the land in dispute belongs to the descendants of Abdul Salami Shinaba, while the grandmother of the Claimant was only permitted to live there, there could be no estoppel, no laches and no limitation.”
The trial Court jumped into its conclusion by referring to the Descendants of Abdul Salami Shinaba as the registered owners of the property in dispute. From the record before the Court, the only evidence of the registration of the disputed property is the Crown Grant 1899, Exhibit “D”, made in favour of Abdul Salami Shinaba, to cover the disputed property. The decision of the trial Court was based solely on the existence of Exhibit “D” the Crown Grant of 1899. With respect to the trial Court, this is not the correct position of the law. The law is settled that production of documents of title alone is not sufficient to discharge the onus on a plaintiff to prove the title he claimed. He must go further to trace his root of title to one whose ownership of the Land has been established See:- Lawanson v. Ajibulu (1997) 6 NWLR (pt. 507) 14 at 31; Alhaji Buba Usman v. Mohammed T. Garke (1999) 1 NWLR (pt. 587) 466 at 485.
In the instant Appeal, the trial Court on page 246 of the records based its decision on conferring title on the 1st – 3rd Respondents based on their Counter-Claim before it. A Counter-Claim by law is a separate cause of action. The Black’s Law Dictionary Eighth Edition defines a Counter-Claims as:-
“A claim for relief asserted against an opposing party after an original claim has been made: espia defendant’s claim in opposition to or as a set off against the plaintiff claim.”

Since the trial Court’s decision was based on the Counter-Claim of the 1st – 3rd Defendants now Respondents in this Court, the production of Exhibit ‘D’ the Crown Grant alone was not sufficient to have had title conferred into them. The Respondents by law had a duty trace root of title to one whose ownership of the land has been established. In the circumstances of the present appeal, the root of title of both the Appellant and the Respondents is not in dispute. It is already settled that each of the two is a direct descendant of Yussuf Shinaba the person who originally established the property is dispute. What is in contention, or what the Respondents by law ought to have proved at the trial court, apart from the production of Exhibit ‘D’ the Crown Grant was to establish that Yussuf Shinaba, the original owner, had bequeathed his property which is now in dispute to Abdul Salami Shinaba alone, to the exclusion of the Abdul Gafar Shinaba branch of his children. The onus to show who or how Yussuf Shinaba had bequeathed his property to, is on the Respondents and not on the Appellants, hence the decision of the trial Court conferring ownership to them was based on their Counter-Claim. It is not right as the Respondents argued in their brief of argument paragraph 3.16, that the Appellant could not even plead, or give evidence of how and when Yussuf Shinaba purportedly, bequeathed the property in dispute jointly to the Abdul Salami Shinaba and Abdul Gafar Shinaba. It is only to repeat that the onus is on the Respondents by law, to show that the property was bequeathed to them alone, which gave them the exclusive right to obtain a Crown Grant in their favour to the exclusion of the Appellant. The Crown Grant alone Exhibit ‘D’, cannot stand as sufficient locus standi for the Respondents to take over the disputed property of their overlord.
Let me state here and now that, the trial Court fell into a grave error by placing absolute reliance on the Deed of Crown Grant dated 20th day of February, 1899 said to have belonged the AbdulSalami Shinaba Branch, of Yussuf Shinaba, to the exclusion of the Abdul Gafar Shinaba Branch. The Abdul Gafar Branch tendered Exhibits B, B1, B4 and E which were all admitted in evidence. This is an undisputed fact. The trial Court however failed or neglected to appraise and evaluate those evidence produced by the Appellant before it. The Appellant again pleaded and led evidence against Exhibit ‘D’ contained in their paragraphs 1, 2, 3, 5 of the Amended Statement of Defence to the Counter-Claim of the 1st – 3rd Respondent’s. The Appellant pleaded estoppel by conduct, laches, acquiescence, and statute of limitation, all these pleas were not appraised by the trial Court in its decision.
The long judicial policy in this country is that the evaluation of evidence called at the trial, the ascription of probative values to them and making primary findings on them are matters within the province of the Court of trial which has the singular advantage or is pre-eminently placed of hearing the witnesses testify, and watching their demeanours. See:- Balogun v. Alimi Agboola (1974) 1 ALL NLR (pt. 2) 66: The Military Governor of Western States v. Atolabi Lanibe & Anor. (1974) 1 ALL NLR (pt. 2) 179. Where however, the trial Court has failed in its responsibility to evaluate, and appraise the evidence of parties before it, this Court can intervene. This Court in the case of Alhaji Rabiu Zangina & Anor. v. Commissioner of Works, Housing Land and Surveys, Borno State & Ors. (2001) 9 NWLR (pt. 718) 460, at page 488. Obadina, J.C.A. (as he then was), (cited by counsel to the Appellant) held:-
“The law is well settled that where a judgment is attacked on the ground of being against the weight of evidence as in this case or where the finding or non-finding of facts are questioned, the Court of Appeal in its primary role in considering a judgment on Appeal in a civil case in which the finding or non-finding of facts is questioned will seek to know the following, namely:
“(a) The evidence before the trial Court.
(b) Whether it accepted or rejected any evidence upon the correct perception.
(c) Whether it correctly approached the assessment of the value on it;
(d) Whether it used the imaginary scale of justice to weigh the evidence on either side.
(e) Whether it appreciated upon the preponderance of evidence which side of the scale weighed having regard to the burden of proof.”
The above dictum propounded by Obadina J.C.A. (as he then was) has covered the entire field, I do not intend to add anything on it. However, placing the above dictum before this Court, and looking at the judgment of the trial Court, which is the subject of this appeal, an inescapable fact does arise, the intervention of this Court. There is the gross failure on the part of the trial Court to evaluate and appraise the evidence brought by the Appellant before it. The Appellant was not accorded a fair trial. This Court has resolved issue No.1 in favour of the Appellant and against the Respondents.
On issue No.2 whether having regards to the provisions of Section 13, 14(1)(a) 15 and 20(1) and (2) of the then applicable Rent Control and Recovery of Residential Premises Law N.6 of (1997) as amended, the 1st – 3rd Respondent complied with the aforesaid provisions on issuance and service of statutory notices through Exhibit B3 as held by the Honourable Lower Court and by extension entitle to an order of possession of the 3 rooms allotted to the Appellant family.
The resolution by this Court on the issue No.1, has a direct effect on issue No.2. The question of the Ownership of the Landed property at No. 19/21 Apatira Street, Lagos Island, is yet to be resolved, hence this courts resolution of issue No.1 in favour of the Appellants and against the Respondents. Ownership of the disputed landed property must be determined first, before the question of whether there was, or non-compliance with the applicable Rent Control and Recovery of Residential Premises Law. Any attempt to give an answer on compliance to that law would amount to putting the cart before the horse. At best the issue No.2 for now remains an academic question.
In the circumstance, the Appeal succeeds, and it is hereby allowed by this Court.
What order then becomes appropriate for this court to make in the present circumstance Hon. Justice Iyizoba JCA, of this Court, in the case of Akoledowo v. Ojubutu (2012) 16 NWLR (pt. 1325) 1 at 26 paras. A – B stated as follows:-
“Whether a trial Court failed in its primary duty of making findings of facts on issues joined, on the pleadings, and the evidence is such that an appellate Court cannot make findings and come to a decision on all relevant issues an order of retrial is the proper order the appellate Court should make. See: Okeowo v. Migliore (1979) 11 SC 138; Mafimisebi v. Ehuwa (2007) 2 NWLR (pt.1018) 385; Kareem v. U.B.N. Ltd. (1996) 5 NWLR (pt. 451) 634.”
On the whole, the judgment of Hon. Justice E. A. Lufadeju (Mrs.) of the High Court of Lagos state, Lagos Judcial division in suit No.ID/2358/2002 delivered on the 12th day of January, 2007 is hereby set aside by this Court.
(2) I remit the case to the Hon. Chief Judge of Lagos State for assignment to another judge for retrial.
(3) I make no order as to costs.

AMINA ADAMU AUGIE, J.C.A.: I have read the lead Judgment just delivered by my learned brother, Bage, J.C.A. and I agree with his reasoning and conclusion. He has dealt with all the issues canvassed in the Appeal, and I will only add a few words on proof of title.
It is settled that the mere tendering of documents of title is NOT enough to prove title in a case of competing claims of title – See Ashiru v. Olukoya (2006) 11 NWLR (Pt. 990) 1 SC, where the Supreme Court categorically stated –
“Where the title of the grantor is in issue, production of documents of title without more is not sufficient proof of title to land since in such a situation, it is the duty of the claimant to go further to not only plead and trace the root of title of the grantor or vendor but prove same on the balance of probability. Where the claimant fails to discharge this onus, his claim must fail.”

In Adekanye v. Grand Services Ltd (2007) All FWLR (pt.387) 855, it was held –
“Once a party pleads and traces his root of title in an action for declaration of title to land to a particular person or source, for that party to succeed, he must not only establish his title to such land, he must also satisfy the court as to the title of the person or source from which he claims. He cannot totally ignore the validity of his grantor’s title as he would not have acquired a valid title to such land if, in fact, his grantor at all material times had no title thereto.”
In other words, whoever pleads and traces his root of title to another person, must do two things – establish his own title, and satisfy the Court as to the validity of the title of that person from whom he claims title to the land.
In this case, it is apparent that both parties were not able to prove their respective ownership of the property in dispute, and the only order that this Court can make in the circumstances, is one of retrial, and I will order same.
Thus, I allow the appeal. I also set aside the decision of the lower Court, and abide by the consequential orders in the lead Judgment, including no cost.

IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.: My learned brother, the Hon. Justice S. D. Bage, J.C.A, has obliged me with a copy of the draft Judgment prepared and just delivered by him. Having perused the respective briefs of argument of the learned Counsel and the Record of Appeal, I cannot but concur with the reasoning and conclusion reached in the lead Judgment, to the effect that the Appeal is meritorious.
Hence, the Appeal is hereby allowed by me. The Judgment of the High Court of Justice, Lagos Judicial Division which was delivered on 12/01/07 in Suit No.ID/2358/2002, is hereby set aside. I abide by the consequential order remitting the said suit to the Chief Judge of Lagos State for reassignment to another judge, for retrial denovo.
There shall be no order as to costs.
Appeal allowed.

Appearances

R. A. Alejo Esq.For Appellant

AND

B. A. Sotayo-Aro Esq. – for 1st – 3rd RespondentFor Respondent