NIPOST & ANOR v. GAJEKE & ORS (2021)

NIPOST & ANOR v. GAJEKE & ORS

(2021)LCN/15062(CA)

In The Court Of Appeal

(GOMBE JUDICIAL DIVISION)

On Wednesday, March 03, 2021

CA/G/5/2018

Before Our Lordships:

Jummai Hannatu Sankey Justice of the Court of Appeal

Tunde Oyebanji Awotoye Justice of the Court of Appeal

Ebiowei Tobi Justice of the Court of Appeal

Between

1. NIGERIA POSTAL SERVICE (NIPOST) 2. TAKAI INVESTEMENT LIMITED APPELANT(S)

And

ALHAJI MUSA GAJEKE 2. FEDERAL MINISTRY OF WORKS AND HOUSING 3. ATTORNEY GENERAL OF THE FEDERATION RESPONDENT(S)

RATIO

POSITION OF THE LAW ON WHO HAS A BETTER TITLE WHERE THE TWO PARTIES TRACE THEIR SOURCE OR ROOT TO A COMMON GRANTOR

… I also agree with the learned trial judge that the two parties having traced their source or root to the Federal Government of Nigeria the first to acquire the land should be regarded as the one with the better title. See DANTSOHO VS MOHAMMED (2003) 6NWLR pt. 817 p. 457; ATANDA VS AJANI (1989) 3 NWLR (PART 111) 511; ASHIRU VS OLUKOYA (2006) 11 NWLR PART 990 p. 1. PER TUNDE OYEBANJI AWOTOYE, J.C.A.

POSITION OF THE LAW WHERE NO ISSUE IS DISTILLED FROM A GROUND OF APPEAL

…. the law is settled on the implication that where no issue is distilled from a ground of appeal, that ground of appeal is liable to be struck out as it is deemed abandoned. See OSINUPEBI VS SAIBU (1982) 7 SC. 104 at 110-111, OGBE VS ASADE (2009) 18 NWLR PART 1172 at 106. PER TUNDE OYEBANJI AWOTOYE, J.C.A.

CIRCUMSTANCE WHERE A PLAINTIFF SEEKING A DECLARATION OF THE TITLE TO LAND MUST CLEARLY PROVE THE PRECISE AREA TO WHICH HIS CLAM RELATES

… it is trite law that it is the primary duty of a plaintiff (or a counter claimant) seeking a declaration of the title to land to clearly prove the precise area to which his clam relates. See ADELUSOLA VS AKINDE (SUPRA) GBADAMOSI VS DAIRO (2007) 2 NWLR (PT 102) P. 282 DADA VS DOSUNMU (2006) 18 NWLR (PT. 1010) P. 134 and OTANMA VS YOUDU BAGHA (2006) 2 NWLR PT 964. 337. However, the defendant must have made the identity of the land an issue by disputing it. According to OPUTA JSC, in NWOBODO EZEUDU & ORS VS ISAAC OBIAGWU (1986) 2NWLR (PART 21) 208 at 220: “The identity of the land will be in issue if and only if the defendants in their statement of defence made it one – that is if they disputed specifically either the area or the size or the location or the features shown on the plaintiffs plan. When such is the case the identity of the land becomes an issue.” PER TUNDE OYEBANJI AWOTOYE, J.C.A.

TUNDE OYEBANJI AWOTOYE, J.C.A. (Delivering the Leading Judgment): This is the judgment in respect of the appeal filed by the claimants at the trial Court against the decision of Borno State High Court in Suit No. BOHC/MG/CV/40/15 delivered on 31st November, 2017.

The claimants had claimed against the defendants as per paragraph 19 of their CLAIMANTS JOINT STATEMENT OF CLAIMANT as follows:
1. A declaration that the Nigerian Postal Service is the beneficial owner of all that empty and or unutilized parcel of land space at the Nigerian Postal Service State Quarters Old G.R.A, Maiduguri, Borno State measuring 3,500m2 being land that form part of the large area acquired by the Federal Government of Nigeria sometimes in 1997 for the purpose of building staff quarters for the staff of Nigerian Postal Service, Borno Territory to the exclusion of any other Federal Government Agency, Parastatal, and or individual including the Defendant herein
2. A declaration that as the legal holder of the said land, it has also the power to deal with the said land in the manner it so desires including leasing it out to any corporate body on terms and conditions it deems fit.

A declaration that by a deed of lease agreement dated the 31st day of December, 2014, it has leased the said unutilized portion of land lying situate at the Nipost Staff Quarter Old G.R.A Maiduguri Borno State Measuring 3,500m2 to the 2nd claimant for the purposes of constructing mini estate on the basis of Build, Operate and Transfer (BOT) basis and therefore by the said lease agreement, the 2nd claimant has now the rights and privileges attached to the land and is entitled to quite enjoyment for the period of the lease to the exclusion of any other person including the defendant.
4. A declaration that the Defendant herein has no interest at all in the land the subject matter of this action as he has never applied for the grant of such land and therefore a total stranger to the land and therefore a trespasser.
5. A declaration that the threat and interruption of construction of the 2nd claimant’s work on the land by the defendant has caused the claimants inconveniences and have made them to suffer damages.
6. An order of injunction restraining the defendant by himself, servants, agents, privies and whoever is acting through

him from further interruption of work on the land the subject matter of this suit.
7. An order of permanent injunction restraining, the defendant either by himself, agents, servants and or whoever is acting on his behalf from further trespass on the land subject matter of this suit.
8. General damages against the defendant for trespass and also act of interruption of construction work on the land the subject matter of this suit.
9. Such further order or orders as the Honourable Court may deem fit to make in the circumstances
10. Cost of suit.

The 1st defendant by his amended statement of defence and counter claim denied the claim and counterclaim as follows:
1. A declaration that the parcel of land covered by allocation/grant issued to by Federal Ministry of Land and Survey now in possession of the 1st defendant counter claimant plots No. 3 & 4 he is the rightful owner of the land dispute
2. A declaration that the said allocation/grant issued by the Federal Ministry of Land and Survey has been validly issued in respect of the parcel of land which it relates to.
3. A declaration that whatever title that the

claimant may be entitled to in the parcel of land at NIPOST STAFF QUARTERS old GRA Maiduguri shall not include plot No. 3 & 4 already given to the allottees in possession of defendant counter claimant as entrenched in the allocation/grant at the Federal Ministry of Land Maiduguri.
4. An order directing the claimants not to invalidate, temper or do anything that may derogate the allocation/grant of the Occupancy that has been valid issued by the Federal Ministry of Land Maiduguri or any part or portion of the land of the defendant counter claimant.
5. A declaration that the claimants in knowing of the allocation of the portion of the land of the defendant counter claimant and never the less entering into and destroying the fences, is trespass, willful and malicious damage to property.
6. An order of perpetual injunction restraining the claimants either by themselves, their agents, servants, privies or otherwise from entering into the land of the defendant counter claimant to commit trespass thereon from disturbing the legitimate and peaceful possession of the defendant counter claimant.
7. The sum of N5,000,000.00k (Five Million Only)

against the claimants being general and special damage for trespass, willful and malicious destruction of the defendant counter claimant’s suit.
After hearing the parties, the Court found as follows:
“the claimants herein based on the available evidence and successfully traced its root of title to the disputed land to NIPOST STAFF QUARTERS and said NIPOST is an agency of the Federal Government of Nigeria. Equally, the 1st defendant also traced his root of title to the 2nd Defendant; that is Federal Ministry of Works. It is settled law that the first to acquire the land regarded as the owner of the land. He who is first in time has a better claim in law and equity. See the NWLR pt. 131 page 137.
It is also a settled law that where two competing parties claim to be in possession of the land in dispute in a case, the ascribed possession to the one with better title and interest, per AKINTO JSC IN ADETAYO V. ADEMOLA (2010) ALL FWLR part 533 at page 1809.
Having considered the pleadings of the parties herein, exhibits tendered, testimonies of the witness and the above authority, I bare no doubt that the 1st defendant has a better

title and interest. Therefore, I hereby dismiss the claimants claims and enter judgment in favour of the 1st defendant.
Parties should bear their costs.

Dissatisfied with the above decision, the claimants filed their notice of appeal which contains 10 grounds of appeal.

The 10 grounds of appeal read thus:
GROUND OF APPEALS
1. The learned trial judge erred in law when he granted the relief sought by the 1st Respondent who was the 1st Defendant/Counter claimant for plot 3 and 4 while there was no proof of the extent of the land claimed by the 1st Respondent as required by law which some have occasioned serious miscarriage of justice.
2. The learned judge of the Borno State High Court erred in law when he granted the 1st respondent counter claim without proof of the counter claim.
3. The learned judge of the Borno State High Court erred in law when he descended into the arena and made case for the 1st respondent when he held as follows:
“The 1st Defendant did not rely on bare documents alone to prove his counter claim but he pleaded and gave evidence that he was put in possession since 2009 and therefore, he

rounded the plots with blocks showing demarcation but the claimants went and caused destruction to the wall.
It is a settled law that:
“acquiescence is stopped by conduct. A classical illustration of it is in the following diction of Lord Cranworth in RAMSDEN VS DYSON (1886) HI 140.”
4. The learned trial judge of the Borno State High Court erred in law when he held that both the Appellants who were the claimants and the 1st respondent/defendant traced their title to the same root while it is not thereby arriving at a wrong conclusion which have occasioned a serious miscarriage of justice.
5. The learned judge of the Borno State High Court erred in law when he held that both the Appellants/claimants and the 1st Defendant/1st Respondent derive title from the same source while there was no pleadings to that effect which occasioned a serious miscarriage of justices.
6. The learned trial judge of the Borno State High Court erred in law when he relied on Exhibit DW1 A and DW1 E while the exhibits are ipso facto inadmissible in law.
7. The learned trial judge erred in law when it dismiss the claimant claim while there was no

defence filed challenging the claim.
8. The learned trial judge of the Borno State High Court erred in law when he relied on the maxim “Quo Prior est tempore, portior est jure” in arriving at the decision of the Court while the facts of the case does not support the maxim nor was it raised by any of the parties.
9. The learned trial judge of the Borno State High Court erred in law when he descended into the arena and made case for parties which have occasioned a serious miscarriage of justice.
10. The learned trial judge of the Borno State High Court erred in law when he failed to appraise facts pleaded and evidence led at the trial thereby arriving at a wrong decision which is not only perverse but have occasioned a serious miscarriage of justice.

After transmission of record of appeal to this Court, parties filed and exchanged briefs of argument.

BRIEFS OF ARGUMENT
The appellants Joint Brief of Argument was settled by USMAN TATAMA and filed on 15th February, 2018. Learned counsel formulated three issues for determination.
“the appellants have respectfully formulated three (3) issues as follows:

Whether the 1st Respondent proved his counter claim to entitle him to the declaration to plots 3 and 4.
2. Whether the Appellants proved their case on the balance of probability to entitle them to judgment.
3. Whether the trial judge descended into the arena, made case for parties and at the end made findings that are perverse?
Issue one (1) is distilled from grounds 1, 2 and 6, issue two is distilled from ground 7 while issue three (3) subsumes grounds 3, 4, 5, 8, 9, 10 and 11 of the grounds of appeal.

B. G. Ali on behalf of the 1st and 2nd respondents raised preliminary objection to the hearing of the appeal and his objection was argued in the 1st and 2nd respondents brief.

In the brief learned counsel for the 1st and 2nd respondents adopted the three issue formulated by the counsel for the appellants.

ARGUMENT OF COUNSEL
PRELIMINARY OBJECTION
The 1st respondent raised preliminary objection to the hearing of the appeal on the ground that issue one did not cover ground 6, of the notice of appeal, issue two did not cover ground 7 and issue three did not cover grounds 4, 5, 8, 9, 10 and 11 of the grounds of appeal.

This means no issue was distilled from grounds 6 7, 4, 5, 8, 9, 10, and 11 of the grounds of appeal.

If true, the law is settled on the implication that where no issue is distilled from a ground of appeal, that ground of appeal is liable to be struck out as it is deemed abandoned. See OSINUPEBI VS SAIBU (1982) 7 SC. 104 at 110-111, OGBE VS ASADE (2009) 18 NWLR PART 1172 at 106.

However, I have closely perused the grounds of appeal of the appellant vis-a-vis the issue formulated. I am convinced that issue one is distilled from grounds 1, 2, and 6, issue 2 is distilled from grounds 7 while issue three is distilled from grounds 3, 4, 5, 8, 9 and 10 and 11 of the grounds of appeal.

The meaning in the circumstance is that the objections of the 1st Respondent hold no water. They are hereby dismissed.

APPELLANT’S BRIEF OF ARGUMENT
ISSUES FOR DETERMINATION
i. Whether the 1st respondent proved his counter claim to entitle him to the declaration of plots 3 & 4. (distilled from grounds 1, 2 & 6)
ii. Whether the appellants proved their case on the balance of probability to entitle them to the judgment. (distilled from ground 7)

iii. Whether the trial judge descended into the arena, made case for the parties and made findings that are perverse. (Distilled from grounds 3, 4, 5, 8, 9, 10 & 11.)

LEGAL ARGUMENT BY USMAN TATAMA ESQ.
ISSUE 1
It is submitted by counsel to the appellant that a counter claim is a claim on its own which must be proved separately on its merit. OLALOYE vs A.G OSUN STATE ALL FWLR (Pt. 774) page 37 @ 75. He submitted that a party in a suit succeeds not on the weakness of the defense but on the strength of his case. He further submitted that the first duty of a party who claims declaration to any land is to establish with certainty the identity of the land claimed but where the identity of the land in dispute is not in issue, the burden does not arise. See EZUKWU vs UKACHUKWU (2004) 11 MJSC 66 @ 82.

He submitted that from the pleadings of the parties, issues were joined on the identity of the land claimed by the appellant, that it is the duty of the 1st respondent to prove the identity of the land in his counter claim, which he can establish through any of the 5 ways of proving title to land which are independent and none superior

to the other. See OJO vs AZAMA (2001) 1 SC (pt. 11) 62 @ 74, AMAJIDEUGU vs ONONAKU (1998) 2 NWLR (pt. 78) page 614 @ 622, OWHONDA vs EKPECHI (2003) 12 MJSC 1 @12.

He submitted that the 1st respondent did not prove the identity of the land in his counter-claim as the documents tendered did not prove the location, and size of the land. He further submitted that the findings of the lower Court that the appellant failed to prove his title to the land in dispute also applies to the 1st respondent. He submitted that the 1st respondent failed to move the Court to visit the land in dispute, or pleaded facts as to the neighbors of the land, and that the judgment of the lower Court did not mention the specific measurement of the land it gave the 1st respondent. He submitted that the purported documents tendered by the 1st respondent did not bear his name, and was not authenticated. He further submitted that the alleged transfer was not registered in accordance of the provisions of Section 21 of the Land Use Act 1978.

ISSUE 2
It is submitted that the failure of the respondents to cross examined the witnesses called by the appellant or test the veracity of the

documents tendered makes the evidence of the appellant credible. See MAINAGGE vs GWAMMA (2004) 12 MJSC 34 @ 45. He submitted that the trial Court was in grave error to hold that the appellant failed to prove the identity of the land which was not in issue between the parties. He submitted that civil cases are decided on the balance of probability. MOGAJI vs ODOFIN (1978) 3-4 (SC) page 65 @ 67. He also submitted that the trial Court failed to properly evaluate and ascribed value to the evidence before it.

ISSUE 3
It is submitted that the trial Court descended into the arena of dispute between the parties and made a case for the parties different from the one pleaded by them. He submitted that the trial Court suo motu without inviting parties to address it, introduced the issue of acquiescence and the priority of equity of title which defenses must be pleaded by the party relying on it. He further submitted that the findings of the trial Court was premised on speculation which renders such findings a nullity. See NWAKANNA vs ABARIBE (2010) ALL FWLR (pt505) page 767 @ 1803. He submitted that trial Court assumed the role of a witness when it made findings

that did not emanate from the pleadings of the parties which occasioned a serious miscarriage of justice. See ADDAH vs UBANDAWAKI (2015) ALL FWLR (pt775) 200 @ 224.

He urged the Court to hold that the appeal has merit, grant the appellant claims and dismiss the 1st respondent counter claim at the lower Court.

APPELLANT’S REPLY BRIEF TO THE 1ST AND 2ND RESPONDENTS BRIEF REPLY TO THE NOTICE OF PRELIMINARY OBJECTION BY USMAN TATAMA ESQ
It is submitted by counsel to the appellants that, the preliminary objection raised by the 1st and 2nd respondents failed to specifically point out the competent and incompetent grounds and as such lacks clarity and coherence, as the preliminary objection made no reference to the appeal filed or the incompetent grounds. He further submitted that, there were other issues formulated and argued by the appellant that can sustain the appeal.

He submitted that, the preliminary objection is irregular and incompetent as a motion on notice should have been filed where there existed competent grounds upon which the appellate Court can review the appeal. See N.N.P.C vs FAMFA OIL LTD (2012) ALL FWLR (pt.635) 204 @ 230.

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He urged the Court to strike out the preliminary objection for being incompetent.

In the abundance of caution, learned counsel to the appellant submitted that the issues formulated and argued by the appellant were duly covered by the grounds of appeal.

He submitted that, the objection lacks clarity and coherence, in that it complained about the appeal and about the incompetent grounds. He further submitted that the authorities cited by the 1st and 2nd respondents counsel was not applicable in the circumstances. See GBEDU vs ITIE (2011) ALL FWLR (pt. 553) 1857 @ 1905.

He submitted that the objection is rooted in mere technicalities and has no substance, as the 1st and 2nd respondents counsel adopted and argued the issues formulated by the appellant.

He urged the Court to refuse the objection as Courts nowadays are more inclined to substantial justice rather than the narrow technical justice, and to also proceed and determine the appeal on its merit.

1ST AND 2ND RESPONDENT’S BRIEF
NOTICE OF PRELIMINARY OBJECTION
Learned counsel to the 1st and 2nd respondents B.G ALI ESQ., raised a preliminary objection to the hearing

of the appeal on the grounds that the issues formulated by the appellants was incompetent. He submitted that, the issues formulated and argued by the appellants was not covered by the grounds of appeal, as issue 1 was not covered by ground 6, issue 2 did not cover ground 7, and issue 3 did not cover grounds; 4, 8, 9, 10 and 11 of the grounds of appeal. He submitted that where no issue is distilled from the grounds of appeal, it is deemed abandoned and liable to be struck out for being incompetent. See EBO vs N.T.A (1996) 4 NWLR pt. 442 page. 314.

He submitted that the appellant formulated and argued issues from the competent and incompetent grounds of appeal, which renders the competent grounds incompetent and liable to be dismissed. See ADEHI vs ATEGA (1995) VOL 6 SCNJ page 44 @ 52-53.

He urged the Court to strike out all the grounds of appeal for being incompetent and dismiss the appeal with substantial cost.

ISSUES FOR DETERMINATION
Without conceding that the grounds and issues formulated by the appellant was competent, the 1st and 2nd respondent adopted the issues formulated by the appellants.
1. Whether the 1st respondent proved his

counter claim to entitle him to the declaration to plots 3 and 4
2. Whether the appellants proved their case on the balance of probability to entitle them to judgment
3. Whether the trail judge descended into the arena, made the case for the parties, and at the end made findings that are perverse

LEGAL ARGUMENT BY B.G ALI Esq.
Learned counsel to the 1st and 2nd respondents submitted that, proof of ownership to land can either be by traditional history evidence of documents of title, various acts of ownership numerous and positive, extending over a long period of time as to warrant ownership, long enjoyment and possession of the land, and by proof of adjacent or connected land. See AIYEOLA vs PEDRO (2014) ALL FWLR pt.744 page 17 @ 41-42 para H-C.

He submitted that, from the evidence adduced, the 1st and 2nd respondents proved their ownership to the two plots by production of documents of title and possession.

He submitted that, the identity of the land in dispute was not in issue as the evidence of the 1st and 2nd respondent’s possession of the land was not contradicted or challenged by the appellant, and that oral

testimony suffices to establish the identity of the land. ATANDA vs ILIASU (2013) ALL FWLR pt. 681 page. 1469 @ 1486 paras B-C.

He submitted that, it is not necessary in all cases of declaration of title to tender the sketch map or survey plan where there was no difficulty in identifying the land in dispute, and it is not mandatory for the Court to conduct a locos in quo even where both parties requested. See UKAEGBU vs NWOLOLO (2009) ALL FWLR pt. 466 page 1852 @ 188-1889 Paras E-F.

He submitted that, the argument that the alienation to the 1st respondent contravened Section 22 of the Land Use Act 1987 and that the allocation letters was not in the name of the 1st respondent and not authenticated, were fresh issues raised on appeal that required leave first sought and obtained. AIYEOLA vs PEDRO (supra). He further submitted however that if the issues were raised validly, documents prepared and executed before consent obtained were valid. See ROCKONOH PROPERTY CO. LTD vs NITEL (2001) 14 NWLR pt. 733 page. 468 @ 506 paras A-F. He further submitted that the documents was certified by the issuing authority and having not been challenged by the appellants, the lower Court rightly acted on the documents.

He urged the Court to resolve the issue in favor of the 1st and 2nd respondents and dismiss the appeal with substantive cost.

ISSUE 2
“Whether the appellants proved their case on the balance of probability to entitle them to the judgment.”

He submitted that the appellants did not adduce any evidence to prove their claim that the land was acquired by the FEDERAL GOVERNMENT OF NIGERIA for the purpose of building a staff quarters for NIPOST, and as such deemed abandoned and goes to no issue in proving the claimants claim. See A.C.N vs NYAKO (2013) ALL FWLR pt. 686 page 424 @ 466 Paras A-B. He submitted that, the appellants having admitted the title of the land to the Federal Government of Nigeria cannot challenge the allocations made by the Federal Government over its properties. He further submitted that, the 1st appellant had nothing to lease out to the 2nd appellant 14 years after the land was leased out to the 1st and 2nd respondents. He submitted that, a counter claimant with a better title to the claimant will succeed where both rely on the same grantor. See RABIU vs ADEBAJO (2012) ALL FWLR pt. 643 page 1836 @ 1850 Paras D-E

He urged the Court to affirm the decision of the lower Court and dismiss the appeal with substantial cost.

ISSUE NO: 3
“Whether the trial judge descended into the arena, made the case for the parties, and at the end made findings that are perverse.”

It is submitted by counsel that for findings of Court to be perverse, it must run contrary to the pleadings and evidence before the Court. See MAMMMAN vs FRN (2013) ALL FWLR Part 697 page 702 @ paras F-G. He submitted that the 1st respondent pleaded and led unchallenged evidence and tendered exhibits on the title to the land, the allocation to him and his possession. He further submitted that the proceedings leading to the judgment at the trial Court was proper. He urged the Court to discountenance with the issue and resolve same in favor of the 1st respondent.

I shall adopt the issues donated by the appellant being the aggrieved party in this judgment.

RESOLUTION OF ISSUES
ISSUE ONE
Whether the 1st respondent proved his counter claim to entitle him to the declaration to plots 3 and 4.

The contention of the appellants on this issue are two folds. First, that the 1st respondent did not establish with certainty the identity of the land claimed. Secondly that the 1st Respondent did not plead and lead positive evidence on the source of his title because the documents tendered did not registered his name and the transfer was not registered as required by the provisions of the Land Use Act 1978.

Indeed, it is trite law that it is the primary duty of a plaintiff (or a counter claimant) seeking a declaration of the title to land to clearly prove the precise area to which his clam relates. See ADELUSOLA VS AKINDE (SUPRA) GBADAMOSI VS DAIRO (2007) 2 NWLR (PT 102) P. 282 DADA VS DOSUNMU (2006) 18 NWLR (PT. 1010) P. 134 and OTANMA VS YOUDU BAGHA (2006) 2 NWLR PT 964. 337.
However, the defendant must have made the identity of the land an issue by disputing it. According to OPUTA JSC, in NWOBODO EZEUDU & ORS VS ISAAC OBIAGWU (1986) 2NWLR (PART 21) 208 at 220:
“The identity of the land will be in issue if and only if the defendants in their statement of defence made it one – that is if they disputed specifically either the area or the size or the location or

the features shown on the plaintiffs plan. When such is the case the identity of the land becomes an issue.”

The counter-claim of the 1st respondent reads as follows (inter alia):
a. A declaration that the parcel of land covered by allocation/grant issued by the Federal Ministry of land and survey now in possession of the 1st defendant counter claimant plots No. 3 and 4, he is the rightful owner of the land in dispute.
b. A declaration that the said allocation/grant issued by the Federal Ministry of land and survey has been validly issued in respect of the parcel of land to which it relates to.
c. A declaration that whatever title that the claimants may be entitled to in the parcel of land at NIPOST STAFF QUARTERS old GRA Maiduguri shall not include plot No. 3 and 4 already allocated to the original allot-tees now in possession of 1st Defendant counter claimant as entrenched in the allocation/grant at the Federal Ministry of Land Maiduguri.

On receipt of the counter claim, the claimants filed their CLAIMANTS JOINT DEFENCE to the COUNTERCLAIM paragraph 2(a-e) of the joint defence reads thus:

In further answer to the averments

contained in paragraph 1, 2, 3, 4, 5, 6 and 7 (a-f) of the Counter claim, the claimants aver as follows:
a. That the alleged Abubakar S. Musa and Alhaji Lawan Bukar the alleged persons who allegedly transferred the alleged plots 3 and 4 to the defendant are not known to the claimants at all as they have never applied for grant of lease in any of the 1st claimants staff quarters nationwide and in particular that of Maiduguri. The claimants shall rely on document annexed as annexures A, B and C attached to the main claim which are all pleaded to show the procedure of obtaining lease of any parcel of land in its staff quarters.
b. That the alleged plot 3 and 4 are not known to the 1st claimant as NIPOST does not allocate its land in plots rather NIPOST allocates its land in square meters.
c. That the alleged plots 3 and 4 are not located within NIPOST STAFF QUARTERS as alleged by the defendant/counterclaimant and therefore not known to the claimant and even if (which is denied) that there are plots known as plot 3 and 4 in the old G.R.A Maiduguri certainly it is not situated WITHIN NIPOST STAFF QUARTERS AS NIPOST STAFF QUARTERS is situated along

circular Road, Maiduguri and therefore the Defendant counter claimant has no such land in NIPOST STAFF QUARTERS as alleged, more so, the claimants land is not measured in plots but square meter.
d. That even if there are plots 3 and 4 in the old G.R.A Maiduguri which the Defendant is claiming, he has to search somewhere as it is not known to the claimants and therefore the defendant/counter claimant has no such land.
e. That even if (which is denied) that the counter claimant bought plots of land from some people, he was wrongly showed the plots as NIPOST do not allocate its land in plots moreover, NIPOST as an institution has never delegated any other Government institution to manage its land situated in its staff quarters as it has clear policy about the commercialization of its lands but not outright allocation.

The meaning of ordinarily is that the identity of the land in dispute has been put in issue.

This however does not end there. The respondents contention is that the said plots 3 and 4 which are in dispute were fenced round with concrete blocks and that the 1st appellant later around 2014 leased the land to the 2nd appellant.

This according to the respondents led to a report at the police station. See the adopted statement on oath of 1st Respondent on page 47 of record of appeal.

In his statement on oath, PAUL BITRUS NGGADA, the Area Postal Manager, (APM) Borno Territory of Nigerian Postal Service Office Maiduguri, deposed inter alia as follows:
13. That I also know as a fact that the claim by Musa Gajake that some people sold to him plots 3 and 4 cannot by whatever imagination refer to NIPOST STAFF QUARTERS as we do not deal in plots at NIPOST.
14. That I also know as a fact that the Federal Ministry of Works and Housing has no control over our affairs and therefore cannot dabble into our affairs just like that and start sharing out our land without regard to due process as NIPOST is not answerable to the Federal Ministry of work and Housing.
15. That I know as fact that the Federal Ministry of work and Housing can dabble into affairs of land that is under their control but not Nigeria postal service land as Federal Ministry of work and Housing has no land at NIPOST STAFF QUARTERS in Maiduguri.
16. That to the best of my knowledge and belief, the Defendant was

deceived by con men to part with his money for a non-existent land as the defendant/counter claimant does not have an inch of land within NIPOST talk less of Plot 3 and 4.
17. That I have also looked at the alleged agreement/documents attached to the counter claim and wish to say that the said agreements has nothing to do with NIPOST LAND nor is the name of NIPOST recited anywhere in the said documents.
18. That I also know as a fact that as the Area Postal Manager, the defendant/counter claimant has never erected any structure on our land as I only saw him when he came out to fight the workers of the 2nd claimant herein when the 2nd claimant mobilized to its site within the NIPOST STAFF QUARTERS.

It is clear from all the above therefore that the land in dispute is known to both parties, the counter-claimant has thus discharged his first duty to show the identity of the land. See GBADAMOSI VS DAIRO (2007) 3NWLR (pt. 1021) 282, 300.

Did the counter-claimant adduce cogent evidence on the source of his title to the land in dispute?

The counter claimant, 1st Respondent positively adduced evidence that the said land, i.e., plots 3 and 4 were

allotted to him in 2009 after paying N10,000,000 in the presence of witnesses. He tendered necessary document in respect thereof. See Exhibits DW1 A-F.

The counter-claimant also adduced evidence of erection of concrete blocks thereon.

The claimants on one side, as a plaintiff has a duty to prove their claim. They did not positively identify the land they claimed in their statement of claim. They also could not connect their claim to the land in dispute. In a situation like this when Nigeria Postal Service was claiming a piece of land described as NIPOST STAFF QUARTERS OLD GRA MAIDUGURI BORNO STATE which hitherto was not occupied, a dispute survey plan ought to have been filed and tendered for a precise description of the land subject matter of their claim. The site plan attached to Exhibit B PW1c does not show any connection to the land subject matter of the counter claim.
As things are, the counter claimant has been in possession of the land subject matter of the counter claim since 2009. On the other hand, the negotiation and transaction leading to the purported lease of the subject matter of the claimants claim commenced in 2014.

According to DW1 the size of each of the plots allocated to the counter claimant is 28 metres by 36 metres. That of the claimants according pW1 is 3,500m2 – much more bigger than the one claimed by the counter claimant. Does it encompass the land claimed by the counter claimant? Is it a portion of it or does it encroach on a portion of the land allocated do the claimant?
These questions remain unanswered. It is the duty of the claimants to answer them. It is their duty to prove their case. It is their duty to prove the identity of the land with precision. This they have failed to do. See ADELUSOLA VS AKINDE (SUPRA) and a host of other cases earlier cited in this judgment.

Besides I also agree with the learned trial judge that the two parties having traced their source or root to the Federal Government of Nigeria the first to acquire the land should be regarded as the one with the better title. See DANTSOHO VS MOHAMMED (2003) 6NWLR pt. 817 p. 457; ATANDA VS AJANI (1989) 3 NWLR (PART 111) 511; ASHIRU VS OLUKOYA (2006) 11 NWLR PART 990 p. 1.
I resolve this issue in favour of the 1st respondent in the circumstance.

ISSUE TWO
Whether the appellants proved their case on the balance of probability to entitle them to judgment.

In view of the resolution of issue one and the finding that the appellants failed in positively identifying the area of land in dispute. I resolve this issue in favour of the respondents. The failure of a claimant for declaration of title to land to positively and precisely identify the land, he is claiming is a fatal and terminal affliction. It brings his claim to an abrupt and disastrous end. See ADELUSOLA VS AKINDE (SUPRA).

ISSUE THREE
Whether the trial judge descended into the arena, made the case for the parties and the end made findings that are perverse.

The grouse of the appellants under this issue is that the trial Court introduced the defence of acquiescence which the parties did not plead. Again the learned trial judge according to the appellants made case for the parties by introducing the issue of equity and priority of title which the parties also did not plead.

The duty of a trial judge in the evaluation of evidence has been explained in a plethora of authorities. Indeed the duty of a trial judge is circumscribed by the rules of

pleadings. This is because the trial judge cannot rely on unpleaded facts. Such facts would go to no issue.
Besides this, the duty of the trial Court to evaluate evidence was explained by ONNOGHEN JSC (as he then was) in AYUYA & ORS VS YONRIN & ORS (2011) 10 NWLR pt. 1254 p. 135 thus:
In any event, it is settled law that it is the primary duty of the trial Court to evaluate the evidence produced by the contending parties in support of their contentions before arriving at its decision one way or the other. It does so by putting the totality of the acceptable testimony adduced by both parties on an imaginary scale with the evidence of the plaintiff on one side while that of the defendant is put on the other side. The Court then weighs them together to see which is AYUYA & ORS V. YONRIN & ORS heavier, not by the number of witnesses called by each party but by the quality or probative value of the testimony of those witnesses – See Sha & Anor v. Kwan (2000) 8 NWLR (pt. 670) 685.
When however, the learned trial judge draws wrong inference from the evidence before it. The resultant finding is regarded as perverse. See OLANIYAN VS FATOKI (2014) ALL FWLR PART 717.

This is not the case in this appeal. I have gone through the pleadings and the abundant evidence before the lower Court. There is abundant evidence to support the findings of the lower Court.

I find the reasoning and conclusion of the learned trial judge right and I am unable to trace any element of miscarriage of justice in the decision.
I resolve this issue also in favour of the Respondents.
This appeal lacks merit. It is accordingly dismissed.

I affirm the decision of the High Courts of Justice in Suit No BOHC/MG/CV/40/15 delivered on 31st November, 2017.
I award N300,000 cost in favour of the 1st Respondents.

JUMMAI HANNATU SANKEY, J.C.A.: I had the advantage to read in draft the judgment just delivered by my learned brother, TUNDE O. AWOTOYE, J.C.A.

My learned brother has elaborately dealt with all the issues generated in the Appeal.

I am in agreement with his reasoning and conclusion dismissing the Appeal. I too dismiss the Appeal for the same reasons.

I abide by the consequential Orders made in the lead Judgment, inclusive of the Order as to costs.

EBIOWEI TOBI, J.C.A.: My learned brother, TUNDE O. AWOTOYE, J.C.A. afforded me the opportunity to read in draft the lead judgment just delivered. I also affirm the decision of the trial judge and dismiss the appeal as lacking in merit. In agreeing with the lead judgment of my learned brother, I also abide by the order of cost awarded.

Appearances:

Bitrus For Appellant(s)

M. Kanto – for 1st and 2nd Respondents For Respondent(s)