PASTOR JOSHUA TUGGA NORNOR & ANOR v. MR. YAKUBU N. GIWA (2019)

PASTOR JOSHUA TUGGA NORNOR & ANOR v. MR. YAKUBU N. GIWA

(2019)LCN/13093(CA)

In The Court of Appeal of Nigeria

On Friday, the 12th day of April, 2019

CA/YL/80/2018

JUSTICES

OYEBISI FOLAYEMI OMOLEYE Justice of The Court of Appeal of Nigeria

JAMES SHEHU ABIRIYI Justice of The Court of Appeal of Nigeria

SAIDU TANKO HUSSAINI Justice of The Court of Appeal of Nigeria

Between

1. PASTOR JOSHUA TUGGA NORNOR
2. REGISTERED TRUSTEES OF EVANGELICAL CHURCH WINNING ALL (ECWA) Appellant(s)

AND

MR. YAKUBU N. GIWA
(for himself and on behalf of Nuhu Giwa family) Respondent(s)

RATIO

WHETHER OR NOT A CLAIMANT MUST SUCCEED ON THE STRENGHT OF HIS OWN CASE IN AN ACTION FOR DECLARATION OF TITLE

WHETHER OR NOT PRODUCTION OF DOCUMENTS OF TITLE IS A METHOD TO ESTABLISH HIS CASE FOR TITLE

The production of documents of title is one method a claimant can utilize to establish his case for title but it is by no means conclusive evidence of title. Being only prima facie evidence of title, the Courts can inquire into the validity of such documents and ask certain relevant question such as:
(a) Whether the document is genuine and valid (b) whether the document has been executed stamped or registered (c) whether the grantor has the capacity and authority to make the grant (d) whether the grantor is the rightful owner of the property he purported to grant and (e) whether it has the effect claimed by the holder of the instrument. See Nze v. Onyeachugwo (2013) LPELR-20678 (CA); Olukpo v. Jahu (2012) 7 NWLR (Pt. 1299) 357, 377;Ogunleye v. Oni (1990) 2 NWLR (Pt. 135) 745. Where a document of title or certificate of occupancy was not legitimately issued or acquired such document can be set aside in favour of that person whose interest over the land in dispute has not been extinguished. See Ilona v. Idakwo (2003) 11 NWLR (Pt. 830) 53. PER HUSSAINI, J.C.A.

THE REASON A GOVERNOR CAN REVOKE ANY INTEREST IN LAND

The law in any case is settled that the only reason which make it possible for the governor to revoke any interest in land including deemed grants under Section 34 and 36 of the Land Use Act is ?for overriding public interest? under Section 28 and 51 of the Land Use Act. Section 51 of the Land Use Act set out in extenso acts that constitute ?Public Purposes?. In Wuyah v. Jama?ah Local Government Kafanchan (2011) LPELR(9078) (CA), it was held that a deemed right could only be legitimately revoked for overriding public interest or purposes pursuant to Section 51 of the Land Use Act. PER HUSSAINI, J.C.A.

SAIDU TANKO HUSSAINI, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of Taraba State sitting in Takum and delivered on 28th November, 2017 vide Suit No. TRSJ/6/2014. The respondent was the plaintiff at the said High Court where he claimed all the reliefs set out of paragraph 18 of the statement of claim as at pages 4-7 of the record of appeal.

The claim was denied hence the defendants, now the appellants filed a defence and counter-claim. Appellants defence and counter claim is at pages 89-101 of the record of appeal. In response to the counter-claim, the respondent filed a defence to the counter claim. Issues having thus been joined through pleadings, trial commenced at that Court with evidence of witnesses.

Evidence elicited of the trial Court for the respondent as plaintiff came through 2 (two) witnesses called by him. 2 (Two documents were tendered, admitted in support of the case for the respondent. The appellants on their part called evidence of 4 (four) witnesses. One Mohammed Buba from the Bureau of Lands and Survey, Governor?s Office, Jalingo appeared on subpoena and

submitted to the Court a number of document at the trial Court, at the close of evidence embarked on inspection or visit to the locus quo.

FACTS OF THE CASE
The respondent had sought for an Order of Declaration that he is entitled to a right of occupancy over the piece of land lying and situate at Takum with an area of 3/62m2 said to be the subject of encroachment by the appellants. From the facts pleaded and evidence adduced, respondents claim to the land in dispute is through his mother whom he said acquired a large expanse of land, and put same to use through farming. His mother also planted Economic trees on the land.

Sometimes in the year 1991 2 (two) gentlemen called on their mother and requested for a piece of land to build a church hall. The family after deliberating on the issue agreed to allocate portion of their mothers land to the church. The land allocated did not include the one in dispute. The respondent and his siblings continued to manage their mother?s landed property even after her death.

In the year 2008, the respondent or some of his siblings noticed some beacons planted by the appellants and quickly

invited their attention to this development but the appellants ignored same hence the resort to law suit when the appellant?s commenced development on the portion of land not allocated to them.

For the appellants, the land now in dispute did not form part of the respondent?s farm land rather the land forms part of appellant?s church land measuring 6008m2, now under the control of the resident pastor, the 1st appellant. The appellant?s contend that the land in dispute was granted to the church, (the 2nd appellant) by the then Gongola State Government, then the owners of the land hence it is not correct to say that respondent?s mother, Rhoda Nuhu founded or acquired the land in dispute as alleged by the Respondent. Appellants denied the suggestion that they have ever approached respondent?s mother to request for any piece of land to build a church hall, rather the appellant acquired their church land sometime in 1990-1991 through the Letter of Grant issued by the Gongola State Government hence the counter-claim by the appellants. The appellant?s denied the receipt of any letter written by Mr. Philmone Nuhu Giwa,

Respondent?s senior brother alerting them of the consequences of their illegal and unauthorized encroachment on the land, now in dispute.

In the judgment reserved and delivered on the 28th November, 2017, the Court below granted all the reliefs the respondent had sought except relief No. 6 in the claim.

The appeal to this Court vide the Notice of appeal dated and filed on the 29th January, 2018 is sequel to this judgment and order handed out at that Court. The Notice of appeal contains 9 (Nine) grounds of appeal. (Record: Pages 642-652).

Parties on both sides have since filed and exchanged their briefs of argument upon the record of appeal being transmitted to this Court. By the brief of argument dated and filed on 23/10/2018, the appellant raised 4(four) Issues for determination of Court from 8 (eight) grounds contained on the Notice of appeal while abandoning Ground 2 in the Notice of appeal. The said Ground 2 abandoned is struck out without much ado. Reproduced hereunder are the 4 (four) issues distilled or formulated in the appellant?s brief of argument for determination thus:-

?ISSUE NUMBER ONE (1) (distilled from Ground 1)
1. Whether the Learned Trial Judge had jurisdiction to entertain the suit when by his pleadings and from the totality of the evidence led, the Plaintiff was not the proper party to have instituted and maintained the action?
ISSUE TWO (2) (distilled from Grounds 3, 4 and 9)
2. Whether the Court below was right when it held in its judgment in granting the reliefs of the Respondent that Respondent has proved his case by traditional evidence, ownership of land over sufficient length of time numerous and positive enough to warrant the inference of true ownership and possession of land adjacent and connected to the land in dispute and whether the said judgment is not perverse and liable to be set aside by this Honourable Court.
ISSUE NUMBER THREE (3) (distilled from Grounds 5, 6 and 7)
3. Whether the trial Court was right when it fault the procedure or method compensation was paid without the State Government Trust involving respondent?s deemed right of Occupancy.
ISSUES NUMBER FOUR (4) (distilled from Ground 8)
4. Whether the learned trial judge?s failure to consider specifically and

formerly pronounce on the Appellants? Counter-claim after considering and making his findings on the Respondent?s claim was wrong and a violation of the Appellants right to fair hearing which led to a miscarriage and failure of justice.?

This is the Respondent?s brief of argument filed by counsel on the 26/11/2018 but was deemed the 17th November, 2019 incorporated Respondent?s Notice of preliminary objection as well as arguments canvassed thereto in support. However, counsel for the Respondent whose duty it was to commence and argue the preliminary objection upon the appeal being mentioned was livid. He simply abandoned the preliminary objection, hence the same is struck out without much ado.

Relative to the appeal proper are three (3) Issues formulated in the Respondent?s brief of argument for determination thus:-
?(1) Whether the learned trial judge had jurisdiction to entertain the suit when by his pleadings and from the totality of evidence led, the plaintiff was not the proper party to have instituted and maintained the action? Ground(1).
?(2) Whether the respondent was entitled to the

judgment of the trial High Court to warrant this Honourable Court dismissing the appeal against same? Distilled from grounds 3, 4, 5, 6, 7 and 9.
(3) Whether the trial High Court ought to give judgment on the counter-claim of the appellant in the circumstance of the case before it? Distilled from ground 8.?

Parties through their counsel adopted their briefs of argument when the appeal came up for hearing on 17/1/2019. Learned counsel for the appellant in arguing the appeal urged us to allow the appeal and set aside the judgment delivered at the trial Court, dismiss the claim before it and grant the counter-claim of the appellant?s as defendants before that Court. Respondent, through his counsel has urged us to dismiss this appeal and affirm the decision of the trial Court.

After a careful consideration of all the issues, I find the three issues raised and identified in the respondent?s brief of argument very germane and I adopt same in addressing this appeal. The said 3 Issues again are reproduced hereunder:-
?(1) Whether the learned trial judge had jurisdiction to entertain the suit when by his pleadings

and from the totality of evidence led, the plaintiff was not the proper party to have instituted and maintained the action? Ground(1).
(2) Whether the respondent was entitled to the judgment of the trial High Court to warrant this Honourable Court dismissing the appeal against same? Distilled from grounds 3, 4, 5, 6, 7 and 9.
(3) Whether the trial High Court ought to give judgment on the counter-claim of the appellant in the circumstance of the case before it? Distilled from ground 8.?

Arguing Issue No. 1, the learned counsel for the appellant submitted that the respondent was not a competent person or party as can commence the action in a representative capacity as he did, given the fact that it was the respondent mother as alleged and not Nuhu Giwa, his father, that acquired or founded the land in dispute. He argued that action not having been commenced on the name of the Estate of Respondent?s mother, after a letter of Administration had been obtained in that regard, the suit or action commenced with a wrong plaintiff was incompetent hence the Court below ought not to have assumed jurisdiction in that regard. He relied on

the decision in Bakare v. Ajose-Adeogun (2014) 5 NWLR (Pt. 1403) 320.

He further submitted on Issue No. 2, which is on the question whether the respondent was entitled to judgment at the trial Court to render this current appeal dismissible, that the respondent having failed to discharge the onus on him to prove his case it was wrong of the trial Court to hold that the respondent proved his case by three(3) of the five (5) methods known for establishing title to land. He argued that the alleged evidence of traditional history of the founding of the land in dispute relied upon by the respondent and accepted by the trial Court can hardly be regarded as traditional history evidence when the same was just being too recent. Hence the trial Court was in grave error to hold as such in reference to the evidence of PW1 and PW2 on record, he relied on several authorities namely:Lebile v. R.T.C.S.C (2003) 2 NWLR (Pt. 804) 399, 419; Maikanti & Ors. v. 7 Up Bottling Coy. Plc. (2013) LPELR-20297 (CA) 34-35; Archibong v. Ita (2004) NLWR (Pt. 858) 590; Fayemi v. Awe (2009) 15 NWLR (Pt. 1164) 315. It was similarly argued that there is on evidence of long

possession on the part of the respondent notwithstanding that the economic trees standing on the land were planted by the respondent just like the storey building on the land adjacent to the land in dispute was built by him. He however, argued stating that the land in dispute is in fact part of the land acquired by the church from the Ministry of Lands and Survey of the then Gongola State Government and for which compensation was paid to respondent?s father, Nuhu Giwa. Learned appellant?s counsel further argued that the respondent had also not proved title through ownership of the adjacent land in circumstances as would suggest the inference that he also owned the land in dispute. In absence of any such oral or documentary evidence being led, the respondent also failed to prove his ownership of the land in dispute.

On the issue of compensation made or paid in respect of the land in dispute, learned counsel faulted the finding made at the Court below stating that compensation paid to plaintiffs father, Nuhu Giwa, was rightly made to him as the father of the family.

Arguing issue No. 3, that is, the failure by the trial Court to

consider the C/C of the appellant, we were urged to hold that the Court below was in error. It was argued that the counter-claim being a separate, independent and distinct claim or action, it deserved to be considered as a distinct action or suit to which a separate judgment is to be given, but the trial Court failed to. We were urged to step into the shoes of the lower Court and evaluate and make findings on the documents tendered and admitted in evidence in support of the counter-claim. We were urged to allow this appeal also on this account. The decision in Oroja & Ors. v. Adeniyi (2017) LPELR-41985 (SC) was cited and relied on.

Learned counsel for the respondent while dismissing those submissions, argued that the land now in dispute founded by the respondent?s mother, was not originally a family land but land vested in the respondent?s mother while she was still alive. The fact of her death did not remove from her the status as founder of her land, including the one in dispute. The present respondent, it was argued being the person who looks after the property left by his mother has the capacity to maintain the action as he did. We

were referred toKolade v. Ogundokun (2017) 18 NWLR (Pt. 1596) 152, 165-166. To the learned counsel, the decision in Bakare v. Ajose-Adeogun (2014) 5 NWLR (Pt. 1403) 320 was not applicable.

In response to the Issue or question whether the respondent proved his case at the trial, learned counsel argued that the trial Court was right when it held that the respondent had proved his case by 3 out of the 5 methods or means the law has recognized for establishing of title or ownership of land that is to say, plaintiff indeed proved his case by way of:-
?(1) Traditional evidence
(2) Evidence of acts of ownership
(3) Proof of ownership of land adjacent to the land in dispute we were urged to endorse the finding of the trial court and to so hold.”

Issue No. 3 raises to the question whether it is necessary for the trial to write judgment or make pronouncements in circumstances where a counter-claim was maintained in a suit. The respondent or his counsel has submitted that a separate judgment was not necessary in all cases. Learned Respondent?s counsel made attempts to distinguish the case of Oroja & Ors. v. Adeniyi

(2017) 6 NWLR (Pt. 1560) 138, 151-152 from this case on appeal. He argued that Oroja?s case (supra) being a decision based on the Civil Procedure Rules of Lagos State, it is not an authority in respect to a counter-claim brought under Order 23 Rule 2 of the High Court of Taraba State. He argued that unless a counter-claim was filed separately from the main claim, there will be no need for a separate judgment. To the learned respondent?s counsel, once the main claim succeeds there is nothing left to consider in the counter-claim. He referred us to Sub-rule 3 of Order 23 Rule 2 of the High Court Rules, of Taraba State.
I will in this exercise endeavor to address the 3 issues above in the order they were argued by counsel.

First, on the question whether there is proper plaintiff before the trial Court to render the suit or action competent, we should I think take another look at the statement of claim particularly at paragraphs 5, 6, 7, 8, 9, 11, 12, 13 and 16 thereof as well as the evidence of PW1 and PW2. By those paragraphs of the statement of claim it is clear to me that ever since the land was founded, no decision taken and

affecting the land founded by respondent?s mother was taken without the actual participation or involvement of the rest of the family. Indeed the decision taken sometimes in 1991 to make a grant of the portion of respondent?s mother?s land to the appellant had the approval of the family members. In this regard, action or suit instituted by any member of that family to protect or preserve family interest, in this case, family interest against a common aggressor over the land in dispute, is proper, as a representative action. See: Oregbade v. S.J.M Onififu (1962) 1 ALL NCR 62; Adeleke v. Anike (2006) 16 NWLR (Pt. 1004) 131, 163; Mozie v. Mbamalu (2006) 12 NWLR (Pt. 1003) 466, 531-532.
Therefore looking at the writ of summons and statement of claim, and in particular the cause of action endorsed in the writ, the plaintiff or respondent herein and suing in a representative capacity, is a proper party before the Court and the action or suit is competent and the trial Court rightly assumed jurisdiction. Bakare v. Ajose-Adeogun (2014) 5 NWLR (Pt. 1403) 320, Issue No. 1 accordingly, is resolved against the appellants and in favour of the respondent.

Did the respondent prove his case at the trial Court and was the Court in order when it granted the claim of the respondent as plaintiff? Those are some of the questions covered by Issue No. 2 earmarked for determination in this appeal. In a claim for declaration of title to land the burden duly lies with the claimant to prove his case by leading evidence of such quality to entitle him to the declaration sought. He can only succeed on the strength of his own case and not on the weakness of defence case. See Kodiniye v. Odu (1935) WACA336; Akinola v. Olusi (1962) 1 SCNLR 362; Mogaji v. Cadbury Nig Ltd (1985) 2 NWLR (Pt. 7) 393. In his quest to establish his claim, the plaintiff must first of all identify the land claimed by him in his suit with definite certainty and clarity as to the area of land his claim relates its exact boundaries and its extent as no Court would be obliged to grant title to an unidentified land. There must be credible evidence describing and identifying the land with certainty. See: Ogedengbe v. Balogun (2007) 9 NWLR (Pt. 1039) 340; Adelusola v. Akinde (2004) 12 NWLR (Pt. 887) 295;Okochi v. Animkwoi (2003) 18 NWLR

(Pt. 851) 1.
However, that burden does not arise where the identity of the land in dispute was never an issue. Issue of identity of land only arise where the defendant raises it in his statement of defence. SeeDada v. Dosunmu (2006) 9 SC. The identity of the land in dispute is not in dispute in this case on appeal.

The next stage after the claimant has successfully identified the land the claim relates is for him to lead evidence of title or ownership of the land he claims in line with the recognized 5 methods for establishing ownership or title to land as held in Idundun v. Okumagba (1976) 9-10 SC 227.

The case for the respondent at the trial Court was built around the evidence of PW1 and PW2 both of whom stated in their evidence in chief (statement under oath) that the family did not only cultivate the land but planted economic tress on the land. They went further to state in their evidence that they also own the land lying and adjacent to the land in dispute. PW2 further claimed that his storey building was built on the land lying adjacent to the land in dispute, to the north. The respondent, in the statement of claim filed by him

had averred to facts which PW1 and PW2 have referred to in their evidence and which the defence/appellant did not controvert it rather confirmed same, as for instance:
(i) facts to the effect that the respondent own the land adjacent and lying to the north of the land in dispute.
(ii) facts to the effect that the PW2 own a storey building lying to the north and adjacent to the land in dispute.
(iii) the fact that plaintiff?s family own the land lying east of the land in dispute on which exist some economic trees over which plaintiff?s father Nuhu Giwa, was paid compensation.

A claimant can only succeed on the strength of his own case but nothing stop him from taking advantage of any fact or evidence of defence which tend to support or lend credence to his own case. See Kodilinye v. Odu (supra); Akinola v. Oluwo (1962); Mogaji v. Cadbury (1985) 2 NWLR (Pt. 7) 393. Evidence of defence witness did not only support the plaintiff on the fact that the land in dispute lie adjacent to plaintiffs land to the North and East, defendants unequivocally stated that compensation was paid to Plaintiff?s father, Nuhu Giwa, in respect of

the land or the economic trees on the land in dispute. Refer to evidence of DW2 and DW3 at pages 399-402 of the record and Exhibits D17 and D18 among others.

Relying therefore on decision in Idundun v. Okumagba (supra), it is my view that the respondent as the plaintiff at the trial Court led evidence to prove the fact that they are not only the owners of the land lying to the north and east of the land adjacent to the land in dispute but they are indeed the owners of the land in dispute, over which they have exercised control by cultivating same and also planted economic trees thereon. Nuhu Giwa, according to the appellants who is the recipient of the compensatory awards made by the appellants, over the land in dispute, is not just anybody. He is father to Mr. Yakubu N. Giwa, the respondent in this appeal case and the plaintiff or claimant at the trial Court hence, Issue No. 2 is resolved in favour of the respondent who by the evidence on the printed record of appeal, has indeed proved his entitlement to the land in dispute.

Issue No. 3 relate to the counter-claim of the appellant and the question whether the trial Court was right to have

refused to consider and make specific findings on the counter-claim of the appellants.

The Taraba State High Court (civil procedure) Rules 2011 make provisions for counter-claim under Order 23 Rule 2 thus:
?(1) Subject to Rule 2(2), a defendant in any action who alleges that he has any claim or is entitled to any relief or remedy against the plaintiff in the action in respect of any matter (whenever and however arising), may, instead of bringing a separate action, make a counter-claim in respect of that matter, and where he does so; he shall add the counter-claim to his defence.
(2) Rule 1 shall apply in relation to a counter-claim were a separate action and as if the person making the counter-claim were plaintiff and the person against whom it is made a defendant.
(3) A counter-claim may be proceeded with notwithstanding that judgment is given for the plaintiff in his action or that the action is stayed, discontinued or dismissed.?
Order 23 Rule 2(2) specifically provide that a counter-claim should be taken or considered as a separate action and by that, it means that the Court where the counter-claim was made or

laid and evidence taken in relation thereto, is obligated to consider same and make necessary findings in a considered judgment as such, as a separate or independent action, distinct from the main claim, See Oroja v. Adeniyi & Ors (2017) LPELR-41985 (SC). Failure of the trial Court to consider and make pronouncements on the counter-claim in a judgment will lead to a breach of the law and the rules of Court. Notwithstanding the use of the word ?may? under Order 23 Rule 2(3) of Taraba State High Court the provision, should I think be construed or interpreted as mandatory, where the trial Court is expected to proceed with hearing to conclusion (including judgment), the counter-claim of the defendant to a suit, hence the finding made at the Court below at pages 636 lines 11-18 to the effect that a counter-claim is only considered where or when the main claim fails, is wrong in law. The fate of a counter-claim does not depend upon the outcome of plaintiffs claim. If the plaintiff?s claim is dismissed, stayed, or discontinued, the counter-claim may nevertheless be proceeded with. See Oroja v. Adeniyi & Ors. (2017) LPELR-41985 (SC).

It has been argued in favour of the appellant that had the trial Court considered the counter-claim of the appellants especially as it relates to compensation said to have been made or paid to respondent?s family, the Court below would have entered judgment for the appellants in respect of the counter-claim. We were urged to step in and evaluate evidence on the printed record, especially documents tendered and admitted as exhibits before the trial Court and arrive at the right conclusion in favour of the appellants.

I believe this Court can step into the shoes of the trial Court to re-evaluate evidence on the printed record especially as it relates to documents or exhibits already tendered by the appellants in pursuit of their counter-claim.

The power bestowed on this Court pursuant to Section 15 of the Court of Appeal Act, 2004 is very instructive. In the counter-claim of the appellants are several reliefs, including the relief for an order granting title over that piece of land with an area of 6008m2 covered by Right of Occupancy No. GS/11105 granted to the 2nd defendant/counter-claimant?s church, referred to as ECWA

Bishara No. 1, Takum together with all the Economic trees and Buildings found thereof and for a declaration that since late Mr. Giwa (father of the plaintiff) received payment of compensation for his mature and immature Economic trees on the land granted to the 2nd defendant/claimant vide the R. of O No. GS/11105, part of which is now in dispute with an area of 3162m2, the plaintiff, that is, the respondent hereby, has no right against the defendants/appellants over the same land. Refer to paragraph 17 of the counter-claim at page 100-101 of the record of appeal.

The area or the size of the land identified by parties as the land in dispute covers an area of 3162m2 lying and same is situate in Takum as per the description at paragraph 4 of the counter-claim. In the Evidence led in support of the counter-claim, 3 (three) persons testified as witnesses they are: DW2, DW3 and DW4 while DW1 was invited to produce certain documents which he did hence the Court admitted those documents and marked them as such. The defendants/counter-claimants undoubtedly have relied on those documents, particularly the documents marked as Exhibits D2, D8, D20, D17 and D18.

The case presented by the counter-claimants is that the land presently in dispute is part of the

greater land allocated to it by the then Government of Gongola State unto whom the land was vested and same reserved for public use, as Civic Centre. However, upon the request made by them, vide Exhibit D4, a grant was made in their favour and this grant includes the portion of land in dispute. Upon the grant made, the appellants took possession and commenced developments. What is not clear to me though and which has not been explained to may satisfaction is why it has to be the appellants, in particular, the 2nd appellant that was to pay compensation for the land which otherwise is vested in the then Gongola State Government and was earmarked for use as a Civic Center? The appellants have contended that compensation was paid to one Nuhu Giwa for the site acquired for the building of Church Hall in Takum. If this statement is correct then I cannot help but ask the question why it has to be the appellants who had so vigorously denied respondent?s claim to ownership of the land in dispute that will now make a turn around to pay compensation as alleged by them contrary to the position held or taken by the respondent and witnesses called by him that the land

in dispute indeed belong to him, the respondent having stepped into the shoes of his mother after her demise.

From my discourse as earlier pointed out, in this exercise, I am one with the respondent that he has proved his claim and as clearly pointed out also, the counter-claim should fail and same ought to be dismissed.

appellants as instrument of grant is nothing but null and void and same cannot be acted upon as conveying any on the appellants and in particular the 2nd appellant.

In effect, I affirm the Judgment of the Trial High Court and dismiss this appeal with costs assessed in the sum of N100,000.00 against the appellants in favour of the respondent.
That is the order and Judgment.

OYEBISI FOLAYEMI OMOLEYE, J.C.A.: I had the opportunity to read the draft of the leading judgment, in this appeal, just rendered by my learned Brother Saidu Tanko Husaini, JCA.

I agree that the appeal is devoid of merit and dismiss it accordingly. I equally abide by all the consequential orders made in the said leading judgment including that of costs.

JAMES SHEHU ABIRIYI, J.C.A.: I read in advance in draft the lead judgment just delivered by my learned brother, Saidu Tanko Husaini JCA and I am in agreement that the appeal lacks merit and should be dismissed.
I too dismiss the appeal and affirm the judgment of the Court below.
?I abide by all other orders including the order as to costs.

Appearances:

S.M. Tafi Warwar, Esq.For Appellant(s)

N.Y. Pyikison, Esq.For Respondent(s)

Appearances

S.M. Tafi Warwar, Esq.For Appellant

AND

N.Y. Pyikison, Esq.For Respondent