REGISTERED TRUSTEES OF CHRIST CHERUBIM AND SERAPHIM CHURCH MOVEMENT JOS v. ONIFADE & ORS (2020)

REGISTERED TRUSTEES OF CHRIST CHERUBIM AND SERAPHIM CHURCH MOVEMENT JOS v. ONIFADE & ORS

(2020)LCN/15395(CA)

In The Court Of Appeal

(JOS JUDICIAL DIVISION)

On Friday, October 16, 2020

CA/J/226/2017

RATIO

TITLE TO LAND: WHETHER THE CASE OF THE PLAINTIFF MAY BE DISMISSED FOR FAILURE TO THE AREA OF LAND CLAIMED

It is the law that proof of a piece of land in dispute is of utmost importance if any success is to be attained in any land suit. A Plaintiff has cardinal duty to show with certainty the area of land claimed and to which he wants the order of the Court. Failure to do so, the case of the Plaintiff will be dismissed. This is what is described in the latin MAXIM “ID CERTUM EST QUOD CERTUM REDDI POTEST; SED IT MAGIS CERTUM EST QOD DE SEMET IPSO EST CERTUM” meaning that is certain which can be certain” see the cases ofELIAS V OMO-BARE (1982) 5 SC. 25, AREMU V ADETORO (2007) SC (Pt. 11) 1. PER MUDASHIRU NASIRU ONIYANGI, J.C.A.

TITLE TO LAND: REQUIRMENTS OF PROOF OF OWNERSHIP OF LAND

It is the elementary principle of law that in civil cases, the onus lies on the Plaintiff to satisfy the Court that he is entitled on the evidence tendered by him to the remedy claimed. That explains the stand of the law that the Plaintiff must rely on the strength of his case and not on the weakness of the case of the Defendant. See ABIMBOLA V ABATAN (2001) 4 SC (PT. 1) 64. Put in another way in an action for declaration of title, the plaintiff must succeed on the strength of his case and not on the weakness of the case of the defendant. The plaintiff can only do this by satisfying any of the five ways of proof of title to land. See the locus classico on the foregoing: IDUNDUN V OKUMAGBA (1976) 9-10 SC 227 MELIFONWU AND ORS V EGBUJI AND ORS (1982) 9 SC 175, OGOLO V FUBARA (2003) 5 SC 141. It is also trite that the state of the pleadings will materially determine the party on who the burden of proof lies. See ODOFIN V ONI (2001) 1 SC (Pt.1) 129, OLAIYA V OLAIYA (2002) 5 SC (Pt. 1) 122, VINCENT U. EGHAREVBA V DR. OROBOR OSAGIE (2009) 12 SC (Pt 111) 123.

INTERPRETATION OF STATUTE: RULES OF CONSTRUING A STATUTE: LITERAL MEANING

It is trite that the general rule for construing a statute as in the foregoing provision has been stated by Court in a chain of cases. The rule is where the words of a statute are clear the Court shall give effect to their literal meaning. Where the literal meaning may result in ambiguity or injustice then the Court may seek internal aid within the body of the statute itself or external aid from statutes in pari materia in order to resolve the ambiguity or avoid doing injustice. See MOBIL OIL (NIGERIA) LIMITED V FEDERAL BOARD OF INLAND REVENUE (1977) 3 SC 53 at 74. It is also trite and an accepted cannon interpretation of statute that any law which seeks to deprive one of his vested proprietary rights has to be construed strictly against the law maker. In such case the provisions of the statute are read dispassionately and effect is given to the spirit and intent of the legislation. See PEENOK INVESTMENTS LIMITED V HOTEL PRESIDENTIAL LTD (1982) 12 SC. 1 at pp 25-26. Bearing the foregoing in mind the key word of the provision of Section 3 of the Limitation Law of Plateau State 1988 relevant in my view is:
“No action shall be brought by any person to recover any land after the expiration of 10 (ten) years from the date on which the right of action accrued to him….“ PER MUDASHIRU NASIRU ONIYANGI, J.C.A.

Before Our Lordships:

Tani Yusuf Hassan Justice of the Court of Appeal

Mudashiru Nasiru Oniyangi Justice of the Court of Appeal

Boloukuromo Moses Ugo Justice of the Court of Appeal

Between

THE REGISTERED TRUSTEES OF CHRIST CHERUBIM AND SERAPHIM CHURCH MOVEMENT JOS APPELANT(S)

And

(1) ALHAJI SIKIRU ONIFADE (CHAIRMAN) (2) ALHAJI GANIYU ADEFEMI (V. CHAIRMAN) (3) KAZEEM ABDULRAHMAN (SECRETARY) (4) NAWARUDEEN SOCIETY OF NIGERIA (JOS BRANCH) RESPONDENT(S)

MUDASHIRU NASIRU ONIYANGI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Justice Plateau State in suit No. PLD/J201/2008 sitting in Jos and delivered by Hon. Justice R. K. Sha on the 9th day of December, 2016 whereby the claim of the Plaintiff to a piece of land lying and situate at Kwararafa/Patrick Dogotry Street Plot E25/26 covered by Plateau State Government Certificate of Occupancy No. BP 2396 against the Defendant was dismissed.

By the amended statement of claim filed by the Plaintiff, (the Appellant) against the Defendants who are Respondents in this appeal and which can be found in pages 169-175 of the Record of Appeal, the Plaintiff claimed in paragraph 27 (See page 174) thus:
“27. WHEREFORE the Plaintiff claims from the Defendants the following:
(a) A declaration that the piece and/or parcel of land lying and situate at Kwararafa/Patrick Dokotry Street Plot E 25/26 covered by Plateau State Government Certificate of Occupancy No. BP. 2396 belongs to the Plaintiff.
(b) A declaration that the unauthorized act of trespass and encroachment of the Defendants upon the land of the Plaintiff by erecting building on same and thereby destroying Plaintiff’s Beacon bounding the said parcel of land. (Beacon PA 9607) by constructing a wall which extends inside the said parcel for land (sic) by 1.47 metres amounts to trespass to land.
(c) An Order of perpetual injunction restraining the Defendants whether by themselves, agents or privies from further acts of trespass on the said parcel of land.
(d) The sum of three Million Naira (N3,000,000.00) as General damages for trespass.
(e) Cost of this action.

The fact of the case, as can be gathered from the Record includes the following. The Plaintiff, a Registered Incorporated Church Organization under Incorporated Trustees Act and under the relevant laws of Nigeria aver that she is the original title holder of a Certificate of Occupancy No. 0654 issued by the then Jos Local Government Council as way back as 1973 covering 0.892 Acres of Land along Kwararafa/Patrick Dokotry Street Jos and that before 1973 she had exercised exclusive acts of ownership and possession on the said land by building her church within the precincts and premises of the land in issue without let or hindrance. It is the case of the Plaintiff that when Jos Local Government Council was later split into Jos North and Jos South Local Government Councils she applied for a Plateau State Government Certificate of Occupancy over the said parcel of land and was issued with Certificate of Occupancy No. BP 2396 on the 25th September, 1990 accompanied with the site plan. Sometimes in February 1998 the 4th Defendant (Nawarudeen Society of Nigeria Jos Branch) through her agents/principal officers entered and encroached into her land by building their clinic on part of the land. Not this alone, it is alleged that the Defendants proceeded to clear the bushes on part of the land to continue to claim and build on the land without the Plaintiff’s consent and authorization. The Plaintiff said three of her Senior members approached the labourers engaged by the Defendants on site on the 19th day of February, 1998 working and digging part of the Plaintiff’s land to stop work and leave the site, one Alhaji Mashood Omotara the then chairman of the 4th Defendant came and ordered the labourers to continue digging the Plaintiff’s land. The situation became escalated and about to turn into full scale fight and pandemonium when two of his members Sunday Akande and Tunji Obasooto reported the matter to the “C” Division Police State Jos. According to the Plaintiff, the Police intervened, stopped the labourers carried out investigation on the ownership of the land. In the end, the Plaintiff asserted that the Police declared them as owners of the parcel of land and that the Defendants encroached into the Plaintiff’s land. Because the Defendant were adamant, the Area Commander of the Police ordered the arrest of Alhaji Omotara and Segun Oshoba (now deceased) who are representatives of the 4th Defendant be arrested and charged to Court.

The foregoing gave birth to the suit by the Appellant against the Defendants wherein the Plaintiff’s claim against the Defendants the reliefs herein before reproduced.

Parties joined issues. The Plaintiff filed an Amended Statement of Claim of 27 paragraphs. In response the Defendants filed a joint Statement of Defence of 20 paragraphs. The Plaintiff also filed a Reply to the Defendants’ joint statement of defence. It has 12 paragraphs. The matter went into full trial and in the end the claim of the Plaintiff against the Defendants was dismissed by the trial Court. This did not go well with the Plaintiff and hence this appeal which is predicated upon her Notice of Appeal dated and filed on 30th day of January, 2017 (see pages 325 – 328 of the Record of Appeal). Therein are four grounds of appeal. The reliefs sought are as follows:
RELIEFS SOUGHT
(1) An Order allowing this appeal and setting aside the judgment of the High Court of justice in suit No. PLD/J210/2008 delivered on the 9th day of December, 2016.
(2) An order granting the Appellant’s claims in suit No. PLD/J201/2008.

Consequent upon the transmission of the Record of Appeal on the 21st day of June, 2017 and which was deemed as been properly compiled and transmitted on 23rd day of January, 2018 respective Counsel filed their brief of argument.

APPELLANT’S BRIEF OF ARGUMENT
The Appellant’s brief of argument is dated and filed on the 9th day of July, 2018 out of time. It was deemed vide the order of this Court granted on 1st day of November, 2018 as properly filed and served. Therein, the following issues are presented for the determination of the appeal.
(1) Whether the Plaintiff/Appellant’s case was statute barred when the acts of trespass the Plaintiff/Appellant complained of on the said piece of land was continuous in nature. (Ground one).
(2) Whether the evidence adduced by the Plaintiff/Appellant in the case was not sufficient to establish ownership of the land and to entitle the Plaintiff/Appellant to judgment in the case (Grounds two, three and four)

RESPONDENTS’ BRIEF OF ARGUMENT
The Respondents filed their brief of argument on the 17th day of May, 2019 out of time. Vide the order of this Court granted on the 21st day of May, 2019 the said Respondents’ brief of argument was deemed as properly filed on 21st day of May, 2019. Therein, the following issues are formulated for the determination of the appeal;
(1) Whether the Plaintiff’s/Appellant’s claim was not statute barred in view of the state of the pleadings before the lower Court?
(2) Whether from the state of the pleadings and the evidence led in support the Plaintiff/Appellant is entitled to judgment in this case.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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Respective Counsel adopted their brief of argument. I have read and compared the respective issues distilled by Counsel and in my humble view, the issues presented by Counsel are similar, same in content and substance. They are targeted toward achieving the same objective goals. Therefore, the issues formulated by the Appellant are hereby adopted for the determination of this appeal.

ISSUE ONE
Whether the Plaintiff/Appellant’s case was statute barred when the acts of trespass the Plaintiff/Appellant complained of on the said piece of land was continuous in nature. (Ground one).

The argument of the learned Counsel representing the Appellant on this issue is that by virtue of Section 3 of the Limitation Law of Plateau State, 1988, no action shall be brought by any person to recover any land after the expiration of ten years from the dated on which the right of action accrued to him, or if it first accrued to same person through whom he claims, to that person. He argued that the period of limitation in cases is determined by looking at the Writ of Summons and the Statement of Claim alleging when the wrong was committed which gave the Plaintiff a course of action by comparing the date with the date on which the Writ of Summons was filed. He referred to the case of EGBE V ADEFARASIN (1987) 1 NWLR (Pt. 47) 1 at 20, MOHAMMED V MILITARY ADMINISTRATOR OF PLATEAU STATE (2001) 16 NWLR (Pt. 740) 524; ABOYEJI V LATEJU (2012) 3 NWLR (Pt. 1288) 434 and NDIC V GOVERNING COUNCIL, ITF (2012) 9 NWLR (Pt. 1305) 252. Referring to paragraphs 9, 10, 11, 12 and 13 of the Plaintiff’s amended statement of claim, and the evidence before the Court, he contended that it is very clear that the Defendants entered the land sometimes in February, 1998 and continued to occupy, the land and remain on the land even up to the time this Suit was filed. He added that despite all efforts to stop the Respondents from erecting their clinic they still went ahead even despite the Police intervention. He submitted that the principle of the statute of limitation admits exceptions and that where there has been continuous damage, a fresh cause of action arises from time to time as often as damage is caused. He referred to the case of OBA J.A. AREMO II V S. F. ADEKANYE & 2 ORS (2004) 13 NWLR (Pt. 891) 57 52 @93 para. H.

He added that a cause of action will not abate or become time barred until the injury or damage which is of continuing nature completely stops or abates. He cited the case of JENKINS GIANE DUVIE GWEDE V INDEPENDENT NATIONAL ELECTORAL COMMISSION & ORS (2014) 18 NWLR (Pt. 1438) 56 at 116 to 117 paras. H-B. He contended that in an action for trespass on land where the trespasser remained on the land on the day the action was commenced, such an action cannot be said to be statute barred. Therefore since Defendant continued to remain on the land until the Defendant commenced the action, such action cannot be statute barred. He relied on the case of CHIEF SUNDAY ORIORIO & 14 ORS V CHIEF JOSEPH OSAIN & 2 ORS (2012) 16 NWLR (Pt. 1327) 560 at 583 Paras. B – D., ATTORNEY GENERAL OF RIVERS STATE V. ATTORNEY GENERAL BAYELSA STATE & ANOR (2013) 3 NWLR (Pt. 1340) 123 at 149 Paras. B-E. He urged the Court to resolve the issue in favour of the Appellant.

On behalf of the Respondents, argued after referring to the finding of the trial Court on page 320 of the record and paragraph 27 of the Amended Statement of Claim that the claim of the Appellant before the trial Court is for a declaration of title to land and damages for trespass for an alleged encroachment when the Defendants built a wall on the boundary of the Appellant’s land. He argued further that the alleged act of trespass and or encroachment was committed in February, 1989. The Appellant’s claim is that they have title to the land.

Further he relied on Section 3 of the Plateau State Limitation Law, 1988, and argued that in order to determine whether or not the action of the Appellant is statute barred, there is a need to consider the following;
(i) When did the cause of action leading to the litigation arose.
(ii) When did the Plaintiffs commenced his action.
He relied on the case of EGBE V ADEFARASIN (1987) 1 NWLR (Pt. 47) 47, 1 at 20 on how to determine cause of action. He argued that the learned trial judge had a clear misunderstanding of the case and he reviewed the evidence properly before coming to the irresistible conclusion that the action is statute barred. He added that it is clear that the cause of action arose in 1998. He contended that a cause of action means the factual basis or some factual situations, a combination of which makes the matter in litigation an enforceable right or an actionable right or an actionable wrong. He relied on THOMAS V OLUFOSOYE (1986) 1 NWLR (Pt.669) 682, JUKOK INTERNATIONAL LTD VS DIAMOND BANK (2016) 6 NWLR (Pt. 1507) 55 at 93, he submitted that by the testimony of PW1 at page 294 of the record, the Plaintiff/Appellant are aware that they ought to sue immediately the alleged encroachment and building took place on their land. That where the date and time of accrual of action is clearly stated in the Writ of Summons and the Statement of Claim there would be no need even to plead same to be able to raise the defence. He relied on OYEBANJI VS LAWANSON (2004) 13 NWLR (Pt. 889) 62 at 74, 75. He argued that Section 3 of the Plateau State Limitation Law is very clear in its provision and where a statute provides for the institution of action within a prescribed period, the action shall not be brought after the time prescribed by such statute. Action instituted after the period stipulated by the statute is totally barred as the right of the Plaintiff or the injured person to commence the action would have been extinguished by such law. He cited the following cases: AKWA IBOM STATE UNIVERSITY V IKPE (2016) 5 NWLR (Pt. 1504) 146 AT 164, N.R.M & F.C V JOHNSON (2019) 2 NWLR (Pt. 1656), 247 at 270. He finally submitted that the instance case did not fall within the recognized exception to the limitation statute viz cases of continuous wrong. The act in this case given rise to the cause of action is a completed act and the Plaintiffs/Appellants are aware of accrual of the cause of action in 1998 but chose to sue in 2008, after the expiration of the time limited for bringing action. He urged the Court to resolve the issue in favour of the Respondents.

In my humble view, the teething question in the light of the foregoing argument is whether or not the suit by the Appellant against the Respondents is statute barred having regard to Section 3 of the Plateau State Limitation Law, 1988. It reads thus:
“No action shall be brought by any person to recover any land after the expiration of 10 (ten) years from the date on which the right of action accrued to him or if it first accrued to same person through whom he claims to that persons.”

The foregoing provision is what should be interpreted in the light of the fact of this case leading to the institution of the suit by the Appellant. It is trite that the general rule for construing a statute as in the foregoing provision has been stated by Court in a chain of cases. The rule is where the words of a statute are clear the Court shall give effect to their literal meaning. Where the literal meaning may result in ambiguity or injustice then the Court may seek internal aid within the body of the statute itself or external aid from statutes in pari materia in order to resolve the ambiguity or avoid doing injustice. See MOBIL OIL (NIGERIA) LIMITED V FEDERAL BOARD OF INLAND REVENUE (1977) 3 SC 53 at 74. It is also trite and an accepted cannon interpretation of statute that any law which seeks to deprive one of his vested proprietary rights has to be construed strictly against the law maker. In such case the provisions of the statute are read dispassionately and effect is given to the spirit and intent of the legislation. See PEENOK INVESTMENTS LIMITED V HOTEL PRESIDENTIAL LTD (1982) 12 SC. 1 at pp 25-26. Bearing the foregoing in mind the key word of the provision of Section 3 of the Limitation Law of Plateau State 1988 relevant in my view is:
“No action shall be brought by any person to recover any land after the expiration of 10 (ten) years from the date on which the right of action accrued to him….“
By the foregoing, the law is clear and certain on the applicability of the provision. To my understanding, the provision will apply from the date on which the right of action accrued to the Plaintiff simplicita. Considering the fact of the case at hand and looking at the pleading of the Appellant before the trial Court which is not in dispute between parties and which can be found in paragraphs 9, 11 & 13 of the Amended Statement of Claim among others. For better understanding I reproduce the said paragraphs of the amended statement of claim of the Plaintiff/Appellant before the trial Court thus:
“Paragraph 9
The Plaintiff avers that sometime in February, 1998 the Defendants, society through her agents/principal officers entered/encroached into her land by building their clinic on part and parcel of the said land.
11. the Plaintiff aver that 3 of her senior members approached the labourers of the Defendant on site on the 19th February, 1998 working and digging part of the Plaintiff’s land which the Defendant had encroached upon to stop work and leave the site immediately.
13. The Plaintiff avers that Alhaji Omotara not only ordered that the labourers should continue digging the land but also order that if any of the members of the Plaintiff’s church tries to stop the work he should be beaten up.”
The foregoing in the main formed the bases of the Complaints of the Appellant to the Police, the local Government and eventually the Court. The Appellant also by those averments became aware of the alleged encroachment of part of their land precisely in February, 1998. They challenged the alleged trespasser on the 19th February, 1998. Cause of action is said to arise from circumstances containing different fact that give rise to a claim that can be enforced in a Court of Law, and which lead to the right to sue a person responsible for the existence of such circumstance. What I am saying is that there must be a wrongful act of a party which injured or given the complainant a reason to complain in a Court of law and seek for remedy. See LABODE V OTUBU (2001) 3 SC 15, A. G. FEDERATION V. A. G. ABIA STATE (2001) 7 SC (Pt. 1) 32, CAPITAL BANCORP LTD V SHELTER SAVINGS & LOAN LTD & ANOR (2007) 1 SC (Pt. 11) 1 at 12, IBRAHIM V OSIM (1988) 1 NSCC 184 at 194. A careful study of the fact of this case at hand clearly shows that the cause of action arose when in February, 1998 the Appellant saw the Defendants agent digging part of their land. That is the act they described in paragraph 9 of their Amended Statement of Claim. They did not remain silent but they on the 19/2/1998 went and challenged the agents of the Defendants when they saw them committing the alleged encroachment and or trespass. Not that alone they also aver in paragraph 13 that one Alhaji Omatara directed the labourers doing the digging to beat up whoever attempt to stop them from working. In addition Plaintiff complained to the Police. In my humble but candid view, the learned trial judge was right in concluding that the cause of action in the case at hand arose in February, 1998. That again suggest that the arithmetical calculation done to arrive at 10 years and two months from February, 1998 to May, 2008 when the Plaintiff instituted his action is also correct. The foregoing therefore create the distinguishing fact from the conception of the Appellant of case of CHIEF SUNDAY ORIORIO & 14 ORS V CHIEF JOSEPH OSAIN & 2 ORS (2012) 16 NWLR (Pt. 1327) 560 at 583 and that ofALHAJI TUKUR MOHAMMED V ALHAJI ABUBAKAR ABDULKADIR & 2 ORS (2008) 4 NWLR (Pt. 1076) 111 at 156. The cause of action in the case at hand is completed by the scene of February, 1998 and precisely on 19/2/1998. The right to sue start to run from that February, 1998 and not when the Appellant initiated his suit in 2008. Therefore, I find no reason to fault the finding and conclusion of the trial Court on this issue. I also concur that the action by the Appellant at the lower Court is statute barred. I therefore resolve this issue against the Appellants.

ISSUE TWO
Whether the evidence adduced by the Plaintiff/Appellant in the case was not sufficient to establish ownership of the land and to entitle the Plaintiff/Appellant to judgment in the case (Grounds two, three and four)

According to the learned Counsel to the Appellant and if I may quote him verbatim “It appears that the learned trial judge dismissed the Plaintiff/Appellant case on the ground that the Plaintiff failed to identity the portion of the land she is claiming and that he did not tie the evidence of any of the witnesses to the titled documents that are contained in the file tendered. I refer my Lords to pages 321 to 323 of the records. I most respectively submit that the learned trial judge was wrong in his finding as stated above. From the evidence before the Court, there is no dispute as to the identity of the land in question or the area encroached upon. The fact that the land is called different names by the Plaintiff and the Defendants does not matter.”

In the light of the foregoing, he submitted that in action for declaration of title to land, the question of the identity of land in dispute will only arise where the Defendant raises it in his Statement of Defence or in his testimony. He referred to the case of MR. TAIWO ILARO OGUN V MR MOLIKI AKINYELU & 2 ORS (2004) 18 NWLR (Pt. 905) 362 at 385 paras. A – B. He added that there is nowhere in the Statement of Defence and the evidence before the Court where the Defendants stated that the land being claimed by the Plaintiff is different and distinct from the land the Defendant entered into and built a clinic. He argued that identity of land in dispute is not to be determined by the names both parties decide to call the land but by production of credible evidence as names do not change the relative position of any land. He relied on the case of MR. LANRE ODUBOTE V MRS. E. OLAYEMI OKAFOR (2012) 11 NWLR (Pt. 1312) 419 at 434 paras. E-G. It is his contention that it does not matter that the Plaintiff called the land Plot E25/26 KWARARAFA/PATRICK DOTOTRY STREET Jos while the Defendant called it No. E 27 Sarkin Mangu Street Jos. The land in dispute is a surveyed land based on the evidence before the Court which is covered by a Certificate of Occupancy No. BP.2396. He relied on Exhibit P2 which is the file of the land in the Ministry and that the said file contains all the information about the land. He submitted that haven tendered the file admitted as Exhibit P2, it then become the onerous duty of the Court to consider all the documents placed before it in the interest of justice. He added that the Court has a duty to closely examine documentary evidence place before it in the cause of its evaluation and comment or act on them. He relied on ALHAJI TUKUR MOHAMMED V ALHAJI ABDULKADIR AND 2 ORS (supra). He argued further that the file tendered contains all the facts needed i.e. the Site Plan and the Certificate of Occupancy granting the land to the Plaintiff by the Plateau State Ministry of Land and Survey and Town Planning Jos. He relied on the case of MR.TAIWO ILARO OGUN V MR. MOLIKI AKINYELU AND 2 ORS (supra) at 384 paras. C-H. 389-390 paras. H-B. He argued that in view of the foregoing the call for visit to locus in quo is unnecessary since the survey plan is in Exhibit P2. He relied on the case ofDANJUMA TANKO V OSITA ECHENDU (2010) 18 NWLR (Pt. 1224) 253 at 283 paras. A-B, MARTIN UDECHUKWU AND 2 ORS V SUNDAY EZEMUO (2009) 14 NWLR 14 NWLR (Pt. 1162) 524 at 542 – 543 paras. F-E.

He submitted further that the holder of a Certificate of Occupancy over a piece of land holds the title to the land and it is only subject to the condition stipulated in the Land Use Act. He cited the case of MISS CHINYE EZEANAH V ALHAJI MOHMOUD I. ATTA (2004) 7 NWLR (Pt. 873) 467 at 500-501 paras. H-A. That the holding of Certificate of Occupancy extinguishes all other existing right. He relied on the case of INT. BEER AND BEVERAGES INDU. LTD AND ANOR V. MUTUNCI CO. NIG. LTD (2012) 6 NWLR (Pt. 1279) 481 at 526 Paras. C-D and that the Certificate of Occupancy No. 0000829 of 6th March, 1996 issued in favour of the Plaintiff on 25th July, 1990 in respect of the land in dispute extinguishes all existing right in respect of the land. The land in dispute, he argued is in the heart of Jos in an urban Area and hence the Local Government Authority by Section 5 of the Land Use Act has no power to issue certificate of occupancy over a land in the Urban area and in addition, the Certificate of Occupancy No. 0000829 issued on 6th March, 1996 by Jos Local Government is later in time than the Plaintiff’s Certificate of Occupancy No. BP/2396 issued on 25th July, 1990. Therefore if the trial judge has scrutinize the evidence well and considered the document in Exhibit P2 tendered, he would have come to the conclusion that the Plaintiff/Appellant proved his case on balance of probability.

On issue of trespass, he submitted that any infraction of the right of possession into the land of another without the consent of the owner is an act of trespass and actionable without any proof of damage. He relied on the case of CHIEF D. B. AJIBULU V MAJ. GEN. D. O. AJAYI (RTD) (2004) 11 NWLR (Pt. 885) 458 at 474 para. A-F. It is his contention that the Act of the Defendant/Respondent amount to trespass. He relied on the case of ALHAJI SILIFATU OMOTAYO V COOPERATIVE SUPPLY ASSOCIATION (2010) 16 NWLR (Pt. 1218) 1 at 20 – 21 paras. E-A.

He urged the Court to hold that the Plaintiff discharged the onus of proof on him in the case by showing that the Defendant/Respondents entered the land, built clinic and continued further acts of trespass and to resolve the issue in favour of the Plaintiff/Appellant and allow the appeal.

The Respondent’s reaction to this issue is that, haven raised the issue of statute of limitation in the alternative, the learned trial judge dispassionately treated the issue raised by the parties and that this informed the finding of the Court in page 252 paragraph 5.01 of the Record of Appeal. He contended that the trial judge advanced two reasons why the Appellant’s case must fail. First, is that the Appellant failed to identify the piece of land over which they sought declaration of title not knowing that the Respondent joined issue with the Appellant on the identity of the land. He relied on pages 321-323 of the Record of Appeal.

Secondly that the Appellant failed to put his documents of title before the Court either for the purpose of cross examination by the adverse party or for the Courts consideration. He referred to pages 323-324 of the Record. He contended that by paragraphs 6, 7, 8, 9 and 27(a) and (b) and in particular paragraph 27(a) and (b) of the Appellant’s pleadings the land is best described. He added that the evidence of PW1 and PW2 are on those pleaded facts in the aforementioned paragraphs of the statement of claim of the Appellant and that the Defendant/Respondent joined issue on those paragraph in paragraphs 4 and 5 of their Joint Statement of Defence and that the finding of the trial Court on pages 321-322 of the Record are based on those pleaded facts and evidence. He referred to the averment of the Plaintiff in the Statement of Claim and Reply of the Plaintiff to the Joint Statement of Defence of the Defendant and submitted that the Appellant argument in issue 2 regarding the finding of the trial Judge on lack of proof of the identity of the land claimed is not true. He argued that in a declaration of title to land, such land must be ascertained with certainty before the Court can make a declaration. He relied on the case of BABALOLA V AKINSINDE (2018) 17 NWLR (Pt. 1649) 577 at 589. He added that it is the duty of the Appellant to show clearly the area of the land he is claiming. He relied on the following casesASHEIK V BORNO STATE GOVT (2012) 9 NWLR (Pt. 1304) 1 at 34, OKE V SOTUNDE (2019) 11 NWLR (Pt. 1661) 119 at 134. On the finding of the trial Court on Exhibit P2, he submitted that a judge will only be called upon to consider all documents placed before it. He cited the case of A.N.P.P V USMAN (2008) 12 NWLR (Pt. 1100) page 1 at 89-91. It is his case that none of the witnesses of the Plaintiff gave evidence on the content of Exhibit P2. Therefore the trial Court was right in its finding that there is no evidence of proof of identity of land in issue. Further he submitted that it is not for the Court to embark on its own investigation or independent research and carry out analysis of the document and come out with the result of his own private investigation. He relied on the cases of INIAMA V AKPABIO (2008) 17 NWLR (Pt. 1116) 205 at 303, A.C.N V LAMIDO (2012) 3 NWLR (Pt. 1303) 560 at 584 – 585, MAKU V ALMAKURA (2016) 5 NWLR (Pt. 1505), 201 at 230. There was no evidence of site plan and neither was it tendered by the Appellant. He cited the case of DANJUMA TANKO V OSITA ECHENDU (2010) 18 NWLR (Pt. 1224) 253 at 283. He contended that the mere production of the Certificate of Occupancy of the land is not on its own mean that the Plaintiff has proved ownership of the land and that the law is that the Certificate of Occupancy issued is not a conclusive evidence of any interest or valid title to land but evidence of right to such land. He relied on ADOLE V GWAR (2008) 11 NWLR (Pt. 1099), 562 at 590, OTUKPO V JOHN (2012) 7 NWLR (Pt. 1299) 357 at 377. It is his case that there is no evidence before the Court as to whether or not the land is situate in the urban area. It is his case that the Appellant who claimed declaration of the title to land and trespass failed woefully to proof his title nor possession of the land to have entitle them to an action for trespass and damages. He added that the onus of proof placed on the Plaintiff does shift. He referred to DIM V ENEMUO (2019) 10 NWLR (Pt. 1149), 353 at 380.

He urged the Court to resolve the issue formulated in favour of the Respondents and uphold the conclusion of the trial judge.

For all the foregoing argument, the very narrow question is whether or not the Appellant by way of evidence proved her case.

Now narrowing down to the requirement of proof of ownership of land handed down in the case of IDUNDUN V OKUMAGBA (supra) thus:
(a) By traditional evidence
(b) By production of documents of title duly authenticated and executed.
(c) By act of ownership extending over a sufficient length of time numerous and positive enough as to warrant the inference of true ownership
(d) By act of long possession and enjoyment
(e) Proof of possession of connected or adjacent land in circumstances rendering it probable that the owner of such connected or adjacent land would in addition be the owner of the land in dispute.
See also the case of AIGHOBAHI V AIFUWA (2006) 2 SC (Pt. 1) 82. It is also the law that proof of any of the five distinct ways herein before reproduced will if proved and established will suffice. That is therefore to say that the five ways are disjunctive and conjunctive. See CHIEF OSIGWE EGBOH & 16 ORS CHIEF TITUS AGBARA & 4 ORS (1997) 1 SCNJ 91, MRS LYDIA OMOWARE THOMPSON & ANOR V ALHAJI JIMOH AROWOLO (2003). In a bid of establishing his case against the Defendants, the Plaintiff called 4 witnesses. Their evidence is to the effect that the Plaintiff is the owner of the land in dispute and which they described as lying and situate at Patrick Dokotry Street, Plot E. 25/26 and covered by Plateau State Government Certificate of Occupancy No. B.P. 2396. In order to strengthen this piece of evidence, the Appellant called PW2, a subpoenaed witness who only tendered a filed which houses many document in respect of the land. The whole file was tendered as Exhibit P1. It is this file (Exhibit P1 that PW3 and PW4 were referring to as their proof of ownership of the land. Attempt to tender a copy of a Certificate of Occupancy met a stone wall being a secondary document and not certified in compliance with the provision of Section 102 of the Evidence Act, 2011.

On the part of the Respondents, it was pleaded in paragraph 4 of their joint Statement of Defence that their own parcel of land is 100 X 50 lying and situate at No. E. 27, Sarkin Mangu Street Jos. They described their land to be covering an area of 56.31m X 28.61m X 24.00m and validated by the present Jos North Local Government Council on 6th March, 1996. They aver that they are issued with a Certificate of Occupancy No. 0000829, dated 6th March, 1996 and other documents. From the foregoing, it is clearly suggestive of the fact that the address given by the respective parties of where their land situate are different. The Appellant described his own land as situate and lying along Kwararafa/Patrick Dokotry Street plot E. 25/26 Jos and covered by Certificate of Occupancy No. 0654 issued by the then Jos Local Government Council in 1973 covering 0.892 acres of land. The Respondents’ land is described as situate and lying at No. E. 27, Sarkin Mangu Street Jos. From the foregoing, it stand to reason that the address of the “lex citus” of the land in issue is not in the same street and location. The evidence of PW2 a civil servant with the Plateau State Government Ministry of land, Survey and Town Planning Jos, Exhibit P1 (File No. BP 2396) was tendered through this witness. He claimed to know the content of the file because he read it and that he was two years old when the file was opened. He said the file contained C of O No. B.P 2396. (See pages 295 -297) of the Record. PW3 is an Inspector of Police. He testified to the fact that the Police wrote a letter to the Ministry of Land and Survey and the letter is at page 73 of Exhibit P1 See pages 297 – 298 of the Record of Appeal. PW4 is Senior Apostle, Prophet Obasooto Olatunji. See also his witness statement in Oath on pages 100 -103, PW1 is Sunday Akande his witness Statement on Oath is on pages 76 – 99. His evidence is on pages 292 – 295. Neither of the foregoing was given any Certificate of Occupancy to identity nor was there any Certificate of Occupancy tendered through any of them. The only close evidence by PW2, PW3 & PW4 is to the effect that either a Certificate of Occupancy is in the file (Exhibit P1) or that a letter written by them is in the file (Exhibit P1). I have endeavor to bring out all the foregoing just to show that none of the content of Exhibit P1 was specifically tendered for any of the witnesses to speak to such document. This in my humble view informed the finding of the learned trial judge on pages 321-322 of the Record of Appeal thus:
“The Defendants joined issues with the Plaintiff on this point. They pleaded and adduced evidence to show that they indeed built a clinic but that they did so on their own property situate at No. E 27 Sarkin Mangu Street Jos and not at No. E25/26 Kwararafa/Patrick Dokotry Street Jos. The burden of proof then shift to the Plaintiff to show or proof that the clinic in fact built on their property. But thus, the Plaintiff in paragraphs 1 – 3 of the Reply to the joint statement of Defence pleaded vehemently that her property No. E. 25/26 Kwararafa/Patrick Dokotry Street and No. E 27 Sarkin Mangu Street, claimed by the 4th Defendant as the property they built their clinic thereon are two different properties. Pleading further Plaintiff, averred that their property has no bearing with 4th Defendant’s property No. E 27 Sarkin Mangu Street. The Plaintiff however did not go further to show or proof that the clinic is on their property at No. E 25/26 Kwararafa/Patrick Dokotry Street either by taking the Court to inspect the locus to see for itself nor did she file in Court a site or survey plan marking the area encroached upon. It is the first duty of claimant to land to identify the land he is claiming. Failure to do so is fatal to his case…“

Considering the evidence of parties before the trial Court, one cannot fault the finding and conclusion of the trial Court. It is the law that proof of a piece of land in dispute is of utmost importance if any success is to be attained in any land suit. A Plaintiff has cardinal duty to show with certainty the area of land claimed and to which he wants the order of the Court. Failure to do so, the case of the Plaintiff will be dismissed. This is what is described in the latin MAXIM “ID CERTUM EST QUOD CERTUM REDDI POTEST; SED IT MAGIS CERTUM EST QOD DE SEMET IPSO EST CERTUM” meaning that is certain which can be certain” see the cases ofELIAS V OMO-BARE (1982) 5 SC. 25, AREMU V ADETORO (2007) SC (Pt. 11) 1.
Having said these, two fundamental things seems to be lacking in the evidence of the Plaintiff, failure to tender the C. of O which they alleged is in Exhibit P1 and the difference of the “lex citus” of the land. There is no iota of evidence to show that the address of the land claimed by the Plaintiff is same as that claimed by the Defendants.
In addition to the foregoing, the Plaintiffs failed to demonstrate in any form throughout their testimony the relevance and the content of Exhibit P1. No doubt, from the evidence of PW2, and PW3 & PW4, Exhibit P1 consist of many documents but neither of them was brought out of the file, tendered nor subjected to any form of examination or cross examination. That position again, informed the finding of the trial Court on page 323 of the Record of Appeal where the Court found thus:
“Apart from the Plaintiff’s failure to identity the portion of land taken over by the Defendants, the Plaintiff by her pleading sought to prove their case by production of title documents. But as I have said, what the Plaintiff did was to tender Exhibit P1, the file in respect of property No. BP 2396, through a witness she called on subpoena Duces tecum and did not lead any witnesses to identity the official copy of the Certificate of Occupancy and other title documents that are probably in the file. And as I have pointed out, he did not tie the evidence if any of the witnesses to the title documents that are probably contained therein in order to give the Defendant the opportunity to cross examine.”
In the case of NWOLE V. IWUAGWU (2006) 16 NWLR 543 at 571 paras. A-C, this Court per Fabiyi JCA as he then was, (now retired Justice of the Supreme Court) said thus:
“It must be made clear that a party is under obligation to tie his documents to fact or evidence or admitted facts in the open Court and not Counsel’s address – written or oral. This is because it is not part of the duty of a Court or Tribunal to embark upon cloistered justice by making enquiry into the case outside the Court; not even by examination of the documents which were in evidence when the documents have not been examined in the open Court nor brought out and exposed to test in Court or were not things that at least must have been notice in the open Court.”
Having gone these far, I am left with no doubt in coming to the inevitable conclusion that the Plaintiff failed to discharge the burden of proof placed on her under Sections 131, 132 and 133 of the Evidence Act, 2011 (as amended). On that note, I resolve this issue against the Appellant and in favour of the Respondents.
This appeal is declared meritless and ought to be dismissed.
I dismiss the appeal.

The judgment of the High Court of Justice Plateau State in Suit No. PLD/J201/2008 delivered on 9th day of December, 2016 by Hon. Justice R. K. Sha be and is hereby affirmed.
Parties to bear their respective costs.

TANI YUSUF HASSAN, J.C.A.: I read before now, the lead judgment of my learned brother, MUDASHIRU NASIRU ONIYANGI, JCA. His Lordship has thoroughly dealt with the issues in this appeal. I have nothing useful to add. I agree with the conclusion dismissing the appeal for lacking in merit and affirming the judgment of the lower Court. Parties to bear their respective costs.

BOLOUKUROMO MOSES UGO, J.C.A.: I had a preview of the lead judgment of my learned brother MUDASHIRU NASIRU ONIYANGI, J.C.A., and I am in agreement with his reasoning and conclusion; I also dismiss the appeal and abide by the order as to costs as contained in the lead judgment.

Appearances:

Appellant’s Counsel Absent For Appellant(s)

O. Oyegbile Esq. For Respondent(s)