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SHMO & ORS v. ABUUL (2020)

SHMO & ORS v. ABUUL

(2020)LCN/15547(CA)

In The Court of Appeal

(MAKURDI JUDICIAL DIVISION)

On Wednesday, June 10, 2020

CA/MKD/178/2014

Before Our Lordships:

Ignatius Igwe Agube Justice of the Court of Appeal

Onyekachi Aja Otisi Justice of the Court of Appeal

Joseph Eyo Ekanem Justice of the Court of Appeal

Between

1. MKAVGA SHMO 2. AYAVGA UZER 3. JUSTINE TSEBEE 4. ALIBO UKAA 5. NYAMVE SHAMO 6. NYIANSHIMA ALIBO APPELANT(S)

And

STEPHEN SHIKAA ABUUL RESPONDENT(S)

RATIO:

PROVE OF TITTLE TO LAND

……It is the well-established position of the law that any person claiming a declaration of title to land must prove by evidence that he is entitled to the declaration he seeks; Mbadinuju v. Ezuka (1994) 8 NWLR (Pt. 364) 535 S.C; Umesie v. Onuaguluchi (1995) 9 NWLR (PT. 421), (1995) LPELR-3368(SC); Kazeem v. Mosaku (2007) 2 S.C. 22; Olodo v. Josiah (2010) 18 NWLR (PT 1225) 653. Judicially established methods of proving title to land have been well articulated with a foremost authority found in the case of Idundun v. Okumagba (supra) wherein the Supreme Court prescribed five ways of proving title to land thus:
1. By traditional evidence
2. By various acts of ownership numerous and positive and extending over a length of time as to warrant the inference of ownership.
3. By production of title documents
4. By acts of lawful enjoyment and possession of the land;
5. By proof of possession of adjacent land in circumstances which render it probable that the owner of such land would in addition be the owner of the other land.
See also:Mogaji v. Cadbury Nigeria Ltd(1985) NWLR (PT 7) 393, (1985) LPELR-1889(SC); Irolo v. Uka (2002) 14 NWLR (PT 786) 195. A claimant must plead and prove any of these five different ways of proving ownership of land, though he need not plead and prove more than one of these ways; Biariko v Edeh-Ogwuile (2001) 12 NWLR (PT 726) 235; Olubodun v. Lawal (2008) 6-7 S.C. (PT 1) 1; Yusuf v. Adegoke (2007) 6 S.C. (PT 1) 126; Balogun v Akanji (1988) 2 S.C. 199. ONYEKACHI AJA OTISI, J.C.A.

PRINCIPLE GOVERNING THE PROOF AND DECLARATION OF TITLE

Proof of one single root of title is sufficient to sustain the claimant’s claim for declaration of title to land; Onwugbufor v. Okoye (1996) 1 NWLR (PT 424) 252; Olagunju v. Adesoye (2009) 9 NWLR (PT 1146) 225. In proving title, he must rely on the strength of his case and not on the weakness of the defence; Oje v Babalola (1991) 4 NWLR (PT 185) 267; Bello v Eweka (1981) NSCC 48; Kazeem v Mosaku (2007) 2 S.C. 22; Echi v Nnamani (2000) 5 S.C. 62; Eze v Atasie (2000) 6 S.C. (PT 1) 214. The only exception to this position is that a plaintiff may quite perfectly take advantage of those facts in the case of the defence which support his claims; Buraimoh v. Bamgbose (1989 LPELR-818(SC), (1989) ALL NLR 669; Oduaran v. Asarah (1972) 5 S.C. (REPRINT) 173, (1972) LPELR-2233(SC). The party that is able to prove title to land in issue is deserving of judgment. ONYEKACHI AJA OTISI, J.C.A.

POSITION OF LAW ON CERTIFICATE OF OCCUPANCY

The Certificate of Occupancy, properly issued, raises the presumption that as at the time it was issued, there was not in existence a customary owner whose title had not been revoked. This presumption is however rebuttable because if it is proved by evidence that another person had a better title to the land before the issuance of the Certificate of Occupancy, the Certificate of Occupancy will be revoked; Madu v Madu (supra), (2008) LPELR-1806(SC) at page 24; Omiyale v Macaulay (2009) LPELR-2640(SC), (2009) 7 NWLR (PT 1141) 597; Otukpo v John (2012) LPELR-25053(SC); Orianzi v AG, Rivers State (2017) LPELR-41737(SC).
It is the position of the law that once a person is granted a Certificate of Occupancy over a parcel of land, he is entitled to hold same to the exclusion of any other person unless and until the said Certificate of Occupancy is set aside or it gives way to a better title; Ilona v Idakwo (2003) LPELR-1496(SC); Madu v Madu (supra), (2008) 2-3 S.C. (PT 11) 109, (2008) LPELR-1806(SC); Otukpo v John (supra); Adole v Gwar (supra). ONYEKACHI AJA OTISI, J.C.A.

WHAT CONSTITUTE FRAUD?

Fraud always depicts something that is dishonest and morally wrong. In Adimora v. Ajufo & Ors (1988) LPELR-182(SC) the Supreme Court, per Oputa, JSC, gave a succinct description of fraud thus:
“Fraud implies a willful act on the part of anyone, whereby another is sought to be deprived, by illegal or inequitable means, of what he is entitled to. Fraud for the purposes of the civil law includes acts, omissions and concealments by which an undue and unconscientious advantage is taken of another: Green v. Nixon (1857) 23 Beav 530 at p.535.”
In the same vein, Muhammad, JSC (now CJN) in Ntuks v. NPA. (2007) LPELR-2076(SC) at page 41, (2007) 13 NWLR (Pt.1051) 392, gave an elucidation of what would constitute fraud in these terms:
“It is said that fraud is an intentional perversion of truth for the purpose of inducing another in reliance upon it to part with some valuable thing belonging to him or to surrender a legal right. It is a false representation of a matter of fact, whether by words or by conduct, by false or misleading allegations or by concealment of that which should have been disclosed, which deceives and is intended to deceive another so that he shall act upon it to his legal injury. Fraud is a cankerworm and indeed an insidious disease. It is a strong vitiating factor.” ONYEKACHI AJA OTISI, J.C.A.

EFFECT OF FRAUD

Fraud therefore carries far much wider implications than simply impugning the truth or correctness of a document: Ojibah v. Ojibah (supra). The point has been made that in any proceeding, whether criminal or civil, once there is an allegation of the commission of a crime is an issue, the allegation must be proved beyond reasonable doubt and the onus rests on him who asserts; Section 135 (1) of the Evidence Act, 2011. See also: Nduul v. Wayo & Ors (2018) LPELR-45151(SC); Yakubu v. Jauroyel & Ors (supra); Agi v. PDP & Ors (2016) LPELR-42578(SC); Babatunde & Anor v. Bank of the North Ltd & Ors (2011) LPELR-8249(SC). ONYEKACHI AJA OTISI, J.C.A.

BURDEN OF PROVING THE AUTHENTICITY OF AN OFFICIAL ACT BEEN DONE, FOLLOWING THE FORMAL REQUISITE FOR ITS VALIDITY

By virtue of Section 168 (1) of the Evidence Act, 2011, when any official act is shown to have been done in a manner substantially regular, it is presumed that formal requisites for its validity were complied with. The burden is on the party who asserts that the formal requisites for the validity were not complied with to so prove; Torri v. The National Park Service of Nigeria (2011) LPELR-8142(SC); Udo-Paul v. C.O.P Akwa Ibom State & Anor (2019) LPELR-47000(CA), Adokwe & Anor v. Tanko & Ors (2019) LPELR-48750(CA).
The learned trial Judge found and held, page 275 of the Record of Appeal:
“I had earlier held that the plaintiff did not make Exhibit 1. The Exhibit is made by Katsina-Ala Local Government. Ukum Local Government collected fees from the plaintiff on 7/6/2012 in respect of Exhibit 1. Katsina-Ala and Ukum Local government Councils have not been made parties in this suit challenging their conduct in respect of Exhibit 1. There is no relief in the counter-claim challenging the issuance of Exhibit 1 to the late father of the plaintiff. Exhibit 1 is the official conduct of the Local Government which issued it. It is the law that when an official act is done, formal requisite for its validity were complied with by the office concerned. See Section 168(1) of the Evidence Act, 2011. See also ONDO STATE UNIVERSITY VS. FOLAYAN [1994] 7 – 8 SCNJ (Pt. 1) 186.” ONYEKACHI AJA OTISI, J.C.A.

DUTY OF THE PLAINTIFF REGARDING ACTION FOR DECLARATION OF TITLE TO LAND

It is settled law that in an action for declaration of title to land, it is the plaintiff’s first duty to prove the area over which he claims with certainty and precision; Okochi v Animkwoi (supra), (2003) LPELR-2455(SC); Adesanya v. Aderonmu & Ors (2000) LPELR-145(SC); Galadima v. Kuku (2018) LPELR-43886(CA). It is also trite that the mere mentioning of the area is not enough; the description and extent of the boundaries must be proved with exactitude. The test of certainty and precision is of necessity to ensure whether a surveyor can from the evidence before the trial Court produce an accurate plan of such land; Jimoh Atanda v. Memudu Iliasu (supra), (2012) LPELR-19662(SC). ONYEKACHI AJA OTISI, J.C.A.

PRINCIPLE GOVERNING TRADITIONAL HISTORY IN PROOF OF TITLE TO LAND

The settled position of the law is that where a party relies on traditional history in proof of title to land, he must give satisfactory evidence as to how he derived the particular title pleaded and claimed. He is bound to plead and establish facts such as:
1. who founded the land;
2. how he founded the land; and
3. the particulars of the intervening owners through whom he claims;
See: Nruamah v Ebuzoeme (2013) LPELR-19771(SC); Onwugbufor v Okoye (1996) LPELR-2716(SC); Dike v Okoloedo (1999) 7 S.C. (PT 111) 35; Ngene v Igbo (2000) LPELR-1987(SC); Ezeokonkwo v Okeke (2002) 5 S.C. (PT 1) 44. ONYEKACHI AJA OTISI, J.C.A.

DUTY OF COURT ON PLAINTIF’S DECLARATORY ORDER

​There is no doubt that a counterclaim is an independent action and the counterclaimant must prove that he is entitled to the order(s) he seeks. Even in default of defence or indeed on admission by the defendant, the Court would not grant declaratory order(s) sought by a plaintiff without hearing evidence and being satisfied by such evidence: Anwoyi & Ors v. Shodeke & Ors (2006) LPELR-502(SC); Kwajaffa & Ors v. Bank of the North Ltd (1998) LPELR-6371(CA). ONYEKACHI AJA OTISI, J.C.A.

EVIDENCE ELICITED FROM CROSS EXAMINATION IN ESTABLISHING A CASE OR DEFENCE AND EXCEPTION

However, it is also settled law that evidence elicited from a party or his witness(es) under cross examination which goes to support the case of the party cross examining, constitute evidence in support of the case or defence of that party. If at the end of the day, the party cross examining decides not to call any witness, he can rely on the evidence elicited from cross examination in establishing his case or defence. In such a case, one cannot say that the party called no witness in support of his case or defence, as the evidence elicited from his opponent under cross examination which is in support of his case or defence constitutes his evidence in the case. The exception to this is that the evidence so elicited under cross examination must be on facts pleaded by the party concerned for it to be relevant to the determination of the question/issue in controversy between the parties; per Onnoghen, JSC (as he then was) in Akomolafe v Guardian Press Ltd (supra), (2010) LPELR-366(SC) at pages 15 – 16. Therefore, the Respondent, whose Counsel cross examined the Appellants’ witnesses, could rely on the evidence elicited from cross examination in establishing his case. ONYEKACHI AJA OTISI, J.C.A.

EVIDENCE ELICITED FROM CROSS EXAMINATION IN ESTABLISHING A CASE OR DEFENCE WITH EXCEPTION FOR DECLARATION OF TITLE TO LAND

However, it is also settled law that evidence elicited from a party or his witness(es) under cross examination which goes to support the case of the party cross examining, constitute evidence in support of the case or defence of that party. If at the end of the day, the party cross examining decides not to call any witness, he can rely on the evidence elicited from cross examination in establishing his case or defence. In such a case, one cannot say that the party called no witness in support of his case or defence, as the evidence elicited from his opponent under cross examination which is in support of his case or defence constitutes his evidence in the case. The exception to this is that the evidence so elicited under cross examination must be on facts pleaded by the party concerned for it to be relevant to the determination of the question/issue in controversy between the parties; per Onnoghen, JSC (as he then was) in Akomolafe v Guardian Press Ltd (supra), (2010) LPELR-366(SC) at pages 15 – 16. Therefore, the Respondent, whose Counsel cross examined the Appellants’ witnesses, could rely on the evidence elicited from cross examination in establishing his case.

Fundamentally, the responsibility of proving their counterclaim lay with the Appellants. And, in doing so, as would a plaintiff in an action for declaration of title to land, they must succeed on the strength of their own case and not rely on the weakness of the defendant’s case; Oje v Babalola (supra); Bello v Eweka (supra); Kazeem v Mosaku (supra); Echi v Nnamani (supra); Eze v Atasie (supra). ONYEKACHI AJA OTISI, J.C.A.

AWARD OF DAMAGES

General damages may be awarded for trespass to land in recognition of the proprietary interest of the plaintiff. Usually, this would be nominal except there is damage caused, in which case the plaintiff would have to specifically plead and prove same; Umunna & Ors. v. Okwuraiwe & Ors (1978) LPELR-3378(SC); Osuji & Anor v. Isiocha (1989) LPELR-2815(SC); Adamu v. Esonanjor (2014) LPELR-41137(CA); Haruna & Anor v. Isah & Anor (2015) LPELR-25894(CA). It is within the discretion of a trial Court to decide what amount it should award as general damages, having regard to the circumstances of the case;NNB Plc v Denclag (2004) LPELR-5942(CA). ONYEKACHI AJA OTISI, J.C.A.

WHAT IS TRESPASS?

Trespass is a breach of a right of possession. There is trespass when someone who has no title to the land interferes with the possession of another person who has a good title to the land, Apena & Anor v. Aileru & Anor (2014) LPELR-23305(SC); Okhuarobo v Aigbe (2002) 3 S.C. (PT 1) 141, (2002) LPELR-2449(SC); Oyewusi & Ors v. Olagbami & Ors (2018) LPELR-44906(SC). It is settled law that where ownership (title) is not established, acts of possession need not be considered as they would not amount to acts of ownership or possession but to acts of trespass; Bassey & Anor v. James (2012) LPELR-14418(CA); Otu v. Eyah (2017) LPELR-43534(CA). Therefore, acts of possession by the Appellants did not amount to acts of ownership or possession but to acts of trespass; Eneh v. Ozor & Anor (2016) LPELR-40830(SC); Apena & Anor v. Aileru & Anor (supra); Okhuarobo v Aigbe (supra); Oyewusi & Ors v. Olagbami & Ors (supra). The Appellants were therefore trespassers on the disputed land.
Trespass is actionable per se;Adesanya v. Otuewu & Ors (1993) LPELR-146(SC); NBC Plc v. Ubani (2013) LPELR-21902(SC). ONYEKACHI AJA OTISI, J.C.A.

INSTANCES WHERE THE APPELLATE COURT WILL / WILL NOT INTERFERE WITH AN AWARD OF DAMAGES BY THE LOWER COURT

The appellate Court would not usually interfere with the exercise of discretion by a trial Court. However, an appellate Court can alter or interfere with an award of damages made by the lower Court where the award is shown to be either manifestly too high or manifestly too low or where it was based on a wrong principle. An appellate Court will not interfere with an award of damages by a trial Court merely because it is inclined to make a different award. Judicial pronouncements have established that an appellate Court can disturb the award of damages by a trial Court, where it is established to the satisfaction of the appellate Court that (i) the trial Court acted under a mistake of law or upon some wrong principle of law; or (ii) the award is arbitrary; or (iii) the amount awarded is so extremely high or low as to make it, in the judgment of the appellate Court, an entirely erroneous estimate of the damages to which the plaintiff is entitled; or (iv) there was a wrong exercise of discretion in the award; or (v) the trial Court acted in disregard of principles of law; or (vi) the trial Court acted under a misapprehension of fact; or (vii) the trial Court took into account irrelevant matters or did not take account of relevant matter; or (viii) injustice will result if the appellate Court does not interfere; Oduwole & Ors v. West (2010) LPELR-2263(SC); Usong v. Hanseatic International Ltd (2009) LPELR-3434(SC); Ighreriniovo v. S.C.C. Nigeria Ltd & Ors (2013) LPELR-20336(SC). ONYEKACHI AJA OTISI, J.C.A.

WHAT IS FAIR HEARING?

​Fair hearing implies that what is right and fair to all concerned has been done and is seen to be so. Fair hearing requires that the trial must be conducted according to all applicable legal rules with a view to ensuring that justice is done to all parties before the Court; Arije v Arije (2018) LPELR-44193(SC); Orugbo & Anor v. Una (2002) LPELR-2778(SC); Ariori v Elemo (1983) LPELR-552(SC), (1983) 1 SC 81. Flowing from the concept of fair hearing is that each party to a cause must be given the opportunity to put forward his case or defence freely and fully; PDP & Ors v Ezeonwuka & Anor (2017) LPELR-42563(SC). The law is trite that any proceedings conducted in breach of the right to fair hearing are a nullity and liable to be set aside; Kalu v State (2017) LPELR-42101(SC). ONYEKACHI AJA OTISI, J.C.A.

COURT DUTY ON ADJOURNMENT OF MATTER FIXED FOR HEARING

The question whether to grant or refuse an adjournment of a matter fixed for hearing is within the discretion of the Court, which discretion must at all times be exercised judiciously; Ugwu v. Emenogba (2009) LPELR-8761(CA). ONYEKACHI AJA OTISI, J.C.A.

DUTY OF CLAIMANT IN A CLAIM (AND THAT INCLUDES A COUNTER – CLAIM) FOR TITLE TO LAND

In a claim (and that includes a counter – claim) for title to land, the claimant must plead the precise nature of his title and the same must be established by evidence. SeeOkelola V. Adeleke (2004) 13 NWLR (Pt. 890) 307 and Eleran V. Aderonpe (2008) 12 NWLR (Pt. 1097) 50. JOSEPH EYO EKANEM, J.C.A.

PRICINPLE OF GENERAL AND SPECIAL DAMAGES

The law is that general damages cannot in any circumstance be properly substituted for special damages where plaintiff fails to specifically plead and prove special damages. See Ajigbotosho V. RCC Ltd (2019) 3 NWLR (Pt. 1659) 287 and Xtoudos Services (Nig) Ltd V. Taisel (WA) Ltd (2006) 15 NWLR (Pt. 1003) 533. JOSEPH EYO EKANEM, J.C.A.

 

 

ONYEKACHI AJA OTISI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of the High Court of Benue State (the lower Court), sitting at Katsina-Ala delivered on June 20, 2014 Coram T. A. Kume, J., wherein the lower Court entered judgment in favour of the Respondent.

​The facts leading to this appeal are as follows: The Respondent, as plaintiff, instituted Suit No: GHC/62/2012 before High Court of Justice, Gboko, Benue State against the Appellants, as defendants, which was subsequently transferred to the lower Court and renumbered Suit No KHC/22/2013. He sought declaration of title to Plot No.1, Chito Settlement Area in Ukum Local Government Area of Benue State, which he asserted was the subject of a grant by the Katsina-Ala Local Government Council to his late father, Hon. William Zenke Abuul, covered by a Certificate of Occupancy dated 16/11/1977. He also claimed liquidated damages in the sum of N3,990,000.00, being the value of destroyed and stolen properties, which he attributed to the conduct of the Appellants. There was also a relief for N100,000,000.00 as general damages for mental torture, anguish, psychological and physiological stress suffered by him, occasioned by the acts of the Appellants. The Respondent, in addition, claimed an order of perpetual injunction from further trespass to the land. In response to these claims, the Appellants filed a Joint Statement of Defence and Counter Claim in which they sought to be declared the rightful owners of the land, as well as an order of perpetual injunction against the Respondent, and N500, 000.00 as professional fees paid in respect of the substantive suit.

In proof of his claims, the Respondent testified for himself and called two other witnesses, tendering documents that were received in evidence and marked as Exhibits 1, 2, 3, 4, 5, 6, 7, 8 and 9. The Appellants on the other hand called four witnesses and tendered exhibits marked as Exhibits D1 and D2. At the conclusion of hearing, the lower Court delivered judgment on 20/06/2014 in favour of the Respondent but dismissed the Counterclaim of the Appellants.

​Aggrieved by the decision of the lower Court, the Appellants lodged the instant appeal by Notice of Appeal filed on 8/8/2014, which was amended on 24/10/2014. A Further Amended Notice of Appeal was filed on 23/1/2017 but deemed on 1/3/2018 on ten grounds of appeal.

The parties filed Briefs of Argument. The Appellants’ Amended Brief was filed on 23/1/2017 but deemed on 1/3/2018. The Respondent’s Amended Brief was filed on 20/4/2018. These Briefs were adopted on 18/3/2020 by I.A. Ozor, Esq., holding the brief of N.E. Tsobaza, Esq., for the Appellants; and by J.T. Nyiatagher, Esq., for the Respondent.

Out of ten grounds of appeal, Mr. Tsobaza for the Appellants distilled the following six issues:
1. Whether the respondent proved title to the said land to be entitled to the judgment entered in his favour by the learned judge having regard to the challenge made by the appellants to the title documents in his possession. (Grounds 1)
2. Whether the respondent proved the allegations of trespass and mischief founded upon the commission of criminal acts/offences to be entitled to the award of damages. (Grounds 2, 4, 6 and 8)
3. Whether having held that the respondent failed to prove special damages for the specific items destroyed/stolen by the appellants, the learned trial judge was right to have awarded him general damages for trespass, a relief he did not seek from the Court as well as for the destruction of the same properties the values of which he had failed to prove as liquidated damages. (Ground 3)
4. Whether having failed to accompany his reply to the appellants’ counter claim with any sworn deposition the appellant’s counter claim was in any way challenged by the respondent and whether the learned trial judge was right to have dismissed it. (Ground 5)
5. Whether the trial Court was right in its ruling of 11th day of October, 2013 to have rejected a document produced at its own instance by a subpoena and whether its rejection did not occasion a miscarriage of justice and whether the trial Court’s ruling of 27th day of July, 2013 was right to have allowed the PW3 to re-examine on an issue that was not ambiguous and whether the Court’s reliance on the evidence elicited there from did not occasion a miscarriage of justice. (Grounds 9 and 10)
6. Whether the action of the learned trial Judge in conducting the proceedings of 16/12/2013 in the absence of the appellants’ counsel violated the appellants’ right to fair hearing. (Ground 7)

​The Respondents adopted the Issues as framed by the Appellants. The Appellants argued Issue 1, Issues 2, 3, 5 and 6 together, and Issue 4. I shall also adopt the Issues as distilled by the Appellants but will resolve them in these tranches; Issues 1 and 4, and, Issues 2, 3, 5, and 6.

Issues 1 and 4
The claim of the Respondent before the lower Court was essentially for a declaration of title to land, damages and injunction. On the settled principles of law on ways of proving title to land, as established in Idundun v. Okumagba (1976) 9-12 SC 227, which was cited in Madu v Madu (2008) 33 NSCQR 93, at 954-955 and the standard of proof in claims of title to land as defined, per Uwaifo, JSC., in the case of Onwuama v. Ezeokoli (2002) 94 LRCN 246 at 257, Mr. Tsobaza for the Appellant submitted that the Respondent had the onus of proving title to the land claimed by meeting the standard of proof required of him by law.

​The case of the Respondent was that the land was granted to his late father, William Zenke Abuul by the Katsina-Ala Local Government. He placed reliance on the Certificate of Occupancy which was tendered in evidence on the 24/7/2013 as Exhibit 1, and issued by the Katsina-Ala Local Government Council under the Land Tenure (Native Authority – Control of Settlements) Regulation, 1962 made pursuant to Section 47 of the Land Tenure Law, Cap 59 Laws of Northern Nigeria, 1963 and dated the 16/11/1977 for a term of 30 years. It was contended that by the time Exhibit 1 was tendered in evidence on the 24/7/2013, it had expired and could therefore not form the basis of title as the grant made had lapsed by effluxion of time, subject to the terms of the grant. The Respondent did not plead or account for what happened after the expiration of the grant. The case of the Appellants, on the other hand, was that the parcel of land was their farmland, situate within their own Ukande kindred. The Respondent in paragraph 3 (c), (d) and (e) of the Reply of the Plaintiff to the Defence of the Defendants admitted this fact. A party who admitted a fact in his pleading is bound by such admission and he is estopped from denying the fact admitted, relying on Salawu v Yussuf (2007) 31 NSCQR 550 at 579. It was submitted that having admitted that the land was vested in another, including the kindred of the Appellants, before the Katsina-Ala Local Government made a grant to his father, the onus fell on the Respondent to prove by credible evidence that the Appellants or whosoever was in possession before the grant was lawfully divested of the land in accordance with the enabling legislation. It was argued that the Respondent had to prove if there was compliance with the provisions of the Land Tenure (Control of Settlements) Regulations, Cap 59 Laws of Northern Nigeria, 1963 by the granting authority, citing and relying on the case of Provost, Lagos State College Of Education v. Edun (2004) ALL FWLR (Pt.201) 1628. It was argued that in clear violation of the provisions of the Land Tenure (Control of Settlements) Regulations, Exhibit 1 was granted for a term of thirty years when there was no evidence before the lower Court that the said land had been declared a settlement area, surveyed and laid out into plots as required by this law. The layout or settlement plan approved by the Minister was not tendered by the Respondent to show that the land which he claimed was within the settlement plan declared by the native authority in accordance with this law and lawfully granted to him. By the evidence of the Respondent that he was the owner of the piece of land being at “Chito settlement area”, he had the onus of proving that the land was indeed a settlement area with the contemplation of the law under which Exhibit 1 was granted to him, as well as proving the origin and validity of the Exhibit 1. It was submitted that the Respondent must discharge the standard of proof required of him, especially where his title has been challenged by a person who claims a prior existing interest. Reliance was placed on the cases of Fajimi v. Suberu (2013) 6 WRN 158; Lawson & Anor v Ajibulu & Ors (1997) 6 NWLR (Pt.507) at 14; Jimoh Atanda v. Memudu Iliasu (2013) 18 WRN 1 at 29.

Counsel for the Appellants further submitted that the production of a certificate of occupancy was not conclusive proof of a valid title to land in favour of the grantee. Where it is effectively challenged, it could be rendered invalid, null and void, citing and relying on Ogunleye v. Oni (1990) NSCC Vol. 21 part II at 721; Adole v Gwar (2008) ALL FWLR, (Pt. 423) at 1217. The certificate of occupancy relied upon the Respondent was challenged and alleged to have been obtained by fraud. It was posited that fraud in this situation was not fraud as to require the Appellants to prove it beyond reasonable doubt but that it merely puts the Court on enquiry as the procedure adopted in acquiring land and is to be resolved on a balance of probability, citing Arowolo v Ifabiyi (2002) 4 NWLR (Pt. 757) 356 at 380 – 381. The defence set up by the Appellants showed a clear challenge to the Certificate of Occupancy as well as accompanying documents placed before the Court by the Respondent. It was argued that the Certificate of Occupancy, Exhibit 1, lacked evidential value. Firstly, it was an expired document and the grant no longer subsisted. Secondly, the foot of the Certificate of Occupancy, the schedule for the description of the land was entered on 29/12/1977, over a month after the Certificate of Occupancy was issued to the Respondent. The site plan which accompanied the Certificate was checked on the 28/12/1977 also after the issuance of the Certificate of Occupancy. The contents of these documents are at variance with the oral evidence of the Respondent that upon application to the Katsina-Ala Local government by his father, the land was surveyed and allocated to him. Documentary evidence is the hanger on which oral evidence ought to be tested. Where a document is clear, the operative words in it should be given their simple and ordinary grammatical meaning, relying on Union Bank v. Prof A.O. Ozigi (1994) 3 NWLR (Pt.333) 385. The weight to be attached to the document and its probative value relative to the facts in issue must be considered.

Exhibit 1 tendered by the Respondent was bundle of documents which included the Certificate of Occupancy, a Site Plan and sundry payment receipts. By Section 128 (1) of the Evidence Act, 2011, where any official, judicial or contractual act or other disposition of property has been reduced to a form of a document or series of documents, no evidence outside the documents is admissible and same cannot be contradicted, altered, added or varied by oral evidence. It was submitted that Exhibit 1 speaks for itself. The conclusions reached by the lower Court on the Exhibit 1 and accompanying documents did not flow from the evidence. A Court must restrict itself to the case presented by the parties and adjudicate on the dispute placed before it having regard to the evidence tendered by the parties. It was posited that if the Court properly evaluated the documents tendered before it and given them their ordinary meaning without recourse to assumptions and conjecture, it would have agreed that the documents tendered by the respondent to find his claim had expired and there would therefore have been no basis to have declared title in his favour.

​It was further submitted that while there is a presumption of regularity for acts by public officials, in matters of claim of title to land where a defendant is asserting prior interest in the land or where the respondent has admitted the existence of a prior existing interest on the land before the delivery of the documents of title to him, he has the onus of exceeding the mere presumptive principle and the Court must look at the documents for what they are worth with regard to the provisions of the law under which they were issued. That the Appellants need not sue the Katsina-Ala or Ukum Local Government Council to effectively challenge the documents produced by the Respondent. The Respondent who produced them and had the onus of satisfying the Court that they were credible, citing Jimoh Atanda v. Memudu Iliasu (supra). A party must succeed on the strength of his case and not on the weakness on the defense. Having failed to prove that the land was lawfully granted to him against the Appellants, the Respondent’s case ought to have been dismissed.

A party claiming title to land is to prove the identity and boundaries of the land with certainty, which the Respondent failed to do. The Respondent had the onus of proving the identity and boundaries of the land granted to him with certainty. The fact that the Appellants pleaded and tendered their own site plan showed that they did not agree with the site plan in Exhibit 1 which he tendered.

​Appellants’ Counsel also referred to the provisions of Section 3 (b) of the Survey Law, Cap 162 Laws of Benue State, 2004 which is in pari materia with Section 3 (b) of the Survey Law, Laws of Northern Nigeria, 1963 and submitted that the use of the land, as pleaded and testified by the Respondent, did not fall into the exemption of this Statute. Further, that the site plan tendered as part of Exhibit 1 showed that it was neither prepared by a surveyor and certified as such, nor did it carry the counter signature of the Surveyor-General as required by the Survey Law. The document was therefore inadmissible in evidence, notwithstanding that it was tendered without objection, the lower Court ought not have attached any weight to it. Reliance was placed on Agagu v Dawodu (1990) 7 NWLR (Pt.160) 56. Where a document is rendered inadmissible by law, the fact that it tendered without objection in the trial Court will not debar a person from raising it on appeal; citing authorities includingOwena Bank (Nig) Plc. v. Punjab (2000) 5 NWLR (Pt.658) 635; Alade v. Olukade (1976) 2 SC 183. On the inadmissibility in evidence of a site plan that was not prepared and signed by a person who is a surveyor, the case of Babatola v. Aladejana (2001) FWLR (PT.61) 1670 at 1678 was cited and relied on. It was therefore submitted that the site plan, Exhibit 1, which also failed to describe the land or its boundaries, had no probative value. Where land being claimed is not described, identified and ascertained, the claimant will fail and his case will be dismissed, relying on Odiche v Chibogwu (1994) 7 NWLR (Pt.354) 78 SC; Oluwi v. Eniola (1967) NMLR 339. It is only where the parties know the land and admitted its boundaries in their pleading that the duty to prove same is obviated, citing Motanya v Elinwa (1994) 7 NWLR (Pt.356) 252. It was argued that in this case where there was no such admission in evidence, the lower Court was wrong to have held to the contrary. The Court was urged to hold that the Respondent failed to prove title to the land by him and to resolve these Issues in favour of the Appellants.

For the Respondent, the Court was urged to affirm the decision of the trial Court and hold that the Respondent proved a better title to the land in dispute. Where a party in an action for declaration of title to land relies on production of documents of title, as the Respondent had done herein, he need not prove title by any other method, citing Nseigbe & Anor. v. Mgbemena & Anor. (1996) 1 NWLR (Pt.426) 607 at 624. The Respondent had relied on a document of title, Exhibit 1, which was a Certificate of Occupancy over the land in dispute issued by Katsina-Ala LGC in 1977. Where two parties are in dispute over title to a piece of land, the duty of the Court is to examine the evidence and come to a decision as to which of the contending parties had a better title. Cases relied on include Okpala v Ibeme (1989) LPELR-2512(SC) 18, (1989) NWLR (PT.102)208; Alhaji Hamdana Kankia v. Ali Maigemu & Ors (2002) LPELR-7061(CA), [2003] 6 NWLR (Pt.81) 496. The decision on the matter is arrived at by preponderance of evidence, citing Wachukwu v Owunwanne (2011) 5 SCNJ 197 at 212. The Court was urged to hold that an examination of the evidence before the trial Court would show that the Respondent proved a better title to the land in dispute. The deceased father of the Respondent had been in possession of the land in dispute for more than 30 years at the time of filing this suit at the trial Court, which supported the claim that the Respondent was in undisturbed possession till 2011. It was submitted that the Respondent by documentary and oral evidence at the trial Court had proved his entitlement to a declaration of title to the land in dispute satisfying the onus placed on him, citing Nwokidu v Okanu (2010) ALL FWLR (Pt.522) 1633 at 1655.

​The Appellants had incorporated a Counterclaim in their Joint Statement of Defence, and had the onus of proving the counterclaim by credible evidence. But the Appellants failed to prove their claim to the land in dispute. From their pleadings, they relied on traditional evidence but failed to prove same, relying on Lebile v Registered Trustees of Cherubim & Seraphim Church of Nigeria & 3 Ors. (2003) 13 NSCQR 19 at 28; Ugorji & Ors v Onwuka & Anor (1994) 4 NWLR (Pt. 337) 226 at 239. The Appellants had contended that the land in dispute was their farmland situate within their own Ukande kindred without more. It was argued that whether the land in dispute was located within Ukande kindred or not does not make them the owners of the land. The Appellants not being the only persons in Ukande kindred, they cannot claim every parcel of land in Ukande Kindred as their own. The duty to prove how the land became their own rested solely on them. Where a plaintiff fails to prove the base upon which he founded his title, the claim must fail. Reliance was placed on Madumere & Ors v Okafor & Ors (1990) 3 NWLR (Pt. 138) 327 at 335. The Court was urged to hold that the Appellants having failed to prove their counterclaim, the trial Court was right to have dismissed their counterclaim.

On the contentions over the validity of Exhibit 1, the Respondent submitted that the fact that the term of years for which Exhibit 1 was issued had expired does not make the Appellants the owners of the land in dispute. Even after expiration of Exhibit 1, the legal interest in the land reverts to the granting authority, and, the Respondent still has equitable interest in the land. The term of years granted to the Respondent can be renewed as provided by Regulation 14 of the Land Tenure (Native Authority Control of Settlements) Regulations, Cap 59 Laws of Northern Nigeria, 1963 under which Exhibit 1 was granted.

Counsel for the Appellants had argued that there was no evidence that the land in dispute has been declared a settlement area and laid out into plots as required by the Land Tenure (Native Authority Control of Settlements) Regulations, Cap 59 Laws of Northern Nigeria, 1963. The Respondent’s Counsel submitted that the Native Authorities had the right to grant land, whether located in a settlement area or not, to any person for agricultural purposes, as was granted to the Respondent’s late father.

The further challenge to the validity of Exhibit 1 on grounds of fraud by the Appellants’ counsel was also not proved. The law is that where the commission of a crime by a party to any proceeding is directly in issue in any proceeding, civil or criminal, it must be proved beyond reasonable doubt. Reliance was placed on Section 135 (1) of the Evidence Act, 2011. The fact that Exhibit 1 was dated 16/11/1977 while the site plan was checked on 28/12/1977 and the Schedule for description of the land was entered on 29/12/1977 did not render Exhibit 1 to be a product of fraud. The various dates were in line with administrative procedure as was performed by different officers and show no fraud.

​The Appellants failed to join Katsina-Ala Local Government as a party in their Counter claim to ventilate their grievances against the Local Government to enable the Local Government be heard as to why it granted the title document in respect of the land to the Respondent’s father. The Appellants did not also pray the trial Court for the nullification of Exhibit 1 which they alleged was obtained by fraud. The Court was urged to hold that the Appellants’ challenge to the grant of Exhibit 1 to the Respondent’s late father by Katsina-Ala Local Government was baseless.

On the contention that the Respondent did not prove the identity of the land at the trial with certainty, it was submitted that it is only where both parties do not agree as to the identity of the land in dispute that it becomes the duty of the initiator of the action to prove the identity of the land, relying on Nwanko v Ofomata (2009) ALL FWLR (Pt. 497) 189 at 208-209. It was submitted that in the instant suit on appeal, the identity of the disputed land, which the Respondent sufficiently proved, was not in issue. Identity of land can be sufficiently established or proved if there is a site or survey plan showing the boundaries of the land, citing Okochi v Animkwoi (2003) 18 NWLR (Pt.851) 1 at 6. The site plan, which accompanied Exhibit 1, clearly stated the coordinates or boundaries of the land in dispute. The Court was urged to hold that the identity of the land was sufficiently proved by the Respondent at the trial.

​Counsel for the Appellants had argued that the said site plan accompanying Exhibit 1 was legally inadmissible by virtue of Section 3 of the  Survey Law, Cap 162 Law of Benue State, 2004, particularly, Section 3 (b) thereof. It was submitted that the argument of Counsel on this issue was misconceived. Section 3 of the said Law exempts the map, plan or diagram of any land required for farming purpose from the requirements of paragraph (b) of the Law. The site plan in issue was in respect of land granted to the Respondent’s late father for farming purpose as clearly stated thereon. The Court was urged to hold that the site plan was in respect of land required for farming purpose and that the requirement of Section 3 (b)  of the Survey Law, Cap 162 Law of Benue State, 2004 was not applicable thereto. The Court was urged to resolve these issues in favour of the Respondent.

Resolution
As has been rightly submitted for both parties, it is the well-established position of the law that any person claiming a declaration of title to land must prove by evidence that he is entitled to the declaration he seeks; Mbadinuju v. Ezuka (1994) 8 NWLR (Pt. 364) 535 S.C; Umesie v. Onuaguluchi (1995) 9 NWLR (PT. 421), (1995) LPELR-3368(SC); Kazeem v. Mosaku (2007) 2 S.C. 22; Olodo v. Josiah (2010) 18 NWLR (PT 1225) 653. Judicially established methods of proving title to land have been well articulated with a foremost authority found in the case of Idundun v. Okumagba (supra) wherein the Supreme Court prescribed five ways of proving title to land thus:
1. By traditional evidence
2. By various acts of ownership numerous and positive and extending over a length of time as to warrant the inference of ownership.
3. By production of title documents
4. By acts of lawful enjoyment and possession of the land;
5. By proof of possession of adjacent land in circumstances which render it probable that the owner of such land would in addition be the owner of the other land.
See also:Mogaji v. Cadbury Nigeria Ltd(1985) NWLR (PT 7) 393, (1985) LPELR-1889(SC); Irolo v. Uka (2002) 14 NWLR (PT 786) 195. A claimant must plead and prove any of these five different ways of proving ownership of land, though he need not plead and prove more than one of these ways; Biariko v Edeh-Ogwuile (2001) 12 NWLR (PT 726) 235; Olubodun v. Lawal (2008) 6-7 S.C. (PT 1) 1; Yusuf v. Adegoke (2007) 6 S.C. (PT 1) 126; Balogun v Akanji (1988) 2 S.C. 199. Proof of one single root of title is sufficient to sustain the claimant’s claim for declaration of title to land; Onwugbufor v. Okoye (1996) 1 NWLR (PT 424) 252; Olagunju v. Adesoye (2009) 9 NWLR (PT 1146) 225. In proving title, he must rely on the strength of his case and not on the weakness of the defence; Oje v Babalola (1991) 4 NWLR (PT 185) 267; Bello v Eweka (1981) NSCC 48; Kazeem v Mosaku (2007) 2 S.C. 22; Echi v Nnamani (2000) 5 S.C. 62; Eze v Atasie (2000) 6 S.C. (PT 1) 214. The only exception to this position is that a plaintiff may quite perfectly take advantage of those facts in the case of the defence which support his claims; Buraimoh v. Bamgbose (1989 LPELR-818(SC), (1989) ALL NLR 669; Oduaran v. Asarah (1972) 5 S.C. (REPRINT) 173, (1972) LPELR-2233(SC). The party that is able to prove title to land in issue is deserving of judgment.

​The Respondent pleaded that his late father, Hon. William Zenke Abuul was allocated the disputed land by the Katsina-Ala Local Government and issued with a Certificate of Occupancy. He relied on the said Certificate of Occupancy with accompanying Site Plan as well as registration and annual ground rent receipts, all admitted and marked Exhibit 1. A Certificate of Occupancy is prima facie proof of title to the land over which it was issued but it is not conclusive proof of title to the land; Adole v Gwar (2008) LPELR-189 (SC).
The Certificate of Occupancy, properly issued, raises the presumption that as at the time it was issued, there was not in existence a customary owner whose title had not been revoked. This presumption is however rebuttable because if it is proved by evidence that another person had a better title to the land before the issuance of the Certificate of Occupancy, the Certificate of Occupancy will be revoked; Madu v Madu (supra), (2008) LPELR-1806(SC) at page 24; Omiyale v Macaulay (2009) LPELR-2640(SC), (2009) 7 NWLR (PT 1141) 597; Otukpo v John (2012) LPELR-25053(SC); Orianzi v AG, Rivers State (2017) LPELR-41737(SC).
It is the position of the law that once a person is granted a Certificate of Occupancy over a parcel of land, he is entitled to hold same to the exclusion of any other person unless and until the said Certificate of Occupancy is set aside or it gives way to a better title; Ilona v Idakwo (2003) LPELR-1496(SC); Madu v Madu (supra), (2008) 2-3 S.C. (PT 11) 109, (2008) LPELR-1806(SC); Otukpo v John (supra); Adole v Gwar (supra). Therefore, if the Respondent’s root of title was defective, a Right of Occupancy with a Site Plan would not cure the defect.

The Appellants challenged the validity of Exhibit 1 on a number of grounds. One of the grounds was that Exhibit 1 was fraudulently issued. The Appellants pleaded particulars of fraud in which they stated thus:
a. The Certificate of Occupancy is dated 16-11-1977 while the site plan was checked on 28/12/1977.
b. The form No. 1, it means that there was no site plan where the Certificate of Occupancy was issued.
c. The size and site plan information typed at the bottom of the Certificate of Occupancy are alterations on the Certificate.
d. That any alteration, addition of correction made on an Original document/public document/Registrable instrument or any document of all renders it unreliable, null and void.
e. That the land in dispute is in Mbavav in Ukande, Azendeshi, Torov Azendeshi, Torov in Ukum L.G.A. Benue State and the Plaintiff is from Mbawar, Azendeshi, Torov, Ukum L.G.A. Benue State.

  1. That there is no agreement of sale of the land located in Mbavav to the Plaintiff and that the Plaintiff hails from Mbawar and not Mbavav Defendants hereby put the Plaintiff to the strictest proof thereof.
    g. That no tier of Government took over the land and paid compensation for onward allocation to individuals.
    h. That Mbaantem family land is not an urban area and no layout was proposed or render in the area for allocation to individuals.
    i. That it is fraudulent for the Plaintiff’s father to have to have sought allocation of Mbaantem family land from the former Katsina-Ala Local Government Council.
    j. That the land in dispute is over 14 Hectares and such a land should not be approved for a piggery farm alone.
    k. That the action of even applying for such a massive size of land for a piggery farm only amounts to land grabbing which is frowned at.
    l. That 14.5 Hectares of land is the size of about 15 standard football fields and a plot of 100 feet x 100 feet is enough for a piggery farm. (Emphasis mine)
    Fraud has to be specifically pleaded with particularity, as the Appellants have done here; Uhunmwangho v. Okojie & Ors ​(1982) LPELR-3334(SC); Otukpo v John (supra); Ojibah v Ojibah (1991) LPELR-2374(SC); Highgrade Maritime Services Ltd v. F.B.N Ltd (1991) LPELR-1364(SC); Olalomi Industries Ltd v. NIDB Ltd (2009) LPELR-2564(SC). However, it is not enough to simply plead fraud or allege that a document was fraudulently obtained. The allegation has to be established by admissible and credible evidence. In any proceeding, whether criminal or civil where allegation of the commission of a crime is an issue, the allegation must be proved beyond reasonable doubt. The evidence in support must show that there has been a dishonest or morally wrong act. This is more so when the fraud alleged is a crime, notwithstanding the fact that the suit in dispute is civil; Yakubu v. Jauroyel & Ors (2014) LPELR-22732(SC).
    Counsel for the Appellants relied on Arowolo v. Ifabiyi (supra) also reported in (2002) LPELR-562(SC) to submit that fraud as was pleaded by the Appellants, was merely to put the Court on enquiry as to the procedure adopted in acquiring land, which is to be resolved on a balance of probability. There is no doubt that mere general allegations of fraud however strong are insufficient to amount to an averment of fraud of which any Court ought to take notice. The question here is whether the Appellants made mere weightless allegations that should only put the Court on enquiry as to the value and credit of the document of title relied on by the Respondent, Exhibit 1.
    ​A close scrutiny of the tenor of the particulars of fraud as pleaded by the Appellants, would reveal that they went beyond merely seeking to cause the Court to take a closer look at Exhibit 1. For instance, it may be said that the complaints about the different dates given on the Certificate of Occupancy and the Site plan, the purpose and size of the land in issue, as well as the alleged irregularity in the procedure adopted in acquiring the disputed land by the Katsina-Ala Local Government and its subsequent allocation to the Respondent’s father were merely to put the Court on enquiry as to the value and credit of Exhibit 1. On the other hand, allegations of alterations made on Exhibit 1, and allegations of dishonest act by the Respondent’s father by fraudulently seeking and obtaining through the Katsina-Ala Local Government Council the allocation of the Appellants’ alleged land, imply an immorally wrongful act.
    Fraud always depicts something that is dishonest and morally wrong. In Adimora v. Ajufo & Ors (1988) LPELR-182(SC) the Supreme Court, per Oputa, JSC, gave a succinct description of fraud thus:
    “Fraud implies a willful act on the part of anyone, whereby another is sought to be deprived, by illegal or inequitable means, of what he is entitled to. Fraud for the purposes of the civil law includes acts, omissions and concealments by which an undue and unconscientious advantage is taken of another: Green v. Nixon (1857) 23 Beav 530 at p.535.”
    In the same vein, Muhammad, JSC (now CJN) in Ntuks v. NPA. (2007) LPELR-2076(SC) at page 41, (2007) 13 NWLR (Pt.1051) 392, gave an elucidation of what would constitute fraud in these terms:
    “It is said that fraud is an intentional perversion of truth for the purpose of inducing another in reliance upon it to part with some valuable thing belonging to him or to surrender a legal right. It is a false representation of a matter of fact, whether by words or by conduct, by false or misleading allegations or by concealment of that which should have been disclosed, which deceives and is intended to deceive another so that he shall act upon it to his legal injury. Fraud is a cankerworm and indeed an insidious disease. It is a strong vitiating factor.”
    Fraud therefore carries far much wider implications than simply impugning the truth or correctness of a document: Ojibah v. Ojibah (supra). The point has been made that in any proceeding, whether criminal or civil, once there is an allegation of the commission of a crime is an issue, the allegation must be proved beyond reasonable doubt and the onus rests on him who asserts; Section 135 (1) of the Evidence Act, 2011. See also: Nduul v. Wayo & Ors (2018) LPELR-45151(SC); Yakubu v. Jauroyel & Ors (supra); Agi v. PDP & Ors (2016) LPELR-42578(SC); Babatunde & Anor v. Bank of the North Ltd & Ors (2011) LPELR-8249(SC).
    The Appellants alleged, as part of the particulars of the fraud, that no tier of Government took over the land in issue and paid compensation for onward allocation to individuals. Specifically, in paragraph 3 of the Joint Statement of Defence, they alleged that the Katsina-Ala Local Government did not take over the land in dispute and that no compensation was paid to them. Exhibit 1 was issued by the Katsina-Ala Local Government Council under the Land Tenure (Native Authority- Control of Settlements) Regulation, 1962 made pursuant to Section 47 of the Land Tenure Law, Cap 59 Laws of Northern Nigeria, 1963. The Appellants further allege that the terms of Exhibit 1 as issued by the Katsina-Ala Local Government were in violation of the provisions of the said Regulations in the grant of a term of years of 30 years and that there was no evidence that the land had been declared a settlement area, surveyed and laid out into plots. The Appellants also called attention to different dates on the Site Plan attached to Exhibit 1 as a query to the legitimacy of the document.
    ​It was not in dispute that Exhibit 1 was the official act of the Katsina Ala Local Government. It was not in evidence that the authenticity of the signatories thereto was challenged. By virtue of Section 168 (1) of the Evidence Act, 2011, when any official act is shown to have been done in a manner substantially regular, it is presumed that formal requisites for its validity were complied with. The burden is on the party who asserts that the formal requisites for the validity were not complied with to so prove; Torri v. The National Park Service of Nigeria (2011) LPELR-8142(SC); Udo-Paul v. C.O.P Akwa Ibom State & Anor (2019) LPELR-47000(CA), Adokwe & Anor v. Tanko & Ors (2019) LPELR-48750(CA).
    The learned trial Judge found and held, page 275 of the Record of Appeal:
    “I had earlier held that the plaintiff did not make Exhibit 1. The Exhibit is made by Katsina-Ala Local Government. Ukum Local Government collected fees from the plaintiff on 7/6/2012 in respect of Exhibit 1. Katsina-Ala and Ukum Local government Councils have not been made parties in this suit challenging their conduct in respect of Exhibit 1. There is no relief in the counter-claim challenging the issuance of Exhibit 1 to the late father of the plaintiff. Exhibit 1 is the official conduct of the Local Government which issued it. It is the law that when an official act is done, formal requisite for its validity were complied with by the office concerned. See Section 168(1) of the Evidence Act, 2011. See also ONDO STATE UNIVERSITY VS. FOLAYAN [1994] 7 – 8 SCNJ (Pt. 1) 186.”
    I agree completely with the learned trial Judge on this point. There exists a presumption of law that the official acts of the Katsina-Ala Local Government have been done rightly and regularly until the contrary is proved. The burden placed on the Appellants who assert that Exhibit 1 was not regularly issued was not discharged.

​The Appellants’ Counsel had argued that they did not need to join the Katsina-Ala Local Government in their challenge to the validity of the document of title presented by the Respondent. I do not subscribe to this view. I find it anomalous that the Appellants, who did not seek the nullification of Exhibit 1 in their Counterclaim, did not join Katsina-Ala Local Government to the said Counterclaim. The procedure adopted in acquiring the disputed land by the Katsina-Ala Local Government, whether or not compensation was paid to the persons the land was acquired from, and, its subsequent allocation to the Respondent’s father, were all official acts of the said Katsina Ala Local Government. The Appellants, who needed to demonstrate the reason why the presumption in favour of Exhibit 1 ought to be disregarded, did not discharge that burden.

Further, the Appellants had complained that the Site Plan attached to Exhibit 1 did not indicate it was prepared by a surveyor and certified as such. It also did not carry the counter signature of the Surveyor-General as required by the Survey Law, Cap 162 Laws of Benue State, 2004. That the use to which the land in dispute was put did not fall within the exemption to these requirements provided for in Section 3 (b) of the said Law. Section 3 (b) of the said Survey Law provides as follows:
3. No map, plan or diagram of land except the map, land or diagram of land relating to a piece of land required for farming purpose:
(a) …
(b) If prepared after the 16th day of May 1981 shall save for good cause shown to the Court be admitted in evidence in any Court unless the map, plan or diagram.
(i) has been prepared and signed by a surveyor or is a copy of a map, plan, or diagram so prepared and signed and certified by the surveyor as being a true copy and;
(ii) has been examined by the survey department and bear the counter signature of the “Surveyor General. (Emphasis mine).
Exhibit 1 ex facie plainly states that it was granted for a poultry farm. The Site Plan attached thereon states that the land in issue was for Poultry Piggery Farm. The use for which the land was allocated and the site plan prepared therefore falls within the exemption provided in Section 3 (b). The Appellants’ complaint on this ground cannot stand.

The Appellants also allege that the boundaries of the land were not identified by the Respondent. It is settled law that in an action for declaration of title to land, it is the plaintiff’s first duty to prove the area over which he claims with certainty and precision; Okochi v Animkwoi (supra), (2003) LPELR-2455(SC); Adesanya v. Aderonmu & Ors (2000) LPELR-145(SC); Galadima v. Kuku (2018) LPELR-43886(CA). It is also trite that the mere mentioning of the area is not enough; the description and extent of the boundaries must be proved with exactitude. The test of certainty and precision is of necessity to ensure whether a surveyor can from the evidence before the trial Court produce an accurate plan of such land; Jimoh Atanda v. Memudu Iliasu (supra), (2012) LPELR-19662(SC). The Respondent filed this action, seeking declaration of title over the piece of land represented in Exhibit 1. The said size, coordinates and location of the said land were fully identified and described in Exhibit 1, to which the Site Plan was attached. The Appellants did not in their pleadings or in evidence challenge the size, coordinates and location of the said land in issue as set out in Exhibit 1. Their challenge over the different administrative scheduling dates on the site plan does not translate to a contest over the dimensions or boundaries of the said land. The land for which the Respondent sought an order of Court was therefore fully identified by him and well known to the Appellants. See also Okochi v Animkwoi (supra); Galadima v. Kuku (supra).

​The Appellants had argued that by the time Exhibit 1 was tendered in evidence on 24/7/2013, it had long expired and could not, for this reason, form the basis of title as the grant made had lapsed by effluxion of time. Exhibit 1 was issued on 16/11/1977 for a period of 30 years. This period expired in 2007. The Respondent also tendered receipts of payment of ground rent for the said disputed plot, one of which was the annual ground rent receipt No 012147 for 2012, that stated it was received from W.Z. ABUUL POULTRY/PIGGERY at Chito on account of Registration and annual ground rent on residential plot no 10 Chito Settlement area for 2012. The Appellants contended that there was no nexus between this receipt and the land in dispute, which was numbered as Plot No 1, Chito Settlement in other receipts and in Exhibit 1. The learned trial Judge held, page 273 of the Record of Appeal:
“The revenue receipt No 012147 showing “residential plot No. 10 at Chito” …is part of Exhibit 1. It seem (sic) therefore that the said receipt No 012147 is not in respect of a different piece of land other than the land in dispute between the parties…”

The Appellants’ Counsel argued that the conclusion drawn by the learned trial Judge on the status of No 012147 was speculative. The Respondent’s Counsel on the other hand, argued that even after expiration of Exhibit 1, the legal interest in the land reverts to the granting authority and the Respondent still has equitable interest in the land. By virtue of Regulation 14 of the Land Tenure (Native Authority Control of Settlements) Regulations, Cap 59 Laws of Northern Nigeria, 1963 under which Exhibit 1 was granted, the term of years granted to the Respondent could be renewed. It was further argued that the conclusion of the trial Court on the status of receipt No 012147 was right.

​The receipt No 012147 acknowledged payment for annual ground rent for 2012 made by W.Z. ABUUL POULTRY/PIGGERY at Chito. Exhibit 1 states that it was issued in favour of W. Zenke Abuul of Chito. The said receipt no 012147 was part of the documents tendered as Exhibit 1, which was issued for poultry/piggery farm purpose. It was in evidence that there was also a three-bedroom flat, and a five-roomed building on the land in dispute. The Respondent testified that he and his younger siblings also resided on the said land. However, although the land in issue was not allocated for residential purposes, it was not in evidence that there was any other plot allocated to W. Zenke Abuul of Chito solely for residential purposes at Chito. Notwithstanding the fact that the nexus between Plot No 1, Chito Settlement and Plot 10, Chito Settlement ought to have been better demonstrated by the Respondent, on the state of the evidence adduced, the reasonable conclusion to be drawn is that Receipt No 012147 issued to W.Z. ABUUL POULTRY/PIGGERY at Chito related to the land in dispute.

Now, if the grantor Local Government was still receiving annual rent from the grantee years after the express term of years indicated in Exhibit 1 had expired, then it means that the Local Government recognized that the Respondent still retained an equitable interest in the said land. The term of years of the grant was renewable, as provided by Regulation 14 of the Land Tenure (Native Authority Control of Settlements) Regulations, Cap 59 Laws of Northern Nigeria, 1963, under which Exhibit 1 was granted.

I would emphasize that Exhibit 1 was an official act of a Local Government, that is presumed to have been issued upon compliance with all formal requisites. The Appellants did not dislodge this presumption of law in favour of Exhibit 1.

​An important consideration is whether the Appellants proved a better title to the land in dispute. The Appellants in their Joint Statement of Defence/Counterclaim pleaded that the land was their Mbaantem family land. They pleaded that they had title to the land in dispute prior to the issue of Exhibit 1 and that the said land was never taken over by the Katsina-Ala Local Government or any other authority. Clearly, the Appellants relied on traditional evidence.

The settled position of the law is that where a party relies on traditional history in proof of title to land, he must give satisfactory evidence as to how he derived the particular title pleaded and claimed. He is bound to plead and establish facts such as:
1. who founded the land;
2. how he founded the land; and
3. the particulars of the intervening owners through whom he claims;
See: Nruamah v Ebuzoeme (2013) LPELR-19771(SC); Onwugbufor v Okoye (1996) LPELR-2716(SC); Dike v Okoloedo (1999) 7 S.C. (PT 111) 35; Ngene v Igbo (2000) LPELR-1987(SC); Ezeokonkwo v Okeke (2002) 5 S.C. (PT 1) 44. An examination of the Appellants’ Joint Statement of Defence/Counterclaim will reveal that the Appellants’ pleadings were completely deficient in this regard. Aside from attacking the Respondent’s root of title, all the Appellants pleaded was that the land in issue belonged to their family. Details of who founded the land, how he founded the land, and particulars of the intervening owners through whom they claimed, were not supplied. There was therefore no pleading and no evidence to validate the Appellants’ claim to the land in issue. The fact that the disputed land was situate in Mbavav from where the Appellants’ Mbaantem family hails does not make the said land their family land. The Appellants who failed to prove their assertions in claim of the disputed land, did not present a better title than the Respondent thereto. The Appellants’ Counterclaim was, for this reason, rightly dismissed by the trial Court.

​The Appellants’ Counsel argued that the Counterclaim was not challenged as the Respondent did not accompany their Reply to the Counterclaim with any sworn deposition. For the Respondent, it was submitted that the evidence elicited from the Appellants’ witnesses during cross examination formed part of the case of the Respondent, and, that was evidence in support of the Respondent’s Reply to the Appellant Statement of defence and Counterclaim, relying on Akomolafe v Guardian Press Ltd (2010) 3 NWLR (1181) 338 at 351. It was further submitted that a counterclaim is a separate and an independent action which may proceed irrespective of the dismissal, stay or discontinuance of the plaintiff’s claim. A counterclaimant, just like a plaintiff in an action for declaration of title to land, must succeed on the strength of his own case and not rely on the weakness of the defendant’s case, citing Jodi v Salami (2009) ALL FWLR (458) 385 at 409. The Appellants had the duty to adduce sufficient and credible evidence to establish the mode of acquisition of their title to the land in dispute which they failed to do.

​There is no doubt that a counterclaim is an independent action and the counterclaimant must prove that he is entitled to the order(s) he seeks. Even in default of defence or indeed on admission by the defendant, the Court would not grant declaratory order(s) sought by a plaintiff without hearing evidence and being satisfied by such evidence: Anwoyi & Ors v. Shodeke & Ors (2006) LPELR-502(SC); Kwajaffa & Ors v. Bank of the North Ltd (1998) LPELR-6371(CA).

It is also right to submit that where no evidence is given in support of pleadings, the pleadings are deemed to have been abandoned.

However, it is also settled law that evidence elicited from a party or his witness(es) under cross examination which goes to support the case of the party cross examining, constitute evidence in support of the case or defence of that party. If at the end of the day, the party cross examining decides not to call any witness, he can rely on the evidence elicited from cross examination in establishing his case or defence. In such a case, one cannot say that the party called no witness in support of his case or defence, as the evidence elicited from his opponent under cross examination which is in support of his case or defence constitutes his evidence in the case. The exception to this is that the evidence so elicited under cross examination must be on facts pleaded by the party concerned for it to be relevant to the determination of the question/issue in controversy between the parties; per Onnoghen, JSC (as he then was) in Akomolafe v Guardian Press Ltd (supra), (2010) LPELR-366(SC) at pages 15 – 16. Therefore, the Respondent, whose Counsel cross examined the Appellants’ witnesses, could rely on the evidence elicited from cross examination in establishing his case.

Fundamentally, the responsibility of proving their counterclaim lay with the Appellants. And, in doing so, as would a plaintiff in an action for declaration of title to land, they must succeed on the strength of their own case and not rely on the weakness of the defendant’s case; Oje v Babalola (supra); Bello v Eweka (supra); Kazeem v Mosaku (supra); Echi v Nnamani (supra); Eze v Atasie (supra). The pleadings of the Appellants in the Joint Statement of Defence and Counterclaim, and, a fortiori, the evidence adduced thereon, were bereft of the requisites to prove title to land by traditional evidence. The Appellants’ Counterclaim was therefore rightly dismissed by the lower Court. I therefore resolve Issues 1 and 4 against the Appellants and in favour of the Respondent.

Issues 2, 3, 5, and 6
The Respondent’s claim for special damage, from paragraphs 13 and 14 of his Statement of Claim, was centred on the alleged destruction of his palm tree stands, citrus tree, three-bedroom flat, a five-room building, stolen animals from the piggery and poultry as well as other losses. The learned trial Judge found and held that the claim for special damages was not proved and dismissed same. There was no appeal against this finding.

The further finding of the lower Court was that the properties of the Respondent were actually destroyed. PW1 gave an eyewitness account. Under cross examination, PW1 testified, page 250 of the Record of Appeal:
“It was me who informed the plaintiff that it was the defendants who came and destroyed the property of the plaintiff. The defendant destroyed a poultry house, pigs pen, destroyed the flat (building) made by the plaintiff. Cut down the mango tree in the compound we made as shade, uprooted many palm trees. One mango tree was cut down. I do not know the No. of pigs and the fowls that were taken away by the defendants.”

His evidence was not discredited. Taking also into consideration the other pieces of evidence relied on by the trial Court, it is evident that these damages were the same damages as were pleaded by the Respondent in paragraphs 13 and 14 of the Statement of Claim and claimed as special damages but found not proved by the trial Court. Nevertheless, the trial Court, went on to hold:
“The late father of the plaintiff and the plaintiff himself has(sic) been disturbed on the land since 1978 as evidenced by Exhibit 2. In Exhibit 3 and D1, the defendants continued with their disturbing the plaintiff on the said land. This protracted conduct by the defendants culminated in the fact forming the basis of this suit. The said act(sic) are aggravated lending(sic) to the wanton destruction of the properties of the plaintiff. In the circumstances, I hereby award the sum of N3,000,000.00 as general damages against the defendants, jointly and severally for trespass and the destruction of the properties of the plaintiff with the exception of DW4 who is not liable for the destruction of the Plaintiff’s properties.”

General damages may be awarded for trespass to land in recognition of the proprietary interest of the plaintiff. Usually, this would be nominal except there is damage caused, in which case the plaintiff would have to specifically plead and prove same; Umunna & Ors. v. Okwuraiwe & Ors (1978) LPELR-3378(SC); Osuji & Anor v. Isiocha (1989) LPELR-2815(SC); Adamu v. Esonanjor (2014) LPELR-41137(CA); Haruna & Anor v. Isah & Anor (2015) LPELR-25894(CA). It is within the discretion of a trial Court to decide what amount it should award as general damages, having regard to the circumstances of the case;NNB Plc v Denclag (2004) LPELR-5942(CA).

The Appellants’ Counsel argued that the Respondent did not prove exclusive possession of the land in dispute and was therefore not entitled to claim for trespass. Reliance was placed on Adebayo v. Ighodalo (1996) 5 NWLR (PT. 450) 507 at 527; Nzekwu v. Nzekwu (1989) 2 NWLR (Pt.104) 373. Counsel also submitted, rightly too, that where the evidence show that the defendant is in possession of the disputed land, the onus is on the plaintiff to show that he has a better right to possession which was disturbed and unless that onus is discharged, the plaintiff cannot defeat the defendant, citing Shoshai Gambo v. Zindul Turdam (1993) 6 NWLR (Pt.300) 500 at 511.

​This Court has already resolved the issue of title. The Appellants relied on traditional evidence in proof of their counterclaim. If I may reiterate, the settled position of the law is that where a party relies on traditional history in proof of title to land, he must give satisfactory evidence as to how he derived the particular title pleaded and claimed. He is bound to plead and establish facts such as:
1. who founded the land;
2. how he founded the land; and
3. the particulars of the intervening owners through whom he claims;
See: Nruamah v Ebuzoeme (supra); Onwugbufor v Okoye (supra); Dike v Okoloedo (supra); Ngene v Igbo (supra); Ezeokonkwo v Okeke (supra). The Appellants neither pleaded nor proved their claim to title of the disputed land in line with the established method of proving title by traditional evidence. The Respondent, as already demonstrated above, proved a better title to the land in dispute and therefore had a right to possession.

Trespass is a breach of a right of possession. There is trespass when someone who has no title to the land interferes with the possession of another person who has a good title to the land, Apena & Anor v. Aileru & Anor (2014) LPELR-23305(SC); Okhuarobo v Aigbe (2002) 3 S.C. (PT 1) 141, (2002) LPELR-2449(SC); Oyewusi & Ors v. Olagbami & Ors (2018) LPELR-44906(SC). It is settled law that where ownership (title) is not established, acts of possession need not be considered as they would not amount to acts of ownership or possession but to acts of trespass; Bassey & Anor v. James (2012) LPELR-14418(CA); Otu v. Eyah (2017) LPELR-43534(CA). Therefore, acts of possession by the Appellants did not amount to acts of ownership or possession but to acts of trespass; Eneh v. Ozor & Anor (2016) LPELR-40830(SC); Apena & Anor v. Aileru & Anor (supra); Okhuarobo v Aigbe (supra); Oyewusi & Ors v. Olagbami & Ors (supra). The Appellants were therefore trespassers on the disputed land.
Trespass is actionable per se;Adesanya v. Otuewu & Ors (1993) LPELR-146(SC); NBC Plc v. Ubani (2013) LPELR-21902(SC).

Unlike special damages which is special in nature and must be pleaded specially and proved strictly, the quantum of general damages need not be pleaded or proved. Where the plaintiff proves his claim, the award of general damages is determined by the Court based on what is reasonable in the circumstances of the case. It is within the discretionary power of the trial Judge to make an award of general damages based on his own assessment of the quantum of damages, guided by established principles; Eneh v. Ozor & Anor (supra).

The appellate Court would not usually interfere with the exercise of discretion by a trial Court. However, an appellate Court can alter or interfere with an award of damages made by the lower Court where the award is shown to be either manifestly too high or manifestly too low or where it was based on a wrong principle. An appellate Court will not interfere with an award of damages by a trial Court merely because it is inclined to make a different award. Judicial pronouncements have established that an appellate Court can disturb the award of damages by a trial Court, where it is established to the satisfaction of the appellate Court that (i) the trial Court acted under a mistake of law or upon some wrong principle of law; or (ii) the award is arbitrary; or (iii) the amount awarded is so extremely high or low as to make it, in the judgment of the appellate Court, an entirely erroneous estimate of the damages to which the plaintiff is entitled; or (iv) there was a wrong exercise of discretion in the award; or (v) the trial Court acted in disregard of principles of law; or (vi) the trial Court acted under a misapprehension of fact; or (vii) the trial Court took into account irrelevant matters or did not take account of relevant matter; or (viii) injustice will result if the appellate Court does not interfere; Oduwole & Ors v. West (2010) LPELR-2263(SC); Usong v. Hanseatic International Ltd (2009) LPELR-3434(SC); Ighreriniovo v. S.C.C. Nigeria Ltd & Ors (2013) LPELR-20336(SC).
In the instant appeal, the trial Court had found and held that the special damages were not proved and dismissed it. An award of N3,000,000.00 as general damages against the defendants, jointly and severally for trespass and the destruction of the properties of the plaintiff amounts, in effect, to two awards – one for general damages for trespass and another for special damages for destruction of the Respondent’s properties, which had already been found not to have been proved.
​The trial Court was wrong to have gone on to consider as general damages the destruction of the properties of the Respondent. An award for special damages that was found not proved, cannot be made through the back door as it were. The award of N3, 000,000.00 as general damages for trespass and the destruction of the Respondent’s properties is accordingly set aside. As general damages, the Respondent is however entitled to a nominal sum for trespass, which I assess at N100, 000.00 against the Appellants.

On the contention that the Appellants were not accorded fair hearing by the refusal of the trial Court to grant an adjournment on 16/12/2013. It was submitted that having compelled them to proceed with the case in the absence of their counsel for no fault of theirs, the entire proceedings have been vitiated by lack of fair and ought to be set aside. For the Respondent, it was submitted that the order of the trial Court was proper in the circumstance, in consideration of the antecedents of the Appellants’ Counsel. The applications for adjournment by the Appellants’ Counsel were recounted. The trial Court saw no reason to accommodate a further adjournment. The 1st and 4th Appellants however testified by adopting their statements on oath and were cross examined.
​Fair hearing implies that what is right and fair to all concerned has been done and is seen to be so. Fair hearing requires that the trial must be conducted according to all applicable legal rules with a view to ensuring that justice is done to all parties before the Court; Arije v Arije (2018) LPELR-44193(SC); Orugbo & Anor v. Una (2002) LPELR-2778(SC); Ariori v Elemo (1983) LPELR-552(SC), (1983) 1 SC 81. Flowing from the concept of fair hearing is that each party to a cause must be given the opportunity to put forward his case or defence freely and fully; PDP & Ors v Ezeonwuka & Anor (2017) LPELR-42563(SC). The law is trite that any proceedings conducted in breach of the right to fair hearing are a nullity and liable to be set aside; Kalu v State (2017) LPELR-42101(SC).
However, neither the adverse party nor the Court can be held to ransom by a party who is tardy in putting forward his case or defence;Eze v FRN (2017) LPELR-42097(SC). The question whether to grant or refuse an adjournment of a matter fixed for hearing is within the discretion of the Court, which discretion must at all times be exercised judiciously; Ugwu v. Emenogba (2009) LPELR-8761(CA). The record of the trial Court reveals that the Appellants were given every opportunity to present their defence, not only on 16/12/2013 but all through the proceedings before the trial Court. On the said 16/12/2013, the 1st and 4th Appellants adopted their statements on oath and were cross examined, pages 259 – 262 of the Record of Appeal. Contrary to the postulations of the Appellants’ Counsel, I do not see that the Appellants suffered any violation of their right to fair hearing. Issues 2, 3, 5 and 6 are thus resolved in part in favour of the Appellants.

In all this appeal succeeds in part. The award of general damages of N3, 000,000.00 in favour of the Respondent is hereby set aside. The Respondent is entitled to general damages against the Appellants which is assessed at N100, 000.00. It is further ordered that parties are to bear their costs.

IGNATIUS IGWE AGUBE, J.C.A.: I have read an advance copy of the Lead Judgment delivered by my learned Brother, Hon. Justice O.A. Otisi, JCA. I agree with the conclusion that this Appeal succeeds in part.
I also abide by the Order(s) as to cost of this Appeal

JOSEPH EYO EKANEM, J.C.A.: I read in advance a copy of the lead judgment of my learned brother, Otisi, ICA which has just been delivered. I agree with the reasoning and conclusion therein. To underscore my agreement. I shall make a few remarks.

The respondent and the appellants claimed and counter – claimed respectively, for a declaration of title and declaration of ownership of the land in dispute. The question therefore was as to who between them showed a better title to the land. The respondent as plaintiff relied on production of document of title to prove his title, placing reliance on Exhibit 1, a certificate of occupancy, which raised a rebuttable presumption of ownership of the land in dispute. The appellants made a bare assertion that the land In dispute belongs to them without pleading and proving the precise nature of their title. In a claim (and that includes a counter – claim) for title to land, the claimant must plead the precise nature of his title and the same must be established by evidence. SeeOkelola V. Adeleke (2004) 13 NWLR (Pt. 890) 307 and Eleran V. Aderonpe (2008) 12 NWLR (Pt. 1097) 50. The respondent having established better title to the land was entitled to judgment.

​A Site Plan is annexed to Exhibit 1 showing the dimension and boundaries of the land that was granted. This obviated the need to prove the Identity of the land that was allocated and the land in dispute. See Atanda V. Iliasu (2013) 6 NWLR (Pt. 1351) 529.

Having held that special damages for trespass had not been proved by the respondent, the trial Court erred in awarding the sum of N3,000,000.00 as general damages for the same trespass. The law is that general damages cannot in any circumstance be properly substituted for special damages where plaintiff fails to specifically plead and prove special damages. See Ajigbotosho V. RCC Ltd (2019) 3 NWLR (Pt. 1659) 287 and Xtoudos Services (Nig) Ltd V. Taisel (WA) Ltd (2006) 15 NWLR (Pt. 1003) 533.

On account of the foregoing and for the reasons marshaled In the lead Judgment of my learned brother, I agree that the appeal succeeds in part id est, In respect of award of general damages. I abide by all the consequential orders made In the lead judgment.

Appearances:

I.A. Ozor, Esq., holding the brief of N.E. Tsobaza, Esq. For Appellant(s)

J.T. Nyiatagher, Esq. For Respondent(s)