TERHEME ABE & ANOR V. GABRIEL DAMAWA & ANOR (2011)

TERHEME ABE & ANOR V. GABRIEL DAMAWA & ANOR

(2011)LCN/4571(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 24th day of May, 2011

CA/J/51/2007

RATIO

REPLY BRIEF: WHAT IS THE PURPOSE OF A REPLY BRIEF

In considering the appellants’ reply brief, it is pertinent to note at the outset that the purpose of a reply brief is to address new issues raised in the respondents’ briefs and not to reargue the appeal. See: Order 17 Rule 5 Court of Appeal Rules 2007 (now Order 18 Rule 5 Court of Appeal Rules 2011); Akinrinmade V. Lawal (1996) 2 NWLR (429) 218; Adebiyi V. Sorinmade (2004) ALL FWLR (239) 933. PER KUDIRAT M.O. KEKERE-EKUN, J.C.A.

DECLARATION OF TITLE TO LAND: WHETHER THE ONUS OF PROOF IN AN ACTION FOR DECLARATION OF TITLE TO LAND RESTS ON THE CLAIMANT

The law is settled that in an action for declaration of title to land the onus is on the claimant to prove his title. As correctly submitted by learned counsel for the appellant the claimant must succeed on the strength of his own case and not on the weakness of the defence, if any. See: Onwugbufor V. Okoye (1996) 1 NWLR (424) 252: Shittu V. Fashawe (2005) 14 NWLR (946) 671: Eze V. Atasie (2000) 5 SCNJ 209 @ 216 – 217; 9 WRN 73 at 88; Adesanya V. Aderonmu (2000) 13 WRN 104 at 115 lines 10 – 35.PER KUDIRAT M.O. KEKERE-EKUN, J.C.A.

PROOF OF TITLE TO LAND: METHODS BY WHICH A CLAIMANT MAY ESTABLISH TITLE TO LAND; WHETHER A CLAIMANT IS REQUIRED TO PROVE ALL THE FIVE WAYS FOR HE TO BE ENTITLED TO THE DECLARATION SOUGHT

The methods by which a claimant may establish title to land were settled by the Supreme Court in the case of Idundun V. Okumagba (1975) 9 – 10 SC 227. They are: (a) By traditional evidence. (b) By production of documents of title duly authenticated and executed. (c) By acts of ownership extending over a sufficient length of time numerous and positive enough as to warrant the inference of true ownership. (d) By acts 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. The claimant is not required to prove all the five ways. He would be entitled to a declaration if he establishes any one of them. PER KUDIRAT M.O. KEKERE-EKUN, J.C.A.

PLEADINGS: WHETHER A PARTY IS BOUND BY HIS PLEADINGS; CONSEQUENCE OF LEADING OF EVIDENCE THAT IS AT VARIANCE WITH PLEADINGS

It is correct, as stated by learned counsel for the appellants that a party is bound by his pleadings and any evidence led, which is at variance with the pleadings would be contrary to the issues joined between the parties and go to no issue. See: Eze V. Atasie (supra) and Adesanya V. Aderonmu (supra); Okolo V. Dakolo (2006) All FWLR (336) 201 @ 237 D – E. PER KUDIRAT M.O. KEKERE-EKUN, J.C.A.

PLEADINGS: EFFECT OF PLEADINGS IN RESPECT OF WHICH NO EVIDENCE IS ADDUCED

The converse is also true that pleadings do not constitute evidence and therefore pleadings in respect of which no evidence is adduced are deemed abandoned. See: Abubakar V. Joseph (2008) 6 SCNJ 226 @ 242 – 243; (2008) 13 NWLR (1104) 307 @ 357 D – E. PER KUDIRAT M.O. KEKERE-EKUN, J.C.A.

INTERPRETATION OF STATUTE: INTERPRETATION OF SECTION 91 (3) OF THE EVIDENCE ACT AS IO WHETHER THE COURT CAN ADMIT AS EVIDENCE ANY STATEMENT MADE BY A PERSON INTERESTED AT A TIME WHEN PROCEEDINGS WERE PENDING OR ANTICIPATED INVOLVING A DISPUTE AS TO ANY FACT WHICH THE STATEMENT MIGHT TEND TO ESTABLISH AND WHO IS “A PERSON INTERESTED” WITHIN THE MEANING OF SECTION 91 (3) OF THE EVIDENCE ACT

Another issue raised by the appellants is that Exhibit A1, the statutory right of occupancy issued to the 1st respondent was issued during the pendency of the proceedings and therefore offended Section 91 (3) of the Evidence Act. Section 91 (3) of the Evidence Act provides: “Nothing in this section shall render admissible as evidence any statement made by a person interested at a time when proceedings were pending or anticipated involving a dispute as to any fact which the statement might tend to establish.” In the case of: Nigeria social insurance Trust Fund Management Board V. Klifco Nig. Ltd. (2010) 13 NWLR (1211) 270 @ 324 C – H. The Supreme Court per Chukwuma-Eneh, JSC explained the purport of Section 91 (3) thus: “In the circumstances of this question I think that in resolving this matter one has to examine the provision of Section 91 (3) (supra) in the context of two crucial phrases, i.e. who is a person interested” and “when proceedings were pending or anticipated. As regards the phrase a person interested” I agree with the Respondent that the phrase has been examined in the case of EVAN v. NOBLE (1949) 1 KB 222 at 225 where a person not interested in the outcome of an action has been described as “a person who has no temptation to depart from the truth on one side or the other a person not swayed by personal interest but completely detached judicial- impartial, independent”. In other words, it contemplates that the person must be detached, independent and non-partisan and really not interested which way in the context the case goes. Normally, a person who is performing an act in his official capacity cannot be a person interested under Section 97(3). I think the phrase “a person interested” ever more so has been quite definitively put in the case of HOLTON v. HOLTON (1946) 2 AER 534 at 535 to mean “a person who has a pecuniary or other material interest in the result of the Proceeding – a person whose interest is affected by the result of the proceedings, and, therefore, would have a temptation to pervert the truth to serve his personal or private ends. It does not mean an interest in the sense of intellectual observation or an interest purely due to sympathy. It means an interest in the legal sense, which imports something to be gained or lost”. (Emphasis mine) Thus the mere fact that a document was prepared when proceedings were pending or anticipated is not sufficient to render it inadmissible under Section 91 (3). Such document or statement must have been made by an interested party. A person interested in a cause or matter within the meaning of Section 91 (3) of the Evidence Act is a person who has an interest in the outcome of the proceedings and would therefore be tempted to depart from the truth in favour of one side or the other. It is also evident that a person who acts in his official capacity would not normally be deemed to be an interested party unless there is some evidence to show that he has more than an official interest in the outcome of the proceedings. See also: Oparaugo V. Oparaugo (2008) 5 NWLR (1081) 574 @ 599 B; Nigerian Bottling Co. V. Osofisan (2000) 10 NWLR (675) 370. PER KUDIRAT M.O. KEKERE-EKUN, J.C.A.

JUSTICES:

KUDIRAT M.O. KEKERE-EKUN Justice of The Court of Appeal of Nigeria

ALI ABUBAKAR BABANDI GUMEL Justice of The Court of Appeal of Nigeria

UCHECHUKWU ONYEMENAM Justice of The Court of Appeal of Nigeria

Between

1. TERHEME ABE
2. GABRIEL WAPOO – Appellant(s)

AND

1. GABRIEL DAMAWA
2. MINISTRY OF LANDS AND SURVEY, BENUE STATE – Respondent(s)

KUDIRAT M.O. KEKERE-EKUN, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Benue State, Makurdi division delivered on 27/9/05 in favour of the plaintiff (1st respondent herein) against the 2nd defendant (2nd appellant herein) and dismissing the 2nd defendant’s counter claim. The appellants being dissatisfied with the decision filed a notice of appeal on 7/12/05 containing four grounds of appeal.
The parties duly filed and exchanged their respective briefs of argument. The appellants’ brief settled by M.A. Tsuwa Esq. is dated and filed on 3/12/07. The 1st respondent’s brief settled by J.I. Orsal Esq. is dated 10/5/07 and filed on 19/6/07. The 2nd respondent’s brief settled by P.M. Ukande Esq. is dated 11/1/2010 and filed on 18/2/2010. It was deemed filed on 24/11/2010. The Appellants also filed a reply brief in respect of both respondents’ briefs. It is dated and filed on 3/12/2010.
The appellants formulated 3 issues for determination:
1. Whether or not the 1st respondent proved his case on a balance of probabilities and preponderance of evidence and was entitled to a declaration of title to the land in dispute. (Grounds 1 and 3)
2. Whether or not Exhibit A1, the Right of Occupancy No. BNC 7143 issued to the 1st respondent by the 2nd respondent while the case was already pending in court was a document capable of being admitted in evidence and if the answer is in the negative whether the learned trial Judge was right to have admitted it in evidence and relied on it as the fundamental basis of his finding in favour of the 1st respondent. (Ground 2)
3. Whether or not the learned trial Judge was right in holding that the 2nd Appellant’s counter claim lacks merit and whether he was right in dismissing it.
The 1st respondent formulated 2 issues for determination:
1. Whether or not the 1st respondent proved his case to be entitled to judgment. (Grounds 1, 2 and 3) And if not;
2. Whether the 2nd Appellant proved his counter claim to have judgment. (Ground 4)
The 2nd respondent formulated a single issue for determination:
Whether or not the trial court was right in upholding the 1st respondent’s claim and dismissing the 2nd appellant’s counter claim.
At the hearing of the appeal on 7/4/2011, M.A. Tsuwa Esq. for the Appellants, J.I. Orsal Esq. leading M. Ikya Esq. for the 1st Respondent and P.M. Ukande, Principal State Counsel, Ministry of Justice Benue State for the 2nd respondent adopted and relied on their respective briefs of argument. Mr. Tsuwa urged the court to allow the appeal while Messers Orsal and Ukande urged the court to dismiss it.
It was the 1st respondent’s case at the trial court that he had been in possession of a plot of land near Judges Quarters Makurdi measuring 1120m since 1970 and had planted mango and orange trees thereon. That in April 2001 he applied to the 2nd respondent, Ministry of Lands and Survey, Makurdi for the issuance of a statutory right of occupancy in respect of the said land. That the 2nd respondent, after conducting necessary investigations, allocated the land to him with a Right of Occupancy No. BNC 7143. He tendered the process file as Exhibit B. Sometime in 2003 he went to the land and met the 1st appellant working there and that he (1st appellant) informed him that he was on the land with the authority of the 2nd appellant. He (1st respondent) told the 1st appellant that the land belonged to him. Notwithstanding this information the 1st appellant began to erect a building on the land. He made a report to the 2nd respondent who issued a stop work notice and invited the parties for a meeting. The 2nd appellant and the 1st respondent attended the meeting. At the meeting the 2nd appellant allegedly stated that a process file had been opened for him in respect of the land at the 2nd respondent’s office but was missing. According to the 1st respondent the 2nd appellant was unable to produce the file number or any other information to show that he had documents to back his claim to the land.
He took out a writ of summons against the appellants on 16/4/03 when they refused to desist from their acts of trespass.
In paragraph 15 of the Amended Statement of Claim at pages 23 – 24 of the record he sought the following reliefs:
(a) “N300, 000.00 general damages in trespass.
(b) N300, 000.00 general damages for the delay caused plaintiff’s intended development of plot.
(c) Perpetual injunction restraining the defendant, his privies and agents from further trespass or disturbance of the plaintiff on the plot.
(d) A declaration that the plaintiff is the owner of plot BNC 7143 by virtue of deemed right of occupancy and by confirmatory allocation approval of his right by the Benue State Government.”
The 2nd appellant who was joined as a party in the course of the proceedings filed a statement of defence and counter claim. The 2nd respondent herein (which was also joined as 3rd defendant at the trial court) filed a statement of defence and defence to the counterclaim of the 2nd appellant. At the trial the 1st respondent tendered the Right of Occupancy dated 20/8/03 issued to him by the 2nd respondent. It was admitted in evidence and marked Exhibit A1. The 2nd respondent supported the 1st respondent’s claims.
The 2nd appellant’s case was that he applied to the 2nd respondent sometime in 1983 for allocation of a plot of land. That the application was approved and sometime in 1998 some staff of the 2nd respondent took him to the land and that he took possession thereof. He pleaded that he fenced the land and planted some economic trees and had remained in possession thereof. That in 2003 he started the construction of a building on the land, which was being supervised by his friend, the 1st appellant. He contended that the 1st respondent suddenly appeared and claimed that the land belonged to him. He alleged that with the aid of thugs, the 1st respondent pulled down the roof of the building and then proceeded to file the suit in court. In paragraph 4 of his counter claim at pages 16 – 17 of the record he claimed thus:
“1. A declaration of title to plot BN9748 on TPS 200 Gboko Road otherwise called Judges Quarters, Makurdi.
2. N533, 000.00 special damages being cost of the building (3 bedroom flat) pulled down by the 1st defendant to counter claim.
3. N5 million general damages for trespass.
4. A perpetual injunction restraining the ft defendant to counter claim his heirs, privies, agents, assigns and whoever is claiming through him from further trespass.
5. The counter claimant also prays the Honourable Court to declare the Right of Occupancy No. BNC 7143 issued to the 1st defendant to the counter claim by the 2nd defendant to the counter claim null and void as due process of law was not followed before issuance of same.”
After considering the oral and documentary evidence led on either side or the submissions of learned counsel for all the parties, the learned trial Judge in a considered judgment delivered on 27/9/5 entered judgment in favour of the 1st respondent. He declared him to be the owner of the land, granted his reliefs (b) and (c) and awarded him damages in the sum of N100, 000.00. He dismissed the 2nd appellant’s counter claim in its entirety, hence the instant appeal.
Having considered the issues formulated by each party in this appeal, I am of the view that the issues formulated by the appellants would adequately dispose of the issues in contention herein. I shall consider issues 1 and 2 together.
Issues 1 and 2
In support of the first issue, learned counsel for the appellants submitted that in an action for title to land the party claiming title must prove same by cogent, satisfactory and conclusive evidence and must succeed on the strength of his own case. He also submitted that the evidence led in support of his case must be in accordance with his pleadings. He referred to: Odumosu V. Oduwole (2004) FWLR (191) 1628 @ 1644 D – E; Nsirim V. Nsirim (2002) FWLR (96) 433 @ 441 D – E; Eze V. Atasie (2000) 5 SCNJ 209 @ 216 & 217. He submitted that while the 1st respondent pleaded in paragraph 3 of his amended statement of claim that he acquired the land in dispute through his uncle, Ujo Damawa in 1970, in his evidence at the trial he made no reference to this root of title and under cross-examination stated that he could not remember saying that he got the land from his uncle. Learned counsel argued that his evidence was at variance with his pleadings and that the learned trial Judge ought to have dismissed his claim. He argued that the foundation of the 1st respondent’s claim was the pre-existing customary acquisition of the land and that this root of title ought to have been established before placing reliance on the issuance of statutory right of occupancy. He submitted that in the circumstances the 1st respondent’s evidence was inconsistent, unreliable and incapable of proving title to the land in dispute.
Learned counsel further observed that Exhibit A1, the statutory right of occupancy, which was tendered and admitted in evidence on 4/11/04, was issued to the 1st respondent on 11/9/03 during the pendency of the suit. He submitted that it was in evidence before the lower court that the case originated at the Magistrate Court, High Level Makurdi as a criminal matter arising from a report made by the appellants to the police after the 1st respondent pulled down part of the structure they were building. He referred to the evidence of PW2 to the effect that as a result of the complaint of criminal land trespass the parties were invited to the police station and as neither of them was able to produce title documents the D.P.O. directed them to seek a civil remedy. Relying on Section 91 (3) of the Evidence Act Cap 112 Laws of the Federation of Nigeria (LFN) 1990 and the case of Ogidi V. Igba (1999) 6 SCNJ 107 @ 136. He submitted that the evidence of PW2 showed that it was anticipated that the dispute would result in litigation. He also observed that as at 10/2/03 Exhibit A1 was not in existence. He submitted that Exhibit A1 was issued by a party interested in the case in anticipation of these proceedings and therefore ought not to have been admitted in evidence and relied upon as the basis for finding in favour of the 1st respondent.
He submitted that the reasoning of the learned trial Judge that the approval of the grant to the 1st respondent by the Land Use and Allocation Committee was on 27/3/03 while the application for the writ of summons was on 25/4/03 and that there was no order from the Court stopping the 2nd respondent from processing the 1st respondent’s application is in disregard of Section 91 (3) of the Evidence Act. He contended that by virtue of the provisions of Section 91 (3) of the Evidence Act the 2nd respondent, being an interested party, was precluded from proceeding with the processing of the application particularly as the Land Use Allocation Committee had on 31/7/03 resolved to suspend further processing of the application in order not to jeopardise the court’s decision on the matter. He referred to page 89 of the record of proceedings.
Learned counsel further submitted that in the instant case, rather than requiring the 1st respondent to succeed on the strength of his own case, the learned trial Judge relied on the weakness of the 2nd appellant’s case to find in his favour. Relying on the following authorities: Gbafe V. Gbafe (1996) 2 SCNJ (Part 1) 167 @ 171; Kada V. The State (1991) 11 SCNJ 19 @ 21; and Ekpa V. Utong (1991) 7 SCNJ (Part 1) 170 @ 172. He urged this court to set aside the findings of the lower court on the ground that they are perverse and have occasioned a miscarriage of justice. With regard to the second issue, learned counsel in addition to arguments already canvassed under the first issue, submitted that Exhibit A1 (the statutory right of occupancy) was not pleaded in the original statement of claim and objection was taken to its being admitted in evidence when it was tendered on 8/3/04. He submitted that it was thereafter that the 1st respondent sought and was granted leave to amend his pleadings to include it.
He urged the court to discountenance Exhibit A1 and relied on the case of: I.B.W.A. Vs IMANO Ltd. (2001) 3 SCNJ 160 @ 177 lines 25 – 35.
Learned counsel submitted that by virtue of the doctrine of lis pendens, the 2nd respondent, being a party to the proceedings, was precluded from parting with the land in dispute by issuing Exhibit A1 to the 1st respondent during the pendency of the suit. He referred to: Akpan V. Union Bank of Nigeria Plc. (2003) FWLR (162) 1951 @ 1981 – 1982 B – A; Bua V. Dauda (2003) 43 W.R.N. 1 @ 20 lines 15 – 40 & pages 27 – 29 lines 30 – 35. He urged the court to exclude Exhibit A1 from the proceedings and resolve this issue in favour of the appellants.
In response to the submissions on behalf of the appellants, learned counsel for the 1st respondent submitted that the 1st respondent proved his title to the land in dispute by leading cogent, satisfactory and conclusive evidence and thus succeeded on the strength of his own case. With regard to the contention that his evidence was at variance with his pleading, learned counsel submitted that either of the two sources of acquisition of plot BNC 7143, if proved, was capable of sustaining the 1st respondent’s claim to title. He referred to: Kyari V. Alkali (2000) 6 NSCQR 819 @ 845; Idundun V. Okumagba & Anr. (1979) 9 – 10 SC 227. He submitted that proving his case by relying on allocation by the 2nd respondent (documentary evidence) and abandoning the traditional grant by an uncle does not amount to evidence being at variance with pleadings since the grant by the 2nd respondent was pleaded in paragraphs 3, 4 and 5 of his amended statement of claim and evidence led in respect thereof. He submitted that the case of Nsirim V. Nsirim (supra) relied upon by learned counsel for the appellants is not applicable to the facts and circumstances of this case. He submitted further that when the 1st respondent’s pleading is placed side by side with his oral evidence, there is no material contradiction. He submitted that pages 7 and 10 of Exhibit B (the process file) contain Estate Report findings confirming the fact that the 1st respondent prepossessed the land in plot BNC 7143. He noted that the Estate Report was not challenged at the trial court. He argued further that having proved a State grant of the land it was not necessary to show root of title of any other grantor or vendor. He relied on: Igwe Uche V. Jonathan Eke & Ors. (1998) 7 SCNJ 1. He submitted that the 1st respondent discharged the onus of proving his case on a preponderance of evidence.
As observed earlier in this judgment, the 2nd respondent supported the 1st respondent’s case at the court below. It maintains that position before this court. Learned counsel for the 2nd respondent submitted that in order to succeed in their respective claim and counter claim, each party was bound to show a better title to the land in dispute than the other. He referred to: Alhaji Aminu Dantsoho V. Alhaji Abubakar Mohammed (2003) 2 NLLC 762 @ 786 A – F; Section 135 of the Evidence Act Cap. E14 LFN 2004. He referred to the evidence of the 1st respondent regarding his application to the 2nd respondent for statutory right of occupancy in respect of the plot of land in dispute and the processing of the said application, which culminated in the issuance of Exhibit A1. He noted that the 2nd respondent corroborated 1st respondent’s evidence in this regard and tendered the process file Exhibit B, which was admitted in evidence without objection. He agreed with the contention of learned counsel for the 1st respondent that there was no contradiction in his case and that the learned trial Judge was right to have found in his favour. He referred to: Arabambi V. A.B.I. Ltd. (2006) 136 LRCN 1078 @ 1116 EE.
With regard to the contention that the 1st respondent pleaded that he acquired the land from his uncle but failed to lead evidence in support of the fact, he submitted that pleadings do not constitute evidence and that where a fact is pleaded and no evidence is led in respect thereof, the pleading is deemed abandoned unless the fact is admitted, He referred to: Joseph Ifeta V. S.P.D.C. Nig. Ltd. (2006) 142 LRCN 2664 @ 2677 AU.
With regard to the submission that Exhibit A1 should be expunged from the record, he submitted that the complaint is too late in the day because after the document was tendered and withdrawn after objection that it was not pleaded, the 1st respondent was granted leave to amend his pleadings wherein he properly pleaded the document and it was thereafter admitted in evidence without objection. He relied on: Okere V. Fashawe (2005) 133 LRCN 163 @ 184 Z. He argued further that even if Exhibit A1 were set aside, the decision of the learned trial Judge would not have been different because apart from Exhibit A1 there was credible evidence that the 1st respondent was allocated the land in dispute on 27/3/03 before the suit was filed on 16/4/03. He noted that Exhibit A1 was signed on 20/8/03, five months after the allocation to the 1st respondent. He submitted that the 1st respondent became the owner of the land on 27/3/03 when it was allocated to him, which fact is not in dispute and that the issuance of Exhibit A1 on 20/9/03 was merely for documentation of the allocation earlier made. He concluded that even if Exhibit A were set aside, the allocation made on 27/3/03 would still stand.
In considering the appellants’ reply brief, it is pertinent to note at the outset that the purpose of a reply brief is to address new issues raised in the respondents’ briefs and not to reargue the appeal. See: Order 17 Rule 5 Court of Appeal Rules 2007 (now Order 18 Rule 5 Court of Appeal Rules 2011); Akinrinmade V. Lawal (1996) 2 NWLR (429) 218; Adebiyi V. Sorinmade (2004) ALL FWLR (239) 933. I shall therefore discountenance those arguments that tend to reargue the appeal. While conceding that the authorities of Kyari V. Alkali (supra) and Idundun V. Okumagba (supra) cited by learned counsel for the 1st respondent lay down the general principles guiding proof of title to land, learned counsel for the appellants submitted that where a party pleads more than one root of title he must be consistent and lead oral evidence in support of his pleadings. He submitted that he is not entitled to deny facts, which he has pleaded. He also argued that if, as contended by learned counsel for the 1st respondent, the fact of his prepossession of the land was documented in Exhibit B, such fact which is within his exclusive knowledge could only have been supplied to the 2nd respondent by him. He submitted that it was therefore strange that the 1st respondent denied supplying such information.
In response to the contention of the 2nd respondent that there was no contradiction in the 1st respondent’s case, as he had abandoned the pleading in paragraph 3 regarding acquisition of the land through his uncle, learned counsel for the appellant submitted that the outright denial of a pleaded fact amounts to inconsistency. He relied on: Boniface Anyika & Co. Lagos (Nig.) Ltd. V. Uzor (2005) ALL FWLR (334) 1836 @ 1846 E – F; Okolo V. Dakolo (2006) ALL FWLR (336) 201 @ 237 D – E. As to whether it is too late in the day for the appellants to challenge the admissibility of Exhibit A1 he referred to the case of: I.B.W.A. V. IMANO (2001) 3 SCNJ 160 @ 177 lines 25 – 35 where the Supreme Court held that where inadmissible evidence is inadvertently admitted an appellate court has inherent jurisdiction to exclude and discountenance it notwithstanding the fact that no objection was taken to its admissibility at the time it was tendered. He also referred to: Ortsega V. Labaran (2003) FWLR (179) 1212 @ 1221 E – F. Abubakar v. Joseph (2008) 6 SCNJ 225 @ 242 – 243; Ntuks V. N.P.A. (2007) 5 SCNJ 204 @ 220.
Learned counsel referred to the 2nd respondent’s contention that the Land Use and Allocation Committee allocated the plot of land to the 1st respondent on 27/4/03 and that Exhibit A1 was only a confirmation of the allocation. He submitted since the Committee, by its proceedings, as evidenced by Exhibit C, had decided to suspend further action on the allocation because of the action in court, the 2nd respondent was caught by the doctrine of lis pendens and ought not to have issued Exhibit A1.
The law is settled that in an action for declaration of title to land the onus is on the claimant to prove his title. As correctly submitted by learned counsel for the appellant the claimant must succeed on the strength of his own case and not on the weakness of the defence, if any. See: Onwugbufor V. Okoye (1996) 1 NWLR (424) 252: Shittu V. Fashawe (2005) 14 NWLR (946) 671: Eze V. Atasie (2000) 5 SCNJ 209 @ 216 – 217; 9 WRN 73 at 88; Adesanya V. Aderonmu (2000) 13 WRN 104 at 115 lines 10 – 35.
The methods by which a claimant may establish title to land were settled by the Supreme Court in the case of Idundun V. Okumagba (1975) 9 – 10 SC 227. They are:
(a) By traditional evidence.
(b) By production of documents of title duly authenticated and executed.
(c) By acts of ownership extending over a sufficient length of time numerous and positive enough as to warrant the inference of true ownership.
(d) By acts 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.
The claimant is not required to prove all the five ways. He would be entitled to a declaration if he establishes any one of them.
One of the main contentions of the appellants in this appeal is that the evidence of the 1st respondent regarding his root of title was at variance with his pleadings. To better appreciate this issue I shall reproduce some of the relevant paragraphs of the 1st respondent’s Amended Statement of Claim. Paragraphs 3, 4 and 5 thereof state:
3. “The plaintiff is the holder of a piece of land near Judges Quarters Makurdi measuring 1120m by area coverage which he had prepossessed before applying to the Benue State Bureau of Lands and Surveys on 3rd of April 2001 for title deeds. The plaintiff’s late uncle Ujo Damawa who gave the plot to Plaintiff first acquired the land in 1970.
4. Upon paragraph 3 hereof a file under application No. BNC 7143 was opened and his application processed to issue of Right of Occupancy No. BNC 7143 to the plaintiff.
5. Survey and planning investigations revealed that no contrary interest was existing or had pre-existed but the plaintiff’s and these reports informed the Bureau top chat (sic) the plaintiff’s application on 4th March, 2003 and the land Use and Allocation Committee to approve the plaintiff’s title on the 27 March, 2003.”
In reaction to these averments the 2nd Appellant in his Statement of Defence and Counter Claim made a general denial of paragraphs 3, 4 and 5 above, among other paragraphs, and proceeded to plead thus in paragraph 3 (a), (b), (c), (d) and (e):
3.”The 2nd defendant in further answer to the above paragraphs as contained in the plaintiff’s statement of claim aver as follows:
(a) That he applied for a plot of land within the Bureau of Lands and survey, Makurdi Benue state in 1983 whereupon file no. BN 9748 was opened to that effect. The said file in custody of the 7d defendant shall be retied upon at the trial is hereby pleaded.
(b) That after about fifteen (15) years precisely in 1998 a plot was allocated to him on TPS200 Gboko Road.
(c) That he took possession of the land and deposited three thousand (3000) burnt bricks, five (5) trips of sharp sand, planted mangoes and oranges, fenced the four corners of the plot and was farming there all through.
(d) That sometime in November 2002, he commenced further development on the plot of land and the plaintiff came and started disputing the ownership of the plot with 2nd defendant that he the plaintiff was allocated the same plot.
(e) That he told the plaintiff he was allocated the said plot since 1998 and advised the plaintiff to check with the 3rd defendant again.”
The 2nd respondent in paragraph 3 of its statement of defence admitted paragraphs 3, 4 and 5 of the 1st respondent’s claim.
It is evident from the pleadings that apart from the general denial of paragraph 3 of the 1st respondent’s claim the 2nd appellant did not seriously challenge the 1st respondent’s pleading that the land in dispute was given to him by his uncle Ujo Damawa who first acquired it in 1970. Rather the main issue joined on the pleadings was as to which of the two parties was allocated the land by the Benue State Bureau of Lands and Surveys. In other words, in proof of their title to the land in dispute both parties relied on documentary evidence.
It is correct, as stated by learned counsel for the appellants that a party is bound by his pleadings and any evidence led, which is at variance with the pleadings would be contrary to the issues joined between the parties and go to no issue. See: Eze V. Atasie (supra) and Adesanya V. Aderonmu (supra); Okolo V. Dakolo (2006) All FWLR (336) 201 @ 237 D – E. The converse is also true that pleadings do not constitute evidence and therefore pleadings in respect of which no evidence is adduced are deemed abandoned. See: Abubakar V. Joseph (2008) 6 SCNJ 226 @ 242 – 243; (2008) 13 NWLR (1104) 307 @ 357 D – E. Throughout the course of his evidence before the lower court the 1st respondent did not adduce any evidence in respect of the pleading in paragraph 3 to the effect that he acquired the land from his uncle Ujo Damawa. It follows that that aspect of his pleading is deemed abandoned. His case would therefore stand or fall on the documentary evidence being relied upon. The question put to him under cross-examination relating to acquisition of the land through Ujo Damawa, which the 1st respondent denied, did not refer to any evidence adduced by him. It could not therefore be said that his evidence was at variance with his pleadings. His case rested on the processing of an application for the grant of a statutory right of occupancy through the Benue State Bureau of Lands and Surveys. His evidence was to the effect that he followed due process in acquiring the land. This evidence was supported by documentary evidence and through the evidence of DW3, Michael Nev, an official of the Ministry of Lands and Survey Makurdi who testified on behalf of the 2nd respondent (3rd defendant at the court below).
As observed earlier in this judgment, a claimant for a declaration of title to land is entitled to rely on any of the methods laid down in Okumagba’s case (supra) to establish his title. In the instant case I am of the view and I do hold that the evidence led by the 1st respondent was consistent with his pleadings relying on documentary evidence. Another issue raised by the appellants is that Exhibit A1, the statutory right of occupancy issued to the 1st respondent was issued during the pendency of the proceedings and therefore offended Section 91 (3) of the Evidence Act.
Section 91 (3) of the Evidence Act provides:
“Nothing in this section shall render admissible as evidence any statement made by a person interested at a time when proceedings were pending or anticipated involving a dispute as to any fact which the statement might tend to establish.”
In the case of: Nigeria social insurance Trust Fund Management Board V. Klifco Nig. Ltd. (2010) 13 NWLR (1211) 270 @ 324 C – H. The Supreme Court per Chukwuma-Eneh, JSC explained the purport of Section 91 (3) thus:
“In the circumstances of this question I think that in resolving this matter one has to examine the provision of Section 91 (3) (supra) in the context of two crucial phrases, i.e. who is a person interested” and “when proceedings were pending or anticipated. As regards the phrase a person interested” I agree with the Respondent that the phrase has been examined in the case of EVAN v. NOBLE (1949) 1 KB 222 at 225 where a person not interested in the outcome of an action has been described as “a person who has no temptation to depart from the truth on one side or the other a person not swayed by personal interest but completely detached judicial- impartial, independent”. In other words, it contemplates that the person must be detached, independent and non-partisan and really not interested which way in the context the case goes. Normally, a person who is performing an act in his official capacity cannot be a person interested under Section 97(3). I think the phrase “a person interested” ever more so has been quite definitively put in the case of HOLTON v. HOLTON (1946) 2 AER 534 at 535 to mean “a person who has a pecuniary or other material interest in the result of the Proceeding – a person whose interest is affected by the result of the proceedings, and, therefore, would have a temptation to pervert the truth to serve his personal or private ends. It does not mean an interest in the sense of intellectual observation or an interest purely due to sympathy. It means an interest in the legal sense, which imports something to be gained or lost”.
(Emphasis mine)
Thus the mere fact that a document was prepared when proceedings were pending or anticipated is not sufficient to render it inadmissible under Section 91 (3). Such document or statement must have been made by an interested party. A person interested in a cause or matter within the meaning of Section 91 (3) of the Evidence Act is a person who has an interest in the outcome of the proceedings and would therefore be tempted to depart from the truth in favour of one side or the other. It is also evident that a person who acts in his official capacity would not normally be deemed to be an interested party unless there is some evidence to show that he has more than an official interest in the outcome of the proceedings. See also: Oparaugo V. Oparaugo (2008) 5 NWLR (1081) 574 @ 599 B; Nigerian Bottling Co. V. Osofisan (2000) 10 NWLR (675) 370.
In the instant case it is not in dispute that the 1st respondent had applied for a statutory right of occupancy on 3/4/2001: See paragraph 3 of the amended statement of claim at page 21 of the record and page 1 of Exhibit B. After going through all the required processes the Land Use and Allocation Committee approved the grant of statutory right of occupancy to the 1st respondent on 27/3/2003. See pages 23-26 of Exhibit B particularly item no 1260 at page 26. The right of occupancy was eventually issued on 20/8/03. All these were acts done in the 2nd respondent’s official capacity. There is no evidence before the court to suggest that the 2nd respondent had more than an official interest in the matter.
The 1st respondent filed his writ of summons on 28/4/2003. At the time of filing the writ the 1st appellant was the only person sued as defendant. By a motion on notice dated 23/10/03 the 1st appellant sought an enlargement of time to file his statement of defence and leave to join the 2nd appellant and 2nd respondent as defendants in the suit. The application was granted on 28/10/03 (see page 42 lines 10-15). It is therefore clear that as at 20/8/03 when Exhibit A1 was issued, the 2nd respondent was not a party to the case before the lower court. While it is correct that the Land Use and Allocation committee in the minutes of their meeting of 31/7/03 resolved to stay further action on the processing of the application, the application had already been approved on 27/3/03. In other words the process for the grant of the statutory right of occupancy had been concluded. All that remained was the issuance of the certificate. The horse had left the stable before the door was locked. I agree with the learned trial Judge at page 87 of the record where he observed thus:
“The decision to grant the plaintiff statutory right over the land had been taken before he came to court. His decision to come to court was because the 1st and 2nd defendants were interfering with the land it is further observed that the signing and collection of the right of occupancy was after the case was instituted in court. However there was no order from the court stopping the 3rd defendant from processing the application for the plaintiff.”
I am of the view and I hold that Exhibit A1 was not prepared by a person interested in the subject matter of the suit at a time when proceedings were pending or anticipated. The 2nd respondent prepared the document in the course of its official duty and before it was joined as a party in the suit or served with any processes therein. It was therefore properly admitted in evidence.
On when the doctrine of lis pendens is applicable, the Supreme Court in the case of: Ajuwon V. Akanni & Ors. (1993) 9 NWLR (316) 182 @ 197 – 198 H – A held per Iguh, JSC.
“The doctrine of lis pendens affects a purchaser who buys property, the subject matter of litigation, during the pendency of such litigation, not because the purported purchaser is caught by the equitable doctrine of notice, but because the law does not allow to parties to a suit, and give to them, pending the litigation, rights in the property in dispute, so as to prejudice the opposite party.”
I am of the humble view that the doctrine does not apply to the circumstances of this case. This is because the 1st respondent had begun processing his application long before the dispute arose between him and the appellants. He became the owner of the right of occupancy on the date it was approved i.e. on 27/3/03. This was before the writ of summons was filed. In the event that I am wrong in this conclusion, there was nothing before the Land Use and Allocation Committee at the time the 1st respondent’s application was approved to tie its hands regarding the issuance of Exhibit A1. In other words the 2nd appellant had not placed any document before it to show his entitlement to the land in issue. I am of the view and I do hold that the 1st respondent had properly discharged the onus on him of establishing prima facie title to the land in dispute. The onus then shifted to the 2nd appellant to establish a better title. Issues 1 and 2 are accordingly resolved in favour of the respondents.
Issue 3
In arguing this issue learned counsel for the appellants submitted that the reasoning of the learned trial Judge at pages 89-91 of the record was not tenable. The portion of the judgment complained of is reproduced hereunder:
” … The receipt cannot be a true copy of plot no. BN 9748. The receipt was issued on 25/1/05 about 5 years after this case has been filed in court. The 2nd defendant claimed he applied for a statutory right grant some 15 years ago but he has not shown any evidence that he applied for such a grant. Where is the receipt issued in respect of the application 15 years ago. The 2nd defendant has also failed to produce the minutes where the Land Use and Allocation Committee met and approved the grant of a statutory right of occupancy to him. If the 2nd defendant was able to get Exhibit C which he tendered through DW4 he could as well have obtained the minutes where the LUAC met and approved the grant to him.”
Learned counsel submitted that the 2nd appellant is not a staff of 2nd respondent and that DW4, a member of staff of the 2nd respondent testified that the file No. BN 9748 was missing and yet to be traced. He observed that DW4 testified that numerically BN comes before BNC and that the 2nd respondent might have purchased his forms first. He noted that DW4 also testified as DW3 and tendered Exhibit B. For purposes of clarity, it is pertinent to state that Michael Nev, a member of staff of the 2nd respondent testified on its behalf and also on behalf of the appellants. He was erroneously described as DW4 by the learned trial Judge even though he gave evidence after the appellants had testified as DW1 and DW2 and called one other witness as DW3. After his testimony on behalf of the 2nd respondent he testified on subpoena on behalf of the appellants. In that capacity he was described as DW4.
Learned counsel was of the view that by Exhibit C and the evidence of DW4, it was evident that file no. BN 9748 existed but was deliberately withheld by the 2nd respondent contrary to Section 149 (d) of the Evidence Act. He further submitted that none of the respondents filed a defence to the 1st appellant’s counter claim and they are therefore deemed to have admitted same. He relied on: O.B.M.C. Ltd. V. M.B.A.S. Ltd. (2005) ALL FWLR (261) 216 @ 244 C; Total Nig. Plc. V. Morkah (2003) FWLR (149) 1343 @ 1356 F, 1357 B – H & 1358 B. He observed that the 2nd respondent’s statement of defence dated 2/4/04 and filed on 5/4/04 incorporates a defence to the 1st appellant’s counter claim but did not respond to the 2nd appellant’s counter claim. He submitted that the 2nd appellant proved his case on a balance of probabilities and preponderance of evidence and was entitled to judgment. He submitted that the findings of the learned trial Judge are perverse and urged this court to interfere with same and make fresh findings in favour of the appellants. He relied on: Jack V. Whyte (2001) 3 SCNJ 55 @ 76; Nsirim V. Onuma Ltd. (2001) 3 SCNJ 142 @ 157; Akpan V. Union Bank of Nigeria Plc. (supra) at 1975 – 1977 G – A.
In reaction to this issue, learned counsel for the 1st respondent submitted that in his counter claim the 2nd appellant seeks an order nullifying the issuance of Exhibit A1 on the ground that it was issued while the suit at the lower court was pending and therefore inadmissible in evidence. He noted that there is no ground of appeal challenging the admissibility of the document and thus any issue or argument in respect thereof goes to no issue. He referred to: Josiah Cornelius Ltd. & Ors. V. Okere Enewa (1996) 4 SCNJ 124. He submitted that the case of I.B.W.A. V. Imano Ltd. (supra) cited by learned counsel for the appellants is inapplicable in the instant case. He submitted that Exhibit A1 was issued on 27/3/03 after the Land Use and Allocation Committee (LUAC) of Benue State had in a meeting approved the plaintiff’s title to the land and ordered the issuance of a right of occupancy to him. He argued that this was not during the pendency of the suit or a pending court order. He argued that the officer of the 2nd respondent whose duty it was to carry out the instructions was bound to comply with the order in the absence of a subsequent order by the LUAC. He stated that there was no such counter order. He observed that Exhibit C, which purports to be minutes of the LUAC of 31/7/03, which was before the suit was filed before the lower court, was never made part of Exhibit B, the process file. He also noted that it was certified over one year after the committee allegedly sat. He contended that the minutes ought to have been included in Exhibit B as a caution to anyone dealing with the matter.
Alternatively he submitted that even if the LUAC actually issued Exhibit C, it could not be evidence of grant of title to the land in dispute to the 2nd appellant because no mention of the disputed land was made in the body of the minutes except for the certification made thereunder on 25/1/05, two years after the suit was filed at the lower court. He queried why, in light of Exhibit C, the appellants failed to apply to join the 2nd respondent in the suit early enough in order to make her liable under the principle of lis pendens or so that injunctive orders, if sought would have been binding on her. He observed that even after joining the 2nd respondent by order of court on 28/10/03 the 2nd appellant did not file his counter claim until 7/4/04 well after Exhibit A1 had been issued and handed over to the 1st respondent on 11/9/2003. He submitted that in the circumstances the 2nd appellant had no claim to a right or interest in the suit before the court as contemplated by Section 91 (3) of the Evidence Act or which could be protected by the principle of lis pendens, which he argued does not apply to the facts of this case. He submitted that at the time Exhibit A1 was issued the 2nd respondent was not a party to the suit and could therefore not have had any interest to serve in contemplation of the issuance of the right of occupancy.
On the alleged failure of the 1st respondent to file a defence to the 2nd appellant’s counter claim he submitted that the issue is not distillable from any of the grounds of appeal or issues for determination. He urged the court to expunge the argument on the issue. He relied on: Egbuchulem Madumere & Ors. V. Ole Okafor & Ors. (1996) 4 SCNJ 73. Alternatively he submitted that the 2nd appellant is to succeed on the strength of his case as a counter claimant. That he had the burden of establishing a better title and the damages claimed on a preponderance of evidence. He submitted that the issues in the counter claim were sufficiently challenged in the 1st respondent’s amended statement of claim, his evidence in chief and cross-examination and there was thus no need to file a defence to the counter claim. He noted that the 2nd respondent (as 3rd defendant) filed a statement of defence and defence to the 2nd appellant’s counter claim (page 31 of the records) where the issue of the rightful holder of plot BNC 7143 and due process in the issuance of the right of occupancy were fully addressed. He noted further that by his amended statement of claim, which was filed after the 2nd appellant filed his statement of defence on 28/10/03, he also answered all issues relating to the processing and grant of the right of occupancy and the fact of trespass by the appellants.
He submitted that by necessary implication the 1st respondent was shielded by the 2nd respondent’s counter averments, which supported all material issues in the 1st respondent’s claims. On the issue of trespass he submitted that in a claim for trespass the 1st respondent who has shown a legal possessory right to the land is the one entitled to succeed. He relied on: Kpongatto & Ors. V. Kodaja (1993) 2 WACA referred to in: Foreign Finance Corp. V. LSDPC (1991) 3 LRCN 885. He submitted that the building erected by the 2nd appellant on the disputed land amounted to trespass, which in law cannot be an act of ownership or possession. He relied on: Lawal V. Olufowobu & Ors (1996) 12 SCNJ 376; Adelakun V. Oduyele (1972) 6 SC 208 @ 210.
On the claim for damages he submitted that there was no evidence before the trial court as to particulars of damage caused to the uncompleted building. On the need to specifically plead and prove a claim for special damages he relied on: Otaro & Sons Ltd. V. Audu Idris (1999) 4 SCNJ 156; Odiba V. Akaazua MueMue (1999) 6 SCNJ 124. He urged the court to hold that the 2nd appellant failed to prove his counter claim in its entirety.
Learned counsel for the 2nd respondent in reacting to this issue submitted that the 2nd appellant also traced his title to a statutory grant. He referred to his evidence as a former staff of the 3rd defendant (2nd respondent herein) wherein he stated in detail the various stages in the processing of an application for the grant of right of occupancy. He submitted that the 2nd appellant was unable to show that he applied for the grant or that he was allocated the land in dispute. He referred to his evidence under cross-examination where he admitted that he did not have any document to show that he applied for title deeds. He also noted that DW4 who was subpoenaed by the 2nd appellant testified that he had not seen file no BNC 9748, which he claimed was opened for him by the 2nd respondent. He submitted that the 2nd respondent emphatically stated that the land in dispute was allocated to the 1st respondent.
Learned counsel submitted that the 2nd appellant’s evidence was at variance with his pleadings and that the said pleadings should be deemed abandoned. He relied on Engr. Goodnews Agbi V. Chief Audu Ogbeh & Ors. (2006) Vol. 138 LRCN 1739 @ 1797 FK; Alphonsus Nkuma V. Otunuga Odili & Joseph Otunuga Odili V. Nwapa Anene & Ors. (2006) Vol. 137 LRCN 1301 @ 1320 K. He submitted further that the allegation of withholding evidence is without basis, as the 2nd appellant himself testified that he had no document to show that he applied for title deeds. He submitted that DW4 also testified that he had never seen file no. BN 9748. He urged the court to resolve this issue in favour of the respondents.
In reply to the submissions above, learned counsel for the appellants argued that it was incorrect to state that the 2nd appellant had nothing to show that he was allocated a piece of land having regard to Exhibit C tendered by him. On the issue of his evidence being at variance with his pleadings, he submitted that in any event the respondents are deemed to have admitted the averments in the statement of defence and counter claim, as they did not file a defence thereto. He relied on: Akhigbe V. Paulosa (Nig.) Ltd. (2008) ALL FWLR (423) 1412 @ 1421 A – C; Iyere V. B.F.F.M. Ltd. (2001) FWLR (37) 1166 @ 1177 – 1178 H – A.
The law is settled that a counter claim is a separate, independent and distinct claim, and the counter claimant like all other plaintiffs in an action must prove his claim against the person counter claimed against before obtaining judgment on the counter claim. See: Jesic (Nig.) Ltd. V. U.B.N. Plc. (2000) 12 SC (Pt. II) 133;- Anwoyi V. Sodeke (2006) 13 NWLR (996) 34 @ 52 F – G & 54 D – E; Ogbonna V. A.G. Imo State (1992) 1 NWLR (220) 547; Obmiami Brick & Stone Nig. Ltd. V. A.C. B. Ltd. (1992) 3 NWLR (229) 260. Thus in a counter claim seeking a declaration of title to land, the onus of establishing a prima facie case rests upon the counter claimant.
Learned counsel for the appellants argued that the 2nd appellant was entitled to judgment on the ground that there was no defence to his counter claim. I have examined the entire record and I am unable to find any submission on this issue before the lower court. Since it was not raised before the court it was not considered in the judgment. Issues for determination can only be formulated from the grounds of appeal filed. A ground of appeal must be formulated from the judgment complained of. See: Egbe V. Alhaji & Ors (1990) 1 NSCC (Vol. 21) (Part 1) 306 @ 332 Lines 39-44; Dalek Nig. Ltd. Ompadec (2007) All FWLR (364) 204 @ 226 F-H. In the instant case, since the issue does not arise from the judgment complained of, the arguments in respect thereof are hereby discountenanced.
In the course of resolving issues 1 and 2 above, I found and held that Exhibit A1 was properly admitted in evidence and that the 1st respondent had discharged the onus on him of establishing prima facie title to the land in dispute. The issue to be resolved at this stage is whether the 2nd appellant, by his counter claim had proved a better title. The gravamen of the 2nd appellant’s counter claim is contained in paragraph 3 (a) – (e) of his statement of defence and counter claim (pages 14 – 15 of the record) reproduced earlier in this judgment.
From the said pleadings, it is clear that the 2nd appellant relied on an allocation of the plot of land in dispute to him by the 2nd respondent. Both parties therefore claim the same root of title. Therefore the party who establishes a better title would be entitled to judgment in his favour. In his evidence in chief at page 52 of the record, he testified as DW2 thus:
“The plot in dispute is No. 9748 Makurdi. I applied for a statutory right of occupancy to the Ministry of Lands etc some 15 years ago. My application was processed and approved by the Land Use and Allocation Committee. In 1998 the site was shown to me at Judges Quarters Area, along Gboko Road, Makurdi. A file was opened for me at the Ministry of Lands. I took possession of the land and I dropped 3000 blocks of burnt bricks, 5 trips of sharp sand and fenced the four corners. I planted 2 mango trees and 2 orange on the land. These acts were done in 1998. I was also farming on the land.”
Under cross-examination by learned counsel for the 3rd defendant (2nd respondent herein) he stated inter alia at page 55 of the record:
“I do not have any document to show that I applied for title deeds Ã¢€? when payments are made receipts are given. I have a receipt but it is with my counsel. The receipt I have is for the opening of a file. The receipt in respect of processing of title documents is missing. I was not issued a right of occupancy over that piece of land.”
(Emphasis mine)
A portion of the judgment complained of has been reproduced earlier in this judgment. At this stage I consider it necessary to reproduce it again but in greater detail as it relates to Exhibit C. His Lordship held thus:
“The only document tendered for the 2d defendant is Exhibit C – certified true copy of the minutes of the Land Use and Allocation Committee held on 31/7/03 and certified on 8/3/05. Attached to the minutes is a receipt no. 0082677 dated 25/1/05 for N2, 000.00 described as payment: As certified true copy BN 9748. The only thing which concerns the parties is found at page 2 of Exhibit C and it states:
GABRIEL WAPOO US DAMAWA
Both parties were absent at the meeting but the committee was informed they have filed two suits in court over the same land dispute. LUAC committee therefore resolved that further processing of their application should be suspended so as not to jeopardize the court’s decision on the matter.
The main body of Exhibit C does not mention plot BN 9748 but strangely enough the certificate at the foot or end of the minutes states:
This is to certify that the within document is a certify (sic) true copy of BN9748 the minutes of Land Use and Allocation Committee held on Thursday 31st July, 2003 in the office of the Director of Lands.
(Signed) Emmanuel Chir
Land Deeds Registrar
The stamp of the officer is affixed thereto,
This is the only document the 2nd defendant has over the land. I may say this is a worthless document or documents (inclusive of the receipt) to establish good title over the land.
The receipt cannot be a true copy of plot no, BN 9748.
The receipt was issued on 25 – about 5 years after this case has been filed in court. The 2nd defendant claimed he applied for a statutory right grant some 15 years ago but he has not shown any evidence that he applied for such a grant. Where is the receipt issued in respect of the application 15 years ago? The 2nd defendant has also failed to produce the minutes where the Land Use and Allocation Committee met and approved the grant of a statutory right of occupancy to him. If the 2nd defendant was able to get Exhibit C which he tendered through DW4 he could as well have obtained the minutes where the LUAC met and approved the grant to him.”
(Emphasis mine)
The reasoning and conclusion of the learned trial Judge as stated above is, in my humble view, unassailable. His Lordship meticulously examined the evidence before him and came to the right conclusion. The 2nd appellant failed woefully to prove that he was entitled to a declaration of title in his favour. Having failed to prove his title to the land it follows, as rightly held by the learned trial Judge that he could not succeed in his claim for damages for trespass. The 1st respondent on the other hand proved his case upon a preponderance of evidence. This issue is accordingly resolved in favour of the respondents. In conclusion I find no merit in this appeal. It is hereby dismissed. The Judgment of the High Court of Benue State, Makurdi Division in suit no. MHC/141/2003 delivered on 27/9/05 is hereby affirmed. Costs of N50, 000.00 are awarded in favour of the 1st respondent against the appellants.

ALI ABUBAKAR BABANDI GUMEL, J.C.A.: I have had the privilege of reading before now the lead judgment of my learned brother, Kekere-Ekun, JCA. I agree with all the reasonings and conclusions very ably set out therein. I abide by the order for costs as ordered in the lead judgment.

UCHECHUKWU ONYEMENAM, J.C.A.: I was privileged to read in draft, the seasoned judgment just delivered by my learned brother KEKERE – EKUN JCA, I agree that the appeal is unmeritorious and should be dismissed.
Issue no. 2 as postulated by the appellants’ counsel is fixed on the effect of the provisions of Section 91 (3) of the Evidence Act Cap 112 Laws of the Federation 1990 on the admissibility of Exhibit A1 (Right of Occupancy)
Section 91 (3) of the Evidence Act provides thus:
Noting in this shall render admissible as evidence any statement made by a person interested at a time when proceeding were pending or anticipated involving a dispute as to any fact which the statement might tend to establish.
The gravamen of issue no. 2 as submitted by the learned counsel for the appellants is that Exhibit A1 is a document made by an interested party while this action was pending or anticipated and as such not admissible in law by virtue of section 91 (3) of the Evidence Act.
Facts from the record which are not in contention include;
(i) The Suit, the subject matter of this appeal was filed on 16/4/2003
(ii) 1st respondent was allocated the land in issue on 27/3/2003 by the Land Use and Allocation Committee.
(iii) Exhibit A1 (Right of Occupancy) was issued to the 1st respondent on 20/8/2003
(iv) 2nd respondent was joined as a party on 18/10/2003.
The learned trial judge to my mind was right when he held that it was the allocation of the land by the Land Use and Allocation Committee on 27/3/2003 that transferred ownership of that land to the 1st respondent. Exhibit A1 is documentation formalities of the allocation of 27/3/2003. In other words the land was allocated before the institution of the suit and before 2nd respondent was joined as a party in the suit. I will briefly express an opinion on the issue whether Exhibit A1 was made by an interested party in consonance with the lead judgment. The Land Use and Allocation Committee is a committee in the 2nd respondent’s ministry which ministry is charged with, among other functions the responsibility of the allocation of land to members of the public. “Interested parties” as defined by the Black’s law dictionary 6th edition, page 813 are,
“Those who have a legally recognized private interest and not simply a possible pecuniary benefit”.
See First Nat Bank v. Oklahoma Sav. and Loan BD Oki. 569 P. 2ND 993. This restrictive definition has been re echoed by our apex court. The Supreme Court has emphasized on the need, to give a narrow interpretation to Section 91 (3) of the Evidence Act in order to ensure its effectiveness and to permit the continuance of legitimate transactions unhindered by exclusionary rule of evidence. See Chanchangi & Sons Ltd v. N.R.C. Ltd (1996) 5 NWLR (PT 446) 46: Ipinlaye II v. Olukotun (1996) 6 NWLR (PT 453) 148.
In Anyeabosi V. R.T. Briscoe (Nig) Ltd (1987) 3 NWLR (pt. 59) 84 Karibi White, JSC at page 109, opined that:
“The disqualifying interest referred to in section 91 (3) Evidence Act, can only be financial interest in the outcome of the proceedings”.
Also the Supreme Court in H.M.S. Ltd. v. First Bank Ltd (1991) 1 NWLR 9PT 167) 290 at 295 particularly at 312 – 313 held;
“The interest disqualifying a person as a “person interested” under section 90 (3) of the Evidence Act is a personal interest and not merely interest in an official capacity. Thus where the interest of the maker is purely official without a direct interest of a personal nature, the document is thereby excluded”.
In the instant case and in my view of what the position of the law is, for the 2nd respondent to be held an interested party it must be shown that either the 2nd respondent had direct interest in the outcome of the proceedings, or that the result of the proceedings could affect its prospects, or there was evidence of real likelihood of bias on its part or that the ministry desired an advantage or benefit from the proceedings, or there was any form of temptation on the part of the 2nd respondent to depart from the truth in the exercise of its function or the ministry’s conduct, competence or reputation in the exercise of its function in granting the Right of Occupancy to the 1st respondent was called into question in the suit. See Anyaebosi v. Briscoe (Supra): Apena v. Aiyetobi (1989) 1 NWLR (PT 95) 85: Nitel Plc. v. Rockonoh pron. co. Ltd (1995) 2 NWLR (PT. 378) 473. From the record, the 2nd respondent merely acted in its ministerial capacity in the discharge of its duty to wit: the grant of Right of Occupancy to the 1st respondent. There is nothing on record to show that the 2nd respondent’s personal opinion was involved in the grant of the Right of Occupancy. As there is no evidence that the 2nd respondent was swayed by personal interest in the grant of exhibit A1, the document is excluded from the general rule and was rightly admitted by the trial court.
It is for this and the more fuller reasons adduced by my learned brother in the well considered judgment that I too find no merit in the appeal. It is hereby dismissed. The judgment of the High Court of Benue State sitting at Makurdi in Suit No. MHC/141/2003 delivered on 27/9/05 is hereby affirmed. I abide by the order as to costs.