THADDEUS v. ATULE (2022)

THADDEUS v. ATULE

(2022)LCN/16438(CA)

In The Court of Appeal

(MAKURDI JUDICIAL DIVISION)

On Friday, May 13, 2022

CA/MK/43/2016

Before Our Lordships:

Ignatius Igwe Agube Justice of the Court of Appeal

Cordelia Ifeoma Jombo-Ofo Justice of the Court of Appeal

Muslim Sule Hassan Justice of the Court of Appeal

Between

ABUUL AVAAN THADDEUS APPELANT(S)

And

AYUA CLEMENT ATULE RESPONDENT(S)

RATIO

THE PRIMARY OBJECTIVE OF PLEADINGS

The primary object of pleading is for a party pleading to give sufficient notice to the adverse party of the case he would meet at the trial. This practice is designed to narrow the issues in controversy, and so that no party is taken by surprise. The Supreme Court in BELGORE V AHMED (2013) 8 NWLR (Pt. 1355) 60 SC at pages 95-96 paragraphs G-A Justice Tabai, JSC canvassed the purpose, object and function of pleadings in judicial proceedings. His Lordship stated that: ‘’Pleading in an action are the written statements of the parties wherein they set forth the summary of the material facts on which each relies either in proof of his claim or his defence as the case may be and by means of which the real matters in controversy between the parties and to be adjudicated upon are clearly identified. Although only material facts are required to be pleaded and in a summary form, they must nevertheless be sufficiently specific and comprehensive to elicit the necessary answers from the opponent. See Ashiru Noibi v. Fikolati & Ors (1987) 3 SC 105 at 119 (1987) 1 NWLR (Pt. 52) 619 and Omorhirhi v. Enatevwere (1988) 1 NWLR (Pt. 73) 746. They must contain such details as to eliminate any element of surprise to the opposing party.’’ The Plaintiff’s cause of action and his grievances must be contained in the statement of claim, with which he is bound, for any matter outside the periphery of the statement of claim i.e. pleadings vide evidence goes to no issue and are bound to be ignored. See OHOCHUKWU v. A.G. RIVERS STATE & 2 ORS (2012) 2 SC (Pt. II) 103 at 144. PER HASSAN, J.C.A.

WHETHER OR NOT ESTOPPEL MEANS ADMISSION

THE MEANING OF EVALUATION OF EVIDENCE

Evaluation of evidence simply means the assessment of evidence to give value or quality to it. Evaluation should involve a reasoned belief of the evidence of one of the contending parties and disbelief of the other or a reasoned preference on one version to the other. There must be on record an indication of how the Court arrived at its conclusion, of preferring one piece of evidence to the other. See OYEKOLA V. AJIBADE (2004) 17 NWLR (Pt. 902) 356 at 379. PER HASSAN, J.C.A.

WHETHER OR NOT A COUNTER-CLAIM IS AN INDEPENDENT ACTION

A Counter-Claim is an independent action, which enables a Defendant to enforce a claim against a Plaintiff. It is by nature a ‘sword’ and not a ‘shield’. Thus, the rules of pleadings apply with the same force and potency to a Counter-Claim and a defence to a Counter-Claim as if they are respectively a Statement of Claim and a Statement of Defence. See AMATA V. OMOFUMA (1997) 2 NWLR (Pt. 485) 93 CA. A Counter-Claim is different from the Plaintiff’s claim and requires evidence to prove it. See IGE V. FARINDE (1994) 7 NWLR (Pt. 354) 42. A Counter-Claim is a claim which must be proved to the satisfaction of the Court as required by law. The onus of proof which lies on the Plaintiff to prove his claim is also on the Defendant to prove the averments in his Counter-Claim against the Plaintiff or he will fail in his claim. PER HASSAN, J.C.A.

MUSLIM SULE HASSAN, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of the Benue State High Court sitting at Katsina-Ala delivered by Hon. Justice T. A. Kume in Suit No. KHC/7/2013, on the 10th day of November, 2015, wherein the trial Court dismissed the claims of the Appellant.

The Appellant was the Defendant, while the Respondent was Plaintiff at the trial Court. The Appellant was aggrieved with the decision of the trial Court and had appealed against same to this Court vide Notice of Appeal dated the 7th day of December, 2015, and filed on the 8th day of December, 2015, which contains 8 grounds of Appeal. See pages 200–205 of the Record of Appeal.

The Record of Appeal was compiled and transmitted to this Court on the 15th of March, 2016. The Appellant’s brief is dated the 7th day of June, 2016, was filed on the 10th of June, 2016. The Respondent’s brief is dated the 24th day of February, 2017, and filed on the 27th of April, 2017. The Appellant did not file a reply brief to the Respondent’s brief.

At the hearing of the appeal, counsel to both Appellant and Respondent adopted their respective briefs. The Respondent by a Notice of Preliminary Objection dated the 7th day of November, 2018 and filed on the 12th of November, 2018, raised an objection to the competence of the Appellant’s appeal before this Court and his argument in support of the objection is found at pages 1 –4 of the Respondent’s brief of Argument.

The Respondent who was Plaintiff at the trial Court commenced this suit by a writ of summons dated the 18th of February, 2013, and filed on the same date, issued to the Appellant who was the defendant at the Trial Court. The reliefs sought by the Respondent against the Appellant by paragraph 13 of his statement of claim accompanying the writ are as follows:
a. A DECLARATION that the Plaintiff has lawful title to the land and is therefore entitled to the grant of a Certificate of Occupancy over all that piece and parcel of land known as plot No. 4548 GRA Gboko, Benue State.
b. A DECLARATION that the entry of the defendant into the land and his continued presence thereon amounts to trespass and his actions in depriving the plaintiff the right to the use and enjoyment of the land is unlawful.
c. AN ORDER OF INJUNCTION restraining the defendant by himself, his agents, servants, privies and successors in title from further acts of trespass and order directing him to vacate the land forthwith and deliver possession to the plaintiff.
d. Twenty Million (N20,000,000,00) Naira general and aggravated damages for trespass and deprivation of use. See page 7 of the Record of Appeal.

The Appellant as the Defendant upon being served with the writ and accompanying documents, filed his statement of Defence and accompanied same with a counter claim against the Respondent. The Appellant’s by his counter claim claimed the following from the Respondent:
a. A Declaration of title in favor of the Defendant/counter-claimant in respect of plot NO. 2687 Gboko West.
b. N500,000.00 (Five Hundred Thousand Naira) General damages against the plaintiff in favor of the defendant/counter-claimant.
c. Perpetual injunction restraining the plaintiff by himself, servants, agents, workmen, assigns or whomsoever claiming by or under him from entering the land covered by Gboko Local Government Certificate of Occupancy on plot No. 2687 granted to the defendant/counter claimant. See pages 28 and 29 of the Record of Appeal.

BRIEF STATEMENT OF FACTS
The case of the Respondent against the Appellant is that he was at all material times the owner of land known as plot No. BN 4548 situate along Yandev-Aliade Road GRA Gboko, and sometime in 1980, he applied for the allocation of the said piece of land and completed his application process, and the land was beaconed in 1984 as being an existing layout plan No. TPS/BNS-060 with an area of 0.287 Hectares.

The Respondent’s case is that he then engaged one Stephen Ime who sunk a well for him on the land. That one Ingyoor Achigbe first took care of the land for the Respondent, then Mr. Samuel Iorpuu and they both farmed on the land while taking care of same. And that while Samuel Iorpuu was farming on the land, one Mela Daka Mbayion approached him and claimed that the land belonged originally to him before government took over same and that when government took over the land as GRA, he was not compensated, so he demanded for compensation and Samuel informed the Respondent of the development.

The Respondent’s case is that on or about the 26th day of April, 1993, he and Samuel Iorpuu met with the family of Daka and gave them the sum of Five Thousand Naira (N5,000) and one Cartoon of Beer which they requested as original owners of the land and this was documented. That Respondent was later issued with Certificate of Occupancy. Then sometimes between 2007–2008, Samuel Iorpuu noticed acts of trespass on the land by erection of 3 thatched huts and laying of mud blocks on the land and he called the attention of the Respondent who confirmed that the act of trespass was being done by the Appellant, a situation which made the Respondent to retain the services of R. A Aule and S. A. Orkumah to write the Appellant to desist from further acts of trespass on the land.

It is the Respondent’s case that Appellant and one Tartenger Shikaan upon receipt of the letter met with his solicitor and admitted that he bought the property in error and that he would seize further acts of trespass on the land, to which a terms of amicable settlement signed by both Respondent’s counsel and Appellant was made. However, to the Respondent’s chagrin, the Appellant did not vacate the land, rather he used the Respondent’s sand to lay cement blocks, a situation the Respondent reported to the Police who wrote the Ministry of Lands Makurdi and the Ministry confirmed that the land belonged to the Respondent. See pages 5–7 of the record of appeal.

The case of the Appellant who was defendant/Counter Claimant at the trial Court was that he was the bonafide owner of the land in question as he acquired the land from one Tartenger Shikaan who sold the land to him with the consent of the family. That Targtenger Shikaan was the fourth son of Shikaan Daka, and Shikaan Daka was the son of Daka who founded the land and settled on it until he allotted some to Shikaan by partition and the family of Shikaan Daka had continued to live on the land until the Appellant acquired it and had since been in exclusive possession of same till the filing of the suit.

The Appellant’s case is that Shikaan Daka who is now deceased was the owner of the land as same was allocated to him before 1980, and while alive, he was issued with Certificate of Occupancy by Gboko Local Government on the land. That after the issuance of the Certificate of Occupancy in 1983, Shikaan Daka continued to live on the plot of land uninterrupted and he was paying ground rent.

The Appellant’s case is that from Daka to Shikaan Daka and unto the Appellant, no notice of revocation of land nor allocation of same to anyone nor reserving same for any purpose by government nor Federal Government was served and no body outside the family of Daka had lived on the land in question, let alone to farm on it. That Shikaan Daka and his daughter Mbazendan Gwa were the persons who dug a well on the land and planted some fruits.

The Appellant’s case was that Mela Daka was the yonger brother of Shikaan Daka and he (Mela Daka) and Gever Daka who are younger to Shikaan Daka died in 1990. That the Appellant acquired title to the land in 2007 with two round huts, some trees and a dug well until in 2008 when the Appellant received a letter from the Respondent’s solicitor. Upon receipt of the Solicitors letter, he approached the Respondent’s Counsel and explained to him that he has the title document to the land and same is free of all encumbrance.

It is the Appellant’s case after he spoke with the Respondent’s counsel, he understood that it was Appellant that own the land and he undertook to relate same to Respondent. That Appellant never visit the Respondent’s counsel with Tartenger Shikaan and he never said that he bought the land in error and undertook to cease the act of trespass, plus he never signed any document to that effect.

The Appellant’s case is that the report made by the Respondent to the Nigeria Police has been concluded and parties were allowed to go and settle on their own, and the Appellant was only charged to Court when Respondent insisted that he must be charged, and same has been disposed. That the Appellant bought the land in question in good faith and has never committed any trespass or any unlawful acts thereto. See pages 24–29 of the Record of appeal

At the close of hearing, both parties filed and adopted their final written addresses. The Appellant’s final written Address is found at pages 105–119 of the Record of Appeal while the Respondent’s written address is found at pages 139–150 of the Record of Appeal. The trial Court in her considered judgment delivered on the 10/11/2015 found at pages 185–199 of the Records of Appeal entered judgment in favor of the Plaintiff who is Respondent before this Court, hence, this appeal.

ISSUES FOR DETERMINATION
The Appellant’s brief of argument raised three issues for the determination by this Court as follows:
Whether the Respondent as Plaintiff proved his case, having regards to the pleadings and evidence.
Whether the Appellant proved his case to be entitled to judgment
Whether the award of the sum of N200,000.00 as general and aggravated damages in favor of the Respondent by the trial Court was right in law, having regard to the pleadings and evidence adduced.

The Respondent opened his brief of argument with his submissions on his notice of preliminary objection, before adopting the issues formulated by the Appellant but with modification to issue two as follows:
Whether the Appellant proved his case to be entitled to judgment and whether the Appellant is not estopped from challenging the Respondent’s title to the land having conceded same in Exhibit 9 together with his vendor, DW2.

I have considered the facts and circumstances of this appeal, the judgment of the Benue State High Court, and the submissions of Counsel in their respective briefs, and since both parties are ad idem on the issues arising for determination, I shall adopt issues one and three distilled in the Appellant’s brief, and issue two formulated by the Respondent as the proper issues arising for the just determination of this appeal. On that note, I shall proceed to consider and resolve these issues serially commencing with the submission of Respondent on the preliminary objection before proceeding to the substantive appeal if need be.

SUBMISSION ON RESPONDENT’S PRELIMINARY OBJECTION
RESPONDENT’S SUBMISSION
The grouse of the Respondent in this preliminary objection as submitted by counsel is that there is no valid Notice of Appeal which relates to the judgment of the Court purportedly appealed against. This is so according to counsel because by the provisions of Section 81 (1) of the High Court Law (Cap 75) Laws of Benue State, 2004, which came into force on the 1st day of January, 2004, it is provided as follows:
“In every cause or matter the presiding Judge shall take down in writing the purport of all oral evidence given before the Court and the minutes of the proceedings and shall sign the same at any adjournment of the cause and at the conclusion thereof”

Counsel also referred to the provision of Section 36 (3) of the 1999 Constitution, as amended and submitted that it goes without saying that the date of every adjournment and the date of the delivery of the judgment by the Court below is a crucial factor in determining which matter the Appellant intends to submit to the Court of Appeal for re-hearing and resolution. That the record of appeal transmitted in accordance with Order 4 Rule 10 of the Court of Appeal Rules, 2016 must tally with the Notice of Appeal which initiated the process.

However, in the present appeal, the Notice refer to the judgment of the Katsina-Ala High Court delivered on 10/11/2014, and no such judgment has been placed before this Court. Further, that if indeed, the judgment sought to be appealed against was delivered on the 10/11/2014, a notice of appeal filed on the 8/12/2015 would have been filed in clear violation of Section 25 (1) and (2) of the Court of Appeal Act, 1976, as amended, which provides a period of 3 months for the giving of the notice to appeal against the final decision of the High Court in a civil cause.

Counsel referred to Order 7 Rule 2 (1) of the Rules of this Court and submitted that the requirements as to the contents of the Notice of Appeal are couched in the mandatory language ‘’shall’’. Stating the nature of the appeal or part of the judgment appealed against involves giving the particulars which includes date of the delivery of the Judgment or making of the decision, and this is manifestly lacking in the notice of appeal placed before this Court.

Counsel therefore submitted that the consequences of the foregoing is that there is no valid Notice of Appeal before this Court, as the Notice placed before this Court is incurably incompetent. Counsel referred this Court to the authorities of Owoh v. ASUK (2008) 35 NSCQR 94 at 116-118; FBN v. Maiwada (2012) 51 NSCQR 155 at 193; FBN v. Tawalkaltu (2013) 54 NSCQR (Pt. 2) 544 at 556 and urged this Court to uphold his preliminary objection that there is no competent appeal before this Court.

I have looked through the length and breadth of the Appellant’s brief before this Court, I did not see where he responded to the submissions of counsel on the preliminary objection, I have not seen his reply brief either wherein he might had responded to the Notice of Preliminary Objection. On that note, I shall proceed to consider the preliminary objection on the merit base on the Respondent’s submissions alone.

RESOLUTION OF PRELIMINARY OBJECTION
By virtue of Section 24 of the Court of Appeal Act an appeal against interlocutory decision, the period within which to appeal is fourteen (14) days. If the appeal is against final decision, three (3) months and in appeal in a criminal matter, ninety (90) days. If the application made to the lower Court is refused, the Appellant has fifteen (15) days to make a similar application to the Court of Appeal. Where leave to appeal is required to be obtained, a party must not only file his application for leave to appeal within the period allowed by the law but must also file his notice and grounds of appeal having obtained leave within the time allowed to appeal. See Ikenta Best (Nig.) Ltd v. A.G. Rivers State (2008) 2-3 SC (Pt. 1) 28 at 39; Akintola v. C.O.P. (1992) 7 NWLR (Pt. 256) 675 at 685 CA.

In this appeal, I have again examined carefully the record of appeal vis-à-vis the objection of the Respondent a cursory examination of the record starting from the front page reads:
‘’IN THE HIGH COURT OF JUSTICE BENUE STATE OF NIGERIA
IN THE BENUE STATE JUDICIAL DIVISION
HOLDEN AT KATSINA-ALA
RECORD OF APPEAL FROM HIGH COURT MAKURDI
TO
COURT OF APPEAL HOLDEN AT MAKURDI
SUIT NO: KHC/7/2013
APPEAL NO. CA/MK/43/2016
BETWEEN:
ABUUL AVAAN THADDEUS- APPELLANT
AND
AYUA CLEMENT ATULE- RESPONDENT
RECORD OF APPEAL
QUORUM
HON. JUSTICE T.A. KUME- JUDGE
DATE OF DECISION COMPLAINED OF- 10/11/2015
PART OF DECISION COMPLAINED OF- THE WHOLE DECISION
DATE NOTICE OF APPEAL FILED- 8/12/2015
RECEIPT NO:- BNT000800658
N5,000.00
REGISTRAR’’

The complaint of the Respondent is that the Appellant’s Notice of Appeal refers to the judgment of the Katsina-Ala High Court delivered on 10/11/2014 when no such judgment has been placed before the Court.

The Appellant’s Notice of Appeal contained in page 200 of the record complained against the judgment of the lower Court dated 10/11/2014 instead of 10/11/2015 this is a typographical error it is a mere irregularity after all the front page of the record reproduced above shows the correct date of the judgment as 10/11/2015. The Appellant in his Notice of Appeal stated the correct date and the month of the judgment the error is on the year which he stated as 2014 instead of 2015 this is mere irregularity which can be tolerated by this Court. It has been decided by the Appellate Courts by long line of cases that irregularity will not vitiate proceedings or the judgment of a Court unless it occasions a miscarriage of justice See J.E.A. SHUAIBU V. NIGERIA-ARAB BANK LIMITED (1998) LPELR-3067 (SC) Page 42; ENGR. ERNEST CHUKWUKA NDUKWE & ANOR V. ANDY EMMANUEL UBA & ORS (2015) LPELR-40643 (CA) Page 10. In this appeal, there is no allegation of any miscarriage of justice, the Respondent aside from this objection has responded to the Appellant’s brief of argument, in my humble view the procedural irregularity like this one which has clearly shown what the Appellant has as its complaint against the Respondent should not vitiate this appeal. Procedural Rules of Court is to guide orderly and systematic presentation of a cause, it is to help the substantive law and not to enslave it, the Court must always be guarded by the tenets of substantial justice as earlier stated the typographical error is on the year the judgment was delivered which Appellant stated in his Notice as 2014 instead of 2015 this should not vitiate this appeal, the primary function of a Court is to do justice between the parties to a dispute and not to do abstract justice. From the foregoing, this objection is hereby dismissed.

Having dismissed the Respondent’s preliminary objection the coast is clear to determine the substantive appeal.

ISSUE ONE
Whether the Respondent as Plaintiff proved his case, having regards to the pleadings and evidence.

APPELLANT’S COUNSEL SUBMISSION
Counsel’s complaint under this issue is that the learned trial Judge failed to consider the sub-issues which culminated in the issue pronounced upon by the Court, and these complaints according to counsel are best appreciated upon considering the pleadings of parties. Counsel submitted that parties joined issues of acquisition, survey and grant of title by Governor of Benue State, and that Respondent pleaded that the disputed land is located in an area designated as Gboko Urban area, an area where only the Government of Benue State has power to manage in the land.

Counsel submitted that the salient sub-issues that required the resolution of the trial Judge before considering the main issue were;
i. Whether the Respondent proved due acquisition by presentation of instrument of acquisition of the disputed land by the Government of Benue State.
ii. Whether upon the evidence, the progenitors in title of the Appellant, the Daka family were in possession of the land as ‘occupiers’ or ‘holders’ before the commencement of the Land Use Act No. 6 of 1978 or indeed as at the time of the purported acquisition by the Benue State Government in 1980.
iii. Whether the ‘holders’ or ‘occupiers’ were paid compensation upon acquisition; and
iv. Whether the mere designation of Gboko town as urban Area by Use (Designation of Urban Areas) Order, 1996 and the Land he surveys and beaconing of the land. The Ministry of Lands and Survey amounted to acquisition of the land by the Government of Benue State.

Counsel contended that throughout the entire gamut of the judgment of the trial Court, there is no evidence on the record that the learned trial Judge evaluated the evidence and documents led by the Respondent to resolve these sub-issues. The learned Judge was merely satisfied that the documents tendered by the Respondent were made by public officials and therefore regular on their face. Without any form of evaluation, the learned trial Judge simply discredited the Respondent’s counter-claim by criticising Exhibit 9, and came to the conclusion that the plaintiff has proved his case against the defendant.

Counsel submitted that the Land Use (Designation of Urban Area) Order 1996 recognizes the right of holders of lands in the designated areas and enjoins such holders to convert and register their interests. Therefore, it would be erroneous to assume that the purported declaration of Gboko as a town (without definite limits) would deprive the occupiers or owners or their successors-in-title of their possessory rights.

Counsel submitted that the Respondent did not found his radical title on exhibit 9 as the true facts of the case is that as at 17/03/2008, when the terms of settlement were entered into by the parties, Respondent had no title to the land. This according to counsel was pleaded by Respondent and further confirmed by his deposition. Hence, Counsel submitted that the title to the land was not given to the Respondent until the grant of exhibit 6 on 28/6/2008. Accordingly, the Respondent could not have legal title to the land as at 17/3/2008, as canvassed in exhibit 9. The purported admission of the Respondent’s title in exhibit 9 was therefore ineffectual.

Counsel contended that the trial Judge finding that the admission constitute issue estoppel was ineffectual because the law is trite that admission are not necessarily conclusive against the maker as Judges are enjoined to carefully examine and evaluate the admission against peculiar circumstances under which it was made. See Nwankwo v. Nwankwo (1995) 9 NWLR (Pt. 394) 153 at 197 and Coker v. Olukoga (1992) 2 NWLR (Pt. 329) 648 at p. 662.

Counsel contended that the trial Judge was wrong to hold that exhibits 3, 4, 6, 10, 11 and 12 were made in respect of official acts of the government of Benue State. And that the Judge failed to direct himself properly on the effect of exhibit 9, and the considerable burden of proof that was placed on the Respondent as plaintiff to prove his averred root of title as at 17/3/2008 when the exhibit was made. It was therefore a serious error of law for the trial Judge to rely on exhibit 9 as an admission or weakness in the case of the Appellant to found title in the Respondent.

Counsel submitted that another issue of concern was the compensation to Daka Mela family wherein Respondent did not join issue with Appellant when Appellant contended that Mela Daka was dead. Counsel contended that Respondent is to rely on the strength of his case and not the weakness of the Appellant’s case. Counsel refer to Hauma v. Ikpe Tine (2000) FWLR (Pt. 16) 2809; Ihekoronye v. Hart (2000) FWLR (Pt. 15) 2571; and Agboola v. UBA PLC (2011) All FWLR (Pt. 574) 97 at 97.

On whether Gboko town has been declared an urban area, counsel submitted that the Respondent failed to lead evidence of the layout plan of the Gboko town declared as Urban Area. What was tendered was exhibit 12 which showed the identity of the disputed plot of land on the lay-out plan on TPS/BNS-060. Counsel submitted that the Land Use Act came into effect on 1/2/96 and the aim was to appraise the local government of the area declared as urban and to vest management and control over the land from the appropriate local government.

Appellant contended that there was no evidence at the trial on the physical limits of Gboko town carved out as an urban area. Indeed, the government department responsible for land matters i.e the Bureau of Lands and Survey of Benue State is yet to comply with the above statutory obligation. Accordingly, the Court below and indeed this Court cannot speculate on the extent or scope of the area comprising the Gboko urban area testified upon by the Respondent, as a survey map or evidence of a government Surveyor showing the area delineated urban area is the only alternative method of providing the quantum of land comprising the purportedly designated Gboko urban area. See Dweye & Ors v Iyomahun & Ors (1983) 8 SC 76 at 85; (1983) NSCC 393 of 396-397.

That the urbanization of Gboko and the acquisition of the land as contended in the 1st Respondent’s case is at large and this Court cannot anchor the title of the 1st Respondent to the evidence. And where the Governor exercises the statutory powers given to him by Section 3 of the Land Use Act, all occupiers of plots of land located within the ear-marked urban area are obliged to possess rights of occupancy respecting their respective holdings and it is statutory then that any disputed ownership of any plot of land therein become subject to the exclusive jurisdiction of the High Court pursuant to the combined force of Sections 3 and 39 (1) of the Land Use Act.

Counsel then contended again that the layout plan No. 060 and the site plan pleaded in the statement of claim and the plan of GRA Gboko pleaded in paragraph 2 (b) of the amended Plaintiff’s reply to Defendant’s defence and counter-claim do not constitute evidence of the designation of Gboko town as an urban area, as same was only intended to show identity or location of the plot in dispute as pleaded, and all the evidence led in the deposition of PW3, Joseph Ode Esq., in respect of the survey and by the Ministry of Lands and Survey did not receive any beacon protest that the land was compulsorily acquired is also not pleaded and go to no avail. See Usenfowokan v ldowu (1969) 1 All NLR 125.

On the issue of the root of title of the Respondent, Counsel submitted that the Respondent failed to lead evidence to prove due acquisition, survey and valid grant of exhibit 6. That it is trite that a grant by the Governor under Section 5(1) of the 2004. Land Use Act Cap L5 LFN 2004 does not extinguish the pre-existing right of the original owners in possession of the land.

On the whether exhibit 9 constituted estoppels, Counsel submitted that there was evidence led by the Respondent to the effect that when a dispute arose between the Appellant and himself, Appellant conceded title to him and admitted that he bought the plot of land from DW1 in error and undertook to vacate same. Exhibit 9 is the said undertaking to vacate. Exhibit 9, by which the Appellant admitted he bought the land from DW2 in error was made on 17/3/2008. Where a party claims trespass to land, the implication is that he has either title to the land or is in exclusive possession of the land. Exhibit 9 was made at a time the Respondent had no legal title or possession or equitable interest in the land. At best, the Respondent was still processing his right of occupancy in Exhibit 6.

Counsel contended that apart from the fact the Respondent had applied for the grant of a plot of land, he had no scintilla of evidence of title as at 17/3/2008, when the Appellant purportedly admitted purchasing the land in error. Accordingly, there was no basis for the Court below to assume that the Respondent was the “rightful and beneficial owner” of the plot No. 4548 Gboko West.

On the issue of ownership of the disputed land, counsel submitted that ownership of land may be proved by the production of documents of title, which must of course be duly authenticated in the sense that their due execution must be proved. Counsel relied on the authority of Idundun V Okumagba 1976 9-10 SC 227 at 246-250.

Counsel further contended that the case of the Respondent is left without proof as the written statement of the plaintiff without oath is invalid. That the effect is that the entire evidence of PW4 was inadmissible in that it did not comply with Section 13 of the Oaths Act which stipulates the form an oath should take. Counsel referred this Court to S.13 of the Evidence Act, and the cases of Maraya Plastics Ltd v Inland Bank of Nigeria Plc (2002) FWLR (pt. 120) 1732 at p. 1739 and Maraya Plastics Ltd v Inland Bank of Nigeria Plc (2002) FWLR (pt. 120) 1732 at p. 1739 to submit that any statement on oath that fails to comply with Order 2 Rule 2 of the Benue State High Court Civil Procedure Rules, 2007, and therefore incompetent. Counsel on a whole urged this Court to resolve this issue in his favor and allow the appeal.

RESPONDENT’S COUNSEL SUBMISSION
In responding to Appellant’s submission on this issue, the Respondent’s counsel submitted that the claim of the Respondent as contained in his pleadings and evidence adduced is that he is the owner of Plot No. BN4548 situate along Yandev-Aliade Road, GRA, Gboko within the Gboko Urban Area which has been under the exclusive preservation and management of the Benue State Government. That the Respondent’s position is that sometime in 1980, he applied for allocation of a piece of land in GRA Gboko, and upon completion of the necessary application forms and payment of the requisite fees for the allocation of the land, the Government of the Benue State made a grant of the land out of an existing layout on Plan No. TPS/BNS-060 with an Area of 0.287 Hectares.

Counsel submitted that Appellant merely replied to the Respondent’s case and said same are untrue without anything more. That by the Appellant’s sworn statement on oath in paragraph 2, he admitted that the disputed land is “situate along Yandev-Aliade Road, GRA Gboko West within the Gboko Urban Area…”. Under cross-examination at page 180 of the record of appeal, the Appellant adopted his deposition quoted above and said that GRA means Government Reserved Area. He however said he did not know which government reserved the area, but maintained that the land is within Gboko Urban Area and further confirmed that depositions the averments in paragraphs 27, 28 and 29 of his amended statement of defence are true.

While it is pleaded in paragraph 31 of the amended statement of defence that the survey of the land by the Benue State Government and the drawing up of layout plan No.TPS 060 is illegal null and void, the DW2 in his sworn deposition in paragraph 15 claims that the land of his family has not been surveyed by anyone or taken over by anybody. He added that since no notice of intention by the Benue State Government to acquire the land was served on him and no compensation paid to him, the allocation of BN 4548 is illegal, null and void.

Counsel on that note submitted that it must be emphasized that it was not the claim of the Respondent that the land belonging to the Appellant or DW2 was acquired by the Benue State Government and granted to him. Rather, he said he made a floating application for the grant of piece of land and the Bureau of Lands and Survey after considering his application allocated the land in dispute to him. It was the Appellant that asserted that he has a prior existing right to the land through the interest of DW2 and that the acquisition of the said land was null and void.

Counsel submits that the onus now falls on him to prove the title of DW2 and to also prove that his family land is within TPS 060 which was tendered by the Respondent without objection. He did not do so. The trial Court also held that the Appellant did not prove how the Daka through whom the Appellant makes his claim, founded the land and as such, his claim to the land through DW2 was not proved. Nowhere in the entire pleadings and evidence of the Appellant did he plead that the land the subject matter of the suit is under the management of the Gboko Local Government Council as to bring the management of the Bureau of Lands and Survey, under the jurisdiction of the Benue State Government. Even though the DW2 claimed he sold land to people in the area, he did not tender any agreement to that effect or call any of the persons to whom he sold land to support his claim that he had previously sold land in the area. The bottom line is that the fact of the land being within Gboko urban area was admitted by the Appellant and facts admitted needs no further proof.

Counsel contended that since the defence of the Appellant to the Respondent’s claim was that the land in dispute had been vested in the DW2 before the land was granted to the Respondent, He had the onus of proving same. Therefore Exhibits D1 and D5 purportedly issued to the DW2 and the Appellant over a piece of land vested in the Governor by virtue of Section 5 of the Land Use Act in an Urban Area, which extinguished all existing rights cannot stand in the face of the Statutory Right of Occupancy granted by the Governor to the Respondent. It is settled law that a Certificate of Occupancy granted by a Local Government which purports to grant a Customary Right of Occupancy in respect of land in an urban area is invalid. See Lawson v. AFANI Continental Co. Ltd (2002) 2 NWLR (Pt. 752) 585.

Counsel submitted that the contention of the Appellant that the trial Court did not evaluate her evidence before her is far from the truth. As on the authority of Teniola v. Olohunkun (1999) 4 SCNJ 92 at 103, there is a presumption of regularity when statutory acts are said to have been without want of authority and it is the party who seeks to have the grant set aside that has the onus of proving that they were done irregularly.

Counsel submitted further that the Respondent was perfectly entitled to rely on Exhibit 9 in proof of his case and the learned trial Judge was perfectly right to have held that the Appellant was estopped from challenging the title of the Respondent having conceded same in that document. The arguments canvassed in the Appellant’s brief that the Appellant cannot be said to made any admission in that document because the respondent did not have any title to the land as at the date Exhibit 9 was written is a none starter in the light of the decision of the Supreme Court in AGBONGUNLERI VS. DEPO (supra).

Counsel therefore contended that estoppel does not concern itself with the truthfulness or otherwise of the statement made but with the facts that it was so made voluntarily. The party making such an admission will not be allowed to resile from it. The Appellant did not plead that he was mistaken when he made it. He flatly denied it in his statement of defence but was forced to admit signing it under the heat of cross-examination. Therefore, the document must be given its ordinary and natural meaning and is conclusive of what it says, because it is not the business of the Court to re-write an agreement for the parties. See A.G. Rivers v. A.G. Akwa Ibom (2011) 45 NSCQR (Pt. 2) 1205 at 1079.

Counsel submitted again that the evidence of PW3 on the issue that the land was surveyed and beaconed without protest from anyone was not pleaded and goes to no issue and that his claim that the land falls within Gboko Urban Area was not pleaded. While Respondent pleaded that the land was not in possession of the Daka family and the location of the land within Gboko Local Government. In support of that evidence, PW3 told that Court at page 64 of the record of appeal that at the time the land was surveyed, the defendant and his predecessor in title were not on the land and that no protest was received from anyone. This evidence of PW3 accords with the pleadings of the Respondent in the Court below. The Appellant did not even challenge the evidence under cross-examination. Counsel urged this Court to hold that the evidence was properly pleaded and proved.

Counsel submitted further that the challenge of the entire evidence of PW4 on the grounds that it did not comply with the provisions of Section 13 of the Oaths Act, 2004 by the endorsement of the statutory declaration cannot be entertained by this Court. This is so because, the issue was not raised in the trial Court and same did not form the basis of the judgment entered in favour of the Respondent. Counsel contended that an issue not raised in the lower Court cannot be raised for the first time on appeal without the leave of Court. See Veepee IND. Ltd v. C.I.L (2008) 34 NSCQR 904 934-935.

There is no ground of appeal before this Court on which this argument is anchored. An appeal will stand and fall only on points appealed against. Where an issue against which there is no appeal is argued, it goes to no issue as the point remains unchallenged. See JIMOH MICHAEL VS. STATE (2008) 34 (Pt. 2) NSCQR 700 at 713-714. 4.29.

Counsel went on to say that the evidence of PW4 is contained on pages 17 & 18 of the record of appeal and the statutory declaration is contained in paragraph 9 at page 18. Even assuming that the declaration is not contained in the document, the Appellant has waived his right to raise the objection when the evidence was tendered and cannot raise it on appeal. See SHELL PET. VS. CHIEF TIGBARA EDAMKUE & ORS. (2009) 39 NSCQR 597 at 620.

That the authority of OBUMNEKE VS. SYLVESTER (supra) cited by the Appellant arose out of a preliminary objection taken to the competence of witness statement filed in support of an election petition. The objection was upheld and the petition struck. The appeal against the order was dismissed by the Court of Appeal. In this case however, the Appellant did not raise any objection to the competence of any of the statements when they were filed in the Court below. He participated in the hearing of the matter; cross-examined the witnesses on their respective statements and did not raise it as an issue for consideration by the lower Court in its judgment. Even if there is no statutory declaration, it is a mere irregularity and a party intending to raise it must do so timeously. Counsel referred this Court to the authority of Anyanwoko v. Okoye (2010) 41 (Pt. 1) NSCQR 46 at 72.
Counsel submitted again that moreover, the Supreme Court in Ogwuegbu v. Agomuo (1999) 7 NWLR (Pt. 609) 1441 held that an affidavit which fails to comply with Section 13 of the Oaths Act is not a nullity. The facts and circumstances that led to Obumneke’s case are different and the Appellant cannot import the authority without reference to the specific facts of the case. Counsel submitted that the arguments canvassed in the issue of the competence of the witness statement has no foundation in this appeal and at best it is too late in the day to raise same.
On that note counsel submitted that this Court should hold that Respondent has proved his claims against the Appellant on the strength of evidence he led which the trial Court believed.

ISSUE TWO
Whether the appellant proved his case to be entitled to judgment and whether the Appellant is not estopped from challenging the Respondent’s title to the land having conceded same in Exhibit 9 together with his vendor, DW2

APPELLANT’S COUNSEL SUBMISSION
Counsel on this issue submitted that Appellant predicated his radical claim for title to the disputed land by traditional history of inheritance and the Respondent did not join issues with Appellant’s history nor cross-examined him on same, but the learned trial Judge failed, refused and neglected to evaluate the evidence of parties before reaching his verdict and was swayed by the Respondent’s submission that it was not the claim of the Appellant that Plot No. 2867 was revoked from the family of DW2 and allocated to the Respondent.

Counsel contended that the misunderstanding of issues in controversy arose because the learned trial Judge did not properly appreciate the case put up by the Appellant. The Appellant simply led evidence of patrimony and possession by stating in his pleadings that the Daka family were the founder in possession of the disputed land and that upon the death of the progenitor in title, the land devolved to Shikaan Daka and subsequently to DW1, who sold to the Appellant on the 16/8/2007. This evidence of patrimony possession was equally led by DW1, and he was not contradicted under cross-examination.

Counsel submitted that by the evidence on record, the Appellant had purchased the piece of land from the land owners in the presence of the witnesses and was led into possession on 16/8/2007. By the said agreement, the Appellant had acquired a legal title or at worst an equitable interest which is as good as a legal estate. That the Daka family held the land as traditional owners therefore, the Government of Benue State had no powers to survey and allocate the land to the Respondent to the detriment of the owners.

Counsel further submitted that the Appellant’s deemed grant is earlier in time and stronger in law than the 1st respondent’s title which came into existence on 28/6/2008. Accordingly, the prima facie title in Exhibit 6 must bow to the Appellant’s deemed grant as well as the Exhibit, in the order of their creation, and must be rendered invalid on that account. Counsel referred to the cases of Adole v Gwar (2003) 3 NWLR (pt. 808) 516; Agboola v UBA Plc (2011) NWLR (pt. 1258) 375. See also Otukpo V John (2012) 7 NWLR (pt. 1299) 357; and Atanda V Iliasu (2013) 6 NWLR (pt. 1251) 529. 4.2.8.

Counsel while relying on the case of John Nombur V Ukanbee Buter (unreported) suit No. CA/MK/138/2011 decided on 15th July, 2015, in which the facts are similar to the instant case, submitted that the learned trial Judge misapprehended and/or misconceived the issues raised on the pleadings of the parties and this occasioned miscarriage of justice. That the misconceiving of issues at the trial Court led the Judge to wrongly cast the burden of proof on the Appellant, which eventually affected the Judge’s assessment and evaluation of evidence before him.

Counsel also referred to the authority of Onobruchere & Anor v. Esegine & Anor (1986) 1 NWLR (Pt. 19) 799 at 807 where the Supreme Court stated that where there is misrepresentation as to burden of proof, there is a great likely hood of miscarriage of justice. That the Judge completely went wrong in his approach to the appreciation and resolution of dispute placed before him as he failed to consider, evaluate and make findings on the evidence in regard to the root of title of the Respondent (as challenged) and the divergent claims made on the pleadings.

Counsel referred again to the authority of Udengwu v. Uzuegbu (2003) 7 SCNJ where the Court emphasized that where a Court misconceived the issue before it, its decision will eventually lead to miscarriage of justice. Therefore, the discountenance of the Appellant’s issue of acquisition of the title in Plot BN 4548 over the procedure employed by the Respondent in obtaining the title amounted to denial of fair hearing. Counsel referred this Court to the case of UBN Ltd v. Nwaokolo (1995) 6 NWLR (Pt. 400) 127 where the Court in a similar case set aside the decision of the trial Court for denial of fair hearing.

Counsel further contended that there is no express clear evidence that the Government of Benue State expropriated the property from the traditional title holder, hence the strict application of S. 36 and 50 of the Act ought to be strictly construed so as to preserve the right of the customary owner. See Provost Lagos State College of Education v, Edun & Ors (2004) SCNJ 156.

That even if the legal notice could be said to have acquired the land, which is not conceded, a statute expropriating the property of another person must be in accordance with the provision of Section 45 of the CFRN 1999 (as amended) construed in favor of such a person in whom the property had been vested, and should not be construed as to deprive the person of his property without compensation. Counsel urged this Court to uphold Appellant’s submissions and resolve this issue in his favor

RESPONDENT’S COUNSEL SUBMISSION
Respondent on this issue started his argument by relying on the authority of Onwuama v. Ezeokoli (2002) 94 LRCN 246 at 257 where the Court stated that it is settled law that in a claim of title to land, the Claimant must discharge the onus of proof in accordance with the standard of proof set out by law. Therefore the burden of proof of Appellant’s counter-claim was on him, which according to counsel must be proved in line with one of the five ways of proof of title to land set out in the case of Madu v. Madu (2006) 33 NSCQR 93 at 954–955.

That the claim of the Appellant’s title predicated traditional history of inheritance is not borne out of the pleadings of the parties and evidence tendered before the trial Court. Counsel referred this Court to paragraphs 3 and 24 of the Appellant’s amended statement of defence, where the Appellant pleaded that he got the land by purchase from DW2. The pleading was supported by the sworn evidence of the Appellant in paragraph 3, 5, 11 and 19 of his sworn deposition, and his witness, DW2 also in paragraph 2, 7. 9 of his sworn deposition also testified that he was the one that sold the land to the Appellant.

Counsel submitted that it is now settled law that where a person relies on traditional history as his root of title, the onus is on him to plead the root of title and names of his ancestors. He should lead evidence to establish same without any missing link. He has a duty to show by credible evidence how their father’s ancestor got the land. See Olakunle Elias v. Chief Timothy Omo-Bare (1982) ALL NLR 75. Similarly, a party who is relying on traditional history must specifically plead and prove the following; who founded the land, in what manner the land was founded and the names and particulars of successive owners through whom he claims. See Nruamah v. Ebuzoeme 53 (Pt. 2) NSCQR 88 at 141-142 and while relying on the principles set out in Iseogbekun v. Adelakun (2013) 2 NWLR (Pt. 337) 140 at 165, Counsel submitted that it follows from the foregoing that traditional history postulates devolution of title in manner stated from the founding ancestor down to the claimant without any break. With the addition that the person seeking the declaration must prove how the land was founded by his progenitor in title. My Lords, the appellant is not a member of the family of the DW2 and has no claim to the family land by inheritance. It is therefore curious that learned counsel to the Appellant at the appeal stage is trying to make out a different case other than that pleaded, and in respect of which evidence was led in the Court.

Counsel set out the evidence of the Appellant on how he got his title from DW2 and how the land devolved to DW2 till he sold it to him in 2007, and submitted that a thorough consideration of the testimony of DW2 contained on pages 79-81 of the record of appeal shows that nowhere in his entire evidence did he say how the land was founded by Daka He did not lead evidence in support of the pleading that the land was founded by Daka. Even the Appellant who claimed that the land was founded by Daka (whose evidence is at best hearsay) did not say Daka founded the land in line with decided authorities. It was for this reason that the learned trial Judge held how Daka, DW2 found the land is not in evidence.

Counsel on that note submitted that nowhere in the grounds appeal filed by the Appellant or the issues settled for determination did Appellant challenge the foregoing finding of the Court on root of title is not borne out of evidence. If the Appellant who sought to lead evidence of title of his vendor failed to do so as held by the trial Court, his case was rightly dismissed. See Dim v. Enemuo (supra). It is therefore wrong as submitted by the Appellant that the Court failed to take into consideration the evidence of patrimony tendered by the Appellant, the Court having evaluated same and found it unworthy of any legal credit.

That in the Appellant’s brief, heavy weather was made of issues and sub-issues which according to him, the Court failed to take cognizance of in reaching the decision to prefer the case of the Respondent. Those “issues” and “sub issues” deal with the alleged prior interest of the Appellant’s vendor, which according to him took precedent over the subsequent grant of the Respondent in Exhibit 6. Counsel submitted that having found that the DW2’s title was not proved, all those issues became irrelevant, and all the arguments canvassed thereon go to no issue.

Counsel submitted that the primary duty of evaluation and ascription of probative value is that the trial Court which heard the evidence and watched the demeanor of the witnesses in the witness box. The Judge has the duty of putting the evidence of both parties on an imaginary scale to determine which one preponderates See Mogaji v. Odofin (1978) 4 SC 91 at 94; Odutola v. Mabogunje (2013) 53 (Pt. 1) NSCQR 31 at 70. The trial Judge properly evaluated the evidence on title presented by the Appellant and disbelieved same and the finding of the Court on that point is unimpeachable.

On the submission that Respondent did not challenge the root of title of the Appellant and that is deemed as admission, Counsel submitted that there is no duty on an adverse party to cross-examine on a piece of evidence that proves nothing. The evidence of the Appellant on his root of title standing as it is, does not meet the standard of proof set out on Onwuama v. Ezeokoli (supra) and there was therefore no duty on the Respondent to cross-examine it. Where a party fails to prove his root of title his claim must be dismissed. See Yusuf v. Adegoke & Odetunde (2007) 30 (Pt. 1) NSCQR 269 at 294.

That even assuming for the purpose of argument, that the DW2 had any interest in any land prior to the creation and survey of the Gboko urban area and the carving out of G.R.A. Gboko and the drawing up of Exhibit D12 (the layout plan) (which is not conceded), by his own pleading and evidence, the family land had been partitioned and granted to Shikaa Daka, the father of DW2 before it was inherited by the DW2 on the demise of his father. He had the duty to prove partition and the specific interest granted to him. He did not do so as it is settled law that family loses its character as family land after partition. See Akayepe v. Akayepe (2009) 38 (Pt. 1) NSCQR 450 at 486.

Counsel contended that finding of his Lordship in the Court below is clearly supported by the evidence of the parties. The Respondent did not allege that the Appellant’s land was revoked and given to him. He pleaded that under the statutory powers of the Governor, he applied for a piece of land and the land in dispute Plot No.BN 4548 was granted to him. It was the defendant in his defence who sought to challenge the grant by introducing the issue of revocation, payment of compensation and prior existing interest of his vendor. The issue does not become an “issue in dispute” because the defendant has raised it in his statement of defence. It must arise from the facts in issue. He has the duty to prove his allegation to be worthy of consideration for the purpose of challenging the case of the respondent. See UGO VS. OBIEKWE (1989) 1 NWLR (Pt. 99) 556; AGBI VS. OGBE (2004) 17 NSCQR 499 at 523-524; 3.20 In LEWIS AND PEAT (N.R.I) LTD vs. AKHIMIEN (1976) (2nd Edition) 1 ALL NLR (Pt. 1) 365 at 370.

That it is this misapprehension of the issues in dispute that led the learned counsel who addressed the Court below to formulate issues for determination as though the entire suit was hinged on the determination of the issues raised in the amended statement of defence and counter claim. It is this same error, with due respect, that informed ground 3 of the grounds of appeal which appears to suggest that Court ignored issues 1 and 2 framed by the defendant. That in trials held before High Courts, the cases of the parties are not determined merely on basis of “issues for determination” as distilled by the respective counsel. What is required of the Court is to properly evaluate the evidence adduced by both parties and to reach the correct decision on the facts and the law. This, the learned trial Judge in the Court below did as the defences raised by the Appellant were found not proved while the Respondent was held to have discharged the onus of proof of title to the disputed land.

Another factor according to Respondent’s Counsel that the trial Court considered in dismissing the claim of the Appellant in the Court below is the issue of estoppel which arose as a result of Exhibit 9 tendered by the Respondent. Counsel reproduced the content of EXH 9 and submitted that the Appellant did not deny or challenge the content of the said Exhibit, but Appellant’s counsel submitted that since Respondent does not have title, the purported admission was ineffectual.

Counsel submitted that Appellant Counsel shows a clear misconception of the concept of estoppel. That a party who pleads estoppel as in this case does not rely on it as his root of title. It is a shield not a sword. The Respondent did not found his case on Exhibit 9 neither did the Court grant title on basis of Exhibit 9. The finding of the learned trial Judge in the Court below was to the effect that having admitted that he is a trespasser and that title in the land is vested in the Respondent, he cannot be heard to canvass any other position to the contrary and that all the evidence tendered in challenge of the Respondent’s case by that principle, go to no issue. Counsel referred this Court to the case of Agbogunleri v. Depo (2008) 33 (Pt. 2) NSCQR and submitted that the contention of the Appellant that the admission in Exhibit 9 does not bind him because at the time it was made, the Respondent has in fact no title to the land is a hollow argument and flies in the face of the decision of the Supreme Court cited above.

Counsel on that note contended that it is settled law that a person’s signature, written names or mark on a document not under seal, signifies an authentication of that document that such a person holds himself out as bound or responsible for the contents of such a document See ADEFARASIN VS. DAYEKH (2007) ALL FWLR (Pt. 348) 911. It is therefore wrong for the learned Counsel to, at this point to try to interpret the document in manner other than what was intended by the parties. Moreover, it was not the case of the Appellant in the Court below that he misapprehended the facts and circumstances of the dispute and wrote the document in error. He flatly denied its existence.

That nowhere in the entire evidence of the Appellant and his witnesses is any nexus drawn between what the DW2 calls his ancestral land and the plot now in dispute. There is no evidence before the Court that the land in dispute is adjacent, connected or contiguous with the family land of the Dw2 as to make it probable that the land originally belonged to his family. It is the defendant who is asserting ownership of adjacent and contiguous lands that has the onus of proving which village is contiguous to the disputed plot within Gboko urban area. He failed to do so.

Counsel rounded up by submitting that the counter-claim of the Appellant was not properly constituted as it purported to seek reliefs against the Benue State Government and Bureau of Lands and Survey who were not made parties to this case. It is settled law that failure to join a necessary party is fatal to the case of a party which will lead to a dismissal of his case. See FAJEMIROKUN VS. CBN (2009) 37 NSCQR 1 at 41. Having not joined the necessary parties, the claims of the Appellants challenging revocation of his land, wrongful surveying of the land, want of payment of compensation was properly dismissed by the Court.

ISSUE THREE
Whether the award of the sum of N200,000.00 as general and aggravated damages in favor of the Respondent by the trial Court was right in law, having regard to the pleadings and evidence adduced.

APPELLANT’S COUNSEL SUBMISSION
Counsel submitted that the findings of the trial Court awarding general damages in favor of the Respondent was erroneous because it is based on the misapprehension of the effect of exhibit 9, which was entered into at a time the Respondent had no title in the disputed land. Counsel reiterated his earlier submissions on the effect of exhibit 9 as contained at paragraphs 4.1.11, 4.1.12, 4.1.14, and 4.1.32 of the Appellant’s brief of argument herein.

That the loss of use of land is an item of special damages and not general damages and required particularization in pleadings, and strict proof in evidence. See Ya’u v. Dikwa (2001) FWLR (Pt. 62) 1987 at 2018. Counsel also referred to the authority of Graham v. Isamade (1984) 11 SC 123 at 134, and Amakor v. Obiefuna (1974) 11 SC 67 where the Apex Court on the claim of the Appellant for damages as a result of trespass.

Counsel then submitted that the primary objects of an award of damages is to compensate the plaintiff for the harm done to him, while the secondary motive is to punish the defendant for his conduct in inflicting the harm. Therefore, it is settled law that when a claim to trespass is established, that is, the facts establishing trespass to land are proved and general damages are claimed, the trial Court must proceed to assess, quantify and award appropriate damages. This is because the law presumes, on the proof of trespass, an award of nominal damages. Thus where a party has not proved any special circumstances entitling him to aggravated damages, he can only (if claimed) be awarded general damages.

Counsel contended that since general damages are granted at the discretion of the Court, the general damages assessed and granted in this matter was based on wrong principles of law, misappropriation of facts and upon consideration of irrelevant matters and disregard of relevant matters and are liable to be interfered with by this Court. That the damages are excessive, unwarranted and unreasonable and should be set aside. See ACME Builders Ltd v Kaduna State Water Board (1999) 2 NWLR (pt. 590) 288 at 305. See also UBN Ltd v Odusote Bookstores Ltd (1995) 9 NWLR (pt. 421) 558 at 589.

RESPONDENT’S COUNSEL SUBMISSION
On this issue, Respondent commenced his argument by stating that the Respondent’s case of damages and aggravated damages against the Appellant was on his continuous act of trespass on the respondent’s land. Counsel went ahead to submit that in the course of the trial, the Appellant did not in any way deny the acts of trespass alleged against him. He did not cross-examine on the said evidence at all. Rather, he tried to justify them by claiming that his vendor’s family had a prior existing interest in the land which overrides the grant made to the respondent in Exhibit D6. That the Court further held that he willfully continued in his acts of trespass even after he admitted the initial trespass but has continued with same and that his conduct was spiteful and aggravated the situation which made the trial Court to award damages in favour of the Respondent.

Counsel then submitted that it is against this award that the Appellant formulated the 3 issues for determination in this appeal contending that the learned trial Judge misapprehended the import of Exhibit 9, which according to him, was not really an admission because of the time it was made, the Respondent did not have title to the land. According to Respondent’s Counsel, this submission by learned counsel to the Appellant is unfounded in law. Counsel said that the Appellant’s counsel submission on the authority of Agbogunleri v. DEPO (supra) that estoppel is not concerned with whether or not the facts contained in the statement are true.
That the essential consideration is that they were indeed made and are binding on the maker. Similarly on the authority of it is not the business of the Court to re-write an agreement for the parties, Counsel referred this Court to the case of A.G. Rivers v. A.G. Akwa Ibom (2011) 45 NSCQR (Pt. 2) 1205 at 1079, and submitted that the Court must give the document entered into by the parties their natural meaning. The Appellant did not plead that he was mistaken when he wrote and signed Exhibit 9. He flatly denied its existence only to be caught out under cross examination. He cannot approbate and reprobate on the same point. He is bound by his admission and the finding of the Court that he is trespasser is clearly supported by his admission and the evidence on the record.
Counsel relied on the authorities of Olubodun v. Lawal (2008) 35 NSCQR 570 at 641, and Tukur v. Sabi (2013) 54 NSCQR (Pt. 1) to submit that the Appellant did not deny entry into the land of the Respondent, and he has not justified the reason of his entrance into the Respondent’s land.

Counsel contended that the Appellant cannot use the fact of his vendor’s alleged prior existing interest as a justification for challenging and trespassing into the disputed land when the grant to the respondent had not been set aside. The Respondent did not claim special damages as submitted by the Appellant. The award of general and aggravated damages is at the discretion of the Court. The Court exercised its discretion in awarding the sum of two hundred thousand Naira (N200.000.00) to the Respondent. That the Court did not act on some wrong premise or mistake of law in making the said award. The award was not arbitrary and did not emanate from the wrong exercise of discretion. The amount awarded is not ridiculously high and no injustice has been occasioned to the Appellant. Damages are the pecuniary compensation obtainable by a successful party in action for a wrong either in tort or for breach of contract. See A.S.E.S.A VS. Ekwenem (2009) 40 NSCQR 51 at 76-78.

Therefore, the Respondent has proved his title to the land and that his right to exclusive possession of the land was violated by the Appellant. The Appellant did not justify his entry on the land. The acts of trespass of the Appellant after signing Exhibit 9 shows clearly that he was motivated by spite and malice to lay claim to the land. The Court was justified to have awarded general and aggravated damages against him. No good cause has been shown why this Court should interfere with the lower Court’s exercise of judicial discretion which is supported by the facts before the Court and the law. Counsel urged this Court to resolve this issue against the Appellant and dismiss the Appeal.

RESOLUTION OF ISSUES 1 AND 2
The primary object of pleading is for a party pleading to give sufficient notice to the adverse party of the case he would meet at the trial. This practice is designed to narrow the issues in controversy, and so that no party is taken by surprise. The Supreme Court in BELGORE V AHMED (2013) 8 NWLR (Pt. 1355) 60 SC at pages 95-96 paragraphs G-A Justice Tabai, JSC canvassed the purpose, object and function of pleadings in judicial proceedings. His Lordship stated that: ‘’Pleading in an action are the written statements of the parties wherein they set forth the summary of the material facts on which each relies either in proof of his claim or his defence as the case may be and by means of which the real matters in controversy between the parties and to be adjudicated upon are clearly identified. Although only material facts are required to be pleaded and in a summary form, they must nevertheless be sufficiently specific and comprehensive to elicit the necessary answers from the opponent. See Ashiru Noibi v. Fikolati & Ors (1987) 3 SC 105 at 119 (1987) 1 NWLR (Pt. 52) 619 and Omorhirhi v. Enatevwere (1988) 1 NWLR (Pt. 73) 746. They must contain such details as to eliminate any element of surprise to the opposing party.’’ The Plaintiff’s cause of action and his grievances must be contained in the statement of claim, with which he is bound, for any matter outside the periphery of the statement of claim i.e. pleadings vide evidence goes to no issue and are bound to be ignored. See OHOCHUKWU v. A.G. RIVERS STATE & 2 ORS (2012) 2 SC (Pt. II) 103 at 144.

In the instant case as rightly observed by the learned trial Judge on page 189 of the record that an examination of the pleadings of the parties shows that it is not in dispute that the Plaintiff now Respondent has title documents in respect of BN4548 Gboko. It is also not in doubt that the Defendant now Appellant has title documents in respect of plot No. 2687 Gboko West. Both plot No. BN4548 and Plot No. 2687 refers to one and the same piece of land. The evidence of the parties are in agreement on this issue. Exhibit 6 is the Statutory Right of Occupancy granted to the Respondent by the Governor of Benue State for a term of ninety nine (99) years in respect of Plot No. BN4548. The grant was made on 28/6/2008. In Exhibit D4, the Appellant bought a piece of land from DW2 on 16/8/2007. The said piece of land by Exhibit D1 belonged to the father of DW2. It has No. 2687 in the Certificate of Occupancy issued to the father of DW2 by Gboko Local Government Council. Exhibit D1 was handed over to the Appellant by his vendor, DW2. The Appellant obtained in his name from Gboko Local Government Council a Certificate of Occupancy on 11/4/2008 for 30 years. In Exhibit 9 the parties in this suit had willing settled the dispute between them wherein the Appellant admitted that he bought the property the subject matter of this suit in error and that he would seize further acts of trespass on the said land the facts and circumstance surrounding the execution of Exhibit 9 were pleaded by the Responded in paragraphs 9, 10 and 11 of his Statement of Claim dated 11th day of February 2013. See pages 6 and 7 of the record. On that note, I agree with the submission of learned counsel for the Respondent that the Respondent was perfectly entitled to rely on Exhibit 9 in proof of his case and that the learned trial Judge was perfectly right to have held that the Appellant was estopped from challenging the title of the Respondent having conceded same in that document. It is settled by long line of cases that what is admitted, need no further proof. See NDUKWE V. LPDC & ANOR (2007) LPELR-1978 (SC) Page 64; MOHAMMED V. APC & ORS (2019) LPELR-48395 (CA) Page 36. The Appellant having made an undertaking not to further trespass on the said land is estopped from reneging on the content of Exhibit 9.

Estoppel is equivalent to an admission of an extremely high and conclusive nature, so high and so conclusive that the party whom it affects is not allowed or permitted to plead against it or adduced evidence to controvert it. See OLALEKAN V. WEMA BANK Plc (2006) 7 SC (Pt. II) 60 at 66-67. It is a bar which prevents one from asserting a claim or right that contradicts what one has said or done before or what has been legally established as true. It is also a bar that prevents the re-litigation of issues. See TUKUR V. UBA (2013) 4 NWLR (Pt. 1343) 90 at 136. A party is estopped and precluded from contesting in Court an issue which had previously and long been settled with that party as a participant. See A.G. NASARAWA STATE V. A.G. PLATEAU STATE (2012) 3 SC (Pt. II) 1 at 66 & 93. Where a man by word or conduct willfully made representation of a state of facts to another and thereby induced that other to believe that the state of things was as represented by that person and that other took him by his words and acted upon that representation, then the person who made the representation either by himself or his representative in interest cannot later turn around to say or behave as if the state of things were not as he represented them. He is estopped from asserting the contrary. See Section 169 of the Evidence Act 2011; OKONKWO V. KPAJIE (1992) 2 NWLR (Pt. 226) 633 at 655. In this instant, the Appellant is prevented or estopped from re-litigating the issues in Exhibit 9.

Learned Counsel for the Appellant had argued albeit erroneously that the learned trial Judge failed to consider, evaluate and make findings on the evidence in regard to the root of title of the Respondent as challenged and the divergent claims made on the pleadings.

Evaluation of evidence simply means the assessment of evidence to give value or quality to it. Evaluation should involve a reasoned belief of the evidence of one of the contending parties and disbelief of the other or a reasoned preference on one version to the other. There must be on record an indication of how the Court arrived at its conclusion, of preferring one piece of evidence to the other. See OYEKOLA V. AJIBADE (2004) 17 NWLR (Pt. 902) 356 at 379. The Judge depends on the evidence given by the witnesses in giving judgment. It follows therefore that the Judge before reaching a conclusion, he must analyse the evidence before him and give reasons for coming to the conclusion as he did. In the instant appeal the learned trial Judge on lack of proof of title to the land in dispute rightly held in page 197 of the record that ‘’In the amended Statement of Defence and Counter-Claim of the Defendant, Daka is said to be the founder of the land, part of which the defendant bought from DW2, the grandson of Daka. How Daka founded the land is not in evidence before this Court. It is not enough for a purchaser of the land to plead and testify that he obtained title from the founder of the land. The law requires him to plead and prove how his vendor found the land. See Dim vs. Enemuo (2009) 2 SCNJ 199 at 218.’’ The learned trial Judge in my humble view properly evaluated the evidence on root of title presented by the Appellant and disbelieved him given reasons. I have no reason to disturb the finding on this issue and having found out that DW2 title was not proved all the issues and sub-issues argued by the Appellant under his issues one and two became irrelevant and have no basis.

Before I conclude on these issues, I must not fail to comment on the Counter-Claim of the Defendant now Appellant. A Counter-Claim is an independent action, which enables a Defendant to enforce a claim against a Plaintiff. It is by nature a ‘sword’ and not a ‘shield’. Thus, the rules of pleadings apply with the same force and potency to a Counter-Claim and a defence to a Counter-Claim as if they are respectively a Statement of Claim and a Statement of Defence. See AMATA V. OMOFUMA (1997) 2 NWLR (Pt. 485) 93 CA. A Counter-Claim is different from the Plaintiff’s claim and requires evidence to prove it. See IGE V. FARINDE (1994) 7 NWLR (Pt. 354) 42. A Counter-Claim is a claim which must be proved to the satisfaction of the Court as required by law. The onus of proof which lies on the Plaintiff to prove his claim is also on the Defendant to prove the averments in his Counter-Claim against the Plaintiff or he will fail in his claim.

In this instant, I am in agreement with the Respondent that the Counter-Claim of the Appellant was not properly constituted as it seeks reliefs against the Benue State Government and Bureau of Lands and Survey who were not made parties to the case. The law is settled by long line of cases that failure to join a necessary party is fatal to the case of a party which in effect will lead to lack of jurisdiction of the Court to hear and determine his case. See JURASSIC COMMUNICATIONS NIGERIA LIMITED V. ABIODUN NIMZE ADEYEYE (2019) LPELR-46498 (CA) Page 42. Having not joined the necessary parties, the claims of the Appellant challenging revocation of his land, wrongful surveying of the land, want of payment of compensation was properly dismissed by the lower Court. Thus issues 1 and 2 are hereby resolved against the Appellant.

RESOLUTION OF ISSUE 3.
General damages are such damages as the law will presume to be direct natural or probable consequence of the act complained of. See IJEBU-ODE L.G. V. ADEDEJI BALOGUN and Co. (1991) 1 NWLR (Pt. 166) 136 at 158. They are those damages which the law implies in every breach and every violation of a legal right. It is the loss which flows naturally from the defendant’s act, and its quantum need not be pleaded or proved as it is generally presumed by law. The way general damages are quantified is by relying on what could be the opinion and judgment of a reasonable person in the circumstances of the case. See GARI V. SEIRAFINA (NIG.) LIMITED (2008) 2 NWLR (Pt. 1070) 1 at 19. Heads of general damages are: pain and suffering; loss of amenities; loss of expectation of life; future loss of earnings or earning capacity; and future expenses. See JULIUS BERGER (NIG.) Plc. V. OGUNDEHIN (2014) 2 NWLR (Pt. 1391) 388 at 429.

It is trite law that award of general damages is at the discretion of the Judge. This discretion must be exercised judiciously and judicially. Where it is properly exercised, the Appellate Court has no reason to upturn it. See OGUNDIPE V. NITEL & ORS (2015) LPELR-24920 (CA) Page 25.

The learned trial Judge in assessing and justifying the award of general damages stated at page 198 of the record that: ‘’In Exhibit 9, the Defendant admitted buying the disputed plot from DW2 in error. The Defendant, however, reneged from his undertaking in Exhibit 9 and challenged the title of the Plaintiff to the said plot by obtaining Exhibit D5 from Gboko Local Government Council on 11/4/2008. The said conduct of the Defendant, I hold, not only deprived the Plaintiff the benefit of his property, such conduct is spiteful, thereby aggravating the injury caused to the Plaintiff. See Williams v. Daily Times (1990) 1 SCNJ 1 at 23. It is common knowledge that the value of the Naira has owing to the inflationary trend of the Nigeria economy.” This assessment of general damages by the learned trial in the circumstance of this case was properly exercised and I see no reason why I should disturb it. Without much ado, I resolve issue 3 against the Appellant.

In the result, the Appellant’s appeal is lacking in merit having resolved issue 1-3 against the Appellant.

The appeal is hereby dismissed. The judgment of the lower Court Coram T.A. KUME, J, delivered on the 10th day of November, 2015 in Suit No. KHC/7/2013 is HEREBY AFFIRMED.
Parties to bear their cost.

IGNATIUS IGWE AGUBE, J.C.A.: I was privileged to have read in advance, the draft of the lead judgment delivered by my learned brother, MUSLIM SULE HASSAN, JCA, and I am in total agreement with the reasons advanced in concluding as he did that the Appellant’s appeal is unmeritorious and should be dismissed.

Having resolved Issues 1-3 against the Appellant, I am also of the considered view that Appellant’s appeal is lacking in merit. I affirm the judgment of the lower Court Coram T.A. Kume, J, delivered on the 10th day of November, 2015 in Suit No KHC/7/2013.
I also abide by the order as to costs.

CORDELIA IFEOMA JOMBO-OFO, J.C.A.: I had the privilege of reading in draft, the leading judgment delivered by my learned brother HON. JUSTICE MUSLIM SULE HASSAN, JCA, I entirely agree with the reasoning and conclusion reached therein.

My learned brother has properly in my respected view dealt with all the issues relevant for the determination of the appeal. I agree with him that the appeal is meritorious and should be allowed. I shall make few comments for the sake of emphasis.

Facts leading to this appeal have been clearly set out in the lead judgment and it will amount to unnecessary repetition to set out same herein, but of particular interest is the fact that, it is not in dispute between the parties that, the Respondent has title documents in respect of plot No. BN 4548. It is also not in dispute that the Appellant has title documents in respect of plot No. 2687. Both plot No. BN 4548 and plot No. 2687 refer to the same piece of land lying and situated at Gboko West. The Respondent was granted a certificate of occupancy on the 28th of June 2008. The Appellant on other hand bought the said land from Dw2 who acquired same from his father, and was handed over a certificate of occupancy on the 16/8/2007, and later obtained in his name a certificate of occupancy on the 11th day of April 2008, by Gboko Local Government for a term of 30 years.

For whatever reason, parties willingly and amicably settled their differences and reduced same into writing, and executed “Exhibit 9” wherein, the Appellant honestly admitted he bought the land in dispute in error and he would seize further act of trespass on the said land. The question to ask is whether the Court should not respect the sanctity of the agreement reached by the parties.

It has been held by a long list of authorities that, where parties have entered into an agreement or contract voluntarily and there is nothing to show that same was obtained by fraud mistake or deception or misrepresentation, they are bound by the provision or terms of the contract or agreement. This is because the party cannot ordinarily resign from a contract or agreement just because he later found that, the condition of the contract or agreement is not favourable to him. This is the whole essence of the doctrine of sanctity of contract. See SONA BREWERIES PLC VS. PETERS (2005) 1 N.W.L.R (PT.908) 478; OWONIBOYS TECHNICAL SERVICES LTD. VS. UBN LTD (2003) 15 N.W.L.R (PT. 844) 545; ORIENT BANK (NIG) PLC. VS. BILANTE INT’L LTD (1997) 8 N.W.L.R (PT.515) 37.
Moreover, the Court of law must respect the sanctity of the agreement reached by the parties where they are in consensus ad idem as regards the terms and conditions freely and voluntarily agreed upon by them and expressed in a written form.

The Appellant did not even contend that the said agreement was not voluntarily made or was made by fraud, misrepresentation or deception. He first denied even making such agreement in his statement of defence, but he admitted duly signing it under the heat of cross-examination. The document must then be given its natural and ordinary meaning since it is conclusive of what the parties intend.

I have thoroughly examined the facts leading to this appeal and I think, whatever determination is made in this proceeding seems to be the same question arising from the agreement made in Exhibit 9, and I humbly but firmly believe that for the Appellant to succeed, he must establish that, the proceeding is not the same as that agreed and decided between the parties in the said exhibit 9, especially where it is established that it was made freely without fraud, deception or misrepresentation of fact. The Courts look at the parties as honorable people, and treat their agreement with the greatest respect, and therefore ensure that the conditions stipulated therein are strictly observed.

It therefore follows that the Appellant is estopped from challenging the respondent’s title to the land having concede same in exhibit 9 together with his vendor DW2.

The rule of estoppels is that, a man is not allowed to blow hot and cold, to affirm at one time and deny at the other, or as it is said, to probate and reprobate. He cannot be allowed to mislead another person into believing in a state of affairs and turning round to say to that person’s disadvantage that the state of affairs which he represent does not exist. See UDE VS. NWARA (1993) 2 N.W.L.R (PT.278) 638.

For these reasons and others set out in details in the lead judgment, I also agree that the appeal is lacking in merit and must be dismissed. The judgment of the lower Court delivered by Hon. Justice T. A. Kume delivered on the 10th day of November 2015 in Suit No. KHC/7/2013 is hereby affirmed.