UNITY BANK PLC v. GWADABE & ORS (2020)

UNITY BANK PLC v. GWADABE & ORS

(2020)LCN/15767(CA)

In The Court Of Appeal

(KANO JUDICIAL DIVISION)

On Thursday, November 12, 2020

CA/KN/141/2017

Before Our Lordships:

Abubakar Datti Yahaya Justice of the Court of Appeal

Habeeb Adewale OlumuyiwaAbiru Justice of the Court of Appeal

Amina Audi Wambai Justice of the Court of Appeal

Between

UNITY BANK PLC APPELANT(S)

And

1. ALHAJI NASIRU GWADABE 2. ALHAJI TIJJANI GWADABE 3. BELLO GWADABE (THE ADMINISTRATORS OF THE ESTATE OF LATE GWADABE BELLO SUDAWA) 4. ATTORNEY GENERAL & COMMISSIONER FOR JUSTICE, KANO STATE 5. MINISTRY OF LAND AND PHYSICAL PLANNING, KANO STATE 6. PROBATE REGISTRAR, HIGH COURT OF KANO STATE RESPONDENT(S)

RATIO:

THE CLAIM OF OWNERSHIP OF LAND

The law is that to succeed in a claim of ownership of land, the Court must be satisfied as to (a) the precise nature of the title claimed, that is to say, whether it is title by virtue of original ownership, customary grant, conveyance, sale under customary law, long possession, or otherwise; and (b) evidence establishing the nature of title claimed – Obawole Vs Coker (1994) 5 NWLR (Pt 345) 416, Adesanya Vs Aderonmu (2000) 9 NWLR (Pt 672) 370 at 382, Nruama Vs Ebuzoeme (2006) 9 NWLR (Pt 985) 217, Bassey Vs Pamol (Nig) Ltd (2009) 6 NWLR (Pt 1136) 36, Edohoeket Vs Inyang (2010) 7 NWLR (Pt 1192) 25, Obineche Vs Akusobi (2010) 12 NWLR (Pt 1208) 383. . HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.

AN ACTION FOR DECLARATION OF OWNERSHIP OF LAND

THE ACTS OF OWNERSHIP AND POSSESSION

THE METHOD OF ACQUIRING OWNERSHIP OF A PROPERTY

THE ERROR IN THE JUDGMENT OF A COURT

A CERTIFICATE OF OCCUPANCY ISSUED RAISES A REBUTTABLE PRESUMPTION

It issettled law that a certificate of occupancy properly issued by a competent authority raises the rebuttable presumption that the holder is the owner in exclusive possession of the land in respect thereof. Such a certificate also raises the rebuttable presumption that at the time it was issued there was not in existence a customary owner whose title has not been revoked. Until rebutted and revoked, the certificate of occupancy constitutes a good proof of ownership of the property in question –Dabup Vs Kolo (1993) 9 NWLR (Pt 317) 254, Ilona Vs Idakwo (2003) 11 NWLR (Pt 830) 53, Ezeanah Vs Attah (2004) 7 NWLR (Pt 873) 468, Din Vs Attorney General, Federation (2004) 12 NWLR (Pt 888) 459, CSS Bookshops Ltd Vs The Registered Trustees of Muslim Community in Rivers State (2006) 11 NWLR (Pt 992) 530, Madu Vs Madu (2008) 6 NWLR (Pt 1083) 296, Omiyale Vs Macaulay (2009) 7 NWLR (Pt 1141) 597, Edohoeket Vs Inyang (2010) 7 NWLR (Pt 1192) 25, Agboola Vs United Bank for Africa Plc (2011) 11 NWLR (Pt 1258) 375. HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.

HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A. (Delivering the Leading Judgment): This appeal is against the decision contained in the judgment of the High Court of Kano State in Suit No K/404/2013 delivered by Honorable Justice Mohammed Yahaya on the 21st of December, 2016.

The Appellant commenced the action in the lower Court against the Respondents and its claims were for:
i. A declaration that the Appellant is the lawful and rightful owner of the property located at No. 14, Dorawa Road, Nassarawa, Kano.
ii. A declaration that the letters of administration issued by the Probate Registry of Kano State High Court in favour of the first to the third Respondents is null and void since the deceased (Gwadabe Bello Sudawa) had passed on the property to the Appellant before his demise.
iii. An order directing the fifth Respondent to deliver the Certificate of Occupancy in respect of the property covered by Certificate of Occupancy No LKN/RES/RC/98/21 to the Appellant.
iv. An order of perpetual injunction restraining the first to third Respondents and the Estate of late Gwadabe Bello Sudawa either by themselves, their agents, servants or priviesor any person or persons howsoever called from selling, disposing or alienating or disturbing the Appellant’s peaceful occupation of the property situate at No. 14, Dorawa Road, Nassarawa, Kano.

The case of the Appellant on the pleadings was that the deceased father of the first to the third Respondents, late Gwadabe Bello Sudawa applied for and was granted a banking facility by the Appellant and he deposited the letter of grant of the property situate at No. 14, Dorawa Road, Nassarawa, Kano issued to him by the then Ministry of Land and Survey as collateral for the loan. It was its case that the late Gwadabe Bello Sudawa had an account with the Lagos Street Branch of the Appellant and that at time he operated the account, the operations of the Appellant were manual and not computerized. It was its case that when the late father of the first to the third Respondents could not liquidate the facility, he surrendered the property to the Appellant in settlement of the debt in 1984 and the Appellant has been in exclusive and peaceful possession of the property since then. It was its case that as the time it took over the property there was a three bedroom bungalow thereon and that it erected an additional duplex building thereon around 1994 and it exercised maximum rights of ownership and possession over the property such as effecting repairs, paying the bills and appointing an Estate Agent to collect rents from tenants, even in the lifetime of late Gwadabe Bello Sudawa, without any interference.

It was the case of the Appellant that sometime in 2006, in the course of moving its head office, it lost many valuable documents, including those pertaining to the transaction between it and the late father of the first to the third Respondents and it obtained a police report, made an affidavit of loss of document and a newspaper publication. It was the case of the Appellant that it applied to the fifth Respondent for the perfection of its title over the property and had paid over N1 Million as statutory and non-statutory fees and that it built up the structure on the property and the tenants therein recognized it as the owner. It was its case that it was when it went to collect the Certificate of Occupancy from the fifth Respondent that the first to third Respondents showed up waving a letter of administration issued by the sixth Respondent, and obtained under false pretences, in respect of the property. It was its case that the late father of the first to the third Respondents relinquished ownership of the property to it in satisfaction of his indebtedness and it had since exercised rights of ownership over the property.

The first Respondent and the second and third Respondents filed separate pleadings but the case they made out was the same. It was their case that the property in dispute belonged to their late father and that their late father exercised maximum right of ownership over the property during his lifetime and built it up over thirty years ago. They denied the case of the Appellant on the loan and surrender of the property and it was their case that the property was inhabited by the staff of the Appellant as tenants of their late father and that their late father fell ill at a point and suffered from dementia and other mental health challenges for about twenty years before his death. It was their case that the Appellant took advantage of their late father’s failing health, and the non-demand for rents by their late father because of his mental state, and it stopped paying rents and started laying claim to the ownership of the property.

It was their case that the letters of administration was issued to them after due process and that the Appellant has no proprietary interest in the property, equitable or legal, that the fifth Respondent could perfect in its favour and that the Appellant’s continued occupation of the property without payment of rents cannot translate into a claim of ownership to deprive them of legal title to the property. The second and third Respondents counterclaimed thus:
i. A declaration that the legal heirs of late Alhaji Gwadabe Bello Sudawa are the legal owners of the property located at No 14 Dorawa Road, Nassarawa GRA, Kano covered by Certificate of Occupancy No LKN/RES/RC/98/21.
ii. A declaration that the letter of administration issued by the Probate Registrar of Kano State High Court duly appointing the first to third Respondents as administrators to the Estate of late Gwadabe Bello Sudawa is valid and subsisting.
iii. An order directing the fifth Respondent to deliver the Certificate of Occupancy No LKN/RES/RC/98/21 in respect of the subject matter of the suit to the administrators to the Estate of late Gwadabe Bello Sudawa.
iv. An order directing the Appellant, its staff or any of its agents to vacate the occupation of the property at No 14, Dorawa Road, Nassarawa GRA, Kano, the subject matter of the suit and deliver the possession of the vacant property to the administrators to the Estate of late Gwadabe Bello Sudawa with immediate effect.
v. An order of perpetual injunction restraining the Appellant, its staff, agents, privies or any other person howsoever called from parading themselves as owner of the property laying and situate at No 14, Dorawa Road, Nassarawa, GRA, Kano covered by the Certificate of Occupancy No LKN/RES/RC/98/21.
vi. The sum of N20 Million only as special damages for occupying the property as tenant at sufferance.
vii. The sum N30 Million only as general damages for the injuries and trauma occasioned to the entire legal heirs of late Alhaji Gwadebe Bello Sudawa and their families as a result of frivolous and vexatious suit.
viii. The cost of filing and processing this suit, including Solicitor’s fees, which is N3 Million.

The fourth, fifth and sixth Respondents filed joint pleadings and they affirmed that the letters of administration of the Estate of late Gwadabe Bello Sudawa was issued to the first to third Respondents after due process and that the Appellant paid statutory fees for the issuance of the Certificate of Occupancy to the property in question. It was their case that the initial title documents of the property in dispute issued to the late Gwadabe Bello Sudawa were totally damaged in the Kano rampage back in 1980 and consequent to which the late Gwadabe Bello Sudawa applied for a re-certification of the title documents. It was their case that upon the receipt of the application of the Appellant requesting that the re-certified title documents be issued in its name and the receipt of the letters of administration for the Estate of late Gwadabe Bello Sudawa issued to the first to third Respondents, the fifth Respondent sought for legal advice from the fourth Respondent and the advice received favoured the issuance of the title documents to the first to the third Respondents. It was their case that, from the records ofthe fifth Respondent, there was no evidence that late Gwadabe Bello Sudawa divested himself of the ownership of the property by a deed of assignment, and/or created an encumbrance on it by registered deed of mortgage or by any other form of alienation.

The Appellant filed a reply to the statement of defence of the first Respondent and a reply and defence to counterclaim to the statement of defence and counterclaim of the second and third Respondents. The matter proceeded to trial and at the conclusion of which, Counsel to the parties filed their respective final written addresses. Sequel to the adoption of the written addresses, the lower Court entered judgment dismissing the claims of the Appellant, and granting the first five prayers on the counterclaim of the second and third Respondents. The lower Court dismissed all the monetary claims on the counterclaim. The Appellant was dissatisfied with the judgment and it caused its Counsel to file a notice of appeal dated the 21st of December, 2016 and containing five grounds of appeal against it.

The notice of appeal was subsequently amended and the Appellant filed an amended notice of appeal containing four grounds of appeal and dated the 5th of May, 2017 on the 8th of May, 2017 and the amended notice of appeal was deemed properly filed and served by this Court on the 22nd of May, 2017. In arguing the appeal, Counsel to the Appellant filed a brief of arguments dated the 25th of May, 2017 on the 26th of May, 2017 and the brief of arguments was deemed properly filed and served by this Court on the 25th of October, 2017. Counsel to the first to third Respondents filed a joint brief of arguments dated the 12th of November, 2017 on the 13th of November, 2017. Counsel to the fourth to the sixth Respondents also filed a joint brief of arguments dated 2nd of June, 2018 on the 14th of June, 2018 and the brief of arguments was deemed properly filed and served by this Court on the 13th of February, 2019. At the hearing of the appeal, Counsel to the parties relied on and adopted the arguments in their respective briefs of arguments as their oral submissions in the appeal.

Counsel to the Appellant distilled four issues for determination in the appeal and these are:
i. Whether the learned trial Judge was right in holding that the Appellant did not file a defence to the second and third Respondents’ counterclaim.
ii. Whether the fact that a party did not file a defence to counterclaim in an action for declaration of title to land, divests the other party claiming declaration of the burden of proving title on the strength of his case.
iii. Whether the Appellant proved its entitlement to judgment at the lower Court.
iv. Whether the judgment of the lower Court is supported by evidence before the Court.

Counsel to the first to third Respondents adopted the four issues for determination as formulated by Counsel to the Appellants while Counsel to the fourth to the sixth Respondents was of the view that there were only two issues for determination in the appeal and he adopted the third and the fourth issues for determination formulated by Counsel to the Appellants.

Reading through the records of appeal, particularly the pleadings filed by the parties before the lower Court and the records of proceedings before the lower Court, including the notes of evidence and the judgment appealed against, as well as the amended notice of appeal of the Appellant and the arguments contained in the briefs of arguments of the parties, it is the view of this Court that there are two issues for determination in this appeal. These are:
i. Whether, on the strength of the pleadings and the evidence led by the parties, the lower Court was correct when it found that the Appellant did not make out a credible case in support of its claim.
ii. Whether, on the strength of the pleadings and the evidence led by the parties, the lower Court was correct when it found that the second and third Respondents made out a credible case in support of their counterclaim.

This appeal will be resolved on the basis on these two issues for determination and the Court will consider all the arguments canvassed by Counsel to the parties under the two issues for determination. The issues for determination will be resolved seriatim.

Issue One
Whether, on the strength of the pleadings and the evidence led by the parties, the lower Court was correct when it found that the Appellant did not make out a credible case in support of its claim.
This issue was argued as the third and fourth issues for determination by Counsel to the Appellant in his brief of arguments. Counsel stated that the Appellant led evidence to show that the late Gwadabe Bello Sudawa deposited his title deeds for the property in question with it as security for a loan and that he later swapped the property for the debt and that the documents relating to the transaction got lost whilst it was moving offices. Counsel stated that the evidence of witnesses of the Appellant on these facts were not challenged under cross examination and that this meant that the Respondents accepted the evidence of the witnesses as true, correct and credible and that the lower Court was in error to have treated the evidence of the witnesses as unreliable and he referred to the cases of Oyewinle Vs Iragbiji (2014) All FWLR (Pt 731) 1536, WAEC Vs Oshionebo (2007) All FWLR (Pt 370) 1501 and Central Bank of Nigeria Vs Okojie (2015) All FWLR (Pt 809) 478.

Counsel stated that the Appellant further adduced evidence to show that it had been in exclusive possession of the property for over twenty years, even in the lifetime of late Gwadabe Bello Sudawa, and without paying rents and without any demand for rents from the late Gwadabe Bello Sudawa and/or his heirs. Counsel stated that the Appellant led both oral and documentary evidence on the various acts of ownership that it carried on in the property in dispute, including letting same to tenants, and that these acts were directly inconsistent with the ownership rights of late Gwadabe Bello Sudawa and that neither late Gwadabe Bello Sudawa, in his lifetime, nor his heirs, after his death, challenged the Appellants on the acts and that this lent credence to the Appellant’s claim of the ownership of the property.

Counsel stated that there was also evidence that after the death of late Gwadabe Bello Sudawa, his heirs distributed his estate, but did not touch the property in dispute, and this was due to their knowledge that the property no longer belonged to their late father. Counsel referred to the cases of Onwugbufor Vs Nelson (1996) 1 SCNJ 1 and Ossai Vs Agolo (2012) All FWLR (Pt 758) 919 in asserting the five recognized ways of proving ownership of land and stated that the Appellant proved its case on ownership of the property in dispute by acts of long possession and enjoyment of the property in dispute, by acts of ownership extending over a sufficient length of time which were numerous and positive enough to warrant the inference that it owned the property and by deposit of title deeds and he referred to the case of Akiti Vs Oyekunle (2015) All FWLR (Pt 776) 570. Counsel referred to the cases of Nkado Vs Ozulike (1997) 5 SCNJ 33 and Nwokidu Vs Okanu (2010) 1 SCNJ 167 in asserting that the Appellant was only expected to prove one of the modes of establishing ownership of property.

Counsel stated that the Appellant tendered an affidavit of loss, police report and newspaper publication on the loss of the documents pertaining to the transaction between it and the late Gwadabe Bello Sudawa and the facts deposed to in the affidavit were not countered by the Respondents and that the affidavit showed on its face that it was in respect of the property in dispute and that the deponent was a staff of the Appellant. Counsel stated that the lower Court was in error, in the circumstances, for failing to accord probative value to the affidavit and the other documents and that the deponent to the affidavit, being a staff of the Appellant, was entitled to depose to the affidavit on behalf of the Appellant and he referred to the cases of STB Ltd Vs Interdrill (Nig) Ltd (2007) All FWLR (Pt 366) 756 and African Paint Ltd Vs Soyemi (2008) All FWLR (Pt 397) 117.

Still relying on these two cases cited above and the additional case of Dragetanos Construction (Nig) Ltd Vs FAB Madis Ventures (2012) All FWLR (Pt 616) 441, Counsel to the Appellant stated further that the lower Court was in error in treating the evidence of the two witnesses of the Appellant as hearsay evidence on the ground that they did not take part in the transaction between the Appellant and late Gwadabe Bello Sudawa, because, being staff of the Appellant, the two witnesses were competent to testify on the transaction. Counsel referred to the case of Olaloye Vs A.G and C.J Osun State (2015) All FWLR (Pt 774) 37 on the factors to be taken into consideration by a trial Court in assessing the veracity and credibility of a witness and he, again, traversed through the evidence of the witnesses for the Appellants and stated that they met all the criteria of a credible witness and that the lower Court was wrong in treating their evidence as not credible and hearsay evidence.

Counsel stated that the lower Court erred when it did not consider the equitable principle of laches and acquiescence pleaded in their statement of claim and led in evidence, as the same availed the Appellants against the Respondents and he referred to the cases of Nsiegbe Vs Mgbemena (2007) All FWLR (Pt 372) 1769 and Lambe Vs Aremu (2014) All FWLR (Pt 729) 1075 on principles governing the doctrine of laches and acquiescence. Counsel thereafter again, traversed through the evidence led by the Appellant and stated that the Appellant met all the conditions for the application of the doctrine of laches and acquiescence in its favour. Counsel stated that the findings and the conclusions reached by the lower Court were not supported by the pleadings and the evidence led before it and he traversed through the pleadings and particularly the evidence of the defence witness and stated that the findings made and conclusions reached by the lower Court were perverse.
Counsel concluded his arguments by urging the Court to resolve the issue for determination in favour of the Appellant.

In arguing the issue for determination, Counsel to the first to third Respondents referred to the case of the Appellant on the pleadings and stated that the case was predicted on a mortgage the late Gwadabe Bello Sudawa created in favor of the Appellant over the property in dispute by deposit of title deeds as collateral for a loan. Counsel referred to the cases of Ihunwo Vs Ihunwo (2013) 2 SCNJ 947 and Aigbobahi Vs Aifuwa (2006) 26 NSCQ 122 in asserting that the Appellant had the onus to prove its case as pleaded and stated that only way the Appellant could prove the mortgage was by producing the title deeds that late Gwadabe Bello Sudawa deposited with it. Counsel stated that the Appellant did not tender any such document at the trial and that the first witness of the Appellant, a staff of the Appellant, testified that she knew nothing about the mortgage transaction and/or what transpired between the Appellant and late Gwadabe Bello Sudawa and that her testimony was based on what her employer told her.

Counsel stated that the affidavit of loss of document and police report pleaded by the Appellant were tendered as Exhibits P3 and P4 respectively and that Exhibit P3 made no reference to the Appellant and it showed on its face that it was deposed to by one Sulaiman Isa who averred therein that he was the owner of the property in dispute and that the property was sold to him by late Gwadabe Sudawa and that he lost the document issued to him to evidence the sale of the property. Counsel stated that Exhibit P4 was issued on the strength of the affidavit, Exhibit P3, and that both documents do not support the case of the Appellant and further, that the second witness of the Appellant, also a staff of the Appellant, could not give the basis of his knowledge of the transaction that took place between the Appellant and late GwadabeSudawa. Counsel stated that the testimonies of the two witnesses of the Appellant were hearsay evidence and that they also contradicted each other in material particulars and that they were thus not reliable, admissible and/or credible and he referred to the case of Yusuf Vs Obasanjo (2005) 18 NWLR (Pt 956) 120.

Counsel stated that the assertion of Counsel to the Appellant that the evidence of the two witnesses of the Appellant were not challenged under cross examination is totally incorrect and also that the u-turn the Counsel to the Appellant made to rely on acts of possession and the case law authorities cited thereon were inapposite and they cannot avail the case of the Appellant. Counsel stated that, in the pleadings, the Appellant predicated its ownership of the property on the mortgage transaction that took place between it and late Gwadabe Sudawa and having failed to prove this transaction, it cannot have resort to acts of possession and he referred to the case of Owhonda Vs Ekpechi (2003) 12 MJSC 1. Counsel stated that all the submissions of and the cases relied upon by Counsel to the Appellant to assert the competence of the two witnesses of the Appellant to testify on behalf of Appellants, being its staff, were irrelevant as the complaint against the testimonies of the witnesses was not on their incompetence to testify, but on the credibility and reliability of the evidence they led.

Counsel stated that the attempt to resort to the doctrine of laches and acquiescence by Counsel to the Appellant was also lame as this was not the basis of the Appellant’s claim of ownership of the property in dispute and that indeed the facts of the acts that the Appellant pleaded that it carried out on the land were of acts of trespass and do not support the assertion of laches made by Counsel. Counsel stated that, moreover, laches and acquiescence was not raised or canvassed before the lower Court and cannot be raised in this Court and he referred to the case of Kyari Vs Alkali (2001) 11 NWLR (Pt 724) 412. Counsel stated that the Appellant failed to prove its claim of ownership of the property in dispute on a balance of probability as there was no credible, reliable or valid evidence led in support of same and that the lower Court correctly dismissed its case. Counsel urged the Court to resolve the issue for determination in favour of the Respondents.

Counsel to the fourth to the sixth Respondents also canvassed very rigorous and lucid arguments on this issue for determination and cited several case law authorities. The submissions of Counsel were however, in the same tenure as those canvassed by the Counsel to the first to the third Respondents, albeit with different linguistic expressions, and reproducing them will only amount to a repetition. Counsel also urged the Court to resolve the issue for determination in favour of the Respondents.

In deliberating on the claims of the Appellant, the lowerCourt traversed through the testimony of the first witness of the Appellant and noted that the affidavit of loss of documents, police report of loss of documents and newspaper publication of loss of documents were tendered as Exhibits P3, P4 and P5 respectively, and it continued thus:
“I have observed from evidence of PW1 that the affidavit of loss of document and police report were not made in the name or on behalf of the plaintiff but deponent is one Sulaiman Isa on exhibit P3 deposed to a fact that he is the owner of the lost documents. Secondly, the resolution of the Committee for Recovery of bad debt was not tendered and no evidence as to whereabout of it. That no evidence to prove that the arrangement made by the plaintiff and the deceased father of the 1st – 3rd defendants was either in writing, and if so what happened to it, or it is made orally, and if orally who and who were present when it was made. The said Sulaiman Isa did not in his affidavit inform the police when making the report that the lost documents belongs to the plaintiff. PW1 testimony under cross examination stated that she does not know when the customer opened the account, and does not know commencement date of the transaction between the said Bello Gwadabe and the plaintiff. That she also does not know the amount of facility granted to the deceased Bello Gwadabe and she does not know how much amount applied for by the deceased father of the 1st – 3rd defendants…, now from the evidence of PW1, I hold that the evidence is not credit worthy of being believed and is hearsay …”

The lower Court also evaluated the evidence led by the second witness of the Appellant and noted that the witness testified that “he got all the information of the event between the plaintiff and the father of the 1st – 3rd defendants from the file of the plaintiff or record of the plaintiff”, and it stated thus:
“From the evidence of PW2 the question begging for answers are that when PW2 stated that he got all the information concerning the transaction between the plaintiff and the father of the 1st – 3rd defendants from the record of the plaintiff, where is the record and if actually he got the information from the record, why did the witness not tender the record. The affidavit ofloss and police report was not in respect of any documents but title documents of the deceased. Therefore, I find that the evidence of PW2 is hearsay and not credible…”

The lower Court thereafter traversed through the evidence of the witnesses of the Respondents and found that their testimony was credible and believable and it dismissed the claims of the Appellant.

The principal claim of the Appellant before the lower Court was its lawful and rightful ownership of the property in the dispute. The first prayer sought on the originating processes was for a declaration that the Appellant is the lawful and rightful owner of the property in dispute. It is settled law that to succeed in a case for declaration of ownership of land, a party must establish the method by which he acquired the said ownership; ownership of land cannot be claimed without first establishing that ownership – Fasoro Vs Beyioku (1988) 2 NWLR (Pt 76) 263, Nwofor Vs Nwosu (1992) 9 NWLR (Pt 264) 229,Onwugbufor Vs Okoye (1996) 1 NWLR (Pt 424) 252, United Bank for Africa Plc Vs Ayinke (2000) 7 NWLR (Pt 663) 83, Elegushi Vs Oseni (2005) 14 NWLR (Pt 945) 348, Oyeneyin Vs Akinkugbe (2010) 4 NWLR (Pt 1184) 265.
The law is that to succeed in a claim of ownership of land, the Court must be satisfied as to (a) the precise nature of the title claimed, that is to say, whether it is title by virtue of original ownership, customary grant, conveyance, sale under customary law, long possession, or otherwise; and (b) evidence establishing the nature of title claimed – Obawole Vs Coker (1994) 5 NWLR (Pt 345) 416, Adesanya Vs Aderonmu (2000) 9 NWLR (Pt 672) 370 at 382, Nruama Vs Ebuzoeme (2006) 9 NWLR (Pt 985) 217, Bassey Vs Pamol (Nig) Ltd (2009) 6 NWLR (Pt 1136) 36, Edohoeket Vs Inyang (2010) 7 NWLR (Pt 1192) 25, Obineche Vs Akusobi (2010) 12 NWLR (Pt 1208) 383.

It is also trite law that in an action for declaration of ownership of land, a party claiming ownership to land must succeed on the strength of his case and not on the weakness of the other party’s case. Where this onus is not discharged, the weakness of the other party’s case will not help him and the proper judgment is for the other party – Ugoji Vs Onukogu (2005) 16 NWLR (Pt 950) 97, Ashiru Vs Olukoya (2006) 11 NWLR (Pt 990) 1, Njoku Vs Registered Trustees of the Congregation of the Holy Ghost Fathers (2006) 18 NWLR (Pt 1011) 239, Lawal Vs Akande (2009) 2 NWLR (Pt 1126) 425, Chukwu Vs Amadi (2009) 3 NWLR (Pt 1127) 56, Usung Vs Nyong (2010) 2 NWLR (Pt 1177) 83, Ogunjemila Vs Ajibade (2010) 11 NWLR (Pt 1206) 559.
The onus on such a claimant is proof to the satisfaction of the Court that he has a better title than the defendant to the land in dispute and the standard of proof is on a balance of probabilities –Kaiyaoja Vs Egunla (1974) 12 SC 55, Abaye Vs Ofili (1986) 1 NWLR (Pt 15) 134, Ugwunze Vs Adeleke (2008) 2 NWLR (Pt 1070) 148, Eyo Vs Onuoha (2011) 11 NWLR (Pt 1257) 1, Momoh Vs Umoru (2011) 15 NWLR (Pt 1270) 217. It is often enough that he has produced sufficient and satisfactory evidence in support of the claim. The test is whether the claimant has been able to prove to the satisfaction of the Court that he has a better title than the defendant – Kaiyaoja Vs Egunla (1974) 12 SC 55 at 61, Aweni Vs Olorunkosebi(1991) 7 NWLR (Pt 203) 336, Ofem Vs Ejukwa (1994) 2 NWLR (Pt 326) 303, Adeleke Vs Iyanda (2001) 13 NWLR (Pt 729) 1, Adewuyi Vs Odukwe (2005) 14 NWLR (Pt 945) 473, Egwa Vs Egwa(2007) 1 NWLR (Pt 1014) 71, Ndukuba Vs Izundu (2007) 1 NWLR (Pt 1016) 432, Mini Lodge Ltd Vs Ngei (2009) 18 NWLR (Pt 1173) 254.

It is elementary that in an action predicated on pleadings, the quality of evidence that will qualify as “sufficient and satisfactory evidence” to support a claim for declaration of ownership of land must necessarily depend on the state of the pleadings and the issues joined by the parties thereon. The Courts have stated over and over that in an action fought on pleadings, the very foundation of the action is the pleadings of the parties. Pleadings are the written statements of the parties setting forth in a summary form the material facts on which each relies in support of his claim or defence, as the case may be. They are the means by which the parties are enabled to state and frame the issues which are in dispute between them and it operates to define and delimit with clarity and precision the real matters in controversy between the parties upon which they can prepare and present their respective cases and upon which the Court will be called to adjudicate between them –Aminu Vs Hassan (2014) 5 NWLR (Pt 1400)287, Mbanefo Vs Molokwu (2014) 6 NWLR (Pt 1403) 377 at 418A-C, Corporate Ideal Insurance Ltd Vs Ajaokuta Steel Co. Ltd (2014) 7 NWLR (Pt 1405) 165 at 188A-B, Anyafulu Vs Meka (2014) 7 NWLR (Pt 1406) 396 at 424G. This principle was firmly restated by the Court of Appeal in Awuse Vs Odili (2005) 16 NWLR (Pt 952) at page 504 E-F when the Court said that “the primary function of a pleading is to define and delimit with clarity and precision the real matter in controversy between the parties upon which they can prepare and present their respective cases” and “in addition, it also serves as the basis upon which the Court will be called to adjudicate between them.”

Reading through the pleadings of the Appellant before the lower Court, it was their case that the property situate at No. 14, Dorawa Road, Nassarawa, Kano originally belonged to one Gwadabe Bello Sudawa, the deceased father of the first to the third Respondents, and that late Gwadabe Bello Sudawa had an account with the Lagos Street Branch of the Bank and he applied for and was granted a banking facility by the Appellant and he deposited the letter of grant of the property issued to him by the then Ministry of Land and Survey as collateral for the loan. It was its case that when the late father of the first to the third Respondents could not liquidate the facility, he surrendered the property to the Appellant in settlement of the debt in 1984 and the Appellant has been in exclusive and peaceful possession of the property since then.

In other words, the foundation of the Appellant’s claim of ownership of the property was the existence of an alleged mortgage transaction between it and the late father of the first to the third Respondents in respect of the property and the surrender of property to it by the late father of the first to the third Respondents in full and final settlement of the debt he owed the Appellant. The Appellant had the onus of establishing these assertions by credible evidence in order to succeed in its claim. The Court notes that the Appellant did plead and lead evidence of different acts of possession and ownership that it carried out on the property after it allegedly acquired ownership of same, and Counsel to the Appellant harped on this point in his arguments in this appeal. But, as stated above, it was not the case of the Appellant on the pleadings that it acquired ownership of the property by the said acts of possession and ownership. The Appellant pleaded the said acts of possession and ownership as things it did after it acquired, and in furtherance of, its ownership of the property.

The law is settled, by a long line of case law authorities, that where a claimant pleads a method by which he acquired ownership of property and he also pleads acts of ownership and possession which are dependent on that method of acquiring the ownership, he cannot succeed if he fails to prove that method of acquiring ownership of the property. In such a case, the acts of possession and ownership are done because, and in pursuance, of the ownership. Such alleged acts of possession, dominion and the like are merely derivative from the ownership of the property in dispute; ownership forms the quo warranto of these acts as it gives legality to the acts of possession and ownership which would otherwise have been acts of trespass – see, for example, the cases of Odofin Vs Ayoola (1984) 11 SC 72, Ogungbemi Vs Asamu (1986) 3 NWLR (Pt 27) 161, Fasoro Vs Beyioku (1988) 2 NWLR (Pt 76) 263, Balogun Vs Akanji (1988) 1 NWLR (Pt 70) 301, Eronini Vs Iheuko (1989) 2 NWLR (Pt 101) 46, Ude Vs Chime (1993) 3 NWLR (Pt 279) 78, Obioha Vs Duru (1994) 8 NWLR (Pt 365) 631, Oni Vs Olokun (1995) 1 NWLR (Pt 370) 189, Yusuf Vs Adegoke (2007) 11 NWLR (Pt 1045) 332, Orunengimo Vs Egebe (2007) 15 NWLR (Pt 1058) 630, Ajikanle Vs Yusuf (2008) 2 NWLR (Pt 1071) 301, Ukaegbu Vs Nwololo (2009) 3 NWLR (Pt 1127) 194, Usung Vs Nyong (2010) 2 NWLR (Pt 1177) 83, Nwokidu Vs Okanu (2010) 3 NWLR (Pt 1181) 362, Oko Vs Okenwa (2010) 3 NWLR (Pt 1181) 406.
In Lawal Vs Olufowobi (1996) 10 NWLR (Pt 477) 177, Belgore, JSC (as he then was) put the point thus at page 188 A-B:
“The root of title, in cases like the one now on appeal, once pleaded as raison d’etre for the presence of the person pleading must be proved to the satisfaction of the Court. Because if the root of title depended upon is defective or remains unproved, the possession claimed is illusory and it may in the end be an act of trespass. The appellants failed to prove their root of title, their traditional history on the land having failed to hold any water. Thus ifthe pleaded root of title is not established by evidence as is the case here it is a futile exercise to go into the issue of possession or acts of ownership.”
The law is that no amount of use or the length of period of usage could confer ownership of land on such a user and it behoves such a party to prove his ownership in the first place in order to justify the use to which the land in dispute had been put to. Enjoyment of a land in dispute cannot precede title nor can it indicate same – Registered Trustees of the Apostolic Faith Mission Vs James (1987) 3 NWLR (Pt 61) 556, Nwaeseh Vs Nwaeseh (2000) 3 NWLR (Pt 649) 391, Yusuf Vs Adegoke (2007) 11 NWLR (Pt 1045) 332, Olubodun Vs Lawal (2008) 17 NWLR (Pt 1115) 1. It is also settled that a pledge or mortgage of property can never mature into a right of occupancy by effluxion of time – Okoro Vs Nwachukwu (2007) 4 NWLR (Pt 1023) 285. Thus, acts of ownership and possession can only properly be considered where the root of title pleaded is established by cogent and convincing evidence – Orlu Vs Gogo- Abite (2010) 8 NWLR (Pt 1196) 307, Odunukwe Vs Ofomata (2010) 18 NWLR (Pt 1225) 404, Gbadamosi Vs Okege (2011) 3 NWLR (Pt 1233) 175, Ogunleye Vs Jaiyeoba (2011) 9 NWLR (Pt 1525) 339. This principle was reiterated by the Supreme Court in Oyadare Vs Keji (2005) 7 NWLR (Pt 925) 571 when the Court held that where a claimant for title to land who pleads traditional history fails to prove his root of title by that means, he cannot turn round to rely on acts of ownership and possession to prove his title to the land because once the foundation of his title, the traditional history, has failed, there would be nothing on which to found acts of ownership.
Further, while it is not in contest that acts of long possession and ownership is one of the recognized modes of proving ownership of land, its applicability must necessarily depend on the facts of each case. It is settled law that cases are decided on their peculiar facts and circumstances – Dingyadi Vs INEC (2011) 10 NWLR (Pt 1255) 347 at 391, Dankwambo Vs Abubakar (2015) LPELR 25716(SC). In the present case, the Appellant admitted that the property in dispute was originally vested in late Gwadabe Bello Sudawa. It is trite that where a claimant admits the title to certain land, which he claims, was originally vested in the defendant, then the onus is on the claimant to prove that the defendant has been divested of such title and how the divestment occurred – Omoni Vs Biriyah (1976) 6 SC 49,Obawole Vs Coker (1994) 5 NWLR (Pt 345) 416, Obawole Vs Williams (1996) 10 NWLR (Pt 477) 146,UfombaVs Ahuchaogu (2003) 8 NWLR (Pt 821) 130, Ewo Vs Ani (2004) 3 NWLR (Pt 861) 611, Adedeji Vs Oloso (2007) 5 NWLR (Pt 1026) 133. It is commonsensical that divestment of ownership in such circumstances could only have been by sale, grant, transfer or some of alienation by the defendant. Acts of long possession and ownership cannot qualify as a mode of divestment in these circumstances.

Therefore, the simple question under the first issue for determination is whether the lower Court was correct when it found that the Appellant did not lead credible evidence to prove the pleaded loan and mortgage transaction between the Appellant and the late father of the first to the third Respondents and the pleaded surrender of the property in dispute by the late father of the first to the third Respondents in full and final settlement of the debt he owed the Appellant by reason of the loan transaction.

The Appellant called two witnesses in proof of its case. The first witness was Charity Chohoza, the Appellant’s Zonal Legal Officer, North-West and she testified in her examination in chief that she was conversant with the facts of the case from her personal knowledge and from files and documents in the possession of the Appellant and which she came across in the course of her duties. In other words, the witness asserted that her source of knowledge of the alleged mortgage transaction and the surrender of property that took place between the Appellant and the late father of the first to the third Respondents were personal knowledge and what she learnt from the files and documents in possession of the Appellant. The witness did not tender any file or document pertaining to the alleged transaction.

The case of the Appellant on the pleadings was that the alleged transaction took place in the early 1980s and that the surrender of property occurred in 1984 and that in 2006 it lost all the documents pertaining to the transaction. Under cross-examination on the 19th of March 2015, the witness stated that she had been inthe employment of the Appellant for seven years, meaning that she joined the Appellant in 2008, and she confirmed that she was not in the employment of the Appellant as at 2006. In these circumstances, it was practically impossible for the witness to have had personal knowledge of the alleged transaction that took place between the Appellant and the late father of the first to the third Respondents and it was also not possible for her to have garnered any information from files and documents which the Appellant averred were lost in 2006, before the witness joined the Bank.

The witness admitted, under cross examination, this obvious impossibility of her having personal knowledge of the alleged transaction and/or of her garnering information from documents that she had never seen and which were not available. The witness then changed to assert that her evidence was based on the information she received from her employer. It is not in contest that the Appellant, the employer of the witness, is an incorporated body and it is settled and commonsensical that, being a mere legal abstraction, an incorporated entity must necessarily act through human beings. Thus,the assertion of the witness that her evidence was based on information she received from her employer must mean information she received from a person or persons in the office of the Appellant. She did not mention the name of the person or persons from whom she received the information to enable the lower Court ascertain if the informant was someone who could have had personal knowledge of the alleged transaction between the Appellant and the late father of the first to the third Respondents or someone who could have read the files and documents pertaining to the alleged transaction before they got lost in 2006.

The second witness of the Appellant was Musa Umar Zandam, the Zonal Admin Officer of the Appellant covering the North West and the witness similarly testified in his examination in chief that he was conversant with the facts of the case from his personal knowledge and from files and documents in the possession of the Appellant and which he came across in the course of his duties. The witness too asserted that his source of knowledge of the alleged mortgage transaction and the surrender of property that took place between the Appellant and thelate father of the first to the third Respondents were his personal knowledge and what he learnt from the files and documents in possession of the Appellant. The witness did not also tender any file or document pertaining to the alleged transaction. Again, under cross-examination, this witness stated that he joined the services of the Appellant in 2008. Therefore, just like the first witness, it was practically impossible for this witness to have had personal knowledge of the alleged transaction that took place between the Appellant and the late father of the first to the third Respondents and it was also not possible for him to have garnered any information from files and documents which the Appellant averred were lost in 2006, before the witness joined the Bank. The witness also admitted this much under cross-examination.

Counsel to the Appellant contended that the lower Court ought to have accepted the evidence led by the two witnesses on the alleged mortgage transaction and the surrender of property that took place between the Appellant and the late father of the first to the third Respondents because, being staff of the Appellant, they were competentto testify on the transaction, irrespective of whether or not they personally took part in the transaction. Counsel to the Appellant correctly stated the position of the law on the competence of the two witnesses to testify on the mortgage transaction and the surrender of property that took place between the Appellant and the late father of the first to the third Respondents – Kate Enterprises Ltd Vs Daewoo (Nig) Ltd (1985) 2 NWLR (Pt 5) 116, Saleh Vs Bank of the North Ltd (2006) 6 NWLR (Pt 976) 316 and Interdrill Nigeria Ltd Vs United Bank for Africa Plc (2017) LPELR 41907(SC).
However, the issue in this case is not whether or not the two witnesses were competent to testify on the transaction, but whether or not the evidence they gave on the alleged transaction was credible and reliable. There is a difference between the two. It is elementary that to be entitled to probative value, a witness must be competent to give evidence and his evidence must be credible. Credible evidence means evidence worthy of belief and that for evidence to be worthy of belief and credit, it must be credible in itself in the sense that it should be natural, reasonable andprobable in view of the transaction which it describes or to which it relates as to make it easy to believe – Agbi Vs Ogbeh (2006) 11 NWLR (Pt 990) 65, Ogboru Vs Ibori (2006) 17 NWLR (Pt 1009) 542, Hadyer Trading Manufacturing Ltd Vs Tropical Commercial Bank (2013) LPELR 20294(CA). It is obvious that the evidence of the two witnesses of the Appellant on the mortgage transaction and the surrender of property that allegedly took place between the Appellant and the late father of the first to the third Respondents were not credible, reliable or believable.

It was the case of the Appellant that it was unable to produce the documents relating to the alleged mortgage transaction and surrender of the property because they got lost in 2006 and, in proof of this fact, it tendered an affidavit of loss, a Police Report and a Newspaper publication of loss of documents as Exhibits P3, P4 and P5 respectively. The affidavit of loss, Exhibit P3, read thus:
“I Suleiman Isa of Unity Bank Plc, Zaria Road, Kano do hereby make oath and state as follows:
1. That I am the rightful owner of Plot/House/Farmland/Piece of land No … letter of grant No… File No LKN/RES/RC/98/21 at Dorawa Road in Nassarawa Local Government of Kano State.
2. That the said Plot/House/Farmland/Piece of land was sold to me by title holder (Gwadabe Sudawa)
3. That the said document issued to me got lost/burnt/stolen while in my possession and all effort made to trace it proved abortive.
4. That I therefore want the authority to take note.
5. That I make this solemn affidavit in good faith believing same to be true to the best of my knowledge and by virtue of the provision of the Oath Act 2004.”

It was on the basis of the contents of this affidavit that Exhibits P4 and P5 were produced. Now, it is trite law that in the construction of documents the primary rule is that effect should be given to the literal contents in their ordinary way as they appear on the documents and that anything which does not appear ex facie on such documents should not be imported into them – The Northern Assurance Co. Ltd Vs Wuraola (1969) LPELR 25562(SC), Ogbunyiya Vs Okudo (1979) 6-9 SC 32, Union Bank of Nigeria Plc Vs Ozigi (1994) 3 NWLR (Pt 333) 385. Applying this principle to the contents of the affidavit, itclear that they assert that one Suleiman Isa, a staff of the Appellant, was the owner of the property in dispute and which he purchased from the late father of the first to third Respondents and that the documents of purchase were lost by the said Suleiman Isa. These assertions are clearly materially contradictory to the case of the Appellant on the pleadings and in the evidence. Exhibits P3, P4 and P5 did not support the case of the Appellant that it lost the documents pertaining to the alleged transaction between it and the late father of the father of the first to the third Respondents over the property in dispute. The necessary inference deducible from this fact is that no such document ever existed.

Another fundamental flaw in the case of the Appellant before the lower Court was that it did not plead or lead any evidence to show how the alleged surrender of the property in dispute to it by the late father of the first to the third Respondents took place; was it in writing or orally. It is trite that it is not possible for a pledge, which is a form of mortgage, to metamorphose into an outright sale of the property involved without an express agreement in writing in some form – Ochonma Vs Unosi (1965) NMLR 321, Oke Vs Atoloye (1985) 1 NWLR (Pt 15) 241, Ebuvuhe Vs Ukpakara (1996) 7 NWLR (Pt 460) 254, Yashe Vs Umar (2003) 13 NWLR (Pt 838) 465. No such written agreement was referred to, pleaded, led in evidence or tendered by the Appellant.

Counsel to the Appellant suggested that the lower Court ought to have upheld the claim of the Appellant because there was evidence that neither the late father of the first to the third Respondents, in his lifetime, nor the first to the third Respondents, after the death of their father, demanded rents from it for the use of the property and that when the first to the third Respondents shared the Estate of their late father they excluded the property in dispute because they were aware that their late father was no longer the owner of the property. This is an allusion to the doctrine of estoppel by conduct or by representation. Counsel further berated the lower Court for not applying the doctrine of laches and acquiescence which was represented in the different acts of possession pleaded by the Appellant in favour of the Appellant’s claim of ownership of the property.

These are arguments of Counsel to the Appellant overlooked two very important points. Firstly, the doctrines of estoppel by conduct and laches and acquiescence are equitable defences to a claim of ownership of land, and are not means by which to prove ownership of land. In Chinweze Vs Masi (1989) 1 NWLR (Pt 97) 254, the Supreme Court, speaking on estoppel, expressed the point thus:
“The appellants are here as it were claiming title to No. 5 Ogui Road by estoppel. That cannot be as no title is established by estoppel … ‘Title by estoppel’ is a negative title. It is a highly metaphorical and elliptical mode of indicating the use which may be made of an estoppel – either as a mine layer or mine sweeper; either to place an obstacle in the way of a case which might otherwise succeed or to remove an impediment out of the way of a case which might otherwise fail. An estoppel can never be a capital unit. It does not ipso facto confer title. The appellants’ “growing up to know the property in dispute to be their property” does not make that property theirs. This is not one of the modes of acquiring title to land under our law.” (underlining for emphasis)
And in Igbum Vs Nyarinya (2001) 5 NWLR (Pt 707) 554, this Court, speaking on laches and acquiescence, stated thus:
“Laches and acquiescence as an equitable defence operates to bar a person who has slept over his right for a long period of time from asserting his said right against an innocent party. It derives its origin from the equitable maxim that “equity aids the vigilant and not the indolent.” It obviously discourages stale demands in the interest of peace and orderly society and is thus rooted in public policy. Where the doctrine is successfully invoked the original or true owner of the property is made to lose his title over the property. But because the doctrine is only employed as a shield, the party that relies on it cannot get a declaration of title in his favour merely because of the reliance he placed on it. See Maji v. Shafi (1965) NMLR 33; Odutola v. Akande (1960) SCNLR 282, (1960) 5 FSC 142.” (underlining for emphasis)

Secondly, the arguments failed to focus on the case of ownership of the property in dispute pleaded by the Appellant on the pleadings. As stated earlier, the foundation of the Appellant’s claim of ownership of the property on the pleadings was the existence of an alleged mortgage transaction between it and the late father of the first to the third Respondents in respect of the property and the surrender of property to it by the late father of the first to the third Respondents in full and final settlement of the debt he owed the Appellant. The Appellant did not plead the actions or inactions of the late Gwadabe Sudawa or of the first to third Respondents as the means by which it acquired ownership of the property in dispute.
It is settled law that parties are bound by the case made out on the pleadings. Thus, parties are not allowed to raise issues of facts in the address of their Counsel which were not agitated on the pleadings, as address of Counsel does not substitute for pleadings – Buraimoh Vs Bamgbose (1989) All NLR 669,Okwejiminor Vs Gbakeji (2008) 5 NWLR (Pt 1079) 172, Ayanwale Vs Odusami (2011) LPELR-8143(SC).Similarly, the lower Court and the appellate Courts are bound by the pleadings of the parties and a trial Court should not consider an issue not agitated by the parties on the pleadings and an appellate Court should also not allow a party to canvass on appeal an issue that was not the focus of the party on his pleadings before the lower Court – First Bank of Nigeria Plc Vs Songonuga (2007) 3 NWLR (Pt 1021) 230,Akpan Vs Udoh (2008) 3 NWLR (Pt 1075) 590, Afolabi Vs Western Steel Works Ltd (2012) 17 NWLR (Pt 1329) 286, Julius Berger (Nig) Plc Vs Ogundehin (2014) 2 NWLR (Pt 1391) 388.

All in all, on the pleadings and the evidence led by the parties, this Court is unable to fault the finding of the lower Court that the Appellant failed to make out a credible case in support of its ownership of the property in dispute. The first issue for determination is resolved in favour of the Respondents.

Issue Two
Whether, on the strength of the pleadings and the evidence led by the parties, the lower Court was correct when it found that the second and third Respondents made out a credible case in support of their counterclaim.
Counsel to the Appellant argued this issue for determination under the first and second issues for determination in his brief of arguments. Counsel stated that the lower Court was in error when it, in it consideration of the counterclaim of the second and third Respondents, found that the Appellant did not file a defence to the counterclaim and he referred to the defence to the counterclaim contained in the supplementary record of appeal. Counsel stated that it was obvious that the defence to counterclaim was filed in the Registry of the lower Court and the fact that it was not put in the relevant file of the lower Court is the fault of the officials of the Registry of the lower Court and their lapse cannot be blamed on the Appellant and he referred to the cases of Fidelity Bank Plc Vs Monye (2012) All FWLR (Pt 631) 1412 and Ofem Vs Presbyterian Church of Nigeria (2012) All FWLR (Pt 647) 801. Counsel stated that the finding caused the Appellant a serious miscarriage of justice and denied it a fair hearing as the lower Court entered judgment for the second and third Respondents on their counterclaim on the basis of the finding and in the belief that the Appellant admitted the case of the counterclaim.

Further to the above, Counsel stated that it is trite law that a party claiming declaration of title to land must succeed on the strength of its case and not on the weakness of the case of the other party and that as such, even if the Appellant did not file a defence to the counterclaim, the second and third Respondents still had the onus to prove their entitlement to the declaration sought and the lower Court was in error when he granted the counterclaim on the simple basis of the failure of the Appellant to file a defence and he referred to the cases of Onovo Vs Mba (2015) All FWLR (Pt 765) 298, Abubakar Vs Abubakar (2015) All FWLR (Pt 808) 693 and Ogolo Vs Ogolo (2006) All FWLR (Pt 313) 1, amongst others. Counsel referred to the case of Busari Vs D.T.T.E. Co (Nig) Ltd (2015) All FWLR (Pt 787) 727 in asserting that a counterclaim was a separate and independent action in its own right and stated that it was incumbent on the second and third Respondents to lead independent evidence in support of their counterclaim.

Counsel noted that the second and third Respondents led no evidence in support of their counterclaim as they did not adopt the written statements on oath they deposed to thereon and they only adopted the written statements on oath made in support of their defence to the claim of the Appellant andthat a written statement on oath does not transform into evidence until adopted by the witness and he referred to the case of Ibrahim Vs Okutepa (2015) All FWLR (Pt 785) 331. Counsel stated that the second and third Respondents could not rely on the witness statements on oath adopted in support of their defence to the main claim and that, having not led evidence in support of the declaratory reliefs contained in the counterclaim, the lower Court ought not to have entered judgment in their favour and he referred to the cases of Nasco Town Plc Vs Nwabueze (2015) All FWLR (Pt 780) 1381, Ogolo Vs Ogolo supra and Durowaiye Vs UBN Plc (2015) All FWLR (Pt 795) 225. Counsel urged the Court to resolve the issue for determination in favour of the Appellant.

In his response, Counsel to the first to the third Respondents stated that the complaint of the Appellant against the finding of the lower Court that it did not file a defence to the counterclaim of the second and third Respondents amounted to challenging the records of the lower Court as no copy of the defence to counterclaim was in file of the lower Court. Counsel referred to the case of Audu Vs FRN (2013) 1SCNJ 111 in asserting that the parties are bound by the records of the Court and stated that a party challenging the records of Court cannot do so in its brief of arguments without first following the procedure laid down for challenging the records such as impeaching the records by swearing to an affidavit and he referred to the cases of Ogli-Oko Vs Agricultural (2008) 4 SCNJ 438, Ojukwu Vs Yar’adua (2009) 4 SCNJ 282 and Obaro Vs Hassan (2013) 2 SCNJ 788. Counsel stated that the filing of supplementary record of appeal to bring in the defence to counterclaim was unavailing as the Appellant is not allowed by law to bring in a document into the records of the Court which was not part of it and he referred to the case of Veepee Vs Cocoa (2008) 4 SCNJ 148.

Counsel stated further that the submission of Counsel to the Appellant that the second and third Respondents could not rely on the evidence in their defence in the main suit in support of their counterclaim has no basis in law and particularly in this case because the second and third Respondents expressly adopted the facts pleaded and the evidence led in support of their defence to the main suit as integral parts of their counterclaim. Counsel stated that there was also un-contradicted evidence before the lower Court that the property in dispute belonged to the late father of the first to third Respondents in the testimonies of the first, second and third witnesses of the Respondents and the Certificate of Occupancy in the name of the late father of the first to the third Respondents was tendered as Exhibits D4 and D11. Counsel stated that a Certificate of Occupancy confers title on the person to whom it is granted over the land in question and he referred to the case of Olagunju Vs Adesoye (2009) 4 SCNJ 96. Counsel stated that the finding of the lower Court on the counterclaim was supported by the evidence on record and he urged the Court to resolve the issue for determination in favour of the Respondents.
Counsel to the fourth, fifth and sixth Respondents did not address on this issue for determination.

The records of appeal show that after considering the evidence led by the Respondents in the defence of the main claim of the Appellant and the exhibits tendered by them, the lower Court proceeded to deliberate on the counterclaim of the second and third Respondents, it stated in the judgment thus:
“The defendants (2nd and 3rd) have filed a counterclaim along with their statement of defence. The plaintiff has not challenged the counterclaim by filing a reply to the counterclaim. On the authority of the case of Hungwa Vs Uwuokwu … the Court held:
‘Where defendant files a counterclaim, a reply in defence must be filed, where there is failure to file a defence, the Court is obliged to assume there is no defence to the counterclaim and may enter judgment accordingly for the defendants’
… Therefore, from the evidence adduced by the defendant, Claim number 1(a), (b), (c) and (e) of the counterclaim has been proved …”

The lower Court thereafter proceeded to grant the first five prayers on the counterclaim of the second and third Respondents.

The Appellant complained against the finding of the lower Court that it did not file a defence to the counterclaim of the second and third Respondents. Counsel to the Appellant caused the Registrar of the lower Court to compile and transmit a supplementary record of appeal to this Court on the 17th of May, 2017 and the supplementary record was deemed properly compiled and transmitted by this Court on the 5th of October, 2020. The Appellant’s “reply to the statement of defence of the second and third Respondents with defence to counterclaim of the second and third Respondents” was part of the supplementary record and the document showed on its face that it was duly filed on the 31st of March 2014 in the Registry of the lower Court and that it was duly served on the Respondents on the 2nd of April, 2014.

Counsel to the first to third Respondents missed the point when he submitted that the complaint of the Appellant against the finding of the lower Court that it did not file a defence to the counterclaim of the second and third Respondents amounted to a challenge to the correctness of the record of the Court. It did not. The supplementary record shows that the defence to the counterclaim of the second and third Respondents had always been part of the record of the lower Court. The complaint was on the failure of the lower Court to avert its mind to the defence to counterclaim filed by the Appellant. The absence of the process from thecase file was the internal problem of the lower Court and not that of the Appellant. The lower Court was indeed in error when it held that the Appellant did not file a defence to counterclaim.

Now, the law is settled that it is not every error in the judgment of a Court that will lead to the said decision being set aside. In Odukwe Vs Ogunbiyi (1998) 8 NWLR (Pt 561) 339 at 350, the Supreme Court held as follows:
“It ought to be borne in mind that it is not each and every mistake or error in a judgment that necessarily determines an appeal in favour of an appellant or automatically results in the appeal being allowed. It is only when the error is so substantial that it has occasioned a miscarriage of justice that the Appellate Court is bound to interfere.”
Also in Anyanwu Vs Mbara (1992) 1 NACRP 85 at 97 D-E wherein the Supreme Court held: –
“It is the law, however that the fact that a party has established an error in the proceeding does not necessarily mean that the appeal must be allowed. Such an error will be a ground for allowing the appeal, if and only if it is substantial in the sense that if he (trial Judge) had directed himself correctly, he would have reached a different decision.”
In a further related case of Adewuyi Vs Akanni (1993) 9 NWLR (Pt 316) 182 at 205, per Iguh, JSC, restated the point in the following words:
“In this regard, it must be emphasized that it is not every error of law that is committed by a trial or Appellate Court that justifies the reversal of judgment. An appellant to secure the reversal of a judgment, must further establish that the error of law complained of did in fact occasioned a miscarriage of justice and/or substantially affected the result of the decision… An error in law which has occasioned no miscarriage of justice is immaterial and may not affect the final decision of a Court. This is because what an Appeal Court has to decide is whether the decision of the trial Judge was right and not whether his reasons were, and a misdirection that does not occasion injustice is immaterial.”

Counsel to the Appellant suggested that the Appellant suffered a serious miscarriage of justice and that it was denied fair hearing as the lower Court entered judgment for the second and third Respondents on their counterclaim on the basis of the finding and in the belief that the Appellant admitted the case of the counterclaim. A read through the above reproduced excerpt of the judgment of the lower Court shows that this suggestion is totally incorrect. The lower Court stated clearly that it granted the counterclaim based on the evidence led by the Respondents.

Counsel to the Appellant also submitted that the second and third Respondents did not lead evidence in support of their counterclaim because they did not adopt the statement on oaths made in support of the counterclaim and that, a counterclaim being a separate independent action, they cannot rely on the evidence they led in support of their defence to the main claim in proof of their counterclaim. With respect to Counsel, this is not the correct position of the law. The law recognizes that a defendant can incorporate the facts averred in his statement of defence into his counterclaim by reference and that, where a defendant does so, the evidence led by him in proof of the facts in his defence will also amount to proof of his counterclaim – Jokas International Ltd Vs Union Bank of Nigeria Plc (2018) LPELR43645(CA),Orojo Vs L. R. Avionics Technologies Ltd (2018) LPELR 43797(CA), Zurmi Vs Okonkwo (2018) LPELR 46964(CA). In the instant case, the second and third Respondents assimilated all the facts averred in their statement of defence into their counterclaim and those facts were the entire basis of the counterclaim. The evidence they led in support of their defence was thus evidence on the facts of the counterclaim.

The question in this issue for determination – is whether the lower Court was correct when it found that the evidence led by the Respondents supported the counterclaim of the second and third Respondents.

The first claim of the second and third Respondents on the counterclaim was for a declaration that as the legal heirs of late Gwadabe Bello Sudawa they are the legal owners of the property in dispute. This is a claim for declaration of ownership of property and, as stated earlier in the judgment, a party claiming ownership to land must succeed on the strength of his case and not on the weakness of the other party’s case. This onus on the claimant is the same even where the claim for title is made by a counterclaim – Oronsaye Vs Osula (1976) 6 SC 21, Olusanmi Vs Oshasona (1992) 6 NWLR (Pt 245) 22,Awofolaju Vs Adedoyin (1992) 8 NWLR (Pt 260) 492, Obawole Vs Williams (1996) 10 NWLR (Pt 477) 146,Balogun Vs Yusuff (2010) 9 NWLR (Pt 1200) 515, Obi Vs Onyemelukwe (2011) 1 NWLR (Pt 1228) 400.
It was an established fact which resonated throughout the evidence led by all the witnesses in this matter, both the witnesses for the Appellant and the witnesses for the Respondents, that the property in dispute originally belonged to late Gwadabe Bello Sudawa, the late father of the first to third Respondents. It was also an agreed fact by all the witnesses that the first to the third Respondents are children and legal heirs of late Gwadabe Bello Sudawa.
Now, one of the recognized exceptions to the rule that a claimant, in a claim ownership of land, must succeed on the strength of his case and not on the weakness of the defence, and, which exception is established by a long line of case law authorities, is that where a defendant in an action for declaration of title to land admits in his pleadings that the claimant is the original owner of the land in dispute, the onus is on thedefendant to establish a change of ownership by sale or otherwise. There is no onus on the claimant to establish a sale or a grant of the land. Thus, it is the duty of the defendant to begin to adduce evidence, for it is the defendant who would lose if no more evidence is adduced having regard to the state of the pleadings – see, for example, the cases of Ochoma Vs Unosi (1965) NMLR 301, Isiba Vs Hanson (1967) 1 All NLR 8, Mogaji Vs Odofin (1978) 4 SC 91, Bello Vs Eweka (1981) 1 SC 101, Onobruchere Vs Esegine (1986) 1 NWLR (Pt 19) 799, Ezeudu Vs Obiagwu (1986) 2 NWLR (Pt 21) 208, Okpala Vs Ibeme (1989) 2 NWLR (Pt 102) 208, Buraimoh Vs Bamgbose (1989) 3 NWLR (Pt 109) 352, Ewo Vs Ani (2004) 3 NWLR (Pt 861) 611, Agbabiaka Vs Okojie (2004) 15 NWLR (Pt 897) 503, Mani Vs Shanono (2006) 4 NWLR (Pt 969) 133, Fagbenro Vs Arobadi (2006) 7 NWLR (Pt 978) 172, Adedeji Vs Oloso (2007) 5 NWLR (Pt 1026) 133, Awure Vs Iledu (2008) 12 NWLR (Pt 1098) 249. What this translates to, is that with the failure of the Appellant to lead credible evidence to prove the transfer of the ownership of the property in dispute by late Gwadabe Bello Sudawa to it, the counterclaim of thefirst to the third Respondents ought to automatically succeed – County & City Bricks Development Ltd Vs MKC (Nig) Ltd (2019) LPELR 46889(CA).

Assuming that the above stated principle is not applicable in this case, the law is that with the admission by the Appellant that the property in dispute originally belonged to the late father of the first to third Respondents, the onus of proof on the second and third Respondents on their counterclaim would be discharged on minimal proof – Nwabuoku Vs Ottih (1961) 2 SCNLR 232, Buraimoh Vs Bamgbose (1989) 3 NWLR (Pt 109) 352, Balogun Vs United Bank for Africa (1992) 6 NWLR (Pt 247) 336, Adeleke Vs Iyanda (2001) 13 NWLR (Pt 729) 1, Adewuyi Vs Odukwe (2005) 14 NWLR (Pt 945) 473.

Reading through the testimonies of the first, second and third witnesses of the Respondents, there was abundant evidence led on the ownership of the property in dispute by late Gwadabe Bello Sudawa and the Certificate of Occupancy No LKN/RES/RC/98/21 dated the 28th of April, 2013 in the name of late Gwadabe Bello Sudawa and in respect of the property in dispute was twice tendered as Exhibit D4 and Exhibit D10. It issettled law that a certificate of occupancy properly issued by a competent authority raises the rebuttable presumption that the holder is the owner in exclusive possession of the land in respect thereof. Such a certificate also raises the rebuttable presumption that at the time it was issued there was not in existence a customary owner whose title has not been revoked. Until rebutted and revoked, the certificate of occupancy constitutes a good proof of ownership of the property in question –Dabup Vs Kolo (1993) 9 NWLR (Pt 317) 254, Ilona Vs Idakwo (2003) 11 NWLR (Pt 830) 53, Ezeanah Vs Attah (2004) 7 NWLR (Pt 873) 468, Din Vs Attorney General, Federation (2004) 12 NWLR (Pt 888) 459, CSS Bookshops Ltd Vs The Registered Trustees of Muslim Community in Rivers State (2006) 11 NWLR (Pt 992) 530, Madu Vs Madu (2008) 6 NWLR (Pt 1083) 296, Omiyale Vs Macaulay (2009) 7 NWLR (Pt 1141) 597, Edohoeket Vs Inyang (2010) 7 NWLR (Pt 1192) 25, Agboola Vs United Bank for Africa Plc (2011) 11 NWLR (Pt 1258) 375. This Court had found that the Appellant did not make out a credible case to rebut the presumptions in favour of the ownership of the property by late Gwadabe Bello Sudawa. There was also abundant unchallenged evidence in the testimonies of the first and the fourth witnesses of the Respondents that the first to the third Respondents were issued with the letters of administration for the Estate of late Gwadabe Bello Sudawa after undergoing all due process and the letters of administration were twice admitted in evidence as Exhibits D1 and D12 and all the other documents used to process the letters of administration were also admitted in evidence by the lower Court. The letters of administration confirm that the first to the third Respondents are the legal heirs of late Gwadabe Bello Sudawa and were thus entitled to succeed to the ownership of the property in dispute.

In the light of these facts, the finding of the lower Court that the second and third Respondents led sufficient credible evidence to sustain the grant of their counterclaim cannot be faulted. The second issue is also resolved in favour of the Respondents.

In conclusion, this Court finds that the appeal is lacking in merit and hereby dismisses same. The judgment of the High Court of Kano State in Suit No K/404/2013 delivered by HonorableJustice Mohammed Yahaya on the 21st of December, 2016 is hereby affirmed. The parties will bear their respective costs of the appeal. These shall be the orders of this Court.

ABUBAKAR DATTI YAHAYA, J.C.A.: I have read in advance, the leading Judgment of my learned brother Abiru JCA just delivered and I agree with his reasoning and the conclusion reached thereat. I find the position of the Appellant at the trial Court very strange. The Appellant clearly showed that the property in question, belonged to Gwadabe Bello Sudawa, who took a loan from it and mortgaged the property as a collateral. That when he failed to settled his indebtedness with the Appellant, he ‘surrendered’ the property since 1984, as final payment of the outstanding loan. It stated that all the documents leading to the transaction had been lost but that the property had been in its possession and had exercised all rights of ownership and possession over it, since then. It is therefore a complete contradiction of this stance, for it to tender Exhibit P3, an affidavit of loss of its documents, regarding the mortgage of the property and its subsequent surrender to it by the late BelloGwadabeSudawa. This is because in the said affidavit, it is a stranger, Suleiman Isa of Unity Bank Kano, who deposed to the fact that he was the rightful owner of the said property as he purchased it from the late Gwadabe Bello Sudawa. If the late Bello GwadabeSudawa had surrendered the property to the Appellant, how come that he also sold it to Suleiman Isa? It is also crucial, that the Appellant did not allege that they bought the property from Suleiman Isa and were claiming through him. Its allegation is that the ownership of the property in question, passed to it due to the ‘surrender.’ The evidence tendered by the Appellant was not in consonance with its pleadings and it must and was rightly rejected. This is because evidence led at variance with the pleaded facts, goes to no issue and the pleadings on it, are deemed abandoned – YUSUF VS. ADEGOKE (2007) 11 NWLR (PT.1045) 332 AT 353; EMEGOKWUE VS. OKADIGBO (1973) 4 SC 113 AT 117, ODI VS. IYALA (2004) 8 NWLR (PT.875) 291 AT 312; AND ONWUCHEKWA VS. EZOGU (2002) LPELR – 8267 (SC). The Appellant was most inconsistent and had failed woefully to establish its claim. On the other hand, the Respondents hadproperly made out their counterclaim and were entitled to and had succeeded. I am therefore in complete agreement with the exhaustive reasoning and the conclusion reached in the lead Judgment that this appeal has no merit. I too dismiss it and affirm the Judgment of the trial Court delivered on 21st December 2016 in Suit No. K/404/2013.

AMINA AUDI WAMBAI, J.C.A.: I had the privilege of reading the lead judgment of my learned brother, HABEEB ADEWALE OLUMUYIWA ABIRU, JCA. His lordship has ably and admirably considered and resolved all the issues in contention in the appeal. I agree with the reasoning and conclusion therein that this appeal is bereft of any merit. I adopt his reasoning as mine and also dismiss the appeal.

Appearances:

Sir Steve Adehi, SAN, with him, M. U. Nantar and A. N. NwabuezeFor Appellant(s)

Yakubu Abdullahi, with him, S. A. Mohammed – for the 1st – 3rd Respondents
Mustapha I. Imam, CSC MOJ, Kano State – for the 4th – 6th RespondentsFor Respondent(s)

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