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USMAN & ANOR v. ZAILANI (2021)

USMAN & ANOR v. ZAILANI

(2021)LCN/15813(CA)

In The Court Of Appeal

(MAKURDI JUDICIAL DIVISION)

On Wednesday, January 27, 2021

CA/MK/24/2018

Before Our Lordships:

Onyekachi Aja Otisi Justice of the Court of Appeal

Oludotun Adebola Adefope-Okojie Justice of the Court of Appeal

Joseph Eyo Ekanem Justice of the Court of Appeal

Between

1. ALIYU USMAN 2. NASIRU ABDULLAHI APPELANT(S)

And

HON. IBRAHIM ZAILANI RESPONDENT(S)

 

RATIO

WAYS OF ESTABLISHING TITLE OF OWNERSHIP TO LAND

It is the well-established position of the law that any person claiming a declaration of title to land must prove by evidence that he is entitled to the declaration he seeks. See Mbadinuju v. Ezuka (1994) 8 NWLR (Pt. 364) 535 S.C; Umesie v. Onuaguluchi (1995) 9 NWLR (PT. 421), (1995) LPELR-3368(SC); Kazeem v. Mosaku (2007) 2 S.C. 22; Olodo v. Josiah (2010) 18 NWLR (PT 1225) 653. Judicially established methods of proving title to land have been well articulated with a foremost authority found in the case of Idundun v. Okumagba (1976) 9-10 SC 227 wherein the Supreme Court prescribed five ways of proving title to land thus:
1. By traditional evidence.
2. By various acts of ownership numerous and positive and extending over a length of time as to warrant the inference of ownership.
3. By production of title documents.
4. By acts of lawful enjoyment and possession of the land.
5. By proof of possession of adjacent land in circumstances which render it probable that the owner of such land would in addition be the owner of the other land. 

See also: Mogaji v. Cadbury Nigeria Ltd (1985) NWLR (PT 7) 393, (1985) LPELR-1889(SC); Irolo v. Uka (2002) 14 NWLR (PT 786) 195. A claimant must plead and prove any of these five different ways of proving ownership of land, though he need not plead and prove more than one of these ways. See Biariko v Edeh-Ogwuile (2001) 12 NWLR (PT. 726) 235; Olubodun v. Lawal (2008) 6-7 S.C. (PT 1) 1; Yusuf v. Adegoke (2007) 6 S.C. (PT 1) 126; Balogun v Akanji (1988) 2 S.C. 199. Proof of one single root of title is sufficient to sustain the claimant’s claim for declaration of title to land; Onwugbufor v. Okoye (1996) 1 NWLR (PT 424) 252; Olagunju v. Adesoye (2009) 9 NWLR (PT 1146) 225. In proving title, he must rely on the strength of his case and not on the weakness of the defence. See Oje v Babalola (1991) 4 NWLR (PT 185) 267; Bello v Eweka (1981) NSCC 48; Kazeem v Mosaku (2007) 2 S.C. 22; Echi v Nnamani (2000) 5 S.C. 62; Eze v Atasie (2000) 6 S.C. (PT 1) 214. The only exception to this position is that a plaintiff may quite perfectly take advantage of those facts in the case of the defence which support his claims. See Buraimoh v. Bamgbose (1989 LPELR-818(SC), (1989) ALL NLR 669; Oduaran v. Asarah (1972) 5 S.C. (REPRINT) 173, (1972) LPELR-2233(SC). The party that is able to prove title to land in issue is deserving of judgment. PER OTISI, J.C.A.

THE PRINCIPLE THAT THE PARTY WHO ASSERTS MUST PROVE

It is quite elementary that he who asserts must prove. See Adake & Anor v. Akun (2003) LPELR-72(SC) Apena & Anor v. Aileru & Anor (2014) LPELR-23305(SC). The Respondent must first lead evidence in proof of his averments before the Appellants, as defendants, would be required to rebut same. See Okoye & Ors v. Nwankwo (2014) LPELR-23172(SC); Union Bank v. Ravih Abdul & Co. Ltd (2018) LPELR-46333(SC).
PER OTISI, J.C.A.

WHETHER OR NOT CERTIFICATE OF OCCUPANCY IS PRIMA FACIE PROOF OF TITLE OF OWNERSHIP TO LAND

It must be noted that a Certificate of Occupancy is prima facie proof of title to the land over which it was issued but it is not conclusive proof of title to the land. It is the position of the law that once a person is granted a Certificate of Occupancy over a parcel of land, he is entitled to hold same to the exclusion of any other person unless and until the said Certificate of Occupancy is set aside or it gives way to a better title.

See Ilona v Idakwo (2003) LPELR-1496(SC); Madu v Madu (2008) 2-3 S.C. (PT 11) 109, (2006) LPELR-1806(SC); Otukpo v John (2012) LPELR-25053(SC). In Adole v Gwar (2008) LPELR-189(SC) at page 17 of the E-Report, the Supreme Court, per Onu, JSC said:
“A Certificate of Occupancy issued on the Land Use Act, it must be stressed, cannot be said to be conclusive evidence of any interest or valid title to land in favour of the grantee; it is only prima facie evidence of such right interest or title without more and may in appropriate cases be effectively challenged and rendered invalid, null and void. See Mohamoud J. Lababedi v Lagos Metal Industries (Nig) Ltd (1973) NSCC 1 at 6.”
PER OTISI, J.C.A.

THE BURDEN OF PROOF IN DISPUTE OVER TITLE OF OWNERSHIP TO LAND

The position of the law is that once a party pleads and traces his root of title to a particular person, and that averment is challenged, he must establish how that person from who he claims his root of title came to have title invested on him. That means, he must not only establish his own title, but he must also satisfy the Court as to the title of the source from whom he claims to derive his title to the land. See Adesanya v Aderonmu (2000) LPELR-145(SC), (2000) 6 SC (PT. 11) 18; Anukam v Anukam (2008) 1-2 SC 34; Nneji v Chukwu (1996) 10 NWLR (PT. 478) 265; Odofin v Ayoola (1984) LPELR-2227(SC); Ngene v Igbo (2000) 4 NWLR (PT 651) 131, (2000) LPELR-1987(SC). PER OTISI, J.C.A.

ONYEKACHI AJA OTISI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of the High Court of Justice, Nasarawa State, sitting at Mararaba Gurku, Coram S.O. Aboki, J., delivered on December 14, 2017 in which the trial Court declared title to disputed land situate along Adkan Estate Road, Farin Ruwa, Mararaba Gurku at Karu Local Government Area, Nasarawa State in favour of the Respondent.

The case of the Respondent was that he purchased the disputed land, measuring about 7.34 hectares, from one Hajiya Maimuna Saidu Mohammed in 2001, who had in turn purchased the land in 1994 from the Bawa Adogo family of Karu under the headship of Bawa Adogo. Upon purchase, Hajiya Maimuna applied for and was granted Right of Occupancy by the Nasarawa State Government. She later obtained Statutory Consent in accordance with the Land Use Act, 1978 to assign the said Right to the Respondent. Thereafter, Hajiya Maimuna and the Respondent executed a Deed of Assignment registered on 2/11/2001 as No. NS. 228 at page 228 in Vol. 001 in the Nasarawa Land Registry in the office at Lafia. Alleging entry of the Appellants on the disputed land, the Respondent brought action against the Appellants and a certain Ibrahim Garba, now deceased, seeking the reliefs in paragraph 32 (1) – (6) of the Statement of Claim, pages 4 – 10 of the Record of Appeal:
1. A DECLARATION of the Honourable Court that the plaintiff is the legal and bonafide owner of all that parcel of land covered by certificate of occupancy No. NS. 7196 dated 22nd March, 2002 issued by the Nasarawa State Government and registered as No. 330 at page 330 vol. 001 of the lands Registry, Lafia.
2. A DECLARATION that the defendants have no legal right, interest or possession whatsoever over the land covered by C of O No. NS. 7196.
3. AN ORDER of perpetual injunction restraining the defendants either by themselves or through any of their agents, assigned, privies, successors-in-title or any person(s) or otherwise called from trespassing on the said parcel of land covered by Certificate of Occupancy No. NS. 7196.
4. A DECLARATION that any entry into the land by any of the defendants, their assigns, privies, agents, successors-in-title or any person or otherwise called shall be a trespass and actionable.

5. THE SUM of N300,000.00 (Three Hundred Million Naira) being general and exemplary damages in favour of the plaintiff for trespass, humiliation, embarrassment, traumatic pains and all the injuries caused to the plaintiff by the defendants.

6. THE SUM of N10,000,000.00 (Ten Million Naira) being legal fee charged by counsel to the plaintiff to defend him in the various cases and prosecute this suit consequent upon the defendants’ actions.
7. The cost of this suit. 

In contesting the Respondent’s claim, the Appellants maintained that the 1st Appellant purchased the disputed land from a certain Gbodudu Sarkin Pada in 1998 and took active possession thereof. The 1st Appellant subsequently sold portions of the said land to persons including the 2nd Appellant and the now deceased Ibrahim Garba, who was the 3rd defendant in the trial Court.

At the conclusion of hearing, the trial Court declared title over the disputed land in favour of the Respondent. Dissatisfied with the decision of the trial Court, the Appellants lodged this appeal by Notice of Appeal filed on 19/12/2017 with nine grounds of appeal, pages 403 – 408 of the Record of Appeal.

The parties, pursuant to the Rules of this Court, filed Briefs of Argument. At the hearing of this appeal on 18/11/2020, the Appellants’ Brief filed on 2/2/2018 was adopted by their Counsel, K. C. Ezeibekwe, Esq., with Helen Akpala, Esq. The Respondent’s Brief, which was filed on 27/3/2018 but deemed properly filed and served on 10/9/2020, was adopted by J.O. Otanwa, Esq., for the Respondent. Mr. Ezeibekwe also adopted the Appellants’ Reply Brief filed on 2/10/2019 but deemed properly filed and served on 10/9/2020. He urged the Court to allow the appeal, while Mr. Otanwa urged the Court to dismiss the appeal.

The Appellants distilled these five Issues from the grounds of appeal for determination of this appeal:
1. Whether the trial Court properly appraised and evaluated the evidence led by the parties before reaching its decision so as to warrant this Honourable Court not to intervene.
2. Whether in the circumstance of this case this Honourable Court will intervene to re-evaluate the evidence on the record and draw necessary inference and conclusion therefrom.
3. Whether having regard to the evidence led at the trial Court and the entire circumstance of this case the trial Court was right in entering judgment for the respondent.
4. Whether proper parties are before the trial Court to warrant it to assume jurisdiction to try this case.
5. Whether the award of Two Million Five Hundred Thousand Naira is reasonable and justifiable taking into consideration the peculiarity of this case.

The Respondent’s Counsel adopted the Issues as framed by the Appellants. I shall also adopt the same Issues for determination of this appeal, and consider Issues 1, 2 and 3 together.

Issues 1, 2 and 3
In arguing these Issues, Counsel for Appellants, relied on settled judicial authorities to emphasize the settled position of the law that when a trial Court that had seen and observed the witnesses testify draws a wrong conclusion, which is regarded as perverse, the appellate Court will overturn it. The primary duty of the trial Court is to evaluate evidence adduced before it. The exception to that general rule, in that appellate Court may evaluate or re-evaluate evidence which the trial Court failed to do or has improperly done leading to a perverse decision. It was submitted that in the instant case, the evaluation of evidence by the trial Court had led to a perverse decision.

Counsel referred to the evidence adduced before the trial Court on the root of title of the Respondent’s vendor, Hajia Maimuna and submitted that it was insufficient. The Respondent had failed to prove to the trial Court how Hajia Maimuna’s vendor, the Bawa Adogo family came on the land. There were gaps in the evidence adduced on how the Bawa Adogo family came on to the land. The holding of the trial Court that Hajia Maimuna validly acquired the land from the Bawa Adogo family was speculative. Relying on Ikechukwu Umeoji v Anazodo (2012) WRN VOL 12 p. 149, it was submitted that it is not the duty of the Court to speculate or presume on an issue not placed before it. Counsel highlighted other aspects of the evidence adduced and called upon the Court to re-evaluate the entire findings of the trial Court in the interest of justice, citing Daniel Bassil v Chief Fajebe (2001) 4 SCNJ 257 at 379. It was submitted, taking into cognizance the peculiar nature of this case and the evidence adduced, that the trial Court was in error in declaring title in favour of the Respondent. The Respondent did not sufficiently prove his root of title as traced back to his vendor. The mere production of certificate of occupancy by a party is not sufficient to entitle the party to declaration of title to land. The trial Court ought to have dismissed the case as the Respondent failed to prove his case.

For the Respondent, it was conceded that while appraisal and evaluation of evidence is the duty of the trial Court, where the Court fails in this regard, the appellate Court would do so. Circumstances when the appellate Court would re-evaluate the evidence were stated, relying on Faloughi v FIC Ltd (2014) 7 NWLR (PT 1406) 335 at 370. The Appellants called for a re-evaluation of evidence on the ground that the evaluation by the trial Court was perverse. On when evaluation would be perverse, the decisions in Udom v Umana (No 1) (2016) 12 NWLR (PT 1526) 179 at 226; Adebiyi v State (2016) 8 NWLR (PT 1515) 459 at 474 were cited and relied on. Counsel posited, relying on the evidence adduced, that the evidence was not perverse. It was also argued that the Respondent traced his root of title to the disputed land through the customary owners to Hajia Maimuna Mohammed to himself, culminating in his statutory Certificate of Occupancy. A party seeking declaration of title to land may rely on any of the established five ways of proving title, citing Tumo v Murana (2000) 12 NWLR 370 at 372; Aigbobahi v Aifuwa (2006) 2 SC (PT 1) 82 at 87, which the Respondent had done. The Appellants, who did not file a counterclaim, had not proved a better title. The only issue before the trial Court was whether the Respondent had proved his title to the disputed land through any of the recognized methods, and not whether the Appellants proved a better title. It was submitted, relying on Jummai v State (1999) 12 NWLR (PT 632) 582 at 587 that an Appellate Court cannot substitute the findings of the trial Court with its own, except the finding is perverse or has occasioned a miscarriage of justice. The case of the Respondent was built on documents of title, acts of ownership and acts of possession and supported by the evidence adduced, which were not impeached. The Court was urged to resolve the Issues 1, 2 and 3 against the Appellants. In the Reply Brief, the Appellants mainly reargued their contention that the findings of the trial Court were perverse.

Resolution
It is the well-established position of the law that any person claiming a declaration of title to land must prove by evidence that he is entitled to the declaration he seeks. See Mbadinuju v. Ezuka (1994) 8 NWLR (Pt. 364) 535 S.C; Umesie v. Onuaguluchi (1995) 9 NWLR (PT. 421), (1995) LPELR-3368(SC); Kazeem v. Mosaku (2007) 2 S.C. 22; Olodo v. Josiah (2010) 18 NWLR (PT 1225) 653. Judicially established methods of proving title to land have been well articulated with a foremost authority found in the case of Idundun v. Okumagba (1976) 9-10 SC 227 wherein the Supreme Court prescribed five ways of proving title to land thus:
1. By traditional evidence.
2. By various acts of ownership numerous and positive and extending over a length of time as to warrant the inference of ownership.
3. By production of title documents.
4. By acts of lawful enjoyment and possession of the land.
5. By proof of possession of adjacent land in circumstances which render it probable that the owner of such land would in addition be the owner of the other land. <br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>

See also: Mogaji v. Cadbury Nigeria Ltd (1985) NWLR (PT 7) 393, (1985) LPELR-1889(SC); Irolo v. Uka (2002) 14 NWLR (PT 786) 195. A claimant must plead and prove any of these five different ways of proving ownership of land, though he need not plead and prove more than one of these ways. See Biariko v Edeh-Ogwuile (2001) 12 NWLR (PT. 726) 235; Olubodun v. Lawal (2008) 6-7 S.C. (PT 1) 1; Yusuf v. Adegoke (2007) 6 S.C. (PT 1) 126; Balogun v Akanji (1988) 2 S.C. 199. Proof of one single root of title is sufficient to sustain the claimant’s claim for declaration of title to land; Onwugbufor v. Okoye (1996) 1 NWLR (PT 424) 252; Olagunju v. Adesoye (2009) 9 NWLR (PT 1146) 225. In proving title, he must rely on the strength of his case and not on the weakness of the defence. See Oje v Babalola (1991) 4 NWLR (PT 185) 267; Bello v Eweka (1981) NSCC 48; Kazeem v Mosaku (2007) 2 S.C. 22; Echi v Nnamani (2000) 5 S.C. 62; Eze v Atasie (2000) 6 S.C. (PT 1) 214. The only exception to this position is that a plaintiff may quite perfectly take advantage of those facts in the case of the defence which support his claims. See Buraimoh v. Bamgbose (1989 LPELR-818(SC), (1989) ALL NLR 669; Oduaran v. Asarah (1972) 5 S.C. (REPRINT) 173, (1972) LPELR-2233(SC). The party that is able to prove title to land in issue is deserving of judgment.

In contention here is ownership of a parcel of land situate along Adkan Estate Road, Farin Ruwa, Mararaba Gurku at Karu Local Government Area, Nasarawa State. The Respondent as plaintiff relied foremost on document of title, Certificate of Occupancy No NS 7196, registered as No 330 at page 330 in Vol 001 at the Lands Registry, Lafia, Exhibit A. The land was said to have originally belonged to the Bawa Adogo family who sold the land to Hajia Maimuna Saidu Mohammed, the Respondent’s vendor, in 1994. The Respondent gave the measurement of the land to be 7.34 hectares. Although the Appellants filed no counterclaim, they contested the Respondent’s claim and gave a different account of the land. The Appellants contended that the Certificate of Occupancy, Exhibit A, did not cover the disputed land, which they said measured 7.5 hectares. They averred that the land originally belonged to Kaurah Gbodnadu Sarkin Pada, the customary owner of the land, who sold it to the 1st Appellant by Sale Agreement and a Power of Attorney. In other words, both the Appellants and the Respondent claimed to have purchased the disputed land.

With the challenge to his title, the Respondent who was asserting ownership had to prove his claim, Section 131(1), 133 of the Evidence Act, 2011. It is quite elementary that he who asserts must prove. See Adake & Anor v. Akun (2003) LPELR-72(SC) Apena & Anor v. Aileru & Anor (2014) LPELR-23305(SC). The Respondent must first lead evidence in proof of his averments before the Appellants, as defendants, would be required to rebut same. See Okoye & Ors v. Nwankwo (2014) LPELR-23172(SC); Union Bank v. Ravih Abdul & Co. Ltd (2018) LPELR-46333(SC).

The Respondent relied on Exhibit A. It must be noted that a Certificate of Occupancy is prima facie proof of title to the land over which it was issued but it is not conclusive proof of title to the land. It is the position of the law that once a person is granted a Certificate of Occupancy over a parcel of land, he is entitled to hold same to the exclusion of any other person unless and until the said Certificate of Occupancy is set aside or it gives way to a better title.

See Ilona v Idakwo (2003) LPELR-1496(SC); Madu v Madu (2008) 2-3 S.C. (PT 11) 109, (2006) LPELR-1806(SC); Otukpo v John (2012) LPELR-25053(SC). In Adole v Gwar (2008) LPELR-189(SC) at page 17 of the E-Report, the Supreme Court, per Onu, JSC said:
“A Certificate of Occupancy issued on the Land Use Act, it must be stressed, cannot be said to be conclusive evidence of any interest or valid title to land in favour of the grantee; it is only prima facie evidence of such right interest or title without more and may in appropriate cases be effectively challenged and rendered invalid, null and void. See Mohamoud J. Lababedi v Lagos Metal Industries (Nig) Ltd (1973) NSCC 1 at 6.”
The Certificate of Occupancy, properly issued, raises the presumption that at the time it was issued, there was not in existence a customary owner whose title had not been revoked. This presumption is however rebuttable because if it is proved by evidence that another person had a better title to the land before the issuance of the Certificate of Occupancy, the Certificate of Occupancy will be revoked; Madu v Madu (supra) at page 24 of the E-Report; Omiyale v Macaulay (2009) LPELR-2640(SC), (2009) 7 NWLR (PT 1141) 597; Otukpo v John (supra); Orianzi v AG, Rivers State (2017) LPELR-41737(SC). Therefore, if the Respondent’s root of title was defective, a Certificate of Occupancy would not cure the defect.

The Appellants had challenged the Respondent’s root of title. The case of the Respondent was that he purchased the land in issue from Hajia Maimuna who in turn purchased the land from the Bawa Adogo family. The Appellants challenged the validity of the alleged sale by the Bawa Adogo family to Hajia Maimuna, and in consequence, the validity of her transaction with the Respondent. The position of the law is that once a party pleads and traces his root of title to a particular person, and that averment is challenged, he must establish how that person from who he claims his root of title came to have title invested on him. That means, he must not only establish his own title, but he must also satisfy the Court as to the title of the source from whom he claims to derive his title to the land. See Adesanya v Aderonmu (2000) LPELR-145(SC), (2000) 6 SC (PT. 11) 18; Anukam v Anukam (2008) 1-2 SC 34; Nneji v Chukwu (1996) 10 NWLR (PT. 478) 265; Odofin v Ayoola (1984) LPELR-2227(SC); Ngene v Igbo (2000) 4 NWLR (PT 651) 131, (2000) LPELR-1987(SC).
The legitimacy of the Sale Agreement between the Respondent and Hajia Maimuna depended on the validity of the alleged sale to Hajia Maimuna by the Bawa Adogo family. If the Bawa Adogo family had no right over the land in dispute, then they also did not have authority to sell any portion thereof to anyone including Hajia Maimuna. Adekeye, JSC put this clearly in Ayanwale v Odusami (2011) LPELR-8143 (SC) at page 27 of the E-Report as follows:
“Before the document of title is admitted as sufficient proof of ownership, the Court must satisfy itself that: –
a) the document is genuine or valid
b) It has been duly executed, stamped and registered.
c) The grantor has the authority and capacity to make the grant.
d) The grantor has in fact what he proposes to grant.
e) That the grant has the effect claimed by the holder of the instrument.”
In the earlier case of Ogunleye v Oni (1990) 4 S.C. 130, (1990) LPELR-2342(SC), Nnamani, JSC at pages 63 – 64 of the E-Report elucidated:<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>

“But it would be wrong to assume…that all a person who resorts to a grant as a method of proving title needs to do is to produce the document of grant and rest his case. Rather, whereas, depending upon the issues that emerged on the pleadings, it may suffice where the title of the grantor has been admitted, a different situation arises in a case like this where an issue has been raised as to the title of the grantor. In such a case, the origin of the grantor’s title has to be averred on the pleading and proved by evidence. This is fatal to the appellant’s case. This Court has made it clear in several decisions that if a party bases its title on a grant according to custom by a particular family or community, that party must go further to plead and prove the origin of the title of that particular person, family or community unless that title has been admitted. See on this, Mogaji v Cadbury Nigeria Ltd. (1985) 2 N.W.L.R. (Pt. 7) 393 at p. 431 also Elias v. Omo-Bare (1982) 5 S.C. 25 at pp. 57-58.”
In his concurring comments in Ngene v Igbo (supra), Iguh, JSC, said, pages 31 – 32 of the E-Report: “It is beyond dispute that once a party pleads and traces the root of his title to a particular person or family, that party must establish how thin (sic) person or family derived his or its title to such land. Accordingly, the plaintiff to succeed in his claim for declaration of title to the land in dispute in the present action must not only plead and establish his title thereto but also the title of the person from whom he claims, for, as the maxim goes, nemo dat quod non habet meaning that no one can give that which he does not have. He cannot ignore the proof of his grantor’s root of title and concentrate only on his own title to such and particularly whereas in the present case the defendant did not concede the ownership of the land by the plaintiffs grantors but expressly denied the same. See Mogaji & Ors v. Cadbury Fry (Export) Ltd. (1985) 2 NWLR (pt. 7) 393.”
Therefore, from these judicial pronouncements, the Respondent was expected to plead and adduce evidence of details of his root of title and of the person(s) through whom he claimed.

The Respondent in the Statement of Claim had pleaded in paragraph 5 of the Statement of Claim, page of the Record of Appeal:
The Plaintiff avers that the land in dispute originally belonged to the family of Bawa Adogo who are indigenes of Karu and now resides(sic) at New Karu.
In paragraph 14 of his statement on oath, PW1, Chief Bawa Adogo stated:
“That from time immemorial, our later(sic) father Adogo Dagbedu had customary ownership and uncontested and unchallenged possession of the land. And even at the death of our father in 1964, we the Adogo children had unencumbered and unchallenged possession of the land till we sold same and conveyed possession and ownership to Hajiya Maimuna in 1994.”
PW1 was the family head of the Bawa Adogo family.

The Appellants, on the other hand, averred in paragraphs 4 and 33 of the Amended Joint Statement of Defence, pages 286 of the Record of Appeal:
4. …the farmland has never at any point in time belong (sic) to Bawa Adogo family and Bawa Adogo family have no right over the land in issue at any point in time. The Defendants state that the lands originally belong to Kaurah Gbodnadu Sarkin Pada an indigene and former customary owner of the land before selling same to the 1st Defendant in the presence of witnesses.
33. The 1st Defendant states that he bought the land in issue from Gbodnadu Sarkin Pada since the year 1998 in the presence of witnesses at the cost of N8,000,000 only. The 1st Defendant further states that Narai was the 1st person to deforest the farmland in issue farmed thereon all through his life, planted some economic trees such as locust beans trees, mango trees among others and did enjoy the economic benefit of these crops void of interference from anybody and when he died his son Audu Narai Gbodnadu inherited the farmland, cultivate(sic) same, enjoyed the economic benefit of the economic trees void of interference and when he passed on, his son Gbodnadu Sarkin Pada inherited the farmland and cultivated same void of interference and enjoyed the economic benefits of the economic trees and later sold the farmland to the 1st Defendant.”
See also the evidence of DW3, pages 186 – 192 of the Record of Appeal.

In paragraph 12 of the Reply to the Joint Statement of Defence, the Respondent averred:
“In reply to the defence at paragraph 33, the plaintiff states that as at 1998 when the 1st defendant claimed to have bought the land, Hajiya Maimuna was peacefully in possession having obtained possession from the Adogo family who was the original customary owner thus there was no such land to sell to the 1st defendant in 1998.”

The pleadings and evidence thus reveal that while the Respondent relied on traditional evidence to prove the title of the Bawa Adogo family over the disputed land, the Appellants also relied on traditional history to challenge this claim, relying on the title of Gbodnadu Sarkin Pada over the disputed land.

The trial Court went to visit the locus in quo. Although the learned trial Judge had adopted an irregular procedure of first asking the Appellants, who were the defendants, to show the land they were claiming, the trial Judge concluded the locus in quo by confirming that he saw the portion of land as shown by each party. In other words, there was no controversy as to the identity and location of the land in dispute. The learned trial Judge then held  at page 397 of the Record of Appeal:
“…it is very clear to me that the Plaintiff did validly acquired (sic) the land from Hajiya Maimuna, and who in turn acquired same from the Bawa Adogo’s family.”

However, the same land could not by traditional evidence, belong to two different families. Hajia Maimuna could only have validly acquired the land in dispute from the Bawa Adogo family if they actually had the power and capacity to sell the land to her. Further, the evidence of PW1 added a twist to the case for the Respondent. PW1 stated in evidence, paragraph 17 of his written deposition:
“That to the best of my knowledge and sincere belief, the 1st defendant is the rightful owner and possessor of the land being the cause of action in this suit as the person through whom the plaintiff claims title never had any land within the land in contest.”

In my humble view, an attempt to decipher the precise meaning of this piece of evidence in the light of the circumstances of the case, can only lead to conjecture. This is more so having regard to the fact that the identity of the land was not in dispute.

The settled position of the law is that where a party relies on traditional evidence in proof of title to land, he must give satisfactory evidence as to how he derived the particular title pleaded and claimed. He is bound to plead and establish facts such as:
a. Who founded the land;
b. How he founded the land; and
c. The particulars of the intervening owners through whom he claims.
See: Nruamah v Ebuzoeme (2013) LPELR-19771(SC); Onwugbufor v Okoye (supra); Dike v Okoloedo (1999) 7 S.C. (PT 111) 35; Ngene v Igbo (supra); Ezeokonkwo v Okeke (2002) 5 S.C. (PT 1) 44. Bearing in mind these obligations, as articulated in the above cited judicial pronouncements, one need not go into deep scrutiny to see that the averments and evidence of the Respondent on this issue were grossly inadequate to establish traditional history of the Bawa Adogo family over the disputed land. Queries of who founded the land and how he founded the land, whether by deforestation or by conquest; as well as particulars of intervening owners before it got to Bawa Adogo, remain completely unaddressed. The Appellants, on their part, gave more detailed averments and evidence on these questions. I agree with the Appellants’ Counsel that it would border on speculation to simply fill in the gaps and conclude that the Bawa Adogo family had validly sold the disputed land.
​A judge should not descend into the arena. A Court has no duty to bridge the yawning gap in the case of a party. See Suberu v. State (2010) LPELR-3120(SC), Elike v. Nwakwoala & Ors (1984) LPELR-1118(SC). The duty of the Court is to adjudicate on cases as presented by the parties and not to build up a case for the parties. See Oniah v. Onyia (1989) 1 NWLR (Pt.99) 514; Chabasaya v. Anwasi (2010) LPELR-839(SC); Ominiyi v. Alabi (2015) LPELR-24399(SC); Ojo-Osagie v. Adonri (1994) LPELR-2386(SC), (1994) 6 NWLR (pt.349) 131. There were insufficient pleadings on which to anchor the root of title of customary inheritance of the Bawa Adogo family on which the Respondent’s vendor anchored her own claim. Exhibit A, the Certificate of Occupancy is, in turn, rooted thereon. As the evidence adduced stood before the trial Court, the root of title of the Respondent was not established. The legal presumption as to the validity of Exhibit A issued over the land in dispute was therefore successfully rebutted by the Appellants.

A plaintiff, who fails to discharge the burden of proving his root of title to the land in dispute as pleaded by him, is not entitled to a declaration of title. And, he cannot fall back on long possession and acts of ownership to prove title. Title to the land must precede acceptable acts of ownership, more so in the face of challenge by the adverse party. The acts of ownership cannot stand independently. The plaintiff in the contest must first prove a valid root of title to be able to rely on acts of ownership or long possession. See Owhonda v Ekpechi (2003) 9 – 19 S.C.1, (2003) LPELR-2844(SC); Odofin v Ayoola (1984) LPELR-2227(SC); Fasoro v Beyioku (1988) LPELR-1249(SC), (1988) NWLR (PT 76) 263; Ude v Chimbo (1998) 9-10 S.C. 97, (1998) LPELR-3288(SC); Ukaegbu & Ors v. Nwololo (2009) LPELR-3337(SC). Where ownership (title) is not established, acts of possession need not be considered as they would not amount to acts of ownership or possession but to acts of trespass; Okhuarobo v Aigbe (2002) 3 S.C. (PT 1) 141, (2002) LPELR-2449(SC). Having failed to establish his root of title, any acts of ownership or possession do not avail the Respondent. Such acts of ownership or of possession cannot be adjudged to be legal and need not be considered. The general principle is that it is primarily the duty of the trial Court to appraise and evaluate evidence given at the trial, and the appellate Court may not disturb such evidence merely because it would have arrived at a different conclusion on the same facts.
However, this Court is entitled to interfere when it is satisfied that the decision of the trial Court was wrong. See Atuyeye & Ors v. Ashamu (1987) LPELR-638(SC). In Adeleke & Ors v. Iyanda & Ors (2001) LPELR-114(SC) at pages 20 – 21, the Supreme Court, per Uwaifo, JSC described the duty of the trial Judge as follows:
“A trial Judge has a primary duty to receive admissible evidence, assess the same, give it probative value and make specific findings of fact thereon. He must not impair the evidence either with his personal knowledge of matters not placed and canvassed before him, or by inadequate evaluation and should endeavour to avoid vitiating the case presented by the parties through his own wrongly stated or applied principle of law. He must carefully examine the evidence and clearly understand and appreciate the issues he has to resolve in the case, and then proceed to resolve them. His duty is to reach a decision only upon the basis of what is in issue and what has been demonstrated upon the evidence by the parties and is supported in law. See Bornu Holdings Ltd v. Bogoco (1971) 1 All NLR 324 at 330; Adeniji v. Adeniji (1972) 4 SC 10 at 17; Shodeinde v. The Registered Truestees of the Ahmadiyya Movement- in-Islam (1983) 2 SCNLR 284 at 320. When he fails in this regard, it is an invitation to the appellate Court to intervene and if the appellate Court can make its own findings from the evidence available, it will interfere with the findings of the trial Judge since it is in as good a position as the trial Court on that score. See Fatoyinbo v. Williams (alias) Sanni (1956) SCNLR 274 at 275; Lawal v. Dawodu (1972) 1 All NLR (Pt.2) 270 at 286; Okpaloka v. Umeh (1976) NSCC (vol. 10) 519 at 533.”
Therefore, this Court is well endowed with power to intervene and interfere with the conclusion reached by the trial Court upon its findings and evaluation of evidence led before it, when this Court is satisfied that the evaluation of the evidence and ensuing decision of the trial Court is wrong. I am of the firm view that the Respondent failed to prove his title to the disputed land, in the light of the challenge of the Appellants. The point had been made that in proving title, a claimant must rely on the strength of his case and not on the weakness of the defence; Oje v Babalola (supra); Bello v Eweka(supra). In a land matter, it is trite that once the plaintiff is unable to prove his root of title, the consequence is that his case stands dismissed. See Ayanwale v Odusami (2011) LPELR-8143(SC); Nnadozie v Mbagwu (2008) 1 SC (PT 11) 43; Owhonda v Ekpechi (2003) 9 – 10 SC 1. The Respondent who relied on documents of title, failed to prove his root of title. His case ought to have, therefore, been dismissed by the trial Court.
Now, it must be emphasized that it is for the party who asserts to prove his case before the other party can be called upon to put in his defence. The Appellants did not counter claim. However, their evidence, which was in line with their pleadings, was that the disputed land, which was inherited by Gbodnadu Sarkin Pada and was sold to the 1st Appellant by Gbodnadu Sarkin Pada. Exhibit S was the Power of Attorney donated by Gbodnadu Sarkin Pada to the 1st Appellant on 28/6/1998, while Exhibit T was a Sale Agreement between Gbodnadu Sarkin Pada and the 1st Appellant. A Site Plan was also admitted as Exhibit U. The evidence for the Appellants was consistent and was not discredited under cross examination.
All considered, the Respondent did not prove his claim. The fact that he had a Statutory Right of Occupancy granted to him by the Nasarawa State Ministry of Lands and Urban Development, Lafia, Exhibit A, did not automatically atone for his failure to prove his case; Adole v Gwar (supra) at page 17 of the E-Report. If I may reiterate, a Certificate of Occupancy, properly issued, raises the presumption that as at the time it was issued, there was not in existence a customary owner whose title had not been revoked. This presumption is however rebuttable because if it is proved by evidence that another person had a better title to the land before the issuance of the Certificate of Occupancy, the Certificate of Occupancy will be revoked. See Madu v Madu (supra); Omiyale v Macaulay (supra); Otukpo v John (supra); Orianzi v AG, Rivers State (supra). In his contribution to the lead Judgment in Omiyale v. Macaulay (supra), Ogbuagu, JSC said, pages 40 – 41 of the E-Report:
“The prerequisite for a valid grant of a Certificate of Occupancy, is that there must not be in existence, the valid title of another person with legal interest in the same said land at the time the certificate was issued…For a certificate of Occupancy under the Act to be therefore valid, there must not be in existence at the time the certificate was issued, a Statutory or Customary owner of the land in issue or dispute who was not divested of his legal interest to the land prior to the grant. In other words, where a Certificate of Occupancy has been granted to one of two claimants who has not proved a better title (as the Appellant), it must be deemed to be defective, to have been granted or issued erroneously and against the spirit of the Act and the holder (such as the Appellant) would have no legal basis for a valid claim over the land.”
In the circumstance of this case therefore, the Certificate of Occupancy NS 7196, was not sufficient proof of title. Issue 1 is therefore resolved in favour of the Appellants and against the Respondent.

Issue 4 
The Appellants contended that the proper parties were not before the trial Court thereby affecting its jurisdiction. This allegation was based on depositions in a counter affidavit made by the Respondent in a different action, Suit No NSD/MG 216/2014 in opposition to a motion for interlocutory injunction sought by the Appellants in that other action.

The originating processes in Suit No NSD/MG216/2014 and the issues for consideration therein, as well as the entire evidence adduced therein, were not before the trial Court in the instant case. I do not see the relevance herein. Whether the proper parties are before the Court or not cannot be determined simply by relying on a deposition in an affidavit in a different suit. More so, when the Respondent under cross examination as PW3 denied that he had sold the land in dispute to anyone, notwithstanding the deposition in the said counter affidavit. I would resolve this issue against the Appellants.

Issue 5
The learned trial Judge granted in favour of the Respondent the sums of N1,000,000.00 as general and exemplary damages, N1,000,000.00 being legal fees charged by the Respondent’s Counsel, and N500, 000.00 costs against the Appellants. As noted above, where ownership of land is not established, acts of possession need not be considered as they would not amount to acts of ownership or possession but to acts of trespass; Okhuarobo v Aigbe (supra). Although the Appellants did not counter claim the awards for general and exemplary damages, legal fees, which are in the nature of special damages and costs cannot stand against the Appellants in favour of the Respondent who did not prove his claim to the land in dispute. I have no difficulty in setting aside these awards. Accordingly, Issue 5 is resolved in favour of the Appellants.

This appeal is meritorious. It is hereby allowed. The judgment of the lower Court in Suit No: NSD/MG22/2016 is hereby set aside. It is further ordered that the Certificate of Occupancy granted to the Respondent by the Nasarawa State Ministry of Lands and Urban Development, Lafia, dated 22/3/2002 be and is hereby set aside. The awards for general and exemplary damages of N1,000,000.00, legal fees of N1,000,000.00 and costs of N500,000.00 awarded against the Appellants are also hereby set aside. The Appellants are entitled to costs which is hereby assessed at N200,000.00.

OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.: I have read in draft the judgment of my learned brother, Onyekachi A. Otisi, JCA and I am in agreement with my Lord’s reasoning and conclusion. I concur therewith.

JOSEPH EYO EKANEM, J.C.A.: I read in advance the lead judgment of my learned brother, OTISI, JCA, which has just been delivered. I agree with the reasoning and conclusion therein which I adopt as mine in allowing the appeal. I abide by the consequential orders made in the lead judgment.

Appearances:

K.C. EZEIBEKWE, ESQ., with him, HELEN AKPALA, ESQ. For Appellant(s)

J.O. OTANWA, ESQ. For Respondent(s)