WA’AZI RIKICHI & ORS v. HARDO IBRAHIM GAMBO (2019)

WA’AZI RIKICHI & ORS v. HARDO IBRAHIM GAMBO

(2019)LCN/13284(CA)

(2019) LPELR-47676(CA)

In The Court of Appeal of Nigeria

On Thursday, the 16th day of May, 2019

CA/MK/69/2011

RATIO

JUDGMENT: THE JUDGMENT OF A COURT IS CONFINED TO THE ISSUES JOINED BY PARTIES

As rightly submitted by appellants senior counsel, the judgment of a Court should be confined to the issues joined by the parties in their pleadings and it must be based on legal evidence adduced before it by the parties and inference logically drawn from it. A Court is not allowed to base its decision on speculation nor is it allowed to fill in gaps in the evidence of parties. See Mozie V Mbamalu (2006) 7 SC (Pt. 11) 155 and Igabele V State (2006) 2 SC (Pt. 11) 61.PER JOSEPH EYO EKANEM, J.C.A.

FACTS NOT PLEADED GO TO NO ISSUE

Facts not pleaded go to no issue and are to be discountenanced. See ATS & Sons & Ors v Bem Electronics Co. (2018) 17 NWLR (Pt. 1647) 1, 37 and Enang v Adu (1981) 11/12 SC 25, 42.PER JOSEPH EYO EKANEM, J.C.A.

LOCAL GOVERNMENT: WHETHER THE COURTS CAN TAKE JUDICIAL NOTICE OF THE CREATION OF NEW LOCAL GOVERNMENT AREA

There is no doubt that by Sections 122 (1) and (2) and 124 of the Evidence Act, 2011 the Court can take judicial notice of the creation of a new Local Government Area as was held by this court in Ogunleye v Aina (2011) 3 NWLR (Pt. 1235) 479, 539.PER JOSEPH EYO EKANEM, J.C.A.

LOCAL GOVERNMENT:THE IMPORTANCE OF PRODUCING THE GAZZETTE AS PROOF OF CREATION DATE

This is not something that the Court can take judicial notice of. There must be an official document to show such date, namely; the official gazette documenting the creation of the Local Government Area. Section 106 (a) (i) of the Evidence Act, 2011 provides that:
The following public documents may be proved as follows-
(a) Acts of the National Assembly, Laws of the House of Assembly of a State or bye laws of a Local Government Council, Proclamations, treaties or other, notifications, nominations, appointments and other official communications of the Government of the Federation, State or Local Government in Nigeria
(i) Which appear in the Federal Gazette or the Gazette of a State, by the production of such Gazette, and shall be prima facie proof of any fact of public nature which they were intended to notify.
In the case of Our Line Limited v S.C.C. Nigeria Limited (2009) All FWLR (Pt. 498) 210, the Supreme Court drawing from Ogbunyiya v Okudo (1979) All NLR 299 emphasized the necessity of producing before the Court an official gazette for any information therein to be properly obtained. At page 250, Chukwuma Eneh, JSC, stated as follows:
The serious implication for not proving the gazette by producing it before this Court is that this Court is precluded from making inquiries by itself for its own information from the source of the said gazette when it could have been otherwise legitimate and proper for it to do so i.e. refer to, look at and read it by its mere production from the Bar. This has not been done here.PER JOSEPH EYO EKANEM, J.C.A.

LAND LAW: DECLARATION OF TITLE: BURDEN OF PROOF : ON WHOM DOES IT LIE

Now, in a claim for declaration of title to land, the burden of proof lies on the plaintiff to establish his claim on the strength of his own case and not rely on the weakness of the case of the defendant. The plaintiff must satisfy the Court on his pleading and evidence that he is entitled to the declaration sought. See Kodilinye v Odu (1935) 2 WACA 336 and Onovo v Mba (2014) 14 NWLR (Pt. 1427) 391, 414. Where a defendant counter claims, the plaintiff still needs to prove a better title.PER JOSEPH EYO EKANEM, J.C.A.

LAND LAW: 5 WAYS OF PROVING TITLE TO LAND

There are five ways of proving title of land, viz;
(i) Traditional history or evidence.
(ii) Production of documents of title duly authenticated
(iii) Acts of ownership by the person claiming the land such as selling, leasing, renting out all or part of the land, or farming on it or otherwise utilizing the land beneficially: such acts of ownership must extend over a sufficient length of time and numerous and positive enough to warrant the inference that the claimant is the true owner;
(iv) Acts of long possession and enjoyment in respect of the land; and
(v) Possession of connected or adjacent land in circumstances rendering it probable that the owner of such connected or adjacent land would in addition be the owner of the land in dispute. See Idundun v Okumagba (1976) 9 10 SC 227 and Onovo v Mba supra.PER JOSEPH EYO EKANEM, J.C.A.

LAND LAW: DECLARATION OF TITLE TO LAND: WHAT THE PLAINTIFF MUST PROVE WHEN HE RELIES ON TRADITIONAL EVIDENCE

Where a party relies on traditional history, he must plead and prove:
(a) Who founded the land
(b) How he founded the land; and
(c) Particulars of intervening owners through whom he claims See Anabaronye v Nwakaihe (1997) 46 LRCN 185, 195, Nruamah v Ebuzoeme (2013) 13 NWLR (Pt. 1372) 474, 445 and Osu v Nwadialo (2009) 12 NWLR (Pt. 1155) 286, 304.PER JOSEPH EYO EKANEM, J.C.A.

LAND LAW: DECLARATION OF TITLE: INSTANCES UNDER WHICH THE TRADITIONAL EVIDENCE OF DEFENDANTS WILL BE REJECTED

In the case of Akinsipe v Adetoroye (1999) 9 NWLR (Pt. 617) 162, the traditional history of the defendant was rejected in preference for the plaintiffs (respondent). Salami, JCA at page 182 stated:
With the rejection of the traditional history of the defendant in preference for the respondents version, there is only one traditional history left and the Court is bound, if it is credible, to act on it.”
See also Alli v Alesinloye (2000) 6 NWLR (Pt. 660) 177, 126 where Uwaifo, JSC, opined as follows:
It is only left for me to reiterate that the respondent did not plead traditional history.PER JOSEPH EYO EKANEM, J.C.A.

COUNTER CLAIM: DEFINITION
A counter claim is a legal procedure which allows a defendant to maintain an action against a plaintiff as if it is a separate suit. It is a cross action and is considered as an independent action though the defendant, for convenience and speed, usually joins it with the defence. It has its separate pleading though joined with the defence. It is subject to the same rules of pleadings and standard of proof as the main suit. A defendant who seeks to make a counter claim must follow the rules of Court governing the same. See Oragbaide v Onitiju (1962) 1 All NLR 33, Dabop v Kolo (1993) 12 SCNJ1, Ajao v Obele (2005) 3 NWLR (Pt. 918) 400, Oroja v Adeniyi (2017) 6 NWLR (Pt. 1560) 138 and Atiba Iyalamu Savings and Loans Ltd v Suberu (2018) 13 NWLR (Pt. 1637) 387. Order 25 Rule 16 of the Plateau State High Court (Civil Procedure) Rules 1987 (applicable to Nasarawa State) provides:
Where any defendant seeks to rely upon any facts as supporting a right of set-off or counter claim, he shall, in his statement of defence, state specifically that he does so by way of set – off or counter claim as the case may be and the particulars of such set off or counter claims shall be given.PER JOSEPH EYO EKANEM, J.C.A.

COUNTER CLAIM: WHEN SUCCESS OF A PLAINTIFF’S ACTION WILL MEAN THE FAILURE OF THE DEFENDANT’S COUNTER CLAIM CLAIM
The law is that where the facts are intertwined and interwoven as regards the plaintiffs action and the defendants counter claim, the success of the plaintiffs claim would mean the failure of the defendants counter claim. See Unokan Enterprises Ltd V Omuvwie (2005) 1 NWLR (Pt. 907) 293, 315 316.PER JOSEPH EYO EKANEM, J.C.A.

JUSTICE

JUMMAI HANNATU SANKEY justice of The Court of Appeal of Nigeria

JOSEPH TINE TUR justice of The Court of Appeal of Nigeria

JOSEPH EYO EKANEM justice of The Court of Appeal of Nigeria

Between

1. WA’AZI RIKICHI
2. ATIKU MUSA
3. ILIYA MUSA
(amended as Iliya Vane)
4. YOHANNA BIRI
5. MAIKO BIRI
(amended to read Maiko Simba)Appellant(s)

AND

HARDO IBRAHIM GAMBORespondent(s)

JOSEPH EYO EKANEM, J.C.A. (Delivering the Leading Judgment): This appeal is from the judgment of the High Court of justice, Nasarawa State, sitting in Akwanga (the trial Court) in suit No. NSD/K3/2004 delivered on 11/2/2011. In the judgment, the trial Court (coram Viko, J) found in favour of the respondent (as plaintiff) and entered judgment for him, granting all his reliefs against the appellants and other defendants.

At the trial Court, the respondent took out a writ of summons against a total of 18 defendants (including the appellants). The writ of summons was endorsed with a statement of claim wherein the respondent claimed against the appellants and the other defendants jointly and severally as follows:
(a) A declaration that the farmland known as Angwan Kade in Kokona Local Government Area of Nasarawa State does not belong to the defendants but to the plaintiff who is the rightful owner having been granted a good assignment of same from the lawful and legitimate owner and entitled therefore to the Customary Right of Occupancy over such farmland.
(b) A declaration that the Keffi Local Government Customary Right of

Occupancy No. 614 dated 2/12/96 issued to the plaintiff over the said farmland is valid and confers good statutory title on the plaintiff.
(c) A declaration that the defendants by their conduct which amounts to a challenge to the plaintiffs title have thereby lost their privilege to remain on such farmland as the plaintiffs tenants and thereby liable to be ejected.
(d) A perpetual injunction restraining the defendants, their agents, servants or privies from the farmland.”

The appellants and other defendants filed their joint statement of defence and added thereto a counter claim in the following terms:
1. A declaration that the defendants are bonafide owners of the land lying and situate at Gwandara, Suara Made, Angwan Mongoro, Angwan Maikomo and Angwan Kade respectively.
2. A declaration that any purported sale of the defendants lands or part thereof is illegal, null and void.
3. A declaration that the purported C of O No 614 dated 2/12/96 alleged to have been issued by Keffi Local Government Council or any documents relating to the defendants land be declared null and as having been obtained by

fraud.
4. The sum of N5,000,000.00 (Five Million Naira) only being general damages for trespass, inconveniences, shock and damages suffered as a result of the plaintiffs wilful and intentional act.
5. A perpetual injunction restraining the plaintiff, his agents, privies, assigns, personal representatives or any person who may claim through the plaintiff from continuing further acts of trespass on the defendants lands.”
The respondent did not file a reply and/or defence to the counter claim.

At the trial, the respondent called five witnesses and tendered Exhibits A1, A2, B1 B6. The appellants and the other defendants called four witnesses. After trial and taking of written addresses, the trial Court, as earlier stated, granted the claims of the respondent and dismissed the counter claim.

Aggrieved by the decision, the appellants, out of the total of eighteen defendants, have appealed to this Court by way of a notice of appeal filed on 9/5/2011 which contains five grounds of appeal.
The parties filed and exchanged briefs of argument as follows:
(i) Appellants brief of argument

filed on 29/7/2011
(ii) Respondents brief of argument filed on 4/4/2012 and deemed duly filed and served on 20/11/2012, and
(iii) Appellants reply brief filed on 20/12/2012

At the hearing of the appeal on 18/3/2019, G. Ofodile Okafor (SAN) for appellants adopted and relied on appellants brief of argument and the reply brief in urging the Court to allow the appeal.

F. T. Gen, Esq., (holding brief for M. Y. Saleh (SAN) for the respondent adopted and relied on respondents brief of argument in urging the Court to dismiss the appeal.

In the appellants brief of argument, the following issues are formulated for the determination of the appeal:
1. WHETHER or not the learned trial Court can validly base its judgment on facts which was (sic) not placed before it by the parties (ground 1).
2. WHETHER the glaring contradiction in the testimonies of the plaintiffs witnesses as it relates to the payment of tributes, the root of title of the plaintiffs vendor, Naaka; as well as the wrongful admission of Exhibit 4 (the site plan of the land in issue) were not enough to vitiate the

plaintiffs claim (grounds 3, 4 and 5).
3. WHETHER the defendants had sufficiently proved their counter claim before the trial Court to entitle them to the reliefs being sought therein (ground 2).”

In the respondents brief of argument, the respondent adopts the issues formulated by appellants counsel but his counsel proceeds to re formulate the issues with a slant to favour the respondent. The issues are set out hereunder:
Issue One
Whether or not the learned trial Judge was right when in his judgment he relied on the facts before him by the parties in coming to the conclusion that Exhibits B1 B6 were valid documents in the circumstance?
Issue Two
Whether there are glaring contradictions in the testimonies of the plaintiffs witnesses as they relate to the payment of tributes, the root of title of the plaintiffs vendor, Naaba; as well as the alleged wrongful admission of Exhibit 4 (site plan of the land in issue) enough to vitiate the plaintiffs claim (Grounds 3, 4 and 5).
Issue Three
Whether the defendants now appellants had proved their

counter claim before the trial Court as to be entitled to the reliefs sought therein against the defendant, now respondent (ground 2).”

Having examined the grounds of appeal and other processes in this appeal, it is my humble view that two issues arise for the determination of the appeal. The issues are:
(1) Was the trial Court right in giving judgment in favour of the respondent?
(2) Did the appellants prove their counter claim to be entitled to the reliefs sought therein?

Issue 1 above draws from grounds 1, 3, 4 and 5 of the grounds of appeal while issue 2 flows from ground 2.
Issue 1
Was the trial Court right in giving judgment in favour of the respondent?

Appellants senior counsel submitted that the judgment of a Court must demonstrate a full dispassionate consideration of all the issues raised and canvassed by the parties and that the same must reflect the result of such an exercise. It was his further submission that a Court can not speculate and also that it is not the job of a Court to fill in the gaps in the evidence of parties by drawing conclusions of what should be. He cited in support

Mozie V Mbamalu (2006) 7 SC (Pt.11) 155 and Igabele V State (2006) 2 SC (Pt. 11) 61. He set out a statement of the learned trial Judge which he contended fell short of that position of the law, viz;
In a situation like this days or months given for preparation before the new Local Government can take off asserts (sic) have to be shared, appointments have to be made. This can take up to three months or more. Before there are done, the old (sic) of the proposed new Local Government remain part and parcel and signed in the name of the old Local Government within this period are valid.”

Senior counsel pointed out that parties did not place facts before the trial Court to lead the learned trial Judge to reach the above conclusion. He posited that the conclusion was speculative and that the learned trial Judge proceeded to fill in the gap and explain away the obvious lacuna in the difference between the date of the creation of Kokona Local Government Area (1/10/1996) and the date of the issuance of Exhibit B1 B6 (certificate of occupancy) by the Keffi Local Government Council on 2/12/1996.

Senior counsel then proceeded to contend

that the respondent did not discharge the burden of proving his ownership of the land in dispute to entitle him to his reliefs. This, he said, is because his (respondents) case is replete with irreconcilable contradictions between his pleadings and evidence of his witnesses, on the one hand, and between his witnesses, on the other hand. Counsel then set out what he termed the contradictions under two heads, namely; (1) contradiction between pleading and evidence (ii) and contradiction between the testimonies of respondents witnesses.

Senior counsel thereafter argued that Exhibit B4 (a site plan) was improperly admitted because it was not certified by the Surveyor General of Nasarawa State contrary to Section 3 of the Survey Law of Northern Nigeria applicable to Nasarawa State.

On his part, senior counsel for the respondent M.Y. Saleh (SAN) submitted that the judgment of the trial Court demonstrated a full dispassionate consideration of all the issues properly raised by the parties and that the same was reflected in its judgment. He added that the judgment was not based on speculation. He contended that the attempt to exclude

Exhibits B2 B6 is based on evidence of unpleaded fact led by DW5, as the date of the creation/commencement of operation of Kokona Local Government Council was not pleaded. He set out in extenso the reasoning of the learned trial Judge on Exhibits B2 B 6. He contended that the appellants failed to join issues on the propriety of the said exhibits. It was his further contention that the failure of the appellants to produce the gazette documenting the creation of Kokana Local Government Council and its commencement amounted to withholding evidence.

Senior counsel submitted that there was no irreconcilable contradictions between respondents pleadings and the evidence he called. He state that the learned trial Judge painstakingly evaluated evidence before him and reached the conclusion that the contradictions if any, were not material enough to dislodge the case of the respondent who had proved his case. He urged this Court not to interfere in the assessment of evidence by the trial Court as there was no reason to do so. He cited in support several cases including Mogaji V Odofin (1978) 4 SC 91 and Woluchem V Gudi (1981) 5 SC 291.<br< p=””>

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He went on to state that the trial Court rightly held that the root of title of respondent had been proved and so also the purchase by the respondent. He noted that the learned trial Judge visited the locus in quo and therefore even if Exhibit B4 is expunged from the record, it would have no effect on the judgment as there is still enough oral and documentary evidence to sustain the judgment.

In his reply, appellants senior counsel referred to Sections 122 (2)(a) and (b) and 125 (1) (sic:124(1) of the Evidence Act, 2011. He argued that the Court can take judicial notice of the creation of a new Local Government Area, citing Ogunleye V Aina (2011) 3 NWLR (Pt. 1235) 493. He added that the issue of withholding a Government Gazette is non sequitur as a Gazette is a public document available to members of the public.

Resolution
As rightly submitted by appellants senior counsel, the judgment of a Court should be confined to the issues joined by the parties in their pleadings and it must be based on legal evidence adduced before it by the parties and inference logically drawn from it. A Court is not allowed to base its decision on

speculation nor is it allowed to fill in gaps in the evidence of parties. See Mozie V Mbamalu (2006) 7 SC (Pt. 11) 155 and Igabele V State (2006) 2 SC (Pt. 11) 61.

The respondent pleaded and relied on customary right of occupancy No. 614 dated 2/12/1996 issued by the Keffi Local Government as a part of his case. He sought relief (b) already set out in this judgment in relation thereto. The document was tendered as Exhibit B1. The appellants led evidence through the DW5 (wrongly recorded by the trial Court as DW4). His name is Onte Augustine Allanana. He testified that he is a civil servant in the Kokona Local Government Council as DPM. He stated that the said Local Government Council was created on 1/10/1996 and that Laminga (where the land in dispute is situate) is in Kokona Local Government Council. On this account, counsel for the appellants and other defendants at the trial Court submitted that since Kokona Local Government Council was created on 1/10/1996, Keffi Local Government Council (from which it was excised) could not have validly issued the customary right of occupancy on 2/12/1996.

The trial Court rejected the argument,

after a process of reasoning that is set out on pages 199 200 of the record of appeal. Appellants senior counsel in his brief of argument quoted the following excerpt from the long reasoning of the learned trial Judge:
In a situation like this some days given for preparation before the new Local Government can take off asserts (sic), have to be shared, appointments have to be made. This can take up to three months or more. Before these are done the old of the proposed new Local Government remain part and parcel and documents signed in the name of the old Local Government within this period are valid.”

Senior counsel for the appellants argued that no facts were placed before the trial Court to warrant the above quoted position of the trial Court.

I think the safe thing to do in respect of this point is to set out in extenso the reasoning of the trial Court on this point. I therefore take the liberty of doing so hereunder:
It is defence submissions that the document did not convey any title to the plaintiff. That they were issued by Keffi Local Government instead of Kokona where the land at Kade is.

He relied on the testimony of DW5 Onte Augustine Alana who testified that Kokona Local Government was created out of Keffi on the 1 10 96. Augustine is the present DPM of Kokona Local Government Council.
Counsel to the plaintiff opposed this submission. He said this fact is a vital one. It was (however) not pleaded. That the evidence of DW5 is built on nothing it should be expunged. He cited the cases of Basey Vs Pamol (supra) Olusodun V Lawal Supra.
In Basey V Pamol the Court of Appeal holds unanimously that:
it therefore follows that evidence must be led in accordance with the pleadings and any evidence at various with pleading (or not pleaded) is of no value:
In the present case, I have gone through the 44 paragraphs of the amended defence this vital issue was not pleaded and the testimony of DW5 does not support any fact.
Litigation is not a hide and seeks game. Fact must be pleaded if they are vital to put the other side on notice to prepare on while he is going to meet in Court.
In this present case, this is an issue of fact which ought to have been pleaded. The document creating the

Kokona Local Government Council and the effective date of its take off ought to too have been pleaded. Here they were not and the evidence of DW5 was a surprise it was built on noting. Infact its purpose was not clear or known to Court until counsels final submission revealed. This is wrong.
Even if it were pleaded, it wouldnt have been sufficient to call the DPM to say Kokona Local Government Council was created on 1/10/96 by a TV announcement by the then president without convincing the Court of the actual date of commencement and final separation from Keffi.
In a situation like this some days or months given for preparation before the new Local Government can take off asserts have to be shared, appointments have to be made. This can take up to three months or more. Before these are done the old of the proposed new Local Government remain part and parcel and documents signed in the name of the old Local Government within period are valid.
From the 1 10 1996 announcement of the Local Government Council made to 2-121996 when the C of O was signed is a transitional period, the signing by Keffi Local

Government Council is valid and the document (C of O) is valid.
For these reasons that is of failure to plead and failure any adduce relevant document with respect to the effective date of the commencement of Kokona Local Government Council, this second issue is resolved in favour of the plaintiff that is certificate of occupancy signed by Keffi Local Government Council on the 2-12-1996 is valid and evidence of DW5 is therefore not helpful.”

It can be seen that the decision of the trial Court on the point under consideration was based on two pillars:
(i) failure to plead the facts founding the issue including the instrument creating Kokona Local Government Area/Council and the date of its creation and take off; and
(ii) failure to tender the relevant documents in Court to prove the same.

It is clear that the part of the statement of the learned trial Judge isolated and attacked by senior counsel was not the basis of the trial Courts decision on the issue and so it is nothing but an obiter dictum. The law is well established that an obiter dictum cannot be the basis of raising a ground of appeal from which

an issue can be framed. See Oleksandr V Lonestar Drilling Co. Ltd (2015) 9 NWLR (Pt. 1464) 337, 362 and All Progressives Congress V Peoples Democratic Party (2015) 15 NWLR (Pt. 1481) 1, 63. Ground 1 of the grounds of appeal, shorn of its particulars, reads:
The learned trial Judge erred in law when he found and held:
In a situation like this, some days or months given for preparation before the New Local Government can take off assets have to be shared, appointment have to be made. This can take up to three months or more before there are done, the old of (sic) the proposed new Local Government Council remain part and parcel and documents signed in the name of the old Local Government within this period are validfrom the 1-10-1996 announcement of the Local Government Council made to 2-12-1996 when the (C of O) was signed is a transitional period, the signing by Keffi Local Government Council is valid and the document (C of O ) is valid.
And this occasioned a miscarriage of justice.
It is clear that the ground attacks only the obiter dictum of the learned trial judge and

nothing else and not the two reasons for the decision of the trial Court highlighted above. The dictum therefore cannot be the subject of a ground of appeal from which an issue can be distilled to warrant the attention of this Court. I therefore discountenance the argument raised thereon.

In any event and being a penultimate appeal Court, I shall proceed to state that the trial Court rightly held that no fact was pleaded and no issue was joined as to the date of the creation of Kokona Local Government Council and the vires of Keffi Local Government Council to issue Exhibit B1. The evidence of DW5 therefore went to no issue. A party who intends to rely on a law or a statutory instrument as applying to his case must state the facts which will be the foundation for the application of the same. Facts not pleaded go to no issue and are to be discountenanced. See ATS & Sons & Ors v Bem Electronics Co. (2018) 17 NWLR (Pt. 1647) 1, 37 and Enang v Adu (1981) 11/12 SC 25, 42.

It must also be added that, contrary to the contention of appellants senior counsel in his reply, issues are joined on facts averred in the body of the pleadings of the parties

and not on the reliefs of the plaintiff.

Senior counsel for the appellants contended to the effect that a gazette is a public document available to members of the public and that the Court could take judicial notice of the creation of Kokona Local Government Council. There is no doubt that by Sections 122 (1) and (2) and 124 of the Evidence Act, 2011 the Court can take judicial notice of the creation of a new Local Government Area as was held by this court in Ogunleye v Aina (2011) 3 NWLR (Pt. 1235) 479, 539. However, the issue at stake is not the creation of Kokona Local Government Area but the date of its creation. This is not something that the Court can take judicial notice of. There must be an official document to show such date, namely; the official gazette documenting the creation of the Local Government Area. Section 106 (a) (i) of the Evidence Act, 2011 provides that:
The following public documents may be proved as follows-
(a) Acts of the National Assembly, Laws of the House of Assembly of a State or bye laws of a Local Government Council, Proclamations, treaties or other, notifications, nominations, appointments and

other official communications of the Government of the Federation, State or Local Government in Nigeria
(i) Which appear in the Federal Gazette or the Gazette of a State, by the production of such Gazette, and shall be prima facie proof of any fact of public nature which they were intended to notify.
In the case of Our Line Limited v S.C.C. Nigeria Limited (2009) All FWLR (Pt. 498) 210, the Supreme Court drawing from Ogbunyiya v Okudo (1979) All NLR 299 emphasized the necessity of producing before the Court an official gazette for any information therein to be properly obtained. At page 250, Chukwuma Eneh, JSC, stated as follows:
The serious implication for not proving the gazette by producing it before this Court is that this Court is precluded from making inquiries by itself for its own information from the source of the said gazette when it could have been otherwise legitimate and proper for it to do so i.e. refer to, look at and read it by its mere production from the Bar. This has not been done here. In the absence of formally producing the said gazette before this Court and it being accepted by this Court

as evidence of its content; there is no way this Court can act on said gazette that is not present before it.
Since the gazette documenting the creation of Kokona Local Government Area/Council was not produced before the trial Court which would have shown the date it was created, that Court was right in not nullifying the Certificate of Occupancy on the ground that it was issued by Keffi Local Government Council after the creation of Kokona Local Government Area/Council. The mere ipse dixit of DW5 on the date of the creation of the said Local Government is nothing but hearsay as he was not the one who created the Local Government Area and the relevant Gazette was not produced before the Court.

It was also the contention of appellants senior counsel that there were glaring contradictions in the testimonies of respondents witnesses and his pleading on payment of tribute, root of title of respondents vendor and that there was wrongful admission of Exhibit 4.

Now, in a claim for declaration of title to land, the burden of proof lies on the plaintiff to establish his claim on the strength of his own case and not

rely on the weakness of the case of the defendant. The plaintiff must satisfy the Court on his pleading and evidence that he is entitled to the declaration sought. See Kodilinye v Odu (1935) 2 WACA 336 and Onovo v Mba (2014) 14 NWLR (Pt. 1427) 391, 414. Where a defendant counter claims, the plaintiff still needs to prove a better title.

227 and Onovo v Mba supra.

The respondent relied on the sale of the land in dispute to him and, since the title of his vendor was challenged, on traditional history to show the title of his vendor. Where a party relies on traditional history, he must plead and prove:
(a) Who founded the land
(b) How he founded the land; and
(c) Particulars of intervening owners through whom he claims See Anabaronye v Nwakaihe (1997) 46 LRCN 185, 195, Nruamah v Ebuzoeme (2013) 13 NWLR (Pt. 1372) 474, 445 and Osu v Nwadialo (2009) 12 NWLR (Pt. 1155) 286, 304.
I shall return to this later in this judgment.

The contention of appellants senior counsel on alleged contradictions in the respondents evidence is divided into two categories, viz;
(i) Contradictions between pleading and evidence of respondents witnesses; and
(ii) Contradictions between testimonies of respondents witnesses.
I shall start with (i)
(i) In paragraph 5 of the statement of claim it is averred that:
The plaintiff states that apart from the area known as Angwan Kade which was duly sold to him, his vendor also owns

Saura Kiriya and Angwan Mangoro amongst others all collectively called and known as Saura Naba.

The PW1 (respondent) testified that he did not know Angwan Mangoro while PW3 testified that the appellants were farming on their land at Ungwan Mangoro. The result is that the averment quoted above regarding Ungwan Mangoro was not proved. But it should be noted that the land in dispute is Ungwan Kade and so the non – proof of the averment as to Ungwan Mangoro has no effect on the land in dispute.

In paragraph 28 of the Statement of Claim, it is averred that the respondents vendor was reaping all the economic trees on the land sold to him and since the purchase he had been harvesting such trees through his caretakers. The PW3 testified that he had been harvesting fruits of the trees but now the appellants are doing so. PW4 testified that since the owner of the farm does not come often, it is the people farming thereon that harvest the economic trees. It must be noted that PW2 had testified that he farmed on a piece of the land and paid tribute to respondents vendor and nephew (See page 143 of the record). Therefore it was led in

evidence that the nephew of his vendor was harvesting fruits from trees on the land in dispute. It could be said that it was proved that respondents vendor was harvesting fruits on the land but it was not proved that the respondent has been harvesting the fruits since the purchase. That to me is a minor point.

Again senior counsel for appellants referred to paragraph 6 of the statement of claim which in part is to the effect that the sale transaction was witnesses by Alhaji Ajawu, Sule Dauda, Janjala and Madaki Gagare Laminga, all children of the vendor. He stated that Alhaji Ajawu is not the biological son of the vendor. Appellants pleaded that Alhaji Ajawu is not the biological son of the vendor. Alhaji Ajawu (as PW3) admitted that the vendor is his uncle. Again this is a minor discrepancy that does not detract from the averment supported by evidence that those people witnessed the transaction. Furthermore in our traditional setting, it is not strange to find ones paternal uncle being described as ones father. In fact, at page 146 of the record, Alhaji Ajawu testified that the vendor, (Naaba);
is my father, I

mean my fathers younger brother.

The difference between the averment in the pleading and evidence led is of no moment. The law does not concern itself with triffles.
(ii) Contradictions in the testimonies of the respondents witnesses.

Senior counsel for appellants noted that while PW2 testified that the respondent bought the land from Alhaji Ajawu, the other witnesses testified that the land was sold to the respondent by Naaba. It should be noted that the PW2 testified that he was not present during the transaction but was told about it. Thus his evidence as to who sold the land to the respondent is hear say which can not be said to contradict the evidence of witnesses who were present during the sale transaction.

There were other perceived contradictions that were pointed out by appellants senior counsel. The learned trial Judge responded to the alleged contradictions in the following manner:
In this case before me, the alleged contradictions were not material some related to details on answers to questions put to them by counsel. Others related to failure to call a person as a

witness. page 202 of the record.

I agree with the learned trial judge. This is because whatever contradictions there were, if any, they were minor and did not go the root of the dispute between the parties to wit; ownership of the land in dispute.

I now return to the traditional evidence of the respondent. The respondent pleaded and led evidence on the root of title of his vendor, viz; that the land was deforested by Laminga who was succeeded by Alou (or Aliyu) his vendors father, and he in turn was succeeded by his vendor (Naaba). On the other hand, appellants sought to plead and rely on traditional histories of the various parcels of land constituting the land in dispute. In paragraphs 15, 17 (a) and (d) and 29 (1) of the statement of defence they averred that their respective forebears disvirgined the land, their respective farmlands, and they inherited the same. The appellants had a duty to plead who founded the parcels of land, how he/they founded them and particulars of intervening owners through whom they claim especially as they made or attempted to make a counter claim. See Meka v Aniafulu (2005) 13 NWLR (Pt.

943) 668, 677 678 and the other cases cited earlier in this judgment on what to plead in respect of traditional history. Their traditional history was a non- starter.
The result of the foregoing is that the traditional history pleaded by the respondent stood alone and unchallenged. The respondent led cogent evidence through the PW3 to prove the traditional history of the respondents vendor at page 147 of the record in line with the pleading. The PW5 corroborated PW3s traditional history at page 158 of the record.
I shall pause here to state that the PW5 testified that he had been the Chief of Laminga (where the land is situate) for 25 years before he testified. The 1st appellant (DW1) acknowledged that he farms and lives in PW5s domain. The evidence of PW5 was not discredited in cross examination. As regards the evidence of traditional rulers, Ogwuegbu, JSC, stated in Ukatta v Ndinaeze (1997) 49 LRCN 884, 905 as follows:
It is common knowledge that generally, Traditional Rulers and old men are by their positions in a position to know the true facts in land disputes and also often find it difficult to

twist the truth.
Times may have passed since the abovequoted position of the Supreme Court and some values may have been eroded even in the traditional institution, but I see no reason to treat the evidence of PW5 differently from the respect accorded evidence of such persons by the Supreme Court supra.
Since the traditional history of the respondent was cogent, credible and the appellants had no traditional history to counter the same, the trial Court rightly accepted and acted on it. In the case of Akinsipe v Adetoroye (1999) 9 NWLR (Pt. 617) 162, the traditional history of the defendant was rejected in preference for the plaintiffs (respondent). Salami, JCA at page 182 stated:
With the rejection of the traditional history of the defendant in preference for the respondents version, there is only one traditional history left and the Court is bound, if it is credible, to act on it.”
See also Alli v Alesinloye (2000) 6 NWLR (Pt. 660) 177, 126 where Uwaifo, JSC, opined as follows:
It is only left for me to reiterate that the respondent did not plead traditional history. The appellant did

so and successfully led evidence in support of it The law is clearly that evidence of traditional history alone relied on by a plaintiff, if cogent and not in competition or conflict with that of the defendant, can be accepted by the Court and may be sufficient to support a claim of title.”

The PW3 testified that the appellants were paying tribute to respondents vendor see page 147 of the record. The PW5 also testified to the same effect. I see no reason to interfere with the finding of the trial Court on payment of tribute.

I now turn my attention to the admission of the site plan, Exhibit B4. It is correct as stated by appellants senior counsel that contrary to Section 3 of the Survey Law of Northern Nigeria, applicable in Nasarawa State, Exhibit B4 is not certified as required. Respondents counsel seems to agree with appellants senior counsel on this point based on Babatola v Aladejana (2001) 12 NWLR (Pt. 728) 517 cited by appellants counsel. I agree with them and expunge the same from the record. However by Section 251(1) of the Evidence Act, 2011, the wrongful admission of evidence shall not of

itself be a ground for the reversal of any decision in any case where it appears to the Court on appeal that the evidence so admitted cannot reasonably be held to have affected the decision and that such decision would have been the same if evidence had not been admitted.
Appellants senior counsel did not make any attempt to show how the wrongly admitted Exhibit B4 influenced the judgment of the trial Court and I shall not hold brief for him. That is not my commission. In any event as rightly argued by respondents senior counsel, there is no dispute as to the identity of the land. The learned trial judge even visited the locus in quo along with the parties.

In the light of what I have stated so far on issue one (1), I enter an affirmative answer to the issue and therefore resolve it against the appellants.

ISSUE TWO
Did the appellants prove their counter claim to be entitled to the reliefs sought therein?

Appellants senior counsel after setting out the reliefs claimed by the appellants by way of counter claim, stated that the respondent did not file any defence to the counter claim

and that issues were not joined thereon, and the same was not defended. He submitted that the learned trial judge could not be correct in holding that there was no pleading to support the counter claim. He placed reliance on Order 25 Rule 17 of the Plateau State High Court (Civil Procedure) Rules 1987. He contended that to insist that the appellants must, apart from the facts contained in their statement of defence and testimonies of their witnesses, repeat them as being in support of the counter claim is technicality. He summed up his submission by stating that;
The Crux of our submission on this issue is that the mere fact that the defendants did not state expressly the averment in support of their counter claim on a separate space is (if anything) a mere technical defect and this Court should treat it as such.- page 13 par. 6. of appellants brief of argument.

Respondents senior counsel noted that in respect of the counter claim, it was only the reliefs therein that were set out and that there was no pleading in support of it contrary to Order 25 Rules 2 and 3 of the Plateau State High Court (Civil Procedure) Rules 1987.

He submitted that the trial Court was right in holding that there was total failure of pleading and evidence in support of the counter claim. He added that the defence of the appellants was fully considered and that the trial Court dismissed the counter claim having considered the defence of the appellants and their evidence. Counsel submitted that failure to comply with Order 25 Rule 16 of the Rules supra. was not a matter of technicality.

In his reply, appellants senior counsel referred to Order 25 Rules 2 and 3 of the Rules supra and submitted that the appellant ought to have filed a defence to the counter claim.

RESOLUTION
In their joint statement of defence, the appellants counter claimed as set out earlier in this judgment. The appellants did not separately plead facts grounding their reliefs in the counter claim nor did they incorporate the facts in their statement of defence into their counter claim by reference to those facts.
The learned trial Judge found as follows:
Finally on the issue of the defendants counter claim where

only the reliefs were stated, no pleadings and no evidence. The basis upon which this Court can consider the counter claim is not there since Court has decided on the same land claimed by the plaintiff based on evidence.
The counter claim is hereby dismissed.
A counter claim is a legal procedure which allows a defendant to maintain an action against a plaintiff as if it is a separate suit. It is a cross action and is considered as an independent action though the defendant, for convenience and speed, usually joins it with the defence. It has its separate pleading though joined with the defence. It is subject to the same rules of pleadings and standard of proof as the main suit. A defendant who seeks to make a counter claim must follow the rules of Court governing the same. See Oragbaide v Onitiju (1962) 1 All NLR 33, Dabop v Kolo (1993) 12 SCNJ1, Ajao v Obele (2005) 3 NWLR (Pt. 918) 400, Oroja v Adeniyi (2017) 6 NWLR (Pt. 1560) 138 and Atiba Iyalamu Savings and Loans Ltd v Suberu (2018) 13 NWLR (Pt. 1637) 387. Order 25 Rule 16 of the Plateau State High Court (Civil Procedure) Rules 1987 (applicable to Nasarawa

State) provides:
Where any defendant seeks to rely upon any facts as supporting a right of set-off or counter claim, he shall, in his statement of defence, state specifically that he does so by way of set – off or counter claim as the case may be and the particulars of such set off or counter claims shall be given.
The appellants were therefore required to state specifically that they relied on the facts pleaded in the statement of defence to support their counter claim. Alternatively, they should have set out those facts relied on for the counter claim in the counter claim. In the Civil Procedure in Nigeria 2nd ed., by Nwadialo, it is stated at pages 396 397 as follows:
Although a counter claim is pleaded in the statement of defence, the facts constituting it are pleaded separately. These facts come under a heading Counter claim and are stated in numbered paragraphs, following on, in the same serial, from those of the defence and not starting a new series. The heading, Counter Claim distinguishes these facts from

those alleged by way of ordinary defence. But the absence of such heading would not invalidate a counter claim which otherwise is properly pleaded. If any fact which has been alleged under the defence proper is also material for the counter claim, it has to be alleged again under Counter- claim. But it is not necessary to restate the facts literally as it can be incorporated in the counter-claim by reference. This is done by the use of the expression, And by way of Counter Claim the defendant repeats the allegation contained in the relevant paragraph of the defence. Facts material to the counter claim which are only alleged in the defence but are not repeated under Counter Claim or incorporated therein by reference as illustrated above, cannot be used by the defendant in establishing the counter- claim.
The requirement set out above is not a matter of technicality as canvassed by appellants senior counsel. Rather it is a matter of putting the opposite side on notice of the facts relied upon by the counter claimant to support the counter claim. This helps to

avoid any element of surprise and makes for fair hearing. The appellants failed to comply with Order 25 Rule 16 of the Plateau State High Court (Civil Procedure) Rules. Their reliance on Order 25 Rule 17 of the same rules offers no help as the provision relates to defence and not a counter claim which to all intent and purpose is a separate action.

In any event and assuming that there were facts pleaded in support of the counter claim, the trial Court considered the merit of the counter claim and dismissed it on the basis of its decision on the main claim of the respondent. The trial Court was right in taking that position and it is of no moment that the respondent did not file a defence to the counter claim. The law is that where the facts are intertwined and interwoven as regards the plaintiffs action and the defendants counter claim, the success of the plaintiffs claim would mean the failure of the defendants counter claim. See Unokan Enterprises Ltd V Omuvwie (2005) 1 NWLR (Pt. 907) 293, 315 316.

In sum, I enter a negative answer to issue two and resolve it

against the appellants.

On the whole, I hold that the appeal is devoid of merit. It fails and I accordingly dismiss the same.

I assess the costs of the appeal at N200,000:00 against the appellants and in favour of the respondent.

JUMMAI HANNATU SANKEY, J.C.A.: I have read in advance the Judgment of my learned brother, Ekanem, J.C.A.
He has dealt comprehensively with all the issues that have arisen for determination in the Appeal. I therefore agree with his reasoning and conclusions.
Accordingly, for the reasons advanced in the lead Judgment, I also dismiss the Appeal and abide by the consequential orders.

JOSEPH TINE TUR, J.C.A. (DISSENTING): I have read the judgment of my learned brother on the bench, Ekanem, JCA but I have chosen to head the resolution of the issues submitted for determination of the appeal only on the these issues distilled by the appellants who, not satisfied with the decision of the Court below, appealed to this Court for further consideration of the facts in dispute. Aggrieved by this decision the appellants/defendants filed a Joint

Notice of Appeal at page 204-208 of the printed record to wit:-
1. TAKE NOTICE that the appellants being dissatisfied with the decision more particularly stated in paragraph 2 of the High Court of Nassarawa State contained in the judgment of the Honourable justice John A. Viko dated the 11th day of February, 2011 doth hereby appeal to the Court of Appeal upon the grounds set out in paragraph XXXX and will at the hearing of the appeal seek the reliefs set out in paragraph 4. And the appellants further states that the names and addresses of the persons directly affected by the appeal are those set out in paragraph 5.
2. Part of the decision of the Lower Court complained of:- The whole decision.
3. GROUNDS OF APPEAL:
1. The learned trial Judge erred in law when he found and held: In a situation like this some days or months given for preparation before the New Local Government can take off assets have to be shared, appointment have to be made. This can take up to three months or more before these are done, the old of (sic) the proposed new Local Government remain part and parcel and documents signed in the name of the old Local

Government within this period are valid.From the 1-10-1996 announcement of the Local Government Council made to 2-12-1996 when the (C of O) was signed is a transitional period, the signing by Keffi Local Government Council is valid and the document (C of O) is valid.”
And this occasioned a miscarriage of justice.
PARTICULARS OF ERROR OF LAW:
a) The Court had earlier found that evidence must support facts already pleaded.
b) The finding of the Court above is based on facts and evidence which are not before the Court.
c) From 1-10-1996 when Kokona Local Government was created, it ceased to be part of Keffi Local Government and the latter cannot issue any title deed for lands within Kokona Local Government.
d) The plaintiff had pleaded that the land is known as Angwan Kade in Kokona Local Government and he was issued with C of O on the 2-10-1996 by Keffi Local Government.
e) In paragraph 3 of his counter claim, the defendant sought for a nullification of the C of O No. 614 dated 2-12-1996 issued by the Keffi Local Government.
2. The learned trial Judge erred in law when he held: Finally

on the issue of the defendants counter claim where only the reliefs were stated, no pleading and no evidence. The bases upon which this Court can consider the counter claim is not there since Court has decided on the same land claimed by the plaintiff based on evidence.”
And this occasioned a miscarriage of justice.
PARTICULARS OF ERRORS IN LAW
a) Counter claim is an independent action from the claim of the plaintiff.
b) The defendants claimed five reliefs in their counter claim.
c) The plaintiff filed no defence to the counter claim as required by Order 25 Rule 3(2) Rules of High Court of Plateau State 1987 applicable in Nasarawa State.
d) The DW1 Waazi Rikichi in his evidence on oath sought for the reliefs in the counter claim.
e) The counter claim was not defended.
f) The counter claim was dismissed without a hearing.
3. The learned trial Judge erred in law when he found and held: He has established the loan and payment of tributes between him and the defendants.”
And this led to a failure of justice.
PARTICULARS OF ERROR OF LAW
a) The defendants as indigenes of Mada never paid

tributes to the plaintiff despite demands made on them.
b) It was refusal to pay tribute that precipitated the present suit.
c) The RW5 Abdullahi Ali admitted that apart from Maiwada, he does not know any other Mada man who pays tribute to the plaintiff.
d) Apart from Maiwada who has been farming on the land as agent of Naaba before the alleged sale, no other witness gave evidence of payment of tribute to the plaintiff.
e) Neither loan nor payment of tribute by the defendants was proved.
4. The learned trial Judge misdirected himself on the facts when he held that contradictions in the evidence of plaintiff and his witness was not fundamental and material to the case of the plaintiff and despite the preponderance of evidence in support of the defendants case he gave judgment in favour of the plaintiff.
PARTICULARS OF MISDIRECTION
a) The case of the plaintiff is that he acquired the land from one Naaba, a Fulani man from Laminga.
b) The defence is that the defendants who are indigenes of Mada inherited the land from their forefathers and never paid tributes to anybody.
c) According to RW5, the defendants are Mada

people while Naaba is Fulani, was born at Laminga and died there.
d) The plaintiff never lived on the land whereas the defendants are living and farming on the land and possession being nine tenths of the law, coupled with presumption which inures in their favour by Section 46 of Evidence Act.
e) PW4 Rado Ali testified on oath that it was a Mada called Biri father of Tanko that founded Angwan Kade.
f) PW2 testified that Naaba inherited the land from Laminga while the PW4 said that Naaba got the land from Aliyu (Alou) and Aliyu got from Laminga.
g) Since the reason for the suit is failure to pay tribute and since payment of tribute was not proved, the reason for suing is completely destroyed. See Iroagbara vs. Ufomadu (2009) 30 WLR 1 at 21.
5. The learned trial Judge erred in law when he admitted the map or site plan in evidence as Exhibit B4 when the same is by law inadmissible.
PARTICULARS OF ERROR OF LAW
a) By the Survey Law no map or plan is admissible in evidence unless prepared and signed by a Surveyor and a copy so signed certified by the Surveyor General of Nasarawa State.
b) Exhibit B4 though admitted by consent,

yet it is by law in admissible in evidence without fulfillment of certain conditions.
6. The judgment is against the weight of evidence.”

Order 19 Rule 3(1) of the Court of Appeal Rules, 2016 is couched in the following manner:-
3(1) The brief, which may be settled by counsel, shall contain an address or addresses for service and shall contain what are, in the Appellants view, the issues arising in the appeal as well as amended or additional grounds of appeal.”
The responsibility of an appellant who has filed a notice of appeal against the decision of the Court below is to distill the issues for determination. The appellants distilled the following issues for determination in their Joint Brief of Argument filed on 3rd August, 2011 at pages 1-2:-
1. Whether or not the learned trial Court can validly base its judgment on facts which was not placed before it by the parties (ground 1).
2. Whether the glaring contradiction in the testimonies of the plaintiffs witnesses as it relates to the payment of tributes, the root of title of the plaintiffs vendor, Naaba; as well as the wrongful

admission of Exhibit 4 (site plan of the land in issue) were not enough to vitiate the plaintiffs claim (grounds 3, 4 and 5).
3. Whether the defendants had sufficiently proved their counter-claim before the trial Court to entitle them to the reliefs being sought therein (ground 2).”

The duty of the respondent that has not cross-appealed is to answer all the points of substance, contained in the appellants brief of argument showing why the appeal ought to be dismissed. That is the purport of Order 19 Rule 4(1) and (2) of the Court of Appeal Rules, 2016 which provides as follows:-
4(1) The respondent shall also within thirty days of the service of the brief for the appellant on him file the respondent’s brief which shall be duly endorsed with an address or addresses for service.
(2) The respondent’s brief shall answer all material points of substance contained in the appellant’s brief and contain all points raised therein which the respondent wishes to concede as well as reasons why the appeal ought to be dismissed. It shall mutatis mutandis; also conform to Rule 3 (1), (2), (3), (4) and (5) of this Order.

The respondent filed a brief on 4th April, 2012 which was deemed proper on 28th November, 2012. Three issues are formulated by the respondent for determination by this Court. In view of what I have said, I shall determine this appeal based on the issues formulated by the appellants in their Joint Brief of Argument, taking into consideration the Reply brief filed by the appellants on 28th November, 2012. Learned Counsel adopted their respective briefs of argument on 18th March, 2019. With the coming into effect of the Court of Appeal Rules, 2016 on 1st December, 2016 the powers of the Court of Appeal in hearing and determining disputes or controversies is circumscribed by the provisions of Order 4 Rule 9(1)-(2) of the Rules which provides as follows:-
(1) On the hearing of any appeal, the Court may, if it thinks fit, make any such Order(s) as could be made in pursuance of an application for a new trial or to set aside a verdict, finding or judgment of the Court below.
(2) The Court shall not be bound to order a new trial on the ground of misdirection, or of the improper admission or rejection of evidence, unless in the opinion of the Court

some substantial wrong or miscarriage of justice has been thereby occasioned.”
Even where an appellant is able to establish that the learned trial Judges decision constituted a substantial wrong or led to a miscarriage of justice, the Court of Appeal may, depending on the facts and circumstances of each appeal, apply the Blue Pencil Rule or the Blue Pencil Test to excise the aspect of the decision and enter or give final judgment as to the remainder of the appellants on the admissible evidence accompanied by the exhibits as provided in Order 4 Rule 9(3) of the Rules to wit:-
(3) A new trial may be ordered on any question without interfering with the finding or decision on any other question; and if it appears to the Court that any such wrong or miscarriage of justice as is mentioned in Sub-rule (2) of this Rule affects part only of the matter in controversy or one or some only of the parties, the Court may order a new trial as to the party only, or as to that party or those parties only, and give final judgment as to the remainder.
The Supreme Court has applied the Blue Pencil

Test or Rule in a plethora of decisions. I shall refer to a few: In Ezekpelechi vs. Ugorji (1991) 7 SCN (Pt.2) 244, the Supreme Court held per Babalakin, JSC at page 258 lines 1-14 as follows:-
Having found that the plaintiffs pleaded estoppel and the learned trial Judge made use of the judgment as such the summing-up of issues settled which stated same to be res judicata becomes a mere wrong use of words which is a technicality that should not be allowed to becloud the justice of this case so ably x-rayed by the trial Court and the Court of Appeal. This Court has often constantly emphasized that mere technicalities should not be allowed to defeat the justice of a case. In fact a Court should adjudicate on issues properly submitted by the party and not on matter raised by the parties. See the case of Atoyebi vs. Odudu (1990) 6 NWLR (Pt.157) 384.
Finally on this point it is not every slip in the lower Court that will result in an appeal being allowed. The misconception of the Counsel for the plaintiffs-respondents that a plaintiff can plead res judicata in a statement of claim is not supported by law.

In Onifade vs. Olayiwola (1990) 11 SCNJ 16 the Supreme Court held at page 22 lines 10 to page 23 lines 1-43 per Nnaemeka-Agu, JSC as follows:-
Failure of an appellant to formulate issues in his brief is a non-compliance with the rules and may result in the brief being struck out.
The reason for this is not far to seek. For, quite apart from the fact that it is a requirement of the rules, and it is settled that rules of Court ought to be obeyed, it is an omission which affects the merit of the appeal. Appeals in this Court are now argued on the issues and not on the grounds of appeal. An issue is a combination of facts and circumstances, including the law on a particular point, which when decided one way or the other affects the fate of the appeal. A ground of appeal, on the other hand, is any wrong decision, resolution, inference or step taken by the Court below which, in the contention of the appellant, is wrong. Any error on the facts or in law may properly be raised as a ground. One or more grounds may form an issue; but it is not every ground that is sufficient to raise an issue. To take a common example; wrongful rejection of an admissible piece of evidence is a valid

ground of appeal. But to merely show that a piece of evidence was wrongly rejected cannot be a ground for allowing the appeal. The proper issue that could be raised thereon is whether if the particular piece of evidence was wrongly rejected, it would have, if admitted, affected the decision. It is now too late in the day to dispute the tact that it is not every ground of appeal that has been successfully argued that will necessarily result in the appeal being allowed. Even under the old practice, where a number of grounds were argued and some were successfully attacked but some were not, it did not necessarily follow that because of those successful grounds the appeal must be allowed. The Court, in order to decide whether the appeal succeeds would, as it were, run a blue pencil across the grounds successfully attacked and see whether the remaining grounds could sustain the decision appealed against. If they could, the appeal failed; but if they could not, the appeal succeeded. This is the so-called blue pencil rule. See Ex parte Whybrow & Co. & Ors. (1910-1911) 11 CLR 1 at pp.34-35. Applying this rule in Sir Abubakar Tafawa Balewa vs.Chief T. Adebayo Doherty

(1963) 1 NWLR 949, Lord Devlin in the Privy Council stated at page 960:-
In their Lordships opinion the definition cannot be read down. There is no special provision in the Constitution giving to the Court any power of interpretation greater than that which flows from the ordinary rule of construction. The question, therefore, is whether the good can be severed from the bad and so survive. Clearly it cannot here be done under the blue pencil rule.
In the new practice since the introduction of brief writing, the same principle of practice has been applied in appeals. A ground of appeal or a point in the appeal may succeed, but if it is not shown to have been substantial or material in the sense that it has occasioned a miscarriage of justice, the appeal will still be dismissed. In the case of His Highness Oba Lamidi Olayiwola Adeyemi & Ors. vs. The Attorney-General of Oyo State & Ors. (1984) 1 SCNLR 525 although the Supreme Court held that the Court of Appeal, Ibadan Division, was in error when it when it held that the Boundary Commissioner appointed under the Local Government and

Community Boundaries Settlement Law is a subordinate Court vested with judicial powers, it still dismissed the appeal when it came to the conclusion that, as an administrative Tribunal, the Commissioner had power to enquire into and determine such boundaries as he might be required by the Governor to do. Despite the unwarranted excursion of the Commissioner into the issue of declaration of title, their Lordships still dismissed the appeal. It appears to me therefore to be the law that where an appellant is able to show just that the Court below committed an error without showing that the error is substantial or material in that it has affected the merits of the case one way or the other, the appeal may still be dismissed. See on this Onojobi vs. Olanipekun (1985) 4 SC (Pt.2) 156, at page 163 (per Obaseki, JSC).
In Adejumo vs. Ayantegbe (1989) 3 NWLR 417 at p.430, dealing with a problem similar to the one that has arisen in this case, I said, and my learned brothers agreed with me:-
But he should know that once the issues for determination have taken full account of the grounds of appeal filed, he ought not to abandon those issues and base his

arguments on the grounds of appeal one by one. Quite apart from the intendment of the Rules that argument in a brief shall be based on the issues, the advantage of this is that whereas a successful argument of a ground of appeal does not necessarily result in the appeal being allowed (for which see Balewa vs. Doherty (1963) 1 WLR 949, at p.960; H.H. Oba Lamidi Olayiwola Adeyemi & Ors. vs. The Attorney-General of Oyo State & Ors. (1984) 1 SCNLR 525, at pp.575 and 605 a resolution of an issue, properly framed, will affect the fortunes of the appeal one way or the other. For an issue, which is usually raised by one or more grounds of appeal, is a question, usually a proposition of law or of fact in dispute between the parties, necessary for determination by the Court, and a determination of which will normally affect the result of the appeal. See Standard Consolidated Dredging and Construction Co. Ltd. vs. Katonecrest Nigeria Ltd. (1986) 5 NWLR (Pt.44) 791, at p.799; Ejowhomu vs. Edok-Eter Mandilas Ltd. (1986) 5 NWLR (Pt.39) 1; Chukwuma Okwudili Ugo vs. Amamchukwu Obiekwe & Anor. (1989) 2 SCNJ 95 a pp.103-104; (1989) 1 NWLR (Pt.99) 566.

In this case, the appellant not only failed to frame any issues, but also he failed to show that his alleged grounds are material or substantial. Besides, it is my view that the decision as to whether or not any relevant grounds of appeal are material or substantial is one which an appellate Court cannot avoid to take before it can intervene. See on this Moulton vs. Graham 22 T.L.R. 380 at page 384. When in this appeal, the appellant failed to allege or show that those unspecified grounds which he complains that the Court of Appeal failed to consider are substantial or material, he is not entitled to any intervention by this Court.
The appellants appeal is also doomed to failure for two other reasons.
In Ugo vs. Obiekwe (1989) 2 SCNJ 95, Nnaemeka-Agu, JSC held at page 103 lines 15 to page 104 lines 1-34 as follows:-
First:- Issues for determination numbers (1), (3), (4) and (6) are based on no grounds of appeal at all or upon grounds 4 and 5 which had already been struck out. This should not be. Counsel will do well to remember that issues for determination must arise from and relate to the grounds of appeal filed, and no more.

Conversely and issue for determination which has no ground of appeal to support it is worse than useless: See on this Osinupebi vs. Saibu & Ors. (1982) 7 SC 104 at pp.110-111; also Western Steel Works Limited & Anor. vs. Iron & Steel Workers Union of Nigeria (1987) 1 NWLR (Pt.49) 284 at page 304.
Secondly:- Counsel did not held himself much by the arrangement he adopted for his statement of issues. A good deal of useful time was wasted during argument when, pressed by the Court, he had to relate his arguments on the various grounds of appeal to the stated issues but have no relationship with the grounds either in form, arrangement or numbering and arrangement whereby statement of facts, issues and argument are easily referable to the grounds of appeal filed.
Thirdly:- Counsel appeared to have worked on the misapprehension that every possible slip raises an issue. The result is that he framed too many issues nine, for six grounds of appeal. This appears to be a reversal of the usual practice whereby one or two or more grounds raise an issue: one ground can never properly raise more than one issue. It must, however, be borne in

mind that an issue in an appeal must be a proposition of law or fact so cogent, weighty and compelling that a decision on it in favour of a party to the appeal will entitled him to the judgment of the Court. This is why apart from the fact that multiplicity of issues tends to reduce most of them to trifles, experience shows that most appeals are won on a few cogent and substantial issues, well framed, researched and presented rather than on numerous trifling slips.
I may here repeat what I said in the case of Standard Consolidated Dredging & Construction Company Limited vs. Katoncrest Nigeria Limited (1986) 5 NWLR (Pt.44) 791 at page 799 where I said:-
The above manner of wording the issues for determination in both briefs raises two necessary questions, namely:- (I) what is the meaning of issues arising for determination in a brief and (II) what are its objects and purpose? As for the meaning of issue I cannot do better than borrow the words of Buckley, L.J., in Howell vs. Daring & Ors. (1915) 1 K.B. 54, at page 62 thus:
The word can be used in more than one sense. It may be said

that every disputed question of fact is in issue. It is in a sense, that is to say, it is in dispute. But every question of fact which is in issue and which a jury has to decide is not necessarily an issue within the meaning of the rule.”
Later he continued:
An issue is that which, if decided in favour of the plaintiff, will in itself give a right to relief, or would, but for some other consideration, in itself give a right to relief; and if decided in favour of the defendant will in itself be a defence.
So it is on an appellate brief, mutatis mutandis. It is not every fact in dispute or indeed every ground of appeal that raises an issue for determination. While sometimes one such fact or ground may raise an issue, more often than not it takes a combination of such facts or grounds to raise an issue. The acid test is whether the legal consequences of that ground or facts as framed by the appellant, if decided in favour of the appellant, will result in a verdict in his favour. For as Lord Diplock put it in Fidelitas Shipping Co. Ltd. vs. V/O Exportchleb (1966) 1 Q.B. 631 at page 642:-<br< p=””>

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But while an issue may thus involve a dispute about facts, a mere dispute about facts divorced from their legal consequences is not an issue.
The issues, as framed, appeared to have served no purpose whatsoever in the appeal. For after framing the nine issues, Counsel went back to argue his grounds of appeal one after another. He made no further reference to the issues framed, in his argument. The proper practice is, of course, that after framing the issues, the statement of facts and the argument to follow should be based on, and be referable to the issues as framed and not to the grounds of appeal. This is the only way whereby Counsel can derive maximum benefit from his brief.
See Adejumo vs. Ayantegbe (1989) 3 NWLR 417 at 430 and Onojobi vs. Olanipekun (1985) 4 SC (Pt.2) 156 at 163.

The issues formulated by the appellants for determination of the appeal are couched in the appellants brief as follows:-
1. Whether or not the learned trial Court can validly base its judgment on facts which was not placed before it by the parties (ground 1).
2. Whether the glaring contradiction in the

testimonies of the plaintiffs witnesses as it relates to the payment of tributes, the root of title of the plaintiffs vendor, Naaba; as well as the wrongful admission of Exhibit 4 (site plan of the land in issue) were not enough to vitiate the plaintiffs claim (grounds 3, 4 and 5).
3. Whether the defendants had sufficiently proved their counter-claim before the trial Court to entitle them to the reliefs being sought therein (ground 2).”

The formulation of issues for determination are governed by the provisions of Order 19 Rules 1-3(1) of the Court of Appeal Rules, 2016:-
19(1) This order shall apply to all appeals coming from any Court or Tribunal from which an appeal lies to this Court.
(2) The appellant shall within forty-five days of the receipt of the record of appeal from the Court below file in the Court a written brief, being a succinct statement of his argument in the appeal.
(3)1 The brief, which may be settled by counsel, shall contain an address or addresses for service and shall contain what are, in the Appellants view, the issues arising in the appeal as well as amended or

additional grounds of appeal.”

The duty of a respondent who did not cross-appeal is to file a brief to answer all the points of substance raised by the appellants in the brief of argument showing why the appeal should be dismissed. This is the purport of the provisions of Order 19 Rule 4(1)-(2) of the Court of Appeal Rules, 2016:-
4(1) The respondent shall also within thirty days of the service of the brief for the appellant on him file the respondent’s brief which shall be duly endorsed with an address or addresses for service.
(2) The respondent’s brief shall answer all material points of substance contained in the appellant’s brief and contain all points raised therein which the respondent wishes to concede as well as reasons why the appeal ought to be dismissed. It shall mutatis mutandis; also conform to Rule 3 (1), (2), (3), (4) and (5) of this Order.

The determination of a dispute by a Court established under the Constitution of the Federal Republic of Nigeria, 1999 as altered that hears oral and documentary evidence and relies on final addresses before putting an end to the dispute or controversy is to be done

within the ninety days stipulated in Section 294(1) of the Constitution and is to be known as a decision. Section 36(1) and 294(1) and 318(1) of the Constitution of the Federal Republic of Nigeria, 1999 as altered reads as follows:-
36(1) In the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a Court or other Tribunal established by law and constituted in such manner as to secure its independence and impartiality.
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294(1) Every Court established under this Constitution shall deliver its decision in writing not later than ninety days after the conclusion of evidence and final addresses and furnish all parties to the cause or matter determined with duly authenticated copies of the decision within seven days of the delivery thereof.”
A decision is defined in Section 318(1) of the Constitution as:-
318(1) In this Constitution, unless it is otherwise expressly provided or the con otherwise requires:-

“Decision” means, in relation to a Court, any determination of that Court and includes judgment, decree, order, conviction, sentence or recommendation.”
Appeal proceedings are conducted in the Court of Appeal under Section 294(2)-(3) of the Constitution as follows:- (2) Each justice of the Supreme Court or of the Court of Appeal shall express and deliver his opinion in writing, or may state in writing that he adopts the opinion of any other justice who delivers a written opinion:
Provided that it shall not be necessary for the justices who heard a cause or matter to be present when judgment is to be delivered and the opinion of a justice may be pronounced or read by any other justice whether or not he was present at the hearing.
(3) A decision of a Court consisting of more than one Judge shall be determined by the opinion of the majority of its members.”
Each justice of the Court of Appeal that participated in the appeal proceedings is at liberty to proffer his reasons for arriving at his opinion; decision or determination or to adopt the opinion, decision or determination of another

by virtue of the provisions of Section 294(2)-(3) of the Constitution. The decision or opinion, etc, of the majority is the determinant factor. A determination must relate to the decision of a Court of justice as is defined in Section 318(1) of the Constitution hence I have the liberty to head the resolution of the dispute a decision, opinion or determination to conform with the intention of the legislature. Determination has been legally defined by the Supreme Court in Deduwa & Ors. vs. Okorodudu & Ors. (1976) 1 NMLR 236 per Alexander C.J.N. at pages 243-244 in the following manner:-
More light is thrown on the meaning of the words decision and determination in the case of the Automatic Telephone and Electric Co. Ltd. vs. The Federal Military Government of the Republic of Nigeria (1968) 1 All NLR 429 where Ademola, CJN in giving the ruling of the Court said at page 432: We have been referred to the Shorter Oxford Dictionary for the meaning of determination. It means a bringing or coming to an end or (the mental

action of coming to a decision, or the resolving of a question).
In Oaten vs. Auty (1919) 2 K.B. 278, Bray, J., at page 284 interprets the word determine as meaning make an end of the matter. In our own experience in this (Supreme Court), we send a matter back to the High Court for a rehearing and determination; the word determination therein meaning ending of the matter.”
The learned authors of Blacks Law Dictionary, 9th edition, page 514 defines determination as follows:-
1. A final decision by a Court or administrative agency (the Courts determination of the issue). (Cases: Administrative Law and Procedure, 489, Federal Civil Procedure, 928).
Initial determination: The first determination made by the Social Security Administration of a persons eligibility for benefits. (Cases: Social Security and Public Welfare..
2. The ending or expiration of an estate or interest in property, or of a right, power, or authority (the easements determination after four years) determine, vb.<br< p=””>

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In Osborns Concise Law Dictionary, 12th edition, page 144 also defines determine as (1) To come to an end; (2) to decide an issue or appeal. In Words and Phrases Legally Defined Vol. 2 (D-H) by John B. Saunders determination and to determine and their legal connotation are defined and supported by judicial reasoning from jurists of renown from Commonwealth countries which ought to guide learned Judges and justices in Nigeria in the administration of law and justice in this century at pages 63-64 as follows:-
It is said that termination and determination do not mean the same thing; that termination means the thing coming to its natural end; determination means coming to what I may call a violent end, that is, an end which was not contemplated as the longest duration, such as coming to an end by an unexpected death. I do not think that this is either the popular or the legal distinction between the two terms. Supposing a term were created of fifty years, determinable at the death of A, would it be legally

inappropriate to say, that such term is determinable either by effluxion of time or by the death of A? And as to the grammatical or popular use of the term it is rather remarkable that, in Todds edition of Johnsons Dictionary, the fourth sense given of the word determination is expiration, end. And the lexicographer adds, Used only by lawyers; as, from and after the determination of the said lease. The word determination may properly, and according to legal as well as to ordinary use, signify the coming to an end in any way whatever. That appears to me to be the honest mode of construing the word. St. Aubyn vs. St. Aubyn (1861), 1 Drew & Sm. 611, per Kindersley, V.-C., at pp. 618, 619
Where, as in this case, the plaintiff has obtained a judgment in his favour, and is in a condition to enforce it by execution, the action, as far as he is concerned, may be properly said to be determined in his favour. Burnaby vs. Earle (1874) L.R. 9 Q.B. 490, per Lush, J., at p.493.
There is a con in

Chapter 3 of the Income Tax Act, 1952, which relates to Appeals and Relief for Mistake and comprises Section 50 to Section 66. Thus, in Section 50(2) there is the phrase ‘An appeal, once determined by the commissioners, shall be final, and neither the determination of the commissioners nor the assessment made thereon shall be altered, except It is plain that there the words determined and determination are equivalent to: decided and decision, and are quite incapable of being understood to mean an assessment or the amount stated in an assessment. Muir vs. Inland Revenue Commissioners, (1966) 3 All E.R. 38, C.A. per Winn, L.J. at p.48.
NEW ZEALAND Article 19 (of a partnership agreement) says: Upon the determination of the partnership the assets of the firm shall be realized The word determination appears to me to be used for termination, and usage shows that they are now used interchangeably. Rushbrook vs. Bridgeman (1910), 29 N.Z.L.R. 1184, per Stout, C.J., at p.1189; also reported 13 G.L.R. 178, at

p.180.
DETERMINE:
I doubt whether it is correct to say that, where, under a settlement, a person, who has a right to appoint an annual sum to one of a number of persons as he may think fit, and duly makes such an appointment, he thereby determines any provision of the settlement. Be that as it may, it is, I think, clear that in the section under consideration (Section 38(1)(a) of the Finance Act, 1938 (repealed; see now Section 38(1)(a) of the Income Tax Act, 1952, as amended by Section 21 of the Finance Act, 1958) the word is used in relation to the determination of a provision in a settlement by virtue or in consequence whereof a sum of money is payable by the settlor or the wife or husband of the settlor: and that the power to determine any other provision of a settlement does not bring it within the provisions of Section 38(1)(a) at all. Assuming, however, that the respondent has power to appoint to himself as an employee of a company of which he is or has been a director, and assuming that by making that appointment he would determine all the provisions of the settlement in favour of the other

possible beneficiaries, the result is that any sum payable by the respondent by virtue of, or in consequence of, the provisions of settlement so determined would be treated as his income. It seems, I think, clear that the words otherwise determine mean the determination of a provision in the settlement whereby a sum of money becomes payable by the settlor, and nothing else. Inland Revenue Commissioners vs. Dan Fitte (1942) 2 All E.R. 500, per Maccnaghten, J., at p.503.
It was argued with ingenuity that an interest cannot determine until it has begun, and that an interest cannot begin until it takes effect in possession, and from these premises the conclusion was adduced that the interests which were to determine must be only and exclusively interests in possession. In my judgment, no such inference can be drawn from the use of the word determine. There is one very good reason. By definition from the terms of the clause itself the interests which are to determine are all the interests of the son or daughter and his or her issue. They all determine uno flatu and at once. Obviously of those interests only one

could be an interest in possession in any event; all the others must ex neccessitate be interests in remainder or reversion. Therefore, if the use of the word determine introduces any ambiguity of the kind suggested, the testatrix had made herself her own dictionary and showed that in her view, at all events, an interest in expectancy can determine. If corroboration of that view be needed, some slight support is to be found in the provisions of the Finance Act, 1894, which contains an exemption from death duties with respect to certain expectant interests. Section 5(3) of that Act provides: In the case of settled property, where the interest of any person under the settlement fails or determines by reason of his death before it becomes an interest in possession, and subsection limitations under the settlement continue to subsist, the property shall not be deemed to pass on his death. There is thus, at all events, statutory authority, if authority be needed, for the view that an interest can be accurately described as determining if it fails while it is yet reversionary in character.

Re Wilsons Will Trusts, Tyron vs. Bromley-Wilson, (1950) 2 All E.R. 955, C.A., per Jenkins, L.J. at p.961.
Where the dispute has not been put to an end, there will be no determination. In Baba vs. Civil Aviation (1991) 6 SCNJ 1, Karibi-Whyte, JSC held at page 25 that:-
The term determination in this con means reaching a decision. Where, as in this case, the body is merely exploring or investigating the facts with no intention or power to decide, there is, in my view, no determination. So, contrary to the submission of learned Counsel for the appellant, the question of fair hearing in terms of Section 33(1) of the Constitution, 1979 did not arise under the Affini Panel.
The practice of not rendering a decision by a Court of justice on the grounds that the time stipulated for doing so has lapsed under Section 294(1) of the Constitution wherein the learned Counsel or the parties are re-called to re-argue the appeal is not provided for in any provision of the Constitution, the Court of Appeal Act, 2004 (As amended) or the Court of Appeal Rules, 2016. See Newswatch Communication Ltd. vs. Atta (2006) All FWLR

(Pt. 318) 580 at 606-609 paragraphs H-A citing Bob-Manuel vs. Briggs (1995) 7 NWLR (Pt.409) 537. The resolution of a dispute in the Court of Appeal is not based on evidence and final addresses but on briefs of argument and the record of appeal hence the ninety days stipulated for rendering an opinion, a decision or determination has been omitted in Section 294(2)-(3) of the Constitution. A violation of the provisions of Section 294(1) of the Constitution remedies in Section 294(5) and (6) of the Constitution:-
294(5) The decision of a Court shall not be set aside or treated as a nullity solely on the ground of non-compliance with the provisions of Subsection (1) of this section unless the Court exercising jurisdiction by way of appeal from or review of that decision is satisfied that the party complaining has suffered a miscarriage of justice by reason thereof.
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(6) As soon as possible after hearing and deciding any case in which it has been determined or observed that there was non-compliance with the provisions of Subsection (1) of this section, the person

presiding at the sitting of the Court shall send a report on the case to the Chairman of the National Judicial Council who shall keep the Council informed of such action as the Council may deem fit.

I do not need to embark on an elaborate summary or analysis of the facts other than the consider issues that may determine the appeal on the merit.

The respondent instituted this suit before the High Court of justice of Nasarawa State by a Writ of Summons and a Statement of Claim on 23rd January, 2004. Paragraphs 1-4 of the Statement of Claim pleaded the following facts:-
1. The plaintiff is a Fulani, Hardo Fulani of Kokona Local Government Area and resides at Garaku in Kokona Local Government Area of Nasarawa State.
2. The defendants are all farmers and reside in Saura in Kokona Local Government Area of Nasarawa State within the jurisdiction of this Honourable Court.
3. The plaintiff states that there lies a varse farmland known as Angwan Kade in Kokona Local Government Area of Nasarawa State which land was until the sale of same to the plaintiff owned by Naba.
4. The plaintiff states that Naba inherited such land from

his father Alou who in turn inherited from Laminga, Laminga was the first person who deforested such land.

The respondent sought the remedies from the Court below as follows:-
a. A declaration that the farmland known as Angwan Kade in Kokona Local Government Area of Nasarawa State does not belong to the defendants but to the plaintiff who is the rightful owner having been granted a good assignment of same from the lawful and legitimate owner and entitled therefore to the Customary Right of Occupancy over such farmland.
b. A declaration that the Keffi Local Government Customary Right of Occupancy No. 614 dated 2-12-96 issued the plaintiff over the said farmland is valid and confers good statutory title on the plaintiff.
c. A declaration that the defendants by their conduct which amounts to a challenge to the plaintiffs title have thereby lost their privilege to remain on such farmland as the plaintiffs tenants and thereby liable to be ejected therefrom.
d. A perpetual injunction restraining the defendants, their agents, servants or privies from the farmland.”

The respondent relies on the Certificate of Occupancy issued by the Keffi Local Government Area of Nasarawa State on 2nd December, 1996. The Land Use Act, 1978 was operational with effect from 29th March, 1978 hence the Keffi Local Government Area or Council is presumed to have issued the document of title over the farmland in dispute under the provisions of Section 6(1)-(2) of the Land Use Act, 1978 to wit:-
6(1) It shall be lawful for a Local Government in respect of land not in an urban area:-
a. to grant customary rights of occupancy to any person or organization for the use of land in the Local Government area for agricultural, residential and other purposes;
b. to grant customary rights of occupancy to any person or organization for the use of land for grazing purposes and such other purposes ancillary to agricultural purposes as may be customary in the Local Government Area concerned;
(2) No single customary right of occupancy shall be granted in respect of an area of land in excess of 500 hectares if granted for agricultural purposes, or 5,000 hectares if granted for grazing purposes, except with the consent of the Military Governor.

A claimant that pleads a customary right of occupancy as a root of title to a disputed piece of farmland has to plead and establish that the grantor of the land that is subsequently covered by a Local Government Certificate of Occupancy comes within the provisions of Section 50(1) of the Act (supra), namely, that the grantor is a person or community lawfully using or occupying land in accordance with the customary law and includes a customary right of occupancy granted by a Local Government under this Act. The pleadings shows Naba as the original owner of the disputed farmland to be the first person who deforested such land. The respondent pleaded the names of Labas ancestors in paragraphs 5-9 as follows:-
5. The plaintiff states that apart from the area known as Angwan Kade which was duly sold to him, his vendor also owns Saura Kiriya and Angwan Mangoro amongst others all collectively called and known as Saura Naba.
6. The plaintiff avers that he purchased for a consideration the area known as Angwan Kade from Naba in 1994 and such sale transaction which took place at Janjala was witnessed

amongst other persons by Alh. Ajawu, Sule Dauda, Janjala and Madaki Gafare Laminga all children of Naba. The sale transaction was reduced to writing in Hausa language. The plaintiff shall at the trial plead and rely on the Hausa version and the English translation of such agreement.
7. The plaintiff states that Angwan Kade which he bought has a total area of about 4.280sq km and shares common boundary with Saura Kiriya, Kodo, Ninkoro and Ajuye. The plaintiff will at the trial lead evidence as to the feature that serves as demarcations between the land and the area which border the land.
8. The plaintiff states that his vendors entire land out of which he was sold a portion called Angwan Kade is bounded as follows: South-Ajuye, West-Gitata village, East-Ninkoro and North-Kodo and states further that the head of his vendors family presently is Alh. Ajawo, upon the death of Naba.
9. The plaintiff state at soon after the purchase, he, caused an application for customary right of occupancy to be filed and as a result the land was duly surveyed and after all the requirements were met he was issued with Keffi Local Government C of O

No. 614 dated 2-12-96. The plaintiff hereby pleads all the processes, including the change of ownership form, the C of O and the site plan attached thereto…

Paragraphs 10-11 of the respondents statement of claim acknowledges the fact that the Keffi Local Government Council issued the Certificate of Occupancy over the farmlands on 2nd December, 1996 over farmlands in Angwan Kade in Kokona Local Government Area of Nasarawa State. Paragraphs 10-15 of the respondents statement of claim pleads the following facts:-
10. The plaintiff states that before the sale of the land, his vendor had some persons who were farming the land on loan paying yearly farm tribute and such persons include the defendants herein.
11. The plaintiff avers that shortly after the sale to him, Ajawo took him before the Sarkin Laminga and there, some of the tenants referred to in paragraph 10 were invited and told of the sale of the farmland called Angwan Kade to the plaintiff. At that meeting which took place on a Sunday the following were in attendance i.e. Maiangwan Maikasuwa Rikichi, Atiku Musa, Sunday Sarkin Noma, Yahanna Maiangwan Biri,

Maikomo Manga, Danboro Baka Hussaini, and their little ones who accompanied them from the church.
12. The plaintiff states that during his introduction as the new owner of the farmland, the defendants and others farming on the land were told to from that moment pay all farm tributes to the plaintiff and there the defendants agreed and pleaded not to be ejected by the plaintiff. The defendants all agreed to pay such tributes through the plaintiffs caretaker Ajawu.
13. The plaintiff states that while assuring all the defendants and any other tenant of continued stay on the farmland, he warned against bringing in new tenants unto the land.
14. The plaintiff states that at the end of that year, the defendants did not pay their tributes as all of them complained of bad yields that year.
15. The plaintiff states that when the defendants failure to pay tribute was repeated the following year, he complained so Sarkin Laminga, who summoned all the defendants to Ajuye and warned them of the consequences of their conduct.”

Paragraphs 10-44 of the Statement of the Amended Defence pleaded the following facts:

10. That in answer to paragraphs 7 and 8 of the claim, whatever documents the plaintiff parade is of no probative value and whatever boundary he claims is speculative because his vendor did not or is not the owner of the defendants lands.
11. The defendants aver that the plaintiffs knowledge of part of their (defendants) land was when his (plaintiffs) father called Maigora as a nomadic herdsmen was allowed by Musa Kuku, 4th defendants father to settle and graze a portion between Saura Kirya (Saura Mada) and Angwan Mangoro for a short period when he (Maigoro) sojourned from Angwan Zaria, present day Akwanga Local Government Area about 15 years ago.
12. The defendants harvest the economic trees, some of which they planted, on their respective lands.
13. The defendants especially the 5th, 7th and 8th aver that sometime in 1986 Maiwada Gimba entered part of the farmland at Angwan Kade and wanted to use economic trees therein claiming to have been given a permit by the Forestry Department of Keffi Local Government but was stopped by the 7th defendant.
14. That by the time Maiwada Gimba, who now claims to be the

plaintiffs caretaker, entered in 1986 he (Maiwada) did not claim through the plaintiffs so-called vendor.
15. That Maiwada Gimba instituted a criminal complaint against 7th defendant at the Chief Magistrate Court, Garaku which went on appeal in Appeal No. NSDK/K1C/07 that ended in the 7th defendants favour. The defendants rely on the judgment in Appeal No. NSDK/K1C/07 and the criminal case No. CMCG/32CR/2006 especially on the issue of the dispute in 1986 between Maiwada Gimba and 7th defendant.
16. That defendants are not aware if Maiwada Gimba collects tributes from Kodo, and it cannot be true.
17. That some of the defendants did not know Naabah.
18. That defendants aver that at the time the plaintiff instituted an action against them at Upper Area Court, Agwada he (plaintiff) claimed that the land he bought is situated near Ninkoro in Kokona Local Government Area and also that the defendants hails from Saura Gwandara, Saura Mada, Angwan Kade and Gidan Maikomo respectively.
19. The defendants aver in answer to paragraph 4 of the claim that neither Alou nor Laminga, as claimed by the plaintiff, deforested

their (defendants) farmlands nor their present settlements.
20. The defendants aver that the original settlements of the Mada, led by Kebuh also called Gede or Chundoh was Chundoh and it was Kebuh that deforested the place before, due to the menace or disturbance of wild animals and the need for virgin (fertile) land, moved to found Angwan Kade.
21. That the word Kade in Angwann Kade is actually from the name Gede, who founded the place and being a hunter contended with the threats of animals.
22. That Kebuh Gede, later moved to Rafin Paa to join Musa Kuku and due to the epidemic popularly called Agana in Hausa Kebuh (Gede) came back to Angwan Kade while Musa Kuku relocated and founded Angwan Mangoro.
23. That after the death of Kebuh (Gede) at Angwan Kade, where he (Kebuh) was buried, his son, Maisambari moved to found Saura Kirya (Saura Mada) partly due to over exploitation or use of the land (soil) at Angwan Kade.
24. That Arokwu Kaura a Gwandara came from Gitata and founded Miyah (the name Miyah in Gwandara meaning forest).
25. That Arokwu Kaura, like Kebuh (Gede), was

a farmer and a hunter, and deforested the forest for his settlement and farming.
26. That Arokwu later moved to found Pambeki, which is now called Angwan Gwandara especially by strangers or visitors.
27. That Arokwu died and was buried at Pambeki many years ago and it was Pambeki that first deforested the place before he was joined by others like Chindo, Arokwu Makama (Chindos brother) and Audi.
28. That Arokwu Kaura left behind some children, who are all dead remaining his grandchildren such as Rabo Ado, Maikasuwa Ambri, Bala Ambri, etc.
29. That both Pambeki (Angwan Gwandara) and Saura Kirya (Saura Mada) share boundary and in fact both Arokwu Kaura and Maisamari being great hunters joined hands to kill the wild animals that disturbed their farming activities.
30. That the Gwandara also in course of their farming activities cleared lands such as Panwasa, near Angwan Kade and Jankanwa, near Saura Kirya, unhindered by any person including the plaintiffs vendor, the ruins which are still visible.
31. That the ruins of Chundoh settlement are still visible, just like Panwasa and Jankanwa.
32. That the history

of the founding of Miyah by Arokwu Kaura and Chundoh by Kebuh is more than 100 years ago.
33. That, in fact, the 4th defendants father who was born and has lived and farmed at Angwan Mangoro is more than 80 years old, just like the 5th, 7th and 10th defendants father (Rikichi) who is alive and over 90 years of age and was born at Angwan Kade.
34. The defendants forebears did not and could not have paid tributes to anybody, including the plaintiffs so-called vendor, or their lands.
35. The defendants and their relations have never paid tributes to anybody, including the plaintiff and his so-called vendor.
36. The 1st, 2nd, 3rd, 15th and 18th defendants are Gwandara from Angwan Gwandara while the 4th, 9th and 12th are from Angwan Mangoro.
37. The 14th and 17th defendants are from Angwan Maikomo while the 5th, 6th, 7th, 8th, 10th, 11th and 16th defendants are from Saura Kirya (Saura Mada). In fact, Maikomo Gimba was put there by the 5th, 7th and 10th defendants father, Rikichi who married his (Maikomos) sister.
38. The 13th defendant who is about 60 years of age moved from Saura Kirya

and now stay in the old settlement of hiss forebears (Angwan Kade).
39. The defendants never went to Ninkoro or thte Abaga Toni, to beg the plaintiff over their (defendants land).
40. The defendants did not have any knowledge nor consented to their lands being surveyed by the plaintiff or any person whatsoever.
41. The defendants deny paragraph 27 of the claim and state that none of them ever paid a fowl or N20.00 to any person and their forebears did not do so.
42. The defendants deny paragraph 31 of the claim as there was no basis for such except to seek lawful means to defend their respective interests when the need arises.
43. The defendants vast land is bounded by Takuma (Rafin Paa) village, Ninkoro village and Kodo village on the East; Angwan Tudu, Kurmin (Tudun Mahanga) on the South; a river, Gidan Bello, Gwanja on the North; a river at Gidan Allah on the West.
44. The defendants shall pray the Court to dismiss the plaintiffs claim as being vexatious and lacking in merit.”

The respondent had to prove that the appellants were the tenants of the vendor for a denial of the title of the

customary landlord by the tenants is a ground for forfeiture. In Iamh & Anor. vs. Freeman Ogbeki & Anor. (1956) WNLR 73 the Court held at page 77:-
With regard to the claim for forfeiture an assertion of ownership of the land by strangers who have been permitted to settle thereon is sufficient misconduct to warrant their eviction although on grounds of convenience as of equity such a right is rarely exercised in practice where there has been long occupation on the part of the grantees: Ometa and another vs. Chief Dore Numa (1929) 9 NLR 46.
I make no order for forfeiture against the Enwan. They must however as a condition of continued occupation desist from making any further claim to ownership of the land.
There will be judgment for the plaintiffs for the declaration in the terms I stated.

The facts pleaded in paragraphs 10-25 of the Statement of Claim shows that each of the counter-claimants are occupying or are in possession of distinct portions of their farmlands which they claim not as the tenants of the respondents vendor but as a right. The respondent ought to have called evidence of any

living person to establish the grounds on which such opinion is based to prove that prior to the purchase of the pieces of farmland the appellants were paying tribute as pleaded but stopped when the respondent purchased same. This is the purport of Section 142 of the Evidence Act, 2011. A claimant who relies on the fact that he or she purchased the land in dispute from a vendor has to plead the fact supported by oral and documentary evidence depending on the nature of the transaction. The Supreme Court has laid down the principles of proving title by purchase of land in Akingbade vs. Elemosho (1964) 1 All NLR 154; Okonkwo vs. Okolo (1988) 5 SCNJ 128 at pages 144-145; Cole vs. Folami (1956) 1 FSC 66; Erinosho vs. Owokorin (1965) NMLR 479; Kayode Okuoja vs. Ishola (1982) 7 SC 314 at 330 and Elias vs. Suleimon (1973) 12 SC 113 at 131. The claimant and counter-claimants called oral and documentary evidence. At the close of hearing, their legal representatives addressed the Court. The learned trial Judge held on 11th February, 2011 at page 178 lines 14 to page 180 lines 1-19 and page 203 lines 1-16 of the printed record as follows:-<br< p=””>

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This case with the Registration Number: NSD/K3/04 was filed on the 23rd of January, 2004. It was filed by counsel to the plaintiff, Ogwuche Okogwu Esq., for Hardo Ibrahim Gambo known as the plaintiff in this case. It was filed against the defendants, Danladi Maiganga and 17 Ors, their names were all supplied as: (1) Danladi Maiganga (2) Sarkin Noma Maiganfa (3) Anku Saura Gwandara (4) Atiku Musa (5) Maikasuwa Rikichi (6) Bala Hussaini (7) Waazi Rikichi (8) Baba Hussaini (9) Iliya Musa (10) Jika Rikichi (11) Sundayj Saikin Noma (12) Baba Bala Sarkin Mada (13) Yohanna Biri (14) Maikomo Biri (15) Rabo Ado Saura (16) Apolo Wanu Saura (17) Maga Goho and (18) Danboro Saura. All of them were sued and jointly and severally. The claims against them jointly and severally are as follows:
1. A declaration that the farmland known as Angwan Kade in Kokona Local Government Area of Nasarawa State does not belong to the defendants but to the plaintiff who is the rightful owner having been granted a good assignment of same from the lawful and legitimate owner and entitled therefore to the Customary Right of Occupancy over such farmland.

2. A declaration that the Keffi Local Government Customary Right of Occupancy No. 614 dated 2-12-96 issued the plaintiff over the said land is valid and confers good statutory title on the plaintiff.
3. A declaration that the defendants by their conduct which amounts to a challenge to the plaintiffs title have thereby lost their privilege to remain on such farmland and as the plaintiffs tenants and thereby liable to be ejected there from.
4. A perpetual injunction restraining the defendants their agents, servants or privies from the land.
This writ of summons together with a thirty-two paragraphed statement of claim were served on the defendants individually and the case was set down for hearing on the 26th day of July, 2004 after hearing an application to set the case down for hearing filed by Ogwuche Akogwu Esq., counsel for the plaintiff. The Nasarawa State Practice Direction No. 1 of (2008) had not come into effect yet. The having could not commence on the 26th July, 2004 as various application were filed by both parties for leave to file out of time. On the 28th October, 2005, the defendants application for leave to file a defence out

of time was heard and granted. The defendants thus filed a joint statement of defence of 35 paragraphs and prayed this Court to dismiss the plaintiffs suit. They also counter claimed the same land:
1. That the Court should declare the pieces of land lying and situate at Sauran Gwandara, Sauran Mada, Angwan Mangoro, Angwan Maikomo and Ungwan Kade as their own. That they are the bona fide owners of this land.
2. That any purported sale of the defendants land or part of it, should be declared by this Court as illegal, null and void.
3. A declaration that the purported C of O No. 614 dated 2-12-96 alleged to have been issued by Keffi Local Government Council or any other documents relating to the defendants land is null and void same having obtained by fraud.
4. That the sum of N5,000,000.00 (Five Million Naira) only be awarded to the defendants as general damages for trespass, inconveniences, shock and damages suffered as a result of the plaintiffs willful and intentional act.
5. A perpetual injunction restraining the plaintiff, his agents, privies, assigns personal representatives or any person who may claim through the

plaintiff from continuing further Acts of trespass on the defendants land.
A summary of the defendants defence as contained in their defence is as follows:
– They denied the averment in the plaintiffs claim paragraph 20 and assorted that they have never paid any tributes to the plaintiff as their master.
– They denied paragraph 25 of the plaintiffs claim. They assorted that they inherited their pieces of land from their parents without let or hindrance.
– That they did not have the knowledge or consented to their lands being surveyed by any body or the authority.
– The 4th 7th defendants specifically denied any point by the plaintiff or his agent.
They therefore put the plaintiff to the strikes proof of his averment. While they will prove their counter claim.
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On the whole the plaintiff has proved case on preponderance. His evidence for out weights that of the defendants. I therefore enter judgment for the plaintiff and grant all his prayers. In his claim however I urged the plaintiff who is now the judgment creditor to temper justice with mercy and may reconsider the issue of ejecting

them from the land since that was not his intention right from the beginning. If they come to plead with him and to show remorse he may allow them stay on the land upon terms and conditions imposed by him. Finally on the issue of the defendants counter claims where only the reliefs were stated, no pleading and no evidence. The basis upon which this Court can consider the counter claim is not there since Court has decided on the same land claimed by the plaintiff based on evidence. This counter claim is hereby dismissed. Signed Hon. justice J. A. Viko (Judge) on the 11-2-10.”
Paragraphs 1-4 of the appellants Counter-claim sought the following remedies against the claimant:-
1. A declaration that the defendants are bonafide owners of the land lying and situate at Saura Gwandara, Saura Mada Angwan Mangoro, Angwan Maikoro, Angwan Kade respectively.
2. A declaration that any purported sale of the defendants land or part of is illegal, null and void.
3. A declaration that the purported alleged C of O No. 614 dated 2-12-96 alleged to have been issue by Keffi Local Government Council or any other document relating to the

defendants land be declared null and as having been obtained by fraud.
4. The sum of N5,000,000.00 (Five Million Naira) only being general damages for trespass, inconveniences, shock and damages suffered as a result of the plaintiff willful and intentional act.”
A Customary right of Occupancy is defined in Section 50(1) of the Land Use Act, 1978 as follows:-
Customary Right of Occupancy means the right of a person or community lawfully using or occupying land in accordance with customary law and includes a customary right of occupancy granted by a Local Government under this Decree.
The word Government and the phrase Urban Area are defined in Section 50(1) of the Act as follows:-
Government means the Government of the Federation or the Government of a State.
Urban Area means such area of the State as may be designated as such by the Military Governor pursuant to Section 3 of this Decree.
The land in dispute is that which the respondent is claiming and the appellants are counter-claiming. See Akintola vs.Solano

(1986) 2 NWLR (Pt.24) 598 at 622.
That being the case, the onus is on the first claimant, namely, the respondent to plead his title and how the appellants came to be in prior occupation or possession of the land as tenants of the claimants vendor whereas there is presumption of ownership and possession in favour of the appellants by virtue of their prior occupation of their individual portions of the land that each occupies. I shall refer to Section 145(1)-(3) and 168(3) of the Evidence Act, 2011 which provides as follows:-
145(1) Whenever it is provided by this Act that the Court may presume a fact, it may either regard such fact as proved unless and until it is disproved, or may call for proof of it.
(2) Whenever it is directed by this Act that the Court shall presume a fact, it shall regard such fact as proved unless and until it is disproved.
(3) When one fact is declared by this Act to be conclusive proof of another, the Court shall, on proof of the one fact, regard the other as proved and shall not allow evidence to be given for the purpose of disproving it.
XXXX
168(3) When a person in possession of any

property is shown to be entitled to the beneficial ownership of it, there is a presumption that every instrument has been executed which it was the legal duty of his trustees to execute in order to perfect his title.”
From the admitted facts in the pleadings of the respondent acts of prior possession or occupation of the land in dispute has been ascribed to the appellants prior to the respondents purchase of the farmland from his alleged Vendor. The appellants pleadings raised the presumption of ownership or of their right of occupation not only of the particular piece or quantity of land with reference to which such acts (are) done, but also of other land so situated or connected with it by locality or similarity that what is true as to the one piece of land is likely to be true of the other piece of land. See Section 35 of the Evidence Act, 2011 (words in bracket are supplied for emphasis). The phrase the other piece of land and the one piece of land employed by the draftsman in Section 35 of the Evidence Act, 2011 is a reference to the land in dispute and the

surrounding lands in the possession or occupation of the claimant/Counter-Claimant that are not in dispute. This is because the land in dispute may be surrounded by other lands or lands not in dispute in the occupation or possession of the claimant or the counter-claimant. In Sanyaolu vs. Coker & Anor. (1983) 3 SC 124 the Supreme Court held at page 163 to 164 per Aniagolu, JSC thus:
A person cannot, obviously, eat his cake and have it. This is simple common sense. And so, one cannot dispute the statement made by Ademola, C.J., Western Nigeria (as he then was), in Ibadan High Court Suit No.I/120/49 cited in Alhaji Raji Oduola and others vs. John Gbadebo Coker and others (1981) 5 SC 197 at page 220, and referred to by the appellant in his brief, in respect of the land claimed in that case by Ibikunle family, namely, that a plaintiff cannot have what he himself says he has given away. A plaintiff who says he has sold his land to a purchaser cannot obviously turn round to claim a declaration of title to the very land he has sold. In Kuma vs. Kuma (1936) WACA 4, Sir Lancelot Sanderson observed in the Privy Council at pages

7-8 as follows:
The learned Judges, however, further held that the defendant and his ancestors had been in occupation of the land in suit for six generations without let or hindrance by the plaintiff or his ancestors, that they have never paid tribute, performed acts of fealty, or given drink to the plaintiff for permission to farm.
Their Lordships are not prepared to accept without qualification the evidence as to the length or continuance of the occupation by the defendant and his predecessors, but even assuming that the defendant and his predecessors have been to some extent in occupation of parts of the land in question, for some considerable time without paying tribute to the plaintiff or his predecessors, such possession in their Lordships opinion is not conclusive evidence of the defendants title.
It is to be noted that the evidence of the plaintiff was to the effect that he followed the practice of his forebears in not extracting tribute from the persons occupying the land; and that he only objected when the defendant tried to dispose of it. This was confirmed by other evidence which went to show that the plaintiff

followed the precedent set by his ancestors, and that the occupiers were allowed to remain on the land as long as they behaved themselves.
There is a wall of difference between possession and ownership. The two concepts are separable. See Uluba & Co. vs. Sillo & Co. (1973) 1 SC 37 where the Supreme Court held at pages 55 to 56:
Under grounds 6 and 7, Chief Williams argued that, it being common ground that the defendants were in possession of the land Okenrenghigho claimed by the plaintiffs, both sides attempted to establish their claim by traditional evidence but that the learned trial Judge preferred that of the plaintiffs even though those in possession should be deemed to be owners and recent acts should be considered in deciding ownership; Kojo vs. Bonsie (1957) 1 WLR 1223 at page 1226, 1227; also Adenle vs. Oyegbade (1964) 1 NLR 26 in which Bonsie was adopted.
We note, however, that Adenle relates entirely to family land and two sections of the same family were in dispute as to portions of it, so that the cases cited are not in pari materia. Chief Williams next argued that Exhibit C cannot operate as an

estoppel since the appellants were neither parties or privies to it. We think that the judgment Exhibit C is admissible and was rightly admitted by the learned trial Judge, to establish acts of possession on the part of the plaintiffs and not to sustain a plea of estoppel or res judicata: See Abadi vs. Catholic Mission (1935) 2 WACA 380, at pp.381 and 383.
Elias, C.J.N. held at pages 63-64 that:
It is now remains for us to consider the objection raised by the appellant to the grant by the lower Court of a declaration of a possessory title to the plaintiffs in respect of the land in dispute. It is worthy of note that the writ of summons speaks of possessory title and that the statement of claim avers that the plaintiffs ancestors exercised maximum rights of ownership and possession over the said land. Also, Counsel for the plaintiffs, in his final address before the trial Court, expressed himself thus:
The radical title is in the Olu of Warri. We claim possessory title. What claim 2 amounts to is mesne profits. The defendants are there with our permission. The Court can declare

that they pay us something yearly. We want injunction to restrain the defendants from collecting rents from the tenants and depriving us of our rights.
In his ruling, the learned trial Judge used the expression acts of ownership ad possession exercised by the plaintiffs and a declaration of possessory title of ownership. It thus seems clear that the use of the expression possessory title in their writ of summons was employed by the plaintiffs either because they had already conceded the radical title to the Olu or because they were really pre-occupied with asserting their claim under customary law to receive the rent or profit therefrom. We are of the view that neither the wording of the relief sought nor the learned trial Judges use of the expression possessory title is apt, and that the declaration should not have been granted in those terms. We think that all the learned trial Judge wanted to grant was a re-affirmation of the ownership and possession of the plaintiffs to the land which he found to have been granted in at least one previous judgment.

We will accordingly dismiss this appeal and affirm the judgment of Obaseki, J., in the High Court, Warri, in Suit No.W/30/1962 delivered on October 3, 1969, except that the declaration will be one for possessory title. We award costs assessed at N125 to the respondents in this appeal. In Ajadi vs. Olarewaju (1969) 1 All NLR 382, the land in dispute was tried by the Ibadan City No.1 Grade A Customary Court wherein the plaintiffs claim was dismissed. The High Court of Western Nigeria allowed the appeal holding at pages 385 to 386 as follows:
Taking the issue of declaration of title, there is overwhelming evidence that Saforitifa Village which is close to the land in dispute belongs to plaintiffs family. There is also evidence by Lajide Dw2 that the land immediately south of the land in dispute was sold by plaintiffs family and that he Dw2 was the principal seller of the land. The land in dispute stands between Saforitifa Village of the plaintiffs family, and the land of the family to he southern border of it which was sold by the plaintiffs family. There is also the accepted fact that Saforitifa Village

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is about 300 yards from the land in dispute and from the plan Exhibit B if forms one continuous land with the land in dispute. The defendants family village of Agbegba is admitted by all to farther from the land in dispute and about 3 miles (an hours walk) from it. In this connection, the provision of Section 45 of the Evidence Act which states that:
Acts of possession and enjoyment of land may be evidence of ownership or of a right of occupancy not only of the particular piece or quantity of land with reference to which such acts are done, but also of other land so situated or connected therewith by locality or similarity that what is true as to the one piece of land is likely to be true of the other piece of land.
It is inconceivable that the plaintiffs family will own Saforitifa Village to the north of the land in dispute and as well as the land immediately below it and not own the land in dispute.
In dismissing the appeal, the Supreme Court held at page 389 as follows:
There is the evidence as to the location of the disputed land and the testimony of the

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plaintiff/respondent that she was not disturbed on the land until 1962 when she herself discovered the three survey pillars inside it. The totality of these pieces of evidence, to our mind, is indicative of possession of the disputed land by the plaintiff/respondent at the material time. Since the defendant/appellant who had no title to it had himself admitted being on the land with a surveyor, apparently without the authority of the plaintiff/respondent, the learned Acting Chief justice was in order in finding him liable in trespass and also in making the order of injunction.
A learned trial Judge seised with the determination of a dispute relating to ownership and possession of land has to examine the relative location or similarity of the piece of land in dispute in the occupation/use by one of the parties with that in occupation or possession by the counter-claimant that is not in dispute to resolve or determine whether the acts of possession and enjoyment of the land in dispute is so similar with that not in dispute after a consideration of their localities for the learned trial Judge to presume or hold that what

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is true as to the one piece of land is likely to be true of the other piece of land.” See Section 35 of the Evidence Act, 2011.
Prior possession or occupation of a disputed piece of land by the claimant or the counter-claimant raises the presumption of ownership. Prior possession and occupation of land is presumed to be 1/10th of the law. See Adesanya vs. Otuewu (1993) 1 SCNJ 77 at 114 and Aromire vs. Awoyemi (1972) 2 SC 1 at page 10. A claimant must first prove his title before the Court can order the counter-claimants in prior possession or occupation to vacate the piece of farmland in dispute. In Ninson vs. Aduwah (1932) 2 WACA 14, the Privy Council per Lord Blanesburgh held at pages 16-17:
The origin of the possession of the lands by the respondent and her family has not so far been dealt with. The fact that they were in possession for many years prior to 1918 was not in issue. But the respondents case on this subject was that many years ago her ancestor Onyina settled at the land in question, which was then forest, and that in course of time it descended to her uncle Kwesi Yamoah who gave it to her. The case for the

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appellant on the other hand was that many years ago his predecessor in title gave to Okomfu Amu, the respondents grandmother, a portion of his family land to cultivate for the purposes of food only, the oil palms being retained by his predecessors: that Yaw Kyei, the appellants immediate predecessor, saw Kofi Towiah, the respondents son, on this land; that subsequently Kofi Towiah claimed the land as his own property; and that the meeting took place with the result already stated.
Now, whether the appellants account of the respondents original possession, or the respondents own account is the correct one, may be doubtful if the substantive evidence in the case alone is regarded. The actual evidence on each side is vague and shadowy. It is, however, true to say that the respondents evidence is the less convincing of the two, and her inability to explain her admission of Yaw Kyeis title, nine years before action, and the peaceful possession by the appellant and his family ever since, facts found against the respondent, supply strong confirmation of the case put forward by him. In other words, this

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plaintiff in ejectment has entirely failed to prove her own title and on that ground alone her action must fail.
The full Court, strangely enough, seem to have accepted the appellants version of the history of the land in question, and gave judgment in favour of the respondent solely it would seem by reason of the admission in evidence as to the respondents possession made on behalf of the appellant as already mentioned. In other words, they seem to have treated the action as an action of trespass by a plaintiff in long possession or, at all events, as one in which this plaintiff had never given up possession, and, instead of recognizing had consistently disputed the appellants or maintained her own title: as, in other words, an action commenced under the conditions of 1918, prior to the meeting of that year and not one under those of 1927. Whether, if the appellants version of the history of the land be accepted, the Court was entitled to decide in favour of the respondent even if she was in possession of the land at the commencement of the action need not concern their Lordships, for at that date she was and for nine years

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had on her own showing been out of possession altogether. In Odahe vs. Okujeni (1973) All NLR 803, Ibekwe, JSC held at pages 809-810 as follows:- We think that a distinction should be drawn between the pleas of estoppel and res judicata. This point was clearly stated by Coussey, J.A., in the judgment of this Court in the case of Basil vs. Honger, 14 WACA 569 at page 572, as follows:-
Estoppel prohibits a party from proving anything which contradicts his previous acts or declarations to the prejudice of a party, who, relying upon them, has altered his position. It shuts the mouth of a party. The plea of res judicata prohibits the Court from enquiring into a mater already adjudicated upon. It ousts the jurisdiction of the Court.
The final complaint is that the learned trial Judge failed to appreciate the fact that the plaintiffs claim against the 1st and 2nd defendants was for trespass, and not a claim for declaration of title by the plaintiff against the 3rd defendant.
This contention is, our view, fallacious. Right from the beginning of this action, the plaintiff by paragraphs 2 and 3 of his State of

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Claim contends that the land in dispute forms part of a larger area belonging to his family (the Imowhe family) and that his family (Imowhe) have exercised maximum acts of ownership and possession over the said land including the land in dispute. In other words, the plaintiff by his own claim seems to have put his title in issue.
Furthermore, the issue of title is implicit in the defence set up by the 2nd defendant who claims that he was put on the land in dispute by the 3rd defendant, whom he described as his overload. When subsequently the 3rd defendant was joined, his defence seemed to have supplied the missing link. From that moment, it is our view, that the issue of title had to be determined, at least, as between the plaintiff and the 3rd defendant, before any reasonable decision could be reached as to whether or not any act of trespass was committed.
This Court has held, that where there is dispute as to land, and the real issue is one of title, then the title must be proved. See Nelson vs. Ammah, 6 WACA 134.
The claim of the 2nd defendant in this case, normally stands or falls by the 3rd defendants claim.

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In our view, this complaint is not tenable. In the circumstances, the appeal fails and it is hereby dismissed.
See Ajani vs. Ladepo (1986) 3 NWLR (Pt.28) 276.
Section 143 of the Evidence Act, 2011 provides as follows:-
143. When the question is whether any person is owner of anything of which he is shown to be in possession, the burden of proving that he is not the owner is on the person who affirms that he is not the owner.”
Having conceded in the Statement of Claim that the appellants were in prior possession or occupation of the farmland though as the tenants of the respondents vendor, which assertion the appellants denied and counter-claimed as the owners in prior possession of the piece of farmland in dispute, the burden of proof rested on the respondent/claimant as provided in Section 138 of the Evidence Act, 2011 to wit:
138(1) The burden of proving any fact necessary to be proved in order:-
(a) To enable a person to adduce evidence of some other fact; or
(b) To prevent the opposite party from adducing evidence of some other fact, lies on the person who wishes to adduce, or to prevent

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the adduction of such evidence, respectively.
(2) The existence or non-existence of facts relating to the admissibility of evidence under this section is to be determined by the Court.
The respondent as the claimant had the burden of proving how the appellants in possession or occupation of the land in dispute were not the owners but tenants of the Vendor as provided in Section 142 of the Evidence Act, 2011 to wit:-
142. When the question is whether persons are partners, landlord and tenant, or principal and agent, and it has been shown that they have been acting as such, the burden of proving that they do not stand, or have ceased to stand to each other in those relationships respectively, is on the person who affirms it.”
The onus on the respondent which had not been discharged in the Court below was to plead and show how prior to his purchase of the piece of farmland his vendor had been occupying the land through tenants but since the sale of the piece of farmland by the vendor to the respondent they do not stand or have ceased to stand to each other in those relationships respectively. The

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burden of proof is on the person who affirms it namely, the respondent/claimant who now pleads that they are by the purchase of the land have become successors and hence the landlord of the appellants. See Section 142 of the Evidence Act, 2011.

The locality and similarity of the land in dispute in the occupation of a party when compared with that not in dispute coupled with the acts done on both is the determinant factor in interpreting the provisions of Section 35 of the Evidence Act, 2011. Locality is defined at page 1022 of the Blacks Law Dictionary (supra), 1. A definite region; vicinity; neighborhood; community Similarity is defined at page 1509 as follows:
Similarity:- Intellectual property. The resemblance of one trademark or copyright work to another. How closely a trademark must resemble another to amount to infringement depends on the nature of the product and how much care the typical buyer would be expected to take in making the selection in that particular market. It is a question of overall impression rather than an

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element-by-election comparison of the two marks. Also termed imitation; colorable imitation. Cf. SUBSTANTIAL SIMILARITY. (Cases: Trademarks, 1095):
It is the buyer who uses ordinary caution in making his purchase, who is buying with the care usually exercised in such transactions, who must be deceived by this similarity. He who buys a box of candy does not use as much care as he who buys a watch. He who buys a handkerchief does not usually examine the goods offered him as carefully as he who buys a suit of clothes. Harry D. Nims, The Law of Unfair Competition and Trade-Marks, 836 (1929).

A person who claims land as the owner has to adduce evidence how the vendor or grantor became the first title holder, example, the first to have deforested such land (See paragraph 4 of the Statement of Claim). The claimant has to plead how the land devolved by inheritance to the vendor or seller. A party in litigation who pleads that his ancestor was the first to deforest the farmlands in dispute is pleading what in Roman Law is equivalent to bona vacantia.

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The learned authors of Blacks Law Dictionary, 9th edition define bona vacantia at page 199 as follows:-
Bona Vacantia:- (Latin vacant goods). 1. Property not disposed of by a decedents will and to which no relative is entitled under intestacy laws. See ESCHEAT. 2. Ownerless property; goods without an owner. Bona vacantia often resulted when a deceased person died without an heir willing and able to make a claim. The property either belonged to the finder or escheated to the Crown. Sometimes shortened to vacantia. Also termed vacantia bona.
In other words, the farmlands were without an owner. Therefore if a counter-claimant disputes the claimants assertion that the property has an owner and is able to adduce evidence showing either acts of prior possession or ownership the claimant has the onus of showing how and why the farmlands had a prior owner at the time the farmland was deforested by the person claiming to be the owner whereas the acts of user shows the counter-claimants are in prior occupation of the farmlands. In Anyanwu vs. Mbara (1992) 6 SCNJ (Pt.1) 22 the Supreme Court held at page 31:-

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The first question is whether the plaintiff based his case on tradition. I would have agreed with the learned Counsel for the appellant that if the plaintiffs case rested on tradition, it was insufficiently pleaded. Pleading in paragraphs 5 and 6 of the statement of claim that the plaintiff and his predecessor-in-title had owned and possessed the land in dispute from time immemorial is not a sufficient pleading of tradition. In this regard the plaintiff was bound, if he relied on tradition, to have pleaded who founded the land, how he founded it and the particulars of the intervening owners through whom he claims: see on this Akinloye & Anor. vs. Bello Eyiyiola & Ors. (1968) NMLR 92; Adejumo vs. Ayantegbe (1989) 3 NWLR (Pt.10) 417; Olujinle vs. Adeagbo (1988) 2 NWLR (Pt.75) 238. There was, therefore, no proper pleading of tradition and so evidence of deforestation, not having been pleaded, went to no issue. What we are faced with in this case is, therefore, not the result of failure to prove tradition relied upon by the plaintiff; he did not rely on any tradition. So, the case cited on failure to prove tradition when pleaded are not in point.

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Recognizing the fact that there are five ways of proving title (for which see Idundun vs. Okumagba (1976) 9-10 SC 227 and Atanda vs. Ajani (1989) 3 NWLR (Pt. III) 511), the only question is whether the plaintiff proved acts of possession and ownership and/or ownership of contiguous lands which he relied upon. The Court limited itself to the two grounds duly pleaded by the plaintiff.
In Balogun vs. Akanji (2005) All FWLR (Pt.262) 405, the Supreme Court held at page 419 paragraphs B to page 421 paragraphs A-H per Oguntade, JSC as follows:-
Now in Idundun vs. Okumagba (1976) 9/10 SC 227, this Court per Fatayi-Williams, JSC (as he then was) stated the five methods by which ownership of land may be established under the Nigerian jurisprudence. The methods are:
1. Traditional evidence
2. Production of documents of title which are duly authenticated.
3. Acts of selling, leasing, renting out all or part of the land or farming on it or on a portion of it.
4. Acts of long possession and enjoyment of the land and
5. Proof of possession of connected or adjacent land in

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circumstances rendering it probable that the owner of such connected or adjacent land would, in addition, be the owner of the land in dispute.
In Kojo II vs. Bonsie & Anor. (1957) 1 WLR 1223 at 1226, their Lordships of the Privy Council said concerning traditional history in these words: –
The dispute was all as to the traditional history which had been handed down by word of mouth from their forefathers. In this regard, it must be recognized that in the course of transmission from generation to generation, mistakes may occur without any dishonest motives whatever. Witnesses of the utmost veracity may speak honestly but erroneously as to what took place a hundred or more years ago. Where there is a conflict of traditional history, one side or the other must be mistaken, yet both may be honest in their belief. In such a case, demeanour is little guide to the truth. The best way is to test the traditional history by reference to the facts in recent years as established by evidence and seeing which of two competing histories is more probable.
The above passage offers a useful guideline when a Court is evaluating the evidence as

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to which of the versions of the evidence on two conflicting histories is the more probable in a case for declaration of title where both parties have pleaded traditional history as their sources of title. The passage is not of any assistance in a case where a plaintiff relies on acts of ownership spanning several years as his root of title. Indeed, a plaintiff who relies on acts of ownership spanning several years as his root of title is in fact saying or confessing that he does not know the historical origin of his title but that his family has openly and without resistance from anybody been exercising dominion as the owner of the land for several years. The Court may infer from such evidence that even if the plaintiff has not shown the origin of his title, he may be accepted as the owner from such acts of open and unchallenged ownership. See Ekpo vs. Ita II NLR 68. This approach is in line with the third method recognized by this Court in Idundun vs. Okumagba (supra). In expatriating on this method Fatayi-Williams, JSC (as he then was) said: –
Thirdly, acts of the person (or persons) claiming the land such as selling, leasing or renting out all

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or part of the land or farming on it or on a portion of it, are also evidence of ownership. Provided the acts extend over a sufficient length of time and are numerous and positive enough as to warrant the inference that the person is the true owner (See Ekpo vs. Ita 11 NLR 68).
It is to be borne in mind that proofs of title by evidence of traditional history and acts of ownership are separate and parallel. One is also to be distinguished from the other. Whilst the evidence in proof of either in a claim for declaration of title may overlap, the recognition of each as different to the other helps to remove the error and confusion to which parties and Counsel alike are prone. A plaintiff may by his statement of claim rely solely for the title he asserts in a claim for declaration of title on traditional history. On the other hand, since it is permissible to plead in the alternative, he may rely on both methods i.e. traditional history and acts of ownership. Where he fails on the former, he may well succeed on the later because in their nature both are different.
In Balogun vs. Akanji (1988) All NLR 188 at 211-212, this Court per Oputa, JSC

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observed: –
One final word on Ekpo vs. Ita (supra). Anyone who pleads acts of possession as his root of title is really relying on the presumption that possession is 9/10 of the law and that he who is in possession is presumed by Section 145 of the Evidence Act Cap. 62 of 1958 to be the owner and that the onus of proving that he is not the owner is on the person who affirms that he is not the owner. Looked at logically and critically a person pleading acts of possession as his roof of title is simply saying I do not know how I got the land. All I know is that I have been in possession and have exercised various positive acts of possession. Now you prove that I am not the owner. Put in this way it is easier to appreciate that acts of possession will not arise where the root of title is known, and pleaded and prove. In such a case title will be awarded on the strength of the title pleaded and proved. It is only where and when traditional evidence is inconclusive that the Court will be obliged to look at the acts of possession of the parties and therefrom determine on whose side the presumption in Section 145 of the Evidence Act

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will operate.
Onus of Proof
A careful consideration of the authorities and decided cases amply show that there is no onus on a plaintiff who claims title by traditional evidence and who successfully establishes his title by such evidence to prove further acts of ownership numerous and positive enough to lead to the inference that he is the exclusive owner. When a plaintiff has proved his title directly by traditional evidence there will be no need again for an inference to establish that which had been already directly proved. Acts of ownership become material only where the traditional evidence is inconclusive. In the case on appeal where the trial Court held that the traditional evidence led was conclusive, there was no need whatsoever to require further proof. That will be increasing unnecessarily the burden of proof on the plaintiffs. That will be wrong. Cases like Ekpo vs. Ita (supra) or Kojo vs. Bonsie (1957) 1 WLR 1223; deal with cases where there is a conflict of traditional history. In such cases, the best way is to test the traditional history by reference to the facts in recent years as established by evidence and by seeing which of the two

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competing histories is more probable. Such a situation did not arise in this case since the trial Court was satisfied with the plaintiffs traditional evidence but not with that of the defendants.
In the same case Uwais, JSC (as he then was) said at page 204: –
As my learned brother has rightly referred to, traditional evidence is certainly one of the 5 ways by which title to land can be established. (See Idundun vs. Okumagba (1976) 9 and 10 SC 227). The principle established in Ekpo vs. Ita 11 NLR 68 (that is exclusive possession and acts of possession for so long that an inference can be drawn that one is the owner) is indeed a different and separate method of establishing title. Of course if the evidence of tradition led by both sides is inconclusive, then the Court will have recourse to recent acts of possession and ownership. See Kojo vs. Bonsie (1957) 1 WLR 1223.
See Obioha vs. Duru (1994) 8 NWLR (Pt.365) 631; Ohiaeri vs. Akabeze (1992) 2 SCNJ (Pt.1) 76 and Piaro vs. Tenalo (1976) 1 FNLR 229 at page 234.
A claimant to a disputed piece of land has to prove how he first acquired the status of an heir

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from the original owner before the issue of inheritance arose. This was the decision of the Supreme Court in Chinweze vs. Masi (1989) All NLR 1 at page 13: –
A mans family normally consists of the man, his wife or wives and the children born to him by such wife or wives. I have on purpose used the expression wife or wives because we have here in Nigeria two types of marriages recognized by law (a) Marriage under the marriage Act or Ordinance. This is a monogamous system of marriage and (b) Marriage by Customary Law. This is a polygamous system. In this case, the pleadings are completely silent on the type of marriage Peter Chinweze contracted with Elizabeth Chinweze. But whatever the system of marriage the undisputed fact is that the appellants were born after the death of Peter Chinweze. They were therefore not his natural sons for it is contrary to the course of nature for a dead man to produce children. They were not his adopted or acknowledged children and thus legitimized under the rule in decisions like Alake vs. Pratt 15 WACA 20: Bamgboye vs. Daniel 14 WACA 116. The appellants were not even claiming through Peter

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Chinweze.
The appellants were claiming as children born by the Undisputed wife of Peter Chinweze a wife living in the matrimonial home. Their argument then is that as such children, they formed part of late Peter Chinwezes family and could inherit part of the family property. There is a lacuna and a fallacy in the above argument. The appellants will first acquire the status of heirs before they can talk of inheriting. They have not claimed to be Peter Chinwezes heirs. Their claim as pleaded was predicated on the fact that they were beneficiaries of the Estate of Mrs. Elizabeth Chinweze deceased.
The vendor had to show how he became an heir to the first person who deforested the land in dispute and settled within for the vendor to sell, grant or transfer a valid title by purchase to the respondent as an heir of the property in dispute. Before a Local Government Council issues a Local Government Certificate of Occupancy to a claimant, there has to be compliance with the provisions of Section 50(1) of the Land Use Act, 1978 by the grantee/claimant showing that the vendor or assignor of the land is

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a person or communitylawfully using or occupying land in accordance with customary law and this includes a customary right of occupancy granted by a Local Government under this Act as defined in Section 50(1) and read together with Section 6(1)-(3) of the Land Use Act, 1978 to wit:-
6(1) It shall be lawful for a Local Government in respect of land not in an urban area:-
a. to grant customary rights of occupancy to any person or organization for the use of land in the Local Government area for agricultural, residential and other purposes;
b. to grant customary rights of occupancy to any person or organization for the use of land for grazing purposes and such other purposes ancillary to agricultural purposes as may be customary in the Local Government Area concerned;
(2) No single customary right of occupancy shall be granted in respect of an area of land in excess of 500 hectares if granted for agricultural purposes, or 5,000 hectares if granted for grazing purposes, except with the consent of the Military Governor.
(3) It shall be lawful for a Local Government to enter upon, use and occupy for

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public purposes any land within the area of its jurisdiction which is not:-
a. land within an area declared to be an urban area pursuant to Section 3 of this Decree;
b. the subject of a statutory right of occupancy;
c. within any area compulsorily acquired by the Government of the Federation or of the State concerned;
d. the subject of any laws relating to minerals or mineral oils, and for the purpose to revoke any customary right of occupancy on any such land.
The respondent pleaded how he had bought the piece of farmland in paragraphs 3-31 of the Statement of Claim without pleading under what customary law was applicable in the locality of Angwan Kade in Kokona Local Government Area governed the transaction and why the Certificate of Occupancy was issued by Keffi Local Government Council on 2nd December, 1996 but not Kokona Local Government Council where the farmlands are situate. Laminga the first person to deforest the land is pleaded to be the owner. There is a wall of difference between pleading a custom or customs and pleading Customary law.

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Custom and customary law are defined in Blacks Law Dictionary, 9th edition, pages 442 and 443: –
Custom: – 1. A practice that by its common adoption and long, unvarying habit has come to have the force of law. See USAGE.
Customary Law: – Law consisting of customs that are accepted as legal requirements or obligatory rules of conduct; practices and beliefs that are so vital and intrinsic a part of a social and economic system that they are treated as if they were laws. Also termed consuetudinary law. In contrast with the statute, customary law may be said to exemplify implicit law. Let us, therefore, describe customary law in terms that will reveal to the maximum this quality of implicitness. A custom is not declared or enacted, but grows or develops through time. The date when it first came into full effect can usually be assigned only within broad limits. Though we may be able to describe in general the class of persons among whom the custom has come to prevail as a standard of conduct, it has no definite author, there is no person or defined human agency we can praise or blame for its being good or

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bad. There is no authoritative verbal declaration of the terms of the custom; it expresses itself not in a succession of words, but in a course of conduct. Lon L. Fuller, Anatomy of the Law, 71 (1968).
Customary law is defined in Alfa vs. Arepo (1963) WNLR 95 per Duffus, J., at page 97 to 98 as follows: –
In Cokers book on Family Property Among the Yoruba at page 302, the author states in his chapter dealing with General Comments on Family Property:-
Primarily, it is necessary to bear in mind that the native law and custom of the Yorubas constitute their own common law;
and in Lloyds book on Yoruba Land Law in an interesting discussion on customary law the author on page 17 states:-
Customary law is the ancient law the law which has always been observed; its supposed antiquity is the basis for its authority.
Customary law may be defined as the unwritten law or rules which are recognized and applied by the community as governing its transactions and code of behaviour in any particular matter. This law is unwritten and I agree with the above

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passage from Lloyds book that it owes its authority to the fact that the custom has been established from ancient days. Customary law is not, however, a static law and, in my view, the law can and does change with the times and the rapid development of social and economic conditions.
Chief Williams argument is that writing is unknown to customary law. This may have been so in the ancient times, but I cannot agree that this still applies to customary document whether it being a receipt or an agreement or whatever form it might take, will now be the rule rather than the exception. In this respect though I would refer to the judgment of Jibowu acting F.C.J., in the case of Cole vs. Folami, 1 FSC 66 at page 68, where in dealing with the question of sale under native law and custom, the learned Chief justice stated:-
It is to be observed that the making and giving of receipts are unknown to native law, and that the giving of the receipt Exhibit J is not within the rule of native law and custom.
In that case though the Court was dealing with the validity of a sale of land under native law and custom,

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they did not find that the receipt would not be given in evidence or that the mere fact that a receipt was being issued meant that the sale is not one governed by customary law.
The point that arises here is this: – Have the parties in this case by reducing their agreement into writing gone outside the limit of customary law and shown an intention not to be bound by the customary law applicable to their case?
I would refer here to the judgment of Charles, J., in the unreported case of Babajide vs. Bankole (AB/8A/60 of the 25th October, 1962). In that case, the plaintiff had taken possession of a motor vehicle from the defendant under a written agreement for sale by way of hire purchase and the basis of his claim was that, the defendant had wrongly retaken possession of the vehicle. Charles, J., held that the application of customary law was incompatible with the written law. He stated:-
As a result the application of customary law was incompatible with written law.
It was incompatible because the nature of the transaction should be that the parties intended it to be governed otherwise than by customary law and

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Section 12(3)of the High Court Law Cap.44 of the Laws of Western Nigeria, 1959 precluded the High Court, and Section 32(3) of the Magistrates Court Law, Cap.74 of the Laws of Western Nigeria, 1959 precluded a Magistrates Court, from applying customary law to the transaction. It was also incompatible because the agreement purported to give the defendant a security over the motor vehicle for the payment of installments of the purchase money and the validity and enforceability of the agreement in that respect was governed by the English Bills of Sales Legislation, as applied by the Nigerian Bills of Sales Ordinance, 1948, which manifestly was intended to be of general application within the areas in which it applied. As that Ordinance is not one which customary Courts have jurisdiction to administer, those matters could only be raised under it in a Court administering the general law.
It follows from the foregoing, in my judgment, that the Court below had no jurisdiction to determine this claim and its judgment was a nullity.
Learned Counsel for the appellant agrees that writing may be used as evidence in a customary Court of a transaction

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under customary law but he submits that that is not the case here as the written agreement is something substituted for the customary transaction and further that the claim itself is based on the contract which is set out in the written agreement and is not an agreement under customary law.
I agree with Charles, J., that customary Courts have no jurisdiction where the matter is one clearly not known to customary law but governed by statute law; in the case before him, it was the Bills of Sales Ordinance, where the interpretation of the contract had to be done in accordance with the provisions of that Ordinance. In this case though the transaction between the parties is one known to and governed by customary law but the parties have entered into a written agreement by which they intend to be bound.
In Zaidan vs. Mohssen (1973) 11 SC 1 Elias, C.J.N. defined customary law at page 21:-
It follows, therefore, that, having regards to our own built-in rules in Section 20 of the Customary Courts Law governing the choice of law in the application of the lex situs to the succession to the intestate estate of a deceased

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person in Warri, the applicable law is not the Administration of Estate Law (Cap.1), but the (Moslem) Customary Law of Lebanon which is the one binding between the parties (Section 20(3)(a)(i) of the Customary Courts Law). We are of the view that, in this con, customary law is any system of law not being the common law and not being a law enacted by any competent legislature in Nigeria but which is enforceable and binding within Nigeria as between the parties subject to its sway. We are also of the view that anyone subject to any such law is excluded from the operation of Section 49 of the Administration of Estates Law (Cap.1) of Western Nigeria, 1959 applicable in the Mid-Western State of Nigeria.
For the foregoing reasons, the appeal fails and it is hereby dismissed.
See Ohai vs. Akpoemonye (1999) 1 SC 96.
Section 258(1) of the Evidence Act, 2011 defines custom as:
Customs means a rule which, in a particular district, has, from long usage, obtained the force of law.
Section 258(1) of the Evidence Act, 2011 defines Custom to mean a rule which, in a particular district,

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has, from long usage, obtained the force of law. But what Section 41 of the Land Use Act, 1978 enjoins the Court to apply in the determination of dispute is customary law not custom. See Section 41 of the Land Use Act, 1978. Any State that has established a Customary Court of Appeal in that State is to employ or invoke the provisions of a Customary Law as prescribed by the State House of Assembly in the exercise of appellate and supervisory jurisdiction under Section 282(1)-(2) and 283-284 of the Constitution of the Federal Republic of Nigeria, 1999 as altered:-
282(1) A Customary Court of Appeal of a State shall exercise appellate and supervisory jurisdiction in civil proceedings involve questions of Customary law.
(2) For the purpose of this section, a Customary Court of Appeal of a State shall exercise such jurisdiction and decide such questions as may be prescribed by the House of Assembly of the State for which it is established.
The jurisdiction of the Court of Appeal is also provided under Section 245(1)-(2)(a)-(b) of the Constitution:-
245(1) An appeal shall lie from decisions

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of a customary Court of Appeal to the Court of Appeal as of right in any civil proceedings before the customary Court of Appeal with respect to any question of Customary law and such other matters as may be prescribed by an Act of the National Assembly.
(2) Any right of appeal to the Court of Appeal from the decisions of a Customary Court of Appeal conferred by this section shall be –
(a) exercisable at the instance of a party thereto or, with the leave of the Customary Court of Appeal or of the Court of Appeal, at the instance of any other person having an interest in the matter;
(b) exercised in accordance with any Act of the National Assembly and rules of Court for the time being in force regulating the powers, practice and procedure of the Court of Appeal.
Where the State House of Assembly has not prescribed such questions of customary law a Customary or an Area Court or a Customary Court of the State has no jurisdiction to hear and determine a dispute involving questions of customary law to govern a transaction. The National Assembly has to enact an Act on such other matter as may be prescribed by an

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Act of the National Assembly to confer jurisdiction on the Court of Appeal. Sections 245(1)-(2)(a)-(b) and 282(1)-(2) of the Constitution are to be read together with Section 240 of the Constitution to arrive at the intention of the National Assembly. The provisions read:-
240. Subject to the provisions of this Constitution, the Court of Appeal shall have jurisdiction to the exclusion of any other Court of law in Nigeria, to hear and determine appeals from the Federal High Court, the High Court of the Federation Capital Territory, Abuja, High Court of a state, Sharia Court of Appeal of the Federal Capital Territory, Abuja, Sharia Court of Appeal of a State, Customary Court of Appeal of a state and from decisions of a Court martial or other Tribunals as may be prescribed by an Act of the National Assembly.
Similar provisions are not provided in Sections 232-236 of the Constitution in respect of the Supreme Court. They provide as follows:-
232(1) The Supreme Court shall, to the exclusion of any other Court, have original jurisdiction in any dispute between the Federation and a state or between states if and in so far as

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that dispute involves any question (whether of law or fact) on which the existence or extent of a legal right depends.
(2) In addition to the jurisdiction conferred upon it by Subsection (1) of this section, the Supreme Court shall have such original jurisdiction as may be conferred upon it by any Act of the National Assembly.
Provided that no original jurisdiction shall be conferred upon the Supreme Court with respect to any criminal matter.
233(1) The Supreme Court shall have jurisdiction, to the exclusion of any other Court of law in Nigeria, to hear and determine appeals from the Court of Appeal.
(2) An appeal shall lie form decisions of the Court of Appeal to the Supreme Court as of right in the following cases –
(a) where the ground of appeal involves questions of law alone, decisions in any civil or criminal proceedings before the Court of Appeal;
(b) decisions in any civil or criminal proceedings on questions as to the interpretation or application of this constitution,
(c) decisions in any civil or criminal proceedings on questions as to whether any of the provisions of Chapter IV of this Constitution has been, is

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being or is likely to be, contravened in relation to any person;
(d) decisions in any criminal proceedings in which any person has been sentenced to death by the Court of Appeal or in which the Court of Appeal has affirmed a sentence of death imposed by any other Court;
(e) decisions on any question –
(i) whether any person has been validly elected to the office of President or Vice-President under this Constitution,
(ii) whether the term of office of office of President or Vice-President has ceased,
(iii) whether the office of President or Vice-President has become vacant; and
(iv) such other cases as may be an Act of the National Assembly.
(3) Subject to the provisions of Subsection (2) of this section, an appeal shall lie from the decisions of the Court of Appeal to the Supreme Court with the leave of the Court of Appeal or the Supreme Court.
(4) The Supreme Court may dispose of any application for leave to appeal from any decision of the Court Appeal in respect of any civil or criminal proceedings in the record of the proceedings if the Supreme Court is of opinion that the interests of justice do not require an oral

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hearing of the application.
(5) Any right of appeal to the supreme Court from the decisions of the Court of Appeal conferred by this section shall be exercisable in the Case of civil proceedings at the instance of a party thereto, or with the leave of the Court of Appeal or the Supreme Court at the instance of an person having an interest in the matter, and in the case of criminal proceedings at the instance of an accused person, or subject to the provisions of this Constitution and any powers conferred upon the Attorney-General of the Federation or the Attorney-General of a state to take over and continue or to discontinue such proceedings, at the instance of such other authorities or persons as may be prescribed.
(6) Any right of appeal to the Supreme Court form the decisions of the Court of Appeal conferred by this section shall, subject to Section 236 of this Constitution, be exercised in accordance with any Act of the National Assembly and rules of Court for the time being in force regulating the powers, practice and procedure of the Supreme Court.
234. For the purpose of exercising any jurisdiction conferred upon it by this

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Constitution or any Law, the Supreme Court shall be duly constituted if it consists of not less than five justices of the Supreme Court:
Provided that where the Supreme Court is sitting to consider an appeal brought under 233(2)(b) or (c) of this Constitution, or to exercise its original jurisdiction in accordance with Section 232 of this Constitution, the Court shall be constituted by seven justices.
235. Without prejudice to the powers of the President or of the Governor of a state with respect to prerogative of mercy, no appeal shall lie to any other body or person from any determination of the Supreme Court.
236. Subject to the provisions of any Act of the National Assembly, the Chief justice of Nigeria may make rules for regulating the practice and procedure of the Supreme Court.
In Maxwell On The Interpretation of Statutes, 12th edition by P.St. J. Langan 33 the author summed up the position in law to be as follows:
It is a corollary to the general rule of literal construction that nothing is to be added to or taken from a statute unless there are adequate grounds to justify the inference that the

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legislature intended something which it omitted to express. Lord Mersey said: It is a strong thing to read into an Act of Parliament words which are not there, and in the absence of clear necessity it is a wrong thing to do. We are not entitled, said Lord Lorebun, L.C., to read words into an Act of Parliament unless clear reason for it is to be found within the four corners of the Act itself. A case not provided for in a statute is not to be dealt with merely because there seems no good reason why it should have been omitted, and the omission appears in consequence to have been unintentional.
In Udoh vs. Orthopaedic Hospitals Management Board(1993) 7 SCNJ (Pt.2) 436 Karibi-Whyte, JSC held at page 443 as follows:
It is a well settled principle of construction of statutes that where a section names specific things among many other possible alternatives, the intention is that those not named are not intended. Expressio unius est exclusio alterius. See A-G. of Bendel State Vs Aideyan (1989) 4 NWLR. (Pt.118) 46. This is that the express mention of one thing in a statutory provision automatically

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excludes any other which otherwise would have applied by implication, with regard to the same issue see Ogbunyiya Vs Okudo (1979) 6 SC 32; Military Governor of Ondo State Vs Adewunmi (1988) 3 NWLR (Pt. 82) 280.
The Constitution intends the Courts should in the determination of disputes or controversies should be questions of customary law the absence of a customary law prescribed by a State House of Assembly or the National Assembly will oust the jurisdiction of a Customary Court or its equivalent under Section 41 of the Land Use Act, 1978.
The jurisdiction of the Customary Court of Appeal in a State will for the same reason be ousted under the provisions of Section 282(1)-(2) of the Constitution. The jurisdiction of the Court of Appeal will be ousted if the issues or questions in controversy are to be resolved by Customary law which is not prescribed by the National Assembly under Section 245(1), (2)(a)-(b) of the Constitution of the Federal Republic of Nigeria, 1999 as altered with effect from when the Constitution came into effect on 29th May, 1999. The only body or authority that can prescribe questions of customary law in

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Nigeria is either the State House of Assembly or the National Assembly under Section 282(1)-(2) or 245(1)-(2)(a)-(b) of the Constitution.
The Supreme Court and the Court of Appeal may have to examine the provisions of Section 232-236 of the Constitution of the Federal Republic of Nigeria, 1999 as altered with effect from 29th May, 1999 to see whether the Court has the jurisdiction to entertain appeals involving questions of customs that neither a State House of Assembly nor the National Assembly has prescribed in an Act or any law or an enactment in view of the provisions of Sections 240, 245(2)(a)-(b) and 282(1)-(2) of the Constitution in the absence of similar provisions in Sections 232-236 of the Constitution.
Customary law and Custom being questions of fact, have to be pleaded and proved at the trial where determination of the dispute is before a Court whose proceedings are governed by pleadings but certainly not in an Upper Area Court that determines land disputes under Section 41 of the Land Use Act, 1978 since the Act came into effect on 29th March, 1978. The provisions provides as

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follows:-
41. An Area Court or Customary Court or other Court of equivalent jurisdiction in a State shall have jurisdiction in respect of proceedings in respect of a customary right of occupancy granted by a Local Government under this Decree, and for the purpose of this paragraph proceedings includes proceedings for a declaration of title to a customary right of occupancy and all laws including rules of Court regulating practice and procedure of such Courts shall have effect with such modifications as would enable effect to be given to this section.”
Section 50(1) of the Land Use Act, 1978 is legislation that has been entrenched in Section 315(1)-(6) of the Constitution of the Federal Republic of Nigeria, 1999 as altered with effect from 29th May, 1999. The provisions read as follows:-
315(1) Subject to the provisions of this Constitution, an existing law shall have effect with such modifications as may be necessary to bring it into conformity with the provisions of this Constitution and shall be deemed to be-
(a) an Act of the National Assembly to the extent that it is a law with respect to any matter on which the

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National Assembly is empowered by this Constitution to make laws; and
(b) a Law made by a House of Assembly to the extent that it is a law with respect to any matter on which a House of Assembly is empowered by this Constitution to make laws.
(2) The appropriate authority may at any time by order make such modifications in the of any existing law as the appropriate authority considers necessary or expedient to bring that law into conformity with the provisions of this Constitution.
(3) Nothing in this Constitution shall be construed as affecting the power of a Court of law or any Tribunal established by law to declare invalid any provision of an existing law on the ground of inconsistency with the provision of any other law, that is to say-
(a) any other existing law;
(b) a Law of a House of Assembly;
(c) an Act of the National Assembly; or
(d) any provision of this Constitution.
(4) In this section, the following expressions have the meanings assigned to them, respectively –
(a) “appropriate authority” means –
(i) the President, in relation to the provisions of any law of the Federation,

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(ii) the Governor of a State, in relation to the provisions of any existing law deemed to be a Law made by the House of Assembly of that State, or
(iii) any person appointed by any law to revise or rewrite the laws of the Federation or of a State;
(b) “existing law” means any law and includes any rule of law or any enactment or instrument whatsoever which is in force immediately before the date when this section comes into force or which having been passed or made before that date comes into force after that date; and
(c) “modification” includes addition, alteration, omission or repeal.
(5) Nothing in this Constitution shall invalidate the following enactments, that is to say –
(a) the National Youth Service Corps Decree 1993;
(b) the Public Complaints Commission Act;
(c) the National Security Agencies Act;
(d) the Land Use Act,
and the provisions of those enactments shall continue to apply and have full effect in accordance with their tenor and to the like extent as any other provisions forming part of this Constitution and shall not be altered or repealed except in accordance with the provisions of Section 9(2) of this Constitution.

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(6) Without prejudice to Subsection (5) of this section, the enactments mentioned in the said subsection shall hereafter continue to have effect as Federal enactments and as if they related to matters included in the Exclusive Legislative List set out in Part I of the Second Schedule to this Constitution.”
Sections 1-2(1)(a)-(b), 5(1)-(2) of the Land Use Act, 1978 provides as follows:-
1. Subject to the provisions of this Decree, all land comprised in the territory of each state in the Federation are hereby vested in the Military Governor of that State and such land shall be held in trust and administered for the use and common benefit of all Nigerians in accordance with the provisions of this Decree.
2(1) As from the commencement of this Decree:-
a. all land in urban areas shall be under the control and management of the Military Governor of each State; and
b. all other land shall, subject to this Decree, be under the control and management of the Local Government within the area of jurisdiction of which the land is situated.
xxxxx
5(1) It shall be lawful for the Military Governor in

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respect of land, whether or not in an urban area:-
a. to grant statutory rights of occupancy to any person for all purposes;
b. to grant easements appurtenant to statutory rights of occupancy;
c. to demand rental for any such land granted to any person;
d. to revise the said rental:
i) at such intervals as may be specified in the certificate of occupancy;
ii) where no intervals are specified in the certificate of occupancy at any time during the term of the statutory right of occupancy;
e. to improve a penal rent for a breach of any covenant in a certificate of occupancy requiring the holder to develop or effect improvements on the land the subject of the certificate of occupancy and to revise such penal rent as provided in Section 19;
f. to improve a penal rent for a breach of any condition, express or implied, which precludes the holder of a statutory right of occupancy from alienating the right of occupancy or any part thereof by sale, mortgage, transfer of possession, sub-lease or bequest or otherwise howsoever without the prior consent of the Military Governor.
g. to waive, wholly or partially, except as

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otherwise prescribed, all or any of the covenants or conditions to which a statutory right of occupancy is subject where, owing to special circumstances, compliance therewith would be impossible or great hardship would be imposed upon the holder;
h. to extend except as otherwise prescribed, the time to the holder of a statutory right of occupancy for performing any of the conditions of the right of occupancy upon such terms and conditions as he may think fit.
(2) Upon the grant of a statutory right of occupancy under the provisions of Subsection (1) of this section, all existing rights to the use and occupation of the land which is the subject of the statutory right of occupancy shall be extinguished.”
A dispute arising from the issuance of a statutory right of occupancy evidenced by a Statutory Certificate of Occupancy issued by the Governor of a State is to be determined under Section 39(1)-(2) of the Act to wit: –
39(1) The High Court shall have exclusive original jurisdiction in respect of the following proceedings: –
(a) proceedings in respect of any land the subject of a statutory right of occupancy granted by the

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Military Governor or deemed to be granted by him under this Decree; and for the purposes of this paragraph proceedings includes proceedings for a declaration of title to a statutory right of occupancy;
(b) proceedings to determine any question as to the persons entitled to compensation payable for improvements on land under this Decree.
2. All laws, including rules of Court, regulating the practice and procedure of the High Court shall apply in respect of proceedings to which this section relates and the laws shall have effect with such modifications as would enable effect to be given to the provisions of this section.
But where a claimant is dangling a Certificate of Occupancy over a disputed piece of land that was issued by a Local Government Area Council there is the presumption it was issued by a Local Government Council under Section 6(1)-(7) of the Land Use Act, 1978 which provides as follows:-
6(1) It shall be lawful for a Local Government in respect of land not in an urban area: –
a. to grant customary rights of occupancy to any person or organization for the use of land in the Local Government area for

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agricultural, residential and other purposes;
b. to grant customary rights of occupancy to any person or organization for the use of land for grazing purposes and such other purposes ancillary to agricultural purposes as may be customary in the Local Government Area concerned;
(2) No single customary right of occupancy shall be granted in respect of an area of land in excess of 500 hectares if granted for agricultural purposes, or 5,000 hectares if granted for grazing purposes, except with the consent of the Military Governor.
(3) It shall be lawful for a Local Government to enter upon, use and occupy for public purposes any land within the area of its jurisdiction which is not:-
a. land within an area declared to be an urban area pursuant to Section 3 of this Decree;
b. the subject of a statutory right of occupancy;
c. within any area compulsorily acquired by the Government of the Federation or of the State concerned;
d. the subject of any laws relating to minerals or mineral oils, and for the purpose to revoke any customary right of occupancy on any such land.
(4) The Local Government shall have exclusive rights to the

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lands so occupied against all persons except the Military Governor.
(5) The holder and the occupier according to their respective interests of any customary right of occupancy revoked under Subsection (3) shall be entitled to compensation for the value at the date of revocation of their unexhausted improvements.
(6) Where land in respect of which a customary right of occupancy is revoked under this Decree was used for agricultural purposes by the holder, the Local Government shall allocate to such holder alternative land for use for the same purpose.
(7) If a Local Government refuses or neglects within a reasonable time to pay compensation to a holder and an occupier according to their respective interests under the provisions of Subsection (5), the Military Governor may proceed to the assessment of compensation under Section 29 and direct the Local Government to pay the amount of such compensation to the holder and occupier according to their respective interests.”
A dispute regarding the validity of a certificate of occupancy issued by a Local Government Council or Area Council to a party in litigation is to be heard and determined

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under Section 41 of the Land Use Act, 1978. A party aggrieved with the decision of the Court that determined the dispute under Section 41 of the Land Use Act, 1978 has a right to appeal to the Customary Court of Appeal established for the State under Section 280(1)-(2) and 282(1)-(2) of the Constitution of the Federal Republic of Nigeria, 1999 as altered:-
280(1) There shall be for any State that requires it a Customary Court of Appeal for that State.
(2) The Customary Court of Appeal of a State shall consist of –
(a) a President of the Customary Court of Appeal of the State; and
(b) such number of Judges of the Customary Court of Appeal as may be prescribed by the House of Assembly of the State.
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282(1) A Customary Court of Appeal of a State shall exercise appellate and supervisory jurisdiction in civil proceedings involving questions of Customary law.
(2) For the purpose of this section, a Customary Court of Appeal of a State shall exercise such jurisdiction and decide such questions as may be prescribed by the House of Assembly of the State for which it is established.”

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Sections 16-19 of the Evidence Act, 2011 distinguishes between proof of custom and customary law as follows:-
16(1) A custom may be adopted as part of the law governing a particular set of circumstances if it can be judicially noticed or can be proved to exist by evidence.
(2) The burden of proving a custom shall lie upon the person alleging its existence.
17. A custom may be judicially noticed when it has been adjudicated upon once by a superior Court of record.
18(1) Where a custom cannot be established as one judicially noticed, it shall be proved as a fact.
(2) Where the existence or the nature of a custom applicable to a given case is in issue, there may be given in evidence the opinions of persons who would be likely to know of its existence in accordance with Section 73.
(3) In any judicial proceeding where any custom is relied upon, it shall not be enforced as law if it is contrary to public policy, or is not in accordance with natural justice, equity and good conscience.
19. Every fact is deemed to be relevant which tends to show how in particular instances a matter alleged to be a custom was understood

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and acted upon by persons then interested.”

What has to be proved under Section 41 of the Land Use Act, 1978 to secure a decision is customary law but not custom in the Local Government Area where the farmlands in dispute are situate; in this case, Kokona Local Government Area Council not Keffi Local Government Area or Council where the farmlands in dispute are not situate. When parties litigate the dispute before the High Court of justice under Section 272(1) of the Constitution of the Federal Republic of Nigeria, 1999 as altered but the respondent relied on the Local Government Certificate of Occupancy to support his purchase of the land in dispute from his vendor who claims to have derived title from one of the heirs of the first person to have deforested the land in dispute, but there is no evidence of any acts of user by the first person said to have deforested these farmlands nor acts of settlement as occupier by the vendor before the purchase by the respondent the Court of trial or a Court exercising appellate or supervisory jurisdiction has to be cautious in over turning or affirming the decision of the Court of

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first instance.
In Bonsi vs. Adjena II (1940) 6 WACA 241 the West African Court of Appeal held at page 241 as follows:
In this case the learned Chief justice in the Divisional Court held that the writ disclosed no cause of action and non-suited the plaintiff on the pleadings without hearing evidence. The plaintiff now appeals to this Court contending that he ought at least to have been allowed to lead evidence to prove the Native Law and Custom upon which he desired to rely. But neither in his writ nor in Counsels opening did he allege any Native Law and Custom, and we cannot too strongly emphasize that where a party intends to set up and rely upon a Native Custom it must be specifically alleged and pleaded. In this case if the rather vague Native Law and Custom suggested to us were set down in black and while it is clear that it would be so palpably absurd as not to merit serious consideration.
We concur with the view of the learned Chief justice that the writ disclosed no cause of action.
The appeal is dismissed with costs assessed at ??17 13s.
In Solomon vs. Botchway (1943) 9 WACA 127 Ga Native Law and

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Custom was relied upon to lay claim to a deceased property. The West African Court of Appeal held at page 134 to 135 to wit:
It has not been suggested to us in argument in the present case, nor does it appear from any of the cases cited to us that the custom makes any distinction between personal and real estate, though there is a distinction between ancestral and self-acquired property. Although in his order in the Cole case the Judge clearly used the expression personal estate in its English legal meaning, i.e. as opposed to real estate, we think it clear that when the Native Tribunal used the expression personal estate in paragraph 6 of their Report they were using it not in that sense but as meaning self-acquired property as opposed to ancestral property. That the custom applies equally to realty as to personalty is shown by reference to the case of Lutterodt and Lutterodt vs. Solomon decided in the Ga mantses Tribunal on the 30th December, 1930, a case in which the Tribunal made an order in favour of children of a six-cloth marriage specifically in respect of realty. It is significant that the

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very first step the Tribunal took in the Cole case was to enquire as to the nature of the marriage between Coles parents. It is agreed that their enquiries established that it was six-cloth marriage. The ruling of the Tribunal applies only to such marriages.
The customs, then, being clear and settled, there ought to be no difficulty in deciding the present case, but unfortunately the plaintiffs pleadings were so badly drawn that there is difficulty. It is laid down by rules 3 and 4 of Order 25 in Schedule III to the Courts Ordinance that every pleading shall contain a statement of all the materials facts on which the party pleading relies and that the facts shall be alleged positively, precisely and distinctly. Further, in the case of Bonsi vs. Adjena II (6 WACA 241) this Court said: –
We cannot too strongly emphasize that where a party intends to set up and rely upon a Native Law and Custom it must be specifically alleged and pleaded.
It was obviously incumbent upon the second plaintiff to plead that he and the other children were children of six-cloth marriages and that he relied upon the Accra custom applicable to

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the children of such marriages. He did neither; instead he described himself and the other children merely as children, and so far as appears on the face of the pleadings any custom which he relied would be a custom applicable to all children as such and not to a restricted class. In this connection we are of opinion that the learned trial Judge misdirected himself as to the onus of pleading and proof in that passage of his judgment which reads:-
It may be added that the question whether the mothers of the late Vanderpuyes eighteen children were married according to the six-cloth custom was not raised on the pleadings by the defendant; and indeed Mr. Bossman, Counsel for the defendant, never touched upon it.
The onus was clearly upon the plaintiffs to plead and (unless admitted) to prove both the custom and facts which brought the children within the class to which the custom applies. Counsel for the respondents, however, alleges that the case was fought throughout in the lower Court on the assumption that the children were children of six-cloth marriages and he points to a passage in the shorthand notes of his

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final address to confirm this. Counsel for the appellant denies this. We are of opinion that it is impossible for this Court, and was wrong for the Court below, to act upon mere assumption on such a vital point. In the absence of the proper averments appearing in the pleadings, a note by the Judge recording an agreement by Counsel upon the point is the least that could be acted upon. As matters stand we feel that in the interests of justice the case will have to go back to the Court below for the plaintiffs to be allowed to amend their pleadings by making the averments necessary to establish the childrens claim to an interest in their fathers property, and if they are put to proof of the facts, they will of course have to prove those facts by evidence before they are entitled to a declaration in the form of declaration No.(4) which was given to them in the judgment appealed against. We think that no further evidence or argument is necessary as regards the custom, which, as we have said, we regard as now established; but it should, of course, be pleaded.
At what stage will a custom or customs in a locality

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become the customary law or customary laws governing a particular subject-matter in discourse becomes very important. The intention of the Legislature is that where the proceedings are conducted in an Area or a customary Court or other Court of equivalent jurisdiction in a State the Court adjudicating shall have jurisdiction in respect of a right of occupancy granted by a Local Government under this Act; an for the purpose of this proceedings including proceedings for the declaration of title to a customary right of occupancy an all law including rules of Court regulating practice and procedure of such Courts shall have effect with such modification as would enable effect to be given to this Section under Section 41 of the Land Use Act, 1978. Proof of title to a piece of farmland in a Customary Court or other Court of equivalent jurisdiction is to be by Customary Law and the grantor, vendor or assignor has to be a person or community as defined in Section 50(1) of the Land Use Act, 1978. The grantee, purchaser or assignee of the land has to show that the vendor,

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seller or assignor was a person or community lawfully using or occupying the farmland in dispute in accordance with customary law. This includes a customary right of occupancy granted by a Local Government under this Act.
The Vendor, assignor or grantor has to prove that the transaction was with the Local Government namely, the appropriate Local Government or any other body having or exercising the powers of a Local Government as provided by law in respect of the area where the land in question is situated. See Section 50(1) of the Act. The respondent pleaded in paragraphs 3-4 of the Statement of Claim how Naba inherited such land from his father. Also who in turn inherited from Laminga, Laminga was the first person who deforested such land. It is not enough for a Local Government Area or Council to issue or grant a Certificate of Occupancy to a claimant if the land is in the occupation or possession of the counter-claimants until the claimant is able to show by credible evidence compliance with Section 6(1)-(3) and 50(1) of the Land Use Act, 1978, namely,

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that the Vendor, assignor or grantor was lawfully using or occupying land in accordance with customary law and this includes a customary right of occupancy granted by a Local Government under this Act and is in respect of the area where the land in question is situated. See Section 6(1)-(3) and 50(1) of the Act.
Where the pleadings show that the appellants were in prior occupation or possession of the piece of farmland in dispute, the presumption of ownership being in favour of the appellants, the onus was on the respondent to prove a better title to oust the parties in prior possession or occupation of their respective pieces of the land in dispute. See Odofin vs. Ayoola (1984) 15 NSCC 711 at 720; Yusuf vs. Adegoke (2007) 11 NWLR (Pt.1045) 332 at 358 and Atanda vs. Ajani (1989) 3 NWLR (Pt.111) 511.
At no time did the respondent seek that the Court below should adopt as part of the law any custom or customary law as governing the pieces of farmlands in dispute nor for the learned trial Judge to have judicially noticed any custom or customary law under

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Section 16(1)-(2) of the Evidence Act, 2011 hence the respondent was bound to plead and prove the customary law in the Keffi Local Government Area where the pieces of evidence in the possession or occupation of the appellants was before their sell by the vendor in 1994. See paragraph 6 of the Statement of Claim.
Sections 17, 18(2) and 73(1)-(2) of the Evidence Act, 2011 reads:-
17. A custom may be judicially noticed when it has been adjudicated upon once by a superior Court of record.
18(2) Where the existence or the nature of a custom applicable to a given case is in issue, there may be given in evidence the opinions of persons who would be likely to know of its existence in accordance with Section 73.
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73(1) When the Court has to form an opinion as to the existence of any general custom or right, the opinions, as to the existence of such custom or right, or persons who would be likely to know of its existence if it existed are admissible.
(2) The expression general custom or right includes customs or rights common to any considerable class of persons.”
If the respondent had pleaded the

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customary law applicable in the Local Government Area where the land is situate, the respondent would have discharged the onus of proving title to the disputed farmlands by calling persons who would be likely to know of its existence (the custom or customary law) in the locality regarding who was the first to deforest a piece of farmland and the effect of such deforestation regarding presumption of ownership or possession. See Section 18(2) and 73(1)-(2) of the Evidence Act, 2011. Deforestation of land is often followed by settlement. In Onadehin & Ors. vs. Sonuga & Ors. (1974) 1 All NLR (Pt.2) 452, Fatayi-Williams, JSC (as he then was) held at pages 461-462 as follows:-
From the above findings, it is clear that the issue of settlement, which is nothing more than actual physical occupation of the land by the plaintiffs, was thoroughly dealt with by the learned trial Judge. We are not in any doubt that his finding in this respect covers both the case for settlement and for the possession on which the claim for trespass was predicated. Therefore, it would not be correct for the Western Court of Appeal to say that

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the evidence in support of the settlement was not considered at all. It is manifest that the dual function of this crucial testimony has also made the learned trial Judge fall into the error of stating that he need not consider the issue of settlement when he has, in fact, considered it adequately and thoroughly.
After all, the traditional history given in support of the title of a family to its land usually traces the title to an individual founder who first acquired the land. This acquisition might be by settlement which, in that con, is no more than a permanent occupation of the land by the founder and the clearing of part of it for his own use and, if he has a family, for the use of his family as well. Consequently, when the plaintiffs averred in their statement of claim that their ancestor, Ogbodo had settled on and farm the land for many years before his death and that the family have been in possession of the whole land since it was settled upon by their said ancestor, all they meant was that the Ogbodo family had been in continuous possession of the land since it was occupied by their ancestor Ogbodo. Therefore, any

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finding as to the plaintiffs possession of the land in dispute would, in these circumstances, obviously include a finding as to the settlement.
For these reasons, we think that the Western State Court of Appeal was in error in concluding that the learned trial Judge did not consider the issue of settlement.
The appeal is allowed and the judgment of the Western State Court of Appeal in Appeal No. CAW/2/1972 delivered on 28th March, 1973, including the order as to costs, is set aside. We order that the judgment of the Ijebu-Ode High Court in Suit No. J/21/1963 delivered on 29th January, 1971, dismissing the plaintiffs claim in its entirety be restored and it is hereby restored and affirmed. Costs in favour of the defendants in the Western State Court of Appeal are assessed at N142 and in this Court at N153.
In Momodu Ajala vs. Samuel Awodele (1971) 1 NMLR 127 the defunct Western State Court of Appeal also held at page 129 as follows:-
Mr. Adegunwa argued that because the plaintiffs ancestor had no grant of the land in dispute from anybody therefore their title was defective. But the plaintiffs case is

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that the land was acquired by settlement. Joseph Olaniran the second plaintiff in his evidence said inter alia:-
The Oluwofin migrated from Ife and settled at Iwofin which was then a virgin land. Many people came with him. He settled there and was hunting all over the area now in dispute.
It is needless to point out that settlement is one of the traditional modes of acquisition of land. In our view there is no substance in this ground and it fails.
There is no evidence from the pleadings of the respondent when the deforestation of these farmlands by the vendor occurred followed by acts of actual use by Laminga person the respondent pleaded was the first person who deforested such land (See paragraph 4 of the Statement of Claim), nor Naba who inherited the pieces of land from his father. How Naba sold same to the respondent as Lamingas heir who subsequently obtained a Certificate of Occupancy from the Keffi Local Government Area on 2nd December, 1996 not Kokona Local Government Council.
Sections 70 and 76 of the Evidence Act, 2011 provides a guide as to the type of

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witnesses a claimant who relies on inheritance or customary law ought to call:-
70. In deciding questions of customary law and custom, the opinions of traditional rulers, chiefs or other persons having special knowledge of the customary law and custom and any book or manuscript recognized as legal authority by people indigenous to the locality in which such law or custom applies, are admissible.
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76. Whenever the opinion of any living person is admissible, the grounds on which such opinion is based are also admissible.”
The opinions or testimonies of traditional rulers, chiefs or other persons having special knowledge of the customary law and custom and any book or manuscript recognized as legal authority by people indigenous to the locality in which such law or custom applies, are admissible under Section 70 of the Evidence Act, 2011. Section 70 of the Act (ante) recognizes the fact that the question in dispute to be resolved may pertain to custom or customary law by calling experts who have to by people indigenous to the locality in which such law or custom applies, and this is admissible

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under Section 7 of the Act. The Court may have to form an opinion as to the usages and tenets of any body of men or the relationship between the respondents vendor and the appellants prior to the purchase of the land under Section 74(a) or 75 of the Evidence Act, 2011 to wit:-
74. When the Court has to form an opinion as to:-
a) the usages and tenets of any body of men or family;
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the opinions of persons having special means of knowledge on the maters specified in this section, are admissible.
75. When the court has to form an opinion as to the relationship of one person to another, the opinion expressed by conduct, as to the existence of such relationship of any person who, as a member of the family or otherwise, has special means of knowledge on the subject, is admissible:
Provided that such opinion shall not be sufficient to prove a marriage in proceeding for a divorce or in a petition for damages against an adulterer or in a prosecution for bigamy.”
The respondent would have to call a member of the family or otherwise that has special means of knowledge on the matters

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specified or any person who as a member of the family or otherwise, has special means of knowledge on the subject under Section 74(a) or 75 of the Evidence Act, 2011. The respondent did not plead facts dating back from time immemorial as to when the original founder of the land deforested same before selling to the respondent was explained in Emegwara vs. Nwaimo (1954) 14 WACA 347 the claimants to the land in dispute pleaded time immemorial as the root of title. Verity, C.J., observed at pages 348 to 349 as follows:
In regard, however, to the respondents claim for a declaration of title I indicated in the course of the hearing of this appeal that I entertain the gravest doubts as to whether any declaration should be made having regard to the statement of the respondents claim both in the endorsement on the summons and in the statement of claim subsequently filed and having regard also to the nature of the evidence in the case and to the statements made by Counsel for the respondents in the course of the hearing of the appeal.
It is as well that it should always be borne in

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mind that the making of such a declaration is discretionary and in the exercise of the Courts equitable jurisdiction. A declaration of title will only be made when the Court is fully assured first as to the precise nature of the title in respect of which a declaration is sought and secondly that there is evidence by which the Court is satisfy that a title of the nature claimed has been established. In my view, the case put forward by the respondents both at the trial and before us satisfies neither of these conditions. It is not clear from the pleadings nor from the evidence nor from the argument of Counsel what precisely is the nature of the right or title in respect of which a declaration is sought. It is impossible therefore to hold that the evidence establishes any title at all which would justify the Court in making a declaration. The most that can be said is that by the endorsement upon the summons the respondents claimed titular ownership, a vague expression which may mean no more than nominal ownership. The statement of claim hesitates between allegations of absolute ownership from time immemorial which is, in my

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view, indistinguishable from original ownership, and the acquisition of title several generations ago by grant from the appellants predecessors in title. These allegations are inconsistent, but Counsel assures us that it is the latter allegation which is the real basis of the respondents claim. It is beyond doubt that such grants may take many forms, ranging from an absolute gift to a mere tenancy or right of occupation subject to conditions. Lying between the two extremes there may be a grant of such complete user without payment of tribute or other term or condition that all that is reserved to the grantor is a right to reversion should the grantee abandon his right of occupation or succession to that right fail.
It is essential before any declaration is made that the party seeking it should state specifically what is the nature of the right he claims and that he should prove that the terms of the grant under which he claims conferred such a right. Unless these two factors are present the Court cannot properly exercise its discretion in his favour and make any declaration.
Nowhere in the present case have I been able to

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find that the nature of the right is specified, nor have I been able to find evidence as to the precise terms of the grant upon which any such specific claim could be based. I cannot conceive that it is the duty of the Court to endeavour by examination of the evidence to deduce what ought to be or might be the true nature of the claim and then proceed to make a declaration which the plaintiff has not specifically sought and may not in fact desire. It would indeed be improper for the Court so to do unless it were prepared to order an amendment of the pleadings, in which case it would be necessary to give the defendant an opportunity of meeting what would be an entirely different case. Such a course if followed at all would only be followed with great reluctance and upon the clearest possible evidence.
In my view, the learned Judge had before him neither a claim nor evidence which would justify him in making the declaration sought and he erred in making it. I would therefore vary the judgment in the Court below by deleting therefrom so much thereof as relates to the respondents claim for a declaration of title. I would, however, dismiss the appeal in

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so far as it relates to the judgment awarding damages for trespass and issuing an injunction restraining the appellants from further trespass. This should make it clear and I desire to emphasize this, that the failure of the respondents in their claim for a declaration of title affects in no way their present right to exclusive and undisturbed possession of the land delineated in the plan to which I have referred and marked thereon as Okpulo. Whatever may be the precise nature of this grant or the terms upon which they are entitled to such occupation, it is clear that unless and until the appellants can by suit show that this right has been extinguished they have no right whatever to enter upon the land in disturbance thereof or at all.
Section 76 of the Evidence Act, 2011 reads as follows:-
76. Whenever the opinion of any living person is admissible, the grounds on which such opinion is based are also admissible.”
The respondent pleaded in paragraph 32(b) of the Statement of Claim that the Certificate of Occupancy issued by the Keffi Local Government Council on 2nd December, 1996 is to be declared

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valid and confers good statutory title on the plaintiff.
The effect of paragraph 32(c) of the Statement of Claim is that the lower Court should declare the appellants, by their conduct, to have challenged the title of the respondent hence the appellants had no privileges or rights to remain on the farmland as the tenants of the respondent hence the prayers for A perpetual injunction restraining the defendants, their agents, servants or privies from the farmland. See paragraph 32(d) of the Statement of Claim. The respondent had the onus of showing how the appellants were tenants of the respondents vendor and they were living on the land now in dispute before the sale. A tenant is defined in Blacks Law Dictionary (ante) page 1605 as: One who holds or possesses lands or tenements by any kind of right or title. There are two main types of tenants namely, Customary and Statutory tenants as defined by the learned authors of Blacks Law Dictionary (supra) at page 1605 to wit:-
Customary Tenant:- A tenant holding

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by the custom of the manor. Over time, customary tenants became known as copyhold tenants. See COPYHOLD.
The Lord has a Court; in that Court the tenant in villeinage, even though he be personally unfree, appears as no mere tenant at will, but as holding permanently, often heritably, on fairly definite terms. He is a customary tenant, customarius, consuetudinarius; he holds according to the custom of the manor Then gradually dealings with villein tenements are set forth upon the rolls of the lords Court; the villein tenement is conceived to be holden by roll of Court, or even by copy of Court roll, and the mode of conveyance serves to mark off the most beneficial of villeinholds from the most onerous of freeholds in Henry IIIs time this process which secured for the tenant in villeinage a written, a registered title, and gave him the name of copyholder, was but beginning 2 Frederick Pollock & Frederic W. Maitland, The History of English Law Before the Time of Edward I, 361, 375 (2nd edition, 1899).

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What is of paramount importance is to ensure that justice is done to the appellants or the respondent based on the admissible evidence in the printed record. The learned trial Judge evaluated the oral and documentary evidence adduced by the parties and relied on the notes of the visit to the locus where the farmlands are situate and the submissions. Hardo Ibrahim Gado (PW1) is a cattle rearer/farmer residing at Garku. The land in dispute is situate at Ungwan Kade in Kokona Local Government Area of Nasarawa State yet the Local Government Certificate of Occupancy was issued by the Keffi Local Government Council as pleaded in paragraph 9 of the statement of claim on 2nd December, 1996. PW1s evidence is that he purchased the land Exhibits A1-A2 are dated 26th November, 1994. There is no explanation why the Keffi Local Government Council would issued to the respondent a Local Government Certificate of Occupancy over land that is situate in Kokona Local Government Area. Keffi Local Government Area and Kokona Local Government Area or Council are creatures of the Constitution of the Federal Republic of Nigeria, 1999 as altered which came into effect on 29th May, 1999 by

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virtue of the First Schedule Part 1 of the Constitution which names the States, their Capitals and Area Council as follows in Nasarawa State:-
Akwanga, Awe, Doma, Karu, Keana, Keffi, Kokona, Lafia, Nasarawa, Nasarawa-Eggon, Obi, Toto, Wamba.
Keffi Local Government Area Council chairman or the body vested with granting Customary Rights of Occupancy and issuing certificates as evidence of Kokona Local Government Area at Angwan Kade Village or settlement area, Exhibits A1-A2 and B1-B6 are spurious documents. The duty of a learned trial Judge that is faced with documentary exhibits that have a spurious origin is to evaluate same to arrive at a just decision. Documentary exhibits are to be used to evaluate the oral testimonies of the parties and their witnesses. In Zein vs. Geidam (2004) All FWLR (Pt.237) 457 at 481 paragraphs G-H and page 482 paragraph A as follows:
Firstly, a person who is not an illiterate, of full age, capacity and understanding (as in the instant case) is bound by the contents of a document signed by him. See

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Chief Okoye & 2 Ors. vs. Santili & 2 Ors. (1994) 4 SCNJ (Pt.II) 333 at 353 per Belgore, JSC; Allied Bank of Nigeria Ltd. vs. Akubueze (1997) 6 SCNJ 116 at 140; Blay vs. Pollard (1930) 1 K.B. 628 at 638 per Secrutton, L.J. and recently, Okonkwo vs. C.C.B. (Nig.) Plc & 2 Ors. (2003) 2 SCNJ 90 at 108, (2003) 8 NWLR (Pt.822) 347 at 382 just to mention but a few.
PW1 was cross-examined by learned Counsel to the appellants and answered at page 140 lines 23-29 as follows:-
I met Naaba at Laminga. I am a Muslim I knew Islam very well. In Islam, if you want to sale a piece of land when somebody is living on you has to inform him first. Naaba was a Muslim. I am more than 20 years staying in Garaku. I do not know when Kokona Local Government Council was created. I was given B1, was issued to me before Kokona Local Government Area was created. I only know Saura and Ungwan Kade and not Ungwan Mangoro. From Kodo to Kirya is about 5 miles.”
Exhibits B1-B6 was put in through PW1 at page 139 lines 4-14 of the printed record as follows:-
I invited the Lands and Survey to

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survey the place and take measurement. The defendants were present when the surveyors were measuring the place. I was given some papers to cover the place. Yes, this is the document which was given to me.
Counsel: We seek to tender the C of O.
Counsel: No objection.
Court: C of O No. 614 issued to Alh. Ibrahim Gambo Garaku is admitted as Exhibit B1-B6. When they refused to pay the tribute, I took them to Upper Area Court Agwada. Nothing happened. When the matter was pending there, the plaintiff reported to Abaga Toni that there was one Fulani man who was trying to drive them away. I told Abaga Toni that the land was my own, I would allow them to stay to pay me tribute. The matter was also taken to Ninkoro for settlement.”
If the Keffi Local Government Council had no jurisdiction or powers to grant a Customary Right of Occupancy to the respondent over land that is situate in Kokona Local Government Area of Nasarawa State.
There is no way Exhibits A1-A2 and B1-B6 can stand in the way of divesting the appellants from their individual farmlands they had been occupying and using

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for long before the respondent purported to have purchased from a Vendor who cannot adduce evidence showing how to first deforested these farmlands in which the appellants are in possession. The pleaded root of title having failed cannot be supported by spurious documents of title. This is a spurious action by the respondent acting with the support of the Keffi Local Government Area by the person that issued the Local Government Certificate of Occupancy to the respondent to use as a leverage to eject the appellants from their individual farmlands. A spurious is defined in Blacks Dictionary, 9th edition at page 1533 as follows:-
Spurious:- 1. Deceptively suggesting an erroneous origin; fake (spurious trademarks). 2. Of doubtful or low quality (spurious goods that fell apart). 3. Archaic. Of illegitimate birth (spurious offspring).
The respondent did not prove the two ways or methods Fatayi-Williams, JSC (as he then was) identified in Idundun vs. Okumagba (1976) 1 NMLR to prove title to land. The claims of the respondent ought to have collapsed like a pack of cards in the Court below. I allow the appeal,

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set aside the decision of the learned trial Judge entered in favour of the respondent.

The appellants had filed a Counter-Claim against the respondent which is set out at pages 74-75 of the printed record as follows:-
1. A declaration that the defendants are bona fide owners of the land, lying and situate at Angwan Gwandara, Saura Kirya (Saura Mada), Angwan Mangoro, Angwan Maikono and Angwan Kade respectively.
2. A declaration that the purported sale together with the C of O No. 614 dated 2-12-96 or any document relating to the defendants land be declared null, void and of no effect as the said plaintiffs vendor does not own any land at Angwan Kade or the defendants settlements.
3. The sum of N5 million only being general damages for trespass and inconveniences or psychological trauma suffered as a result of the plaintiffs action.
4. A perpetual injunction restraining the plaintiff, his agents, privies, assigns or successors-in-title from continuing further acts of trespass on the defendants lands.”

A Counter-Claim is a separate cause of action. See Ogbonna vs. Attorney-General of Imo State.

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The respondent filed a defence to the Counter-claim. The learned trial Judge held at page 203 lines 8-12 of the printed record as follows:-
Finally on the issue of the defendants counter claims where only the reliefs were stated, no pleading and no evidence. The basis upon which this Court can consider the counter claim is not there since Court has decided on the same land claimed by the plaintiff based on evidence. This counter claim is hereby dismissed.”

A Counter-claim is defined in Blacks Law Dictionary, 9th edition, page 402 as follows:-
Counterclaim:- A claim for relief asserted against an opposing party after an original claim has been made; especially, a defendants claim in opposition to or as a setoff against the plaintiffs claim. Also termed counteraction; countersuit; cross-demand
Under (Fed. R. Civ. P.) Rule 13 the Court has broad discretion to allow claims to be joined in order to expedite the resolution of all controversies between the parties in one suit. Rule 13(c) specifically provides that the counterclaimant is not limited by recovery sought by the opposing

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party but may claim relief in excess of that amount. Further, the general legal rule is that it is immaterial whether a counterclaim is legal or equitable for purposes of determining whether it properly is brought under Rule 13 The expectation is that this liberal joinder policy will further the elimination of circuity of action and multiple litigation. 6 Charles Alan Wright et al., Federal Practice and Procedure, paragraph 1403, at 15-16 (2nd edition, 1990).
The claimant has to plead facts to controvert the facts and the remedies the counter-claimant is seeking in the Counter-Claim. To controvert is To dispute or contest; especially, to deny (as an allegation in a pleading) or oppose in argument (the allegations in pecks pleadings were never adequately controverted)… See page 379 of Blacks Law Dictionary (ante).
The appellants relied on the facts they pleaded in their Statement of Defence to seek reliefs by way of a counter-claim. The respondent instituted this suit against the counter-claimant on 23rd January, 2004 when the High Court (Civil Procedure) Rules, 1987 governed the

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procedure of the High Court of justice in Plateau State. Nasarawa State was carved out of Plateau State on 29th May, 1999.
The failure of the respondent to deliver a defence to the counter-claim constitutes an admission to the facts the appellants pleaded by way of the counter-claim under Order 30 rules 1-4(1)-(4) of the Plateau State High Court (Civil Procedure) Rules, 1987 which was applicable at the time the suit was instituted in the Court below on 23rd January, 2004:-
1. Any party may give notice by his pleading or otherwise in writing that he admits the truth of the whole or any part of the case of any other party.
2(1) Any part may, by leave of Court obtained in a motion on notice, call upon any other party to admit any document or fact, saving just exceptions.
(2) A notice containing a list and where possible true copies of the documents or as the case may be, a clear statement of each fact, to be admitted shall be filed with the motion papers and served on the party being called upon to admit the same.
(3) The Court, if it grants such leave, shall fix the terms and conditions thereof, including the time within which

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the admission is to be made.
(4) If a party on whom a notice under paragraph (2) is served desires to deny the existence or the authenticity of any fact or document therein specified he shall, before the day fixed for hearing the motion, served on the part by whom it was given a notice stating that he does not admit the facts or the authenticity of the documents and that he requires that the same be proved at the trial.
(5) A party who fails to give a notice of non-admission in accordance with paragraph (4) in relation to any fact or document shall be deemed to have admitted that fact or authenticity of that document unless the Court otherwise orders.
(6) Except where Rule 4(3) applies, a party to a cause or matter may serve on any other party a notice requiring him to produce the documents specified in the notice at the trial of the cause or matter.
3. Where admissions of facts are made by a party either by his pleading or otherwise, any other party may apply to the Court for such judgment or order as upon those admissions he may be entitled to without waiting for the determination of any other question between the parties, and the

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Court may give such judgment, or make such order on the application as it thinks just. An application for an order under this rule may be made by motion or summons.
4(1) Subject to paragraph (2) and without prejudice to the right of a party to object to the admission in evidence of any document, a party on whom a list of documents is served in pursuance of the provisions of Order 32, shall, unless, the Court otherwise orders, be deemed to admit.
(a) That any document described in the list as an original document is such a document and was printed, written signed or executed as it purports respectively to have been; and
(b) That any document described therein as a copy is a true copy. This paragraph does not apply to a document the authenticity of which the party has denied in his pleading.
(2) If before the expiration of 14 days after inspection of the documents specified in a list of documents or after the time limited for inspection expires, whichever is the later, the party on whom the list is served serves on the party whose list it is, a notice stating, in relation to any document specified therein, that he does not admit the

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authenticity of that document and requires it to be proved at the trial, he shall not be deemed to made any admissions in relation to that document under paragraph (1).
(3) A party by whom a list of documents is served on any other party in pursuance of any provision of Order 32 shall be deemed to have been served by that other party with a notice requiring him to produce at the trial of the cause or matter such of the documents specified in the list as are in his possession, custody or power.
(4) The foregoing provisions of this rule apply in relation to an affidavit made in compliance with an order under the provisions of Order 32 as they apply in relation to a list of documents served in pursuance to any provision of that Order.
The learned Counsel to the appellants should have applied for the learned trial Judge to render a decision in favour of the appellants in the absence of a defence to the counter-claim without waiting for the determination of any other question between the parties, and the Court may give such judgment, or make such order on the application as it thinks just. An application for an order under this

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rule may be made by motion or summons. See Order 30 Rule 3 of the High Court (Civil Procedure) Rules, 1987 of Plateau State under which the parties initiated the proceedings in the lower Court on 23rd January, 2004.
Only Kokona Local Government Area Council has the competence to grant a Customary Right of Occupancy over the farmlands in dispute which the parties admit on the pleadings is where the farmlands are situate, not Keffi Local Government Area. Facts admitted in the pleadings need no further proof at the hearing. See Andony vs. Ayi II & Ors. (2004) FWLR (Pt.227) 444 at 482; Elendu vs. Ekwoaba (1995) 3 NWLR (Pt.386) 704 at 747 and Ebueku vs. Amosu (1988) 3-5 SCNJ (Pt.2) 308 per Agbaje, JSC at page 319 lines 7-21. Section 23 of the Evidence Act, 2011 reads as follows:-
23. Statements made by persons to whom a party to the suit has expressly referred for information in reference to a matter in dispute are admissions.”
In Olale vs. Ekwelendu (1989) 7 SCNJ (Pt.2) 181, Oputa, JSC held at page 210 lines 7 to page 211 lines 1-4 as follows:-
Since there was no proper and effective traverse of the case pleaded

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by the plaintiff, no issue of fact arose from the pleadings, and that being so, the plaintiff should have had judgment on the pleadings. There was no need for a formal trial, when there was no issue arising from the pleadings warranting such a trial. Pleadings will lose their place in civil procedure and their intendment if our trial Courts fail to advert to their essential role of settling issues. Trial Courts which merely try issues on must pleadings, settle those issues.
It is also incumbent on our trial Courts to discover (by carefully attending to the pleadings) what case the plaintiff is putting across. The case is plaintiffs case as per his claims. In the case on appeal, the plaintiff/respondents main claim is, as rightly found by the Court of Appeal, wholly circumscribed by and within the Abandoned Property Edict of the Rivers State. It was not a case of declaration of title to land in Diobu as such. That being so, it was not necessary for the plaintiff, who based his entire case on the Abandoned Property Edict, to go into an entirely unnecessary excursion into the modes and niceties of proof of title to land as decided in

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Idundun & Ors. vs. Okumagba (1976) 1 NMLR 200; (1976) 9 & 10 SC 227 or to explore the limits of Ekpo vs. Ita XI NLR 68. That deceptive and one of our most misleading cases. If the Conveyance, Ex. Q, pleaded by the defendant was in issue that is, if the defendant counter-claimed, basing his case on that Conveyance, then the different modes of establishing title to land would have arisen. But the defendant did not counter-claim and the Conveyance pleaded by the defendant had no place under the Abandoned Property Edict within whose exclusive limited plaintiffs case was securely posited.
Another point I will like to comment on rather briefly is the onus of proof on the plaintiff/respondent. Undoubtedly, there is an onus on the plaintiff to prove his case. The onus of proof is nothing more than an onus to prove any issue or the various issues arising from the pleadings. It is only when and where issues of fact arise from the pleadings of the parties that one can then determine what those issues are and on whom the onus of proof lies. A plaintiff can discharge the onus of proof in his pleadings: See Onyekaonwu & Ors. vs. Ekwubiri & Ors.

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(1966) 1 All NLR 32 at page 35. In this case, the plaintiff/respondents case based on the Abandoned Property Edict, was not traversed. There was no issue of fact on the case presented by the plaintiff in his statement of claim. No one sets out to prove that which had not been denied. The trial Court should have realized and adverted to that. The plaintiffs case as pleaded, standing uncontroverted, thus needed no further proof. It was redundant that the plaintiff was made to prove what had not been denied. It was a travesty that after the proof (which was even uncalled for), he was denied judgment. Thank goodness, the Court of Appeal rectified the situation by reversing the perverse judgment of the trial Court.
An appeal is a continuation of the proceedings in the Court below by virtue of the provisions of Order 7 Rule 2(1) of the Court of Appeal Rules, 2016 to wit:-
2(1) All appeals shall be by way of rehearing and shall be brought by notice (hereinafter called the notice of appeal) to be filed in the registry of the Court below which shall set forth the grounds of appeal, stating whether the whole or part

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only of the decision of the Court below is complained of (in the latter case specifying such part) and shall state also the exact nature of the relief sought and the names and addresses of all parties directly affected by the appeal, which shall be accompanied by a sufficient number of copies for on such parties.
Order 4 Rules 2(1)-(3) of the Plateau State High Court (Civil Procedure) Rules, 1987 provides as follows:
2(1) Subject to Rule 2(2), a defendant in any action who alleges that he has any claim or is entitled to any relief or remedy against the plaintiff in the action in respect of any matter (whenever and however arising) may, instead of bringing a separate action, make a counter-claim in respect of that matter and where he does so he shall add the counter-claim to his defence.
(2) Rule 1 shall apply in relation to a counter-claim as if the counter-claim were separate action and as if the person making the counter-claim were a plaintiff and the person against whom it is made a defendant.
(3) A counter-claim may be proceeded with notwithstanding that judgment is given for the plaintiff in his action, or that the action

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is stayed, discontinued or dismissed.
None of the parties raised objection that the counter-claim ought to be dealt with in a separate trial on any ground. Order 11 Rule 4 of the Plateau State High Court (Civil Procedure) Rules, 1987 reads as follows:-
4. Where in an action any person has been improperly or unnecessary joined as a co-plaintiff, and a defendant has set up a counter-claim or set-off, such defendant may obtain the benefit thereof by establishing his set-off or counter-claim as against the parties other than the co-plaintiff so joined, notwithstanding the misjoinder of such plaintiff or any proceeding consequent thereon.
Order 25 rules 15-17 and 34-35 of the Rules (supra) further provides as follows:-
15. The defence shall admit such material allegations in the statement of claim as the defendant knows to be true, or desires to be taken as established without proof thereof.
16. Where any defendant seeks to rely upon any facts as supporting a right of set-off or counter-claim, he shall, in his statement of defence, state specifically that he does so by way of set-off or counter-claim as the case

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may be and the particulars of such set-off or counter-claim shall be given.
17. The defence of a defendant shall not debar him at the hearing from disproving any allegation of the plaintiff not admitted by the defence, or from giving evidence in support of a defence not expressly set up by the defence, except where the defence is such as, in the opinion of the Court, ought to have been expressly set up by the defence, or is inconsistent with the statements thereof, or is, in the opinion of the Court, likely to take the plaintiff by surprise or to raise new issues not fairly arising out of the pleadings, as they stand, and such as the plaintiff ought not to be then called upon to meet.
xxxxxxx
34(1) Where in any action a set-off or counter-claim is established as a defence against the plaintiffs claims, the Court may, if the balance is in favour of the defendant, give judgment for the defendant for such balance, or otherwise adjudge to the defendant such relief as he may be entitled to upon the merit of the case.
(2) Paragraph (1) shall apply mutatis mutandis where the balance is in favour of the plaintiff.
35(1) The pleadings

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in an action are deemed to be closed:-
(a) at the expiration of 30 days after service of the reply, or, if there is no reply but only a defence to counter-claim, after service of the defence to counter-claim; or
(b) if neither a reply nor a defence to counter-claim is served, at the expiration of 30 days after service of the defence.
(2) The pleadings in an action are deemed to be closed at the time provided by paragraph (1) notwithstanding that any request or order for particulars has been made but has not been complied with at that time.
At the time the pleadings were closed there was no defence to the counter-claim. Order 27 rule 9 of the Rules reads:-
9. A defendant who counter-claims against a plaintiff shall be treated for the purposes of Rules 2 to 8 as if he were a plaintiff who had made against a defendant the claim made in the counter-claim and, accordingly, where the plaintiff or any other person against whom the counter-claim is made fails to serve a defence to the counter-claim those rules shall apply as if the counter-claim were a statement of claim, the defence to the counter-claim a defence and the parties

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making the counter-claim and against whom it is made were plaintiffs and defendants respectively, and as if reference to the period fixed by or under these rules for service of the defence were reference to the period so fixed for service of the defence to counter-claim.

The value of a sale agreement in a land dispute is explained by the Supreme Court in Okoye vs. Dumez (Nig.) Ltd. (1985) 1 NWLR (Pt.4) 783 at page 790:
An unregistered registrable instrument could be relied upon to support a claim for SPECIFIC PERFORMANCE. It is trite law that where a purchaser of land or a LESSEE is in possession of land by virtue of a registrable instrument which has not been registered, and has paid the purchase money or RENT to the vendor or the LESSOR, in either case, the purchaser or the LESSEE had acquired an equitable interest. A registered instrument which has not been registered is ADMISSIBLE to PROVE such equitable interest and to PROVE payment of purchase money or RENT. See also Fakoya vs. St. Pauls Church Shagamu (1966) 1 All NLR 74.
In Obijuru vs. Ozims(1985) 2 NWLR (Pt.6) 167, the Supreme Court held at page 169 as

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follows:-
If a document granting lease which ought to have been registered is not registered, the following principles apply in respect of a LESSEE in possession:
(a) That Lessee holds the demise premises not as a legal owner of the term of years, but as a person who entered into a building agreement for a lease.
(b) The Lessee however, has no marketable title until the document is registered.
(c) The document is not void for all purposes.
It is valid as an agreement of a lease.
Where a registrable instrument has not been registered it cannot be pleaded as proof of title but as a receipt for the purchase of the land in dispute. A purchase receipt should be accompanied by an instrument showing the extent of the land the vendor sold to the purchaser.

Waazi Rikichi (DW1) testified on 7th April, 2009 at page 167 lines 14-23 and at page 168 lines 20 to page 169 lines 1-24 of the printed record: –
DW1:- Christian, affirms. I am Waazi Rikichi, I am about 49 years old. I live of Saura Kirya also called Saura Mada. I know the plaintiff. I was in Court when the plaintiff testified. I know Ungwan Kade.

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Ungwan Kade is East of Saura Mada. The land at ungwan Kade was founded by our grandparents. Ungwan Kade was founded by a man named Kegu or Kade. (He had two names). He Kegu or Kade has since died. He died about 10 years ago. I am not aware of the plaintiff buying any land at Ungwan Kade. I know Alhaji Agawo. He is Laminga. I also know Maiwada Gimba. He is from Moro. I also know Naaba. He is dead. I know Naaba at Janjara. We go to the same market at Ajuye. We also have our relations of Janjara Naaba has never farmed the land in dispute. He has never farmed at Saura Mada or Saura Kirya. Kegu Gade started the land called Chido.
xxxxxx
We want the Court to declare the land as ours. The Court should set aside the letter of purchase tendered by the plaintiff.
Court should restrain the plaintiff from further trespass. We claim N5,000,000.00 as damages. He knows where to get this money. There was no information when the plaintiff was buying this land. I know Maiwada Gimba in 1986 that is all.
Xxx I know all the defendants. I have my brothers amongst them. Maikasuwa and Luka Rikichi. The rest came later to join us at this land. When I said I

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inherited the land, I refer to my forefathers. All the other defendants came later. All defendants are farming in one place and sharing common boundary. Maiwada Gimba has no farm there. He entered my farm. I know the disputed land. Maiwada Gimba does not have any land of the place in dispute. Only the defendants have land of the disputed area. The disputed land is the land the plaintiff is saying he bought. I am not aware of the C of O the plaintiff has over this land. Since I became aware, I have not done anything because this case has been filed by the plaintiff. The evidence I have given is in report of my own land as well as those of the other defendants. I know tribute. I know the way land is measured. Maikomo got his land from our father. I know Kodo. Kodo is far from this land. There is a stream that separates us and Kodo. I do not know Alhaji Ali. I know Sarkin Laminga. He once came to this Court to give evidence. I do not know who came first either his parents or my parents (or that of PW5). Where I farm and live in within the jurisdiction of Sarkin Laminga. No Mada man was ever Sarkin Laminga. I do not know if Naaba or his

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father was ever the Chief of Laminga. The present Chief of Laminga inherited the stool from his father. He is supposed to know who came to his land. His father knew the time people came to live in his land.
As a human being, he may not know all the people who came to settle on his land. All taxes are paid to him.
Ungwan Kade is under Laminga and Kode is under Ninkoro among the defendants there are Gwandara people. I do not know how and when they came to their village the Gwandara people came and met my father they got their land from my father. We farm and share boundary with these Gwandara people. It was not my father who gave them their land. According to history they clear a forest to start their land. Based on history Naaba has not land there. I do not know of Sarkin Laminga (present) has land or not. Before Naaba died I was not in a position to know if he had any land.
I know Sarkin Ninzo Ishaya. I do not know if he bought any land from Ajao. I do not know Mallam Sani. I do not know if he recently bought a piece of land from Naaba. I wouldnt know if the present Chief and Naaba share common boundary.
I know Rabo Ali. I do

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not know his land we are from the same village. I know Ajao because we do politics together. He does not close with my father. My father is at home now. He is not one of the defendants. He gave me the history. That is all.

Baba Bala Sarkin Mada (DW2)s testimony at page 170 lines 2-26 to wit:
DW2:- Christian, affirms and say, I am Baba Bala Sarkin Mada. I live at Ungwan Mangoro under Laminga District, Kokona Local Government Area. I am about 50 years. I am Mada by tribe. I am a farmer. I have come to Court to defend myself because of my farm land. The land is at Ungwan Mangoro. I finished primary and secondary schools. I know the other defendants. Atiku, the 4th defendant and Iliya Usaini also called Iliya Musa the 9th defendants are known to me. I know the plaintiff because he sued me at Upper Area Court, Agbada. He sued me and others over a piece of land.
The land in the present dispute is my own. I got it from Musa Kuku, my grandfather Musa Kuku started this land by clearing the bush.
PW1, Rikichi Maiwaazi comes from Saura Mada also called Saura Kirya our villages are different. I know Ungwan Kade. It is a village

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Yohanna Biri the 13th defendant resides there. I was in Court when the plaintiff, Hardo Gambo testified. He had testified that he bought a piece of land from Naaba of Ungwan Kade. This land does not belong to the person Naaba. He lived at Ajuye market. We would meet at the market. Naaba is now dead. My farm is not for Naaba. My grandfather, Musa Kuku, is also dead. He was buried at Ungwan Mangoro. We were not giving any tributes to late Naaba. We do not give any tributes to the plaintiff. We have neither paid any chicken as tribute. If Court goes to Ungwan Mangoro Court will see old settlements mangos trees, Dorowa trees, Orange trees.
Iliya Musa, 9th defendant and the 4th defendant are my younger brothers while the DW4, Atiku Musa, is my uncle. We are all from Ungwan Mangoro. I am testifying for and on behalf of the defendants. I never saw Maiwada Gimba until that day when he came to Court to testify. I want the Court to rule that this piece of land is ours. The Court should reject whatever document of purchase presented by the plaintiff. We are asking for N5,000,000.00 (Five Million Naira) damages. That is all.

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Maikomo Gimba (DW3) testified at page 171 lines 6-15 of the printed record as follows:-
DW3:- Christian, affirms and say, I am Maikomo Gimba. I am 55 years old farmer. I live at Ungwan Maikomo. I am Mada. I am one of the defendants No.14.
The father of DW1 married my sister and I used to visit my sister. It was then that I saw a piece of land for farming. I talked to DW1s father (my in-law). He said I should come and cultivate the land. So I came and built a house there. I was not in Court when Alhaji Ajao PW testified, Alhaji Ajao did not give me the farm. I only met him at Ajuye market. I got there about 24 years ago.
Xxx I came to the place 24 years ago. All the villages in the area had been established. I do not know how DW1s father got the land. I do not know the history of this land.
REX Nil.

Rabo Ado (DW4)s testimony at page 171 lines 26 to page 172 lines 1-21 reads:-
DW4:- Christian swears and says, I am Rabo Ado, about 42 years old. Live at Ungwan Gwandara, Saura Gwandara, Kokona Local Government Area. I have come because Hardo sued me over Saura. This Saura is my farm. I

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am not educated. The farm is my own. I got the land from my grandfather Kaura Aruku. He moved from Gitata to settle there. He deforested the forest. There is an old settlement on this land, Mango trees, dorowa tree, Kadaura tree. I reap the fruits of these trees. My grandfather is dead. My father is dead. He is dead. I know Waazi Rikichi. He is from Saura Mada. It was one Maisambari that founded Saura Mada. I was told by my grandfather. My father farmed on this. My grandfather before he died (Grandfathers name is Kaura). I do not know Naaba. I know the plaintiff because of this case. I know PW3, Alhaji Ajao. I was not in Court when the plaintiff testified. I have never paid tribute in respect of this land. I do not know of the other defendants pay any tribute or not. There are five of us Gwandara sued in this matter. I do not know the actual place the plaintiff is claiming. Apart from Saura Mada there are other settlements. Ungwan Mangoro, Ungwan Kade, Ungwan Maikomo. These settlements are occupied by Mada people. It was one Kaibo who founded Ungwan Kade. There is a settlement in Ungwan Kade. Saura Mada shares boundary with Ungwan Maikomo.
Xxx the

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defendants are not from the same village. These villages were not founded at the same time. Saura Mada belongs to me. Saura Mada is under Laminga chiefdom. Yes there were people before my father came to settle here. The distance from my village Ungwan Gwandara, to Laminga is like from Keffi Garaku. Ungwan Kade is also as far. Ungwan Gwandara however is not far from Maikomo.
My grandfather found a vacant land and cleared the land. This is what my father told me. I do not know Maiwada, although I have heard of the name, the five Gwandara people joined in this case live in different area. My grandfather migrated from Gitata to settle at the place in dispute before the 4 other Gwandara followed. My grandfather died about 100 years ago. My father died about 20 years ago. I do not know how long my grandfather lived on this land before he died. My father was born at the farm in dispute, Saura Gwandara. I do not know Naaba. I do not know Naabas land. I do not know the exact land of Hardo.
REX Nil.

Onte Augustine Allanana (DW5)s evidence in Chief is at page 174 lines 20-26 is as follows:-
DW5:- Christian,

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affirms. I am Onte Augustine Allanana, 50 years old. I am a civil servant in Kokona Local Government Council as DPM. Laminga and Ninkoro are in Kokona Local Government Council created on the 1st October, 1996. That is all.
Xxx Kokona was created out of Keffi Local Government. After the creation of Kokona all transactions with respect to Ninkoro were transferred to Kokona.
REX After the creation of Kokona, Keffi cannot act for Kokona.

The notes of inspection at page 175 lines 1 to page 176 lines 1-11 of the record of appeal is as follows:-
Today, 16th July, 2010 Court visited the land. Both Counsel Ogwuche Okogwu for the plaintiff and Iliya Kodo for the defendants is present. The plaintiff present. Defendants 8 of them are present. The witnesses to the plaintiff are present. Four witnesses are present except the official witness the DPM.
Court:- Asked the plaintiff to show the land he is claiming. He started by showing the boundary to the south is bounded by a road leading to Saura Kirya or Mada or Saura Gwandara and Ungwan Mangoro. He came to a point where there is a small water way and said that was his boundary

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to the west. That the land west of that sports is not his own. The defendants said that land to the west is part of Saura Mada or Saura Kirya.
That part is not part of the plaintiff claiming. But Alhaji Ajawo who testified in Court said it is his land. What is worth notice is that the part is not part of the land in dispute. The plaintiff is not claiming that part of the land.
At the start of the land, there is a triangle the road to Saura Mada and Ungwan Kade continues to be the boundary to the east until we came to a point where there is a small tree, the boundary then moved down to the south east to a river Ninkoro River.
Court observed that the land is cultivated with crops (maize) growing. We meet one farmer cultivating the land; he said his name was Ubaka a Tiv boy. That he lives together with his father.
One of the defendants DW4 Atiku Musa said maize on part of the land which is growing well is his own. His son Benjamin in particular. There are crops Maize and groundnuts on the land to the south east plaintiff said he did not know who is cultivating the land now.
We continued on the road up to Ungwan Kade. Where the road

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divided. One road leading to Ninkoro River. The other runs down to Kodo River. The plaintiff stated that both sides road, the land is within the area he is claiming. At an area near the river, Maiwada Gimba who testified as PW3 showed us the land which said was his own given to him by the plaintiff to whom he was paying tribute. The area in dispute is very large. There are individual farms cultivated by people. Maiwaazi Rikichi showed a piece of farm he is cultivating opposite the land shown by Maiwada Gimba with maize on it which the Maiwada acknowledged that the crops were for Rikichi, but that he was driven away from the land by Maiwada Rikichi.
The plaintiff referred to the river as Rafin Uzara while the Rikichi seventh defendant said it was named Rafin Karfa. Maiwaazi said he has no farm on the area now.
The land extends to Maikomo village. At Ungwan Kade the 7th defendant Maiwaazi Rikichi showed us the ruins of then former settlement that is he was not born yet. We saw the ruin houses. He showed the hole their parents dug soil to build their houses. The plaintiff and his witnesses did not contest that but Ajao maintained that it was their

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parents who gave the parents of the plaintiff the land. They lived there and later left the area to a new settlement Saura. They have now retained. This place called Ungwan Kade.
On our return from Ungwan Kade we stopped at where we started and Rabo Ali PW4 showed us his land to the east of the land starting at the point we started. But the defendant contested it and said there is a ruin of house of one Dogo a Mada man who is dead on the land. That is all.
21 days to the defence Counsel to file and serve his written address.
21 days after service to the plaintiffs Counsel and 23rd September, 2010 for Counsel to adopt their written addresses.

I have tried to show that the appellants testified to support the facts that they pleaded in their respective defences and counter-claimed the disputed farmlands by showing their various acts of user spanning for quite a period of years. In Ikpang vs. Edoho (1978) 2 L.R.N. 29, Aniagolu, JSC held at pages 35 to 36 as follows:
But who the parties are, what the issues involves and what the subject-matter is, may not always be easy to determine especially in Courts, such as the

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native Courts of old and the more recent customary Courts, where lawyers trained in the art of drafting claims and settling pleadings with precision, do not normally practise. In those Courts another fundamental principle of law has been worked out, over the years, in respect of cases therein determined. The guidelines have been settled in the following principles.
Firstly in respect of the claims before those Courts it is necessary to look at the substance rather than at the form of the writ (Boadu vs. Fosu, 8 WACA 187; Oluma vs. Tsutsu, 10 WACA 89); one, therefore, should not examine those writs microscopically (Udofia vs. Apia, 6 WACA 216 at 218) or with a fine toothcomb. Secondly, on the question of procedure adopted by those Courts in arriving at their decision, subject, we must add, to the overriding principle that they must not be allowed to depart so fundamentally from accepted procedure in deciding their cases that they occasion in justice to either party to a case, an appeal Court must not be too strict in regard to matters of procedure adopted in those Courts (Dinsey vs. Ossey (1939) 5 WACA 177). Thirdly, generally, great latitude

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must be given to, and a broad interpretation placed upon native Court cases and one may add Customary Court cases so that the entire proceedings, the evidence of the parties and the judgment must be examined in order to determine what the native or Customary Court case was all about I(Ajayai vs. Aina, 16 NLR 67). The whole conception and result of the proceedings will show what the parties were fighting for, the matters upon which issues were joined, even if technically framed in an inappropriate language from the standpoint of legal technocrats, and the decision of the native or customary Courts on those issues.
Where, for instance, the writ in a land case is framed between A and B the evidence may show clearly that in reality the fight was between the family of A and the family of B and that the claim, although framed in trespass, was in reality a fight as to the title of ownership of the land in dispute. In any case, it has long been recognized that in land cases in this part of the world people usually spring to action once they feel that their interest has been affected and would

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immediately intervene and make their interest known to the Court no matter in what form the claim before the Court is framed and no matter how apparently innocuously joined the issues between the parties may appear to be. A rational explanation for this is to be found in the fact that in this part of the world land is usually owned communally and each and every member of a community realizing that he has a stake in a piece of land in dispute does not sit idly by while a contest is raging in respect of a piece of land in which he considers himself as having a legitimate interest a contest the result of which may well determine, or substantially affect, his interest. It was from long experience of land matters in West Africa that their Lordships of the Privy Council formulated in Atta II vs. Bonsra II (1958) A.C. 95 at 103 the principle first stated by Lord Pensance in Wytcherley vs. Andrew (1871) SLR 1 P&D 327 at 328 that:
It seems to be the recognized thing in this part of West Africa for all persons with the same interest in a land dispute to range themselves on one side or the other. Sometimes they apply to be joined as parties. On

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other occasions they regard the named party as their champion and support him by giving evidence. If he wins, they reap the fruits of victory. If he fails they fall with him and must take the consequences.
It may now be regarded as established general principle that where a party, quite cognizant of the existence of Court proceedings in respect of a piece of land, does not intervene or does not make it known that he has interest in the land, he must be deemed to have no interest in the land and therefore be indifferent to the outcome of the proceedings. Those who, in those circumstances, later lay claim to the land, or assert rights over it, are, more often than not, land cheats and speculators who make profits out of land litigations.

In Lawal vs Dawodu (1972) 8-9 S.C 83, Coker JSC held at page 121-122 as follows:
In a case of declaration of title to land, the onus is on the plaintiff to prove by traditional evidence or actual acts of possession or both that he is the owner of the land in dispute. If the evidence of tradition fails and indeed if it is proposed to test the probability of such traditional evidence, recourse

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must be had to the evidence of actual user and possession of the land in dispute.

In Mogaji & Ors. vs. Cadbury (1985) 7 SC (Pt.1) 59 Obaseki, JSC held at pages 160-161 of the judgment that:
The law is well settled and this Court has so declared in many cases coming before it recently that a trespasser in possession is only entitled to sue in trespass person who are not the true owners of the land and that as against a trespasser possession attaches to title of ownership. See David Fabunmi vs. Abigail Agbe SC.57/1984 delivered on March 8, 1985; Aromire & Ors. vs. Awoyemi (1972) 1 All NLR 101 at 112; Vincent Bello vs. Magnus Eweka (1981) 1 SC 101; Nwosu vs. Otunola (1974) 1 All NLR (Pt.1) 533; Alhaji Adeshoye vs. Siwoniku (1952) 14 WACA 86 at 87; Godwin Egwuh vs. Duro Ogunkehin SC.329/66 of 28/2/69; Lyell vs. Kennedy (1882) 20 Ch.D. 484 and Asher vs. Whitlock (1865) LR 1 Q.B. 1 at 5.
If he sues one who can show a better title, he cannot succeed.

The parties and the Court are bound by the pleadings and the facts observed during the locus in quo. See African Continental Seaways Ltd. vs. Nigerian Dredging Road & General Works Ltd.

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(1977) 5 SC at page 250 and Temco Eng. & Co. Ltd. vs. S.B.N. Ltd. (1995) 5 NWLR (Pt.397) 607. The Court of Appeal is to interfere with the decision of the Court below where the decision does not related to the facts pleaded in the Statement of Claim, the Statement of Defence or Counter-Claim in the absence of a defence to the counter-claim. A decision of a learned trial Judge in a land cause or matter that no defence to the counter-claim has been filed yet, denies the counter-claimant a decision on the merit is perverse and is a travesty of justice. In Fashanu vs. Adekoye (1974) 1 All NLR 32, Coker, JSC held at page 37 as follows:
We did say earlier on in this judgment that this case resolves itself entirely on its facts. The appeal before us clearly attacks the findings of facts and seriously challenges the judgment in an area which is only narrowly open to a Court of appeal. The appraisal of oral evidence and the ascription of probative values to such evidence is the primary duty of a Tribunal of trial and a Court of appeal would only interfere with the performance of that exercise if the trial Court had made an imperfect

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or improper use of the opportunities of hearing and seeing the witnesses or has drawn wrong conclusions from accepted or proved facts which those facts do not or indeed has approached the determination of those facts in a manner which those facts cannot and do not in themselves support.
The parties gave evidence and called witnesses and indeed there was on each side a great deal of hard swearing. Undoubtedly, the duty of the Court in ascertaining the truth in those circumstances is all but easy and the best of logic may be as availing to one of the parties as it is to the other. But there was produced by both parties a large body of documentary evidence containing a number of letters and other documents and, as argued by learned Counsel for the plaintiff, it is the duty of the learned trial Judge in a case like the present to test the probability of the case of either of the parties by reference to relevant documents which represent evidence of some more or less permanent or perhaps unassailable character.

This is a proper case to allow this appeal and to grant reliefs to the appellants which are set out in the Notice of Appeal at page

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208 of the printed record as follows:-
(a) An order setting aside the judgment of the lower Court dated 11th February, 2011.
(b) An order dismissing the plaintiffs claim.
(c) An order granting the defendants relief as per their counter-claim.

In arriving at this decision, I am guided by the authority of Okafor vs. Idigo (1984) 1 SCNLR 481 where the Supreme Court held at page 494 as follows:
(7) The dismissal of the plaintiffs claim in an action for a declaration of title does not mean that the land belongs to the defendant (Nwankwo Udegbe vs. Anachuna Nwokafor (1963) 1 All NLR 417; Privy Council Judgments by Olisa Chukwura, page 994; Eboha vs. Anakwenze (1967) NMLR 140). Unless there is a finding on the evidence that the defendant had established his ownership of the land. Duedu vs. Jiboe (19 66) 1 WLR 1040; Amos Ogbesusi Aro vs. Salami Fabolude (1983) 2 SC 75.

The appeal is allowed. The appellants are entitled to judgment in respect of their Joint Counter-Claim as claimed in the Court below.

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Appearances:

G. Ofodile-Okafor, SAN with him, D.A. Dalong, Esq.For Appellant(s)

F.T. Gen, Esq. holding the brief of M.Y. Saleh, SANFor Respondent(s)

Appearances

G. Ofodile-Okafor, SAN with him, D.A. Dalong, Esq.For Appellant

AND

F.T. Gen, Esq. holding the brief of M.Y. Saleh, SANFor Respondent

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