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YINUSA AYINLA v. ALHAJI HARUNA KANNIKE & ANOR (2019)

YINUSA AYINLA v. ALHAJI HARUNA KANNIKE & ANOR

(2019)LCN/13301(CA)

In The Court of Appeal of Nigeria

On Friday, the 17th day of May, 2019

CA/IL/119/2018

 

JUSTICES

IBRAHIM MOHAMMED MUSA SAULAWA Justice of The Court of Appeal of Nigeria

HAMMA AKAWU BARKA Justice of The Court of Appeal of Nigeria

BALKISU BELLO ALIYU Justice of The Court of Appeal of Nigeria

Between

YINUSA AYINLA Appellant(s)

AND

1. ALHAJI HARUNA KANNIKE
2. ALHAJA OLUWATOYIN HARUNA KANNIKE Respondent(s)

RATIO

WHETHER OR NOT PARTICULARS OF A GROUND OF APPEAL ARE DIFFERENT AND MUST BE DIFFERENTIATED FROM THE GROUND OF APPEAL

The law is trite that the particulars of a ground of appeal are different and must be differentiated from the ground of appeal. The primary essence of stating the particulars of the ground of appeal is to give notice to the respondent of the complaint of the Appellant against the decision appealed against in order to prevent surprise. See Nwosu vs. PDP & Ors. (2018) LPELR-44386- (SC) and Oraekwe Vs. Chukwuka & Ors. (2010) LPELR-9128 (CA). PER ALIYU, J.C.A.

RIGHT OF APPEAL FROM THE TRIAL COURT TO THE COURT OF APPEAL

In determining the first leg of the preliminary objection aforesaid, I will refer to the provisions of Section 241(1) (a) and (b) of the 1999 Constitution of Nigeria, 1999 (as amended), which provides the right of appeal to this Court from a decision of the lower Court as follows:
241-(1)- ?An appeal shall lie from the decisions of the Federal High Court or a High Court to the Court of Appeal as of right in the following cases:
a) final decisions in any civil or criminal proceedings before the Federal High Court or a High Court sitting at first instance;
b) where the grounds of appeal involves questions of law alone, decisions in any civil or criminal proceedings.?
By the above provisions, it means any appeal, which grounds of appeal do not involve question of law alone, the Appellant requires leave of Court to appeal against that decision. See Chrome Air Services Ltd & Ors. Vs. Fidelity Bank (2018) 5 NWLR (pt. 1611) 160 at 180, paras. C-E; Ezenwaji Vs. U.N.N. (2017) 18 NWLR (pt. 1598) 499 and Metal Construction (W.A.) Ltd Vs. Migliore (1990) 2 NSCJ 20, C. A. But the Constitution did not provide any guide on how to distinguish the grounds of law and of facts, or grounds that are of mixed law and facts. It is the Supreme Court that has provided a guide to determine and distinguish grounds of appeal in several decisions including the case of C.A.S. Vs. Fidelity Bank, (supra), where it held thus:
?It is recognized that it is often difficult to distinguish between a ground of law and a ground, which is of mixed law and facts. Over time, a general rule of thumb employed by Courts to determine the nature of grounds of appeal has evolved. Where the complaint is that the trial or appellate Court misunderstood the law or misapplied the law to the proved or admitted facts, it is a ground of law. Where a ground of appeal questions the evaluation of evidence before the application of the law, it is a ground of mixed law and fact. There is generally no difficulty in determining whether a ground of appeal is a question of fact. PER ALIYU, J.C.A.

THE POSITION OF LAW REGARDING A CLAIM FOR DECLARATION OF OWNERSHIP OF LAND

In determining this issue it is important to state the position of law regarding a claim for a declaration of ownership of land to the effect that the onus is on the plaintiff to establish his claim on the preponderance of evidence, by adducing cogent and reliable evidence, which prima facie entitles him to judgment. It is only when the plaintiff does this that the defendant will lead evidence to enable the Court consider on whose side the case preponderates. See Isitor Vs. Fakarode (2018) 10 NWLR (pt. 1628) 416, Oyewusi Vs. Olagbami (2018) 14 NWLR (pt. 1639) 297 at 317 C-D and Anagbado Vs. Faruk (2018) LPELR-44909 (SC) among others. PER ALIYU, J.C.A.

WAYS OF ESTABLISHING TITLE OF OWNERSHIP TO LAND

It is also trite law that the plaintiff can prove his claim of title to a disputed land in any of the methods prescribed in the locus classicus case of Idundun Vs. Okumagba (1976) 9-10 SC 227; namely (1) by traditional history or evidence or (2) by production of documents of title, (3) by exercise of numerous act of ownership over a sufficient length of time to warrant the inference that the person is the true owner, (4) by proof of act of long possession and enjoyment of the land and (5) by proof of connected or adjacent land in the circumstances rendering it probable that the owner of such connected land would in addition be the owner of the land in dispute. See also Pada Vs. Galadima (2018) 3 NWLR (pt. 1607) 436 and Anagbado Vs. Faruk (2018) LPELR- 44909 (SC), Anagbado Vs. Faruk (supra) and Oyewusi Vs. Olagbami (supra); where the Apex Court reiterated the principle of law established in Idundun Vs. Okumagba (supra). PER ALIYU, J.C.A.

WHETHER OR NOT THE APPELLATE COURT CAN DETERMINE AN ISSUE NOT CANVASSED BEFORE THE LOWER COURT

It is important to state here that an appeal is a continuation of the case from the lower Court and as an Appellate Court, we have no jurisdiction to determine an issue that had not been canvassed before the lower Court and on which it had not expressed an opinion. See Akpan Vs. Bob & Ors. (2010) LPELR-376 (SC), Onwere Vs. Nwazuo & Ors. (2012) LPELR- 20838 (CA) and Ndukwe Vs. Ekuma & Anor. (2018) LPELR- 43762 (CA).  PER ALIYU, J.C.A.

BALKISU BELLO ALIYU, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the Kwara State High Court sitting at Ilorin, delivered on the 20th June 2018 by Hon. Justice I. A. ISIAQ in suit No: KWS/174/2014, The Respondents were the claimants and they filed a writ of summons along with a statement of claim on the 5th June 2014 against the Appellant who was the defendant before the lower Court. The facts of the case were stated in the Respondents? statement of claim contained at pages 5 to 8 of the record of appeal. The 1st Respondent being the husband of the 2nd Respondent purchased a piece of land described as lying and situate at Osere Area, Ilorin, Kwara State, measuring 50ft X 50ft and 25ft X 50ft respectively. The 1st Respondent claimed to have bought the said land for and in the name of the 2nd Respondent, from one Alhaji Muttalubi Olarewaju Yakeen and the Blacksmith and Iron Bender Association, Osere Zone, Ilorin Kwara State.

?The Respondents further claimed that the Appellant who is a motor painter, occupied part of the land as their tenant and as such he was only allowed to erect temporary

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makeshift structure of roof shell on the land, which he used as his workshop. The Appellant had been paying rents to the Respondents for the use of the land until 2009 when he stopped. It was further claimed that the Appellant had rented part of the land to some unknown persons who equally erected temporary structures like wooden and steel kiosk on the land without the knowledge, consent or approval of the Respondents, destroyed the erected beacons and the constructed building foundation on the land.

?Sometimes in 2012, the Respondents purchased and put building materials on the part of the land, which was not rented to the Appellant, and the building materials; namely, sand, gravels and blocks cost N706, 000. But the Appellant leveled the sand and gravels and took away the blocks to unknown place, as such they were unable to develop the land as intended, and the Appellant vowed not to allow them access or use of the land. Upon these facts, the Respondents prayed the lower Court for the following reliefs against the Appellant:
1. A declaration that the claimants are the owners and persons entitled to the Right of Occupancy over a piece of land

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being, lying and situate at Osere Area, Ilorin, Kwara State of Nigeria, measuring 50ft X 50ft and 25ft X 50ft respectively.
2. An Order of the Honourable Court for the possession and forfeiture of part of the land being occupied and used by the Defendant as workshop being a Tenant of the claimants? ownership.
3. An Order of the Honourable Court mandating the defendant to render account and for the remittance of the rents collected by the defendants on the surrounding shops erected around the land in dispute
4. Payment of rents from July 2009 at the rate of N15, 000: 00 (Fifteen thousand Naira only) per annum until judgment is given in the case and at the same amount after the judgment until possession is finally delivered to the Claimants.
5. Special damages of the sum of N706, 000: 00 (Seven Hundred and Six Thousand Naira) only for the destruction of the beacons erected, the building foundation constructed and the sands put on the land
6. General damages
7. The cost of filing this suit.

In proof of the claim before the lower Court, the Respondents called one witness, and tendered several documents. On his part the

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Appellant denied the claim of the Respondents and testified as DW1 in his defence. He stated that he did not know the Respondents and the land they claimed was in fact part of his land lying and being at No. 2 Osere Area, Ilorin measuring 135ft X 90ft and 80ft X 50ft, which he had purchased in the year 1986 from Alhaji Bashiru Salami of Sarume Compound in Ilorin at the cost of N120, 000. He said he had never met the 1st Respondent until the year 2012 when he (1st Respondent) met the Appellant on the land and challenged him.

?At the conclusion of the trial, the learned trial Judge entered judgment for the Respondents as per their reliefs 1, 2 and 7 and dismissed the other reliefs sought by the Respondents for lack of proof. The Appellant was unhappy with the judgment of the lower Court and thereby filed a notice of appeal on the 16th August, 2018, but the extant one is the amended notice of appeal filed on the 31st December 2018 but deemed properly filed and served on 30th January 2019, predicated on four (4) grounds of appeal. The record of appeal was transmitted on the 5th October 2018, while the Appellant?s brief of argument settled by I. B.

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Ayegbami Esq. was filed on 31st December 2018. The learned Counsel for the Appellant distilled and submitted the following three issues for determination from the grounds of appeal thus:
1. Whether the evidence of the claimants/Respondents are cogent and reliable to be relied upon by the trial Court to grant reliefs 1, 2 and 7 (grounds 2 and 3).
2. Whether the trial Court was right to have awarded the parcel of land to the Respondents measuring 50ft X 50ft in the document tendered but rejected (ground 1).
3. Whether the trial Court was right to have declined awarding the counter claim (ground 4).

The Amended Respondents? Brief of argument settled by M. I. Adedo Esq. was filed on 1st February 2019, wherein the Respondents raised a preliminary objection to the competence of this appeal, and incorporated the arguments in support thereof in paragraphs 2.0 to 2.09 of their brief of argument. The ground of the Respondents? preliminary objection is that the Appellant?s four grounds of appeal are incompetent and as such this appeal should be dismissed.

?On 4th March, 2019, when the appeal was called up for

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hearing, S. N. Nasir Esq. adopted the Respondents? argument in support of their preliminary objection and urged the Court to dismiss the appeal. S. N. Bayero Esq. adopted the Appellant?s Reply brief filed on 7th February 2019, paragraphs 2: 00 to 2:04 as the Appellant?s response to the preliminary objection in urging the Court to dismiss the preliminary objection.

ARGUMENT ON THE PRELIMINARY OBJECTION
In arguing the Respondents? preliminary objection, M. I. Adedo Esq. submitted that grounds 1 to 4 of the grounds of appeal relate to mixed law and facts and as such, there is no way same can be argued without referring to facts or without stating facts as done in paragraphs 6.01 to 6.07 and paragraphs 7.02 to 7.03 of the Appellant?s brief of argument. The learned counsel submitted that before a ground of appeal containing mixed law and facts can be competent, leave of the appellate Court must first be sought and obtained, but in this appeal no such leave was obtained by the Appellant, thus making the four grounds of appeal liable to be struck out. He relied on the decision in Abiola & Sons Bottling Co. Nig. Ltd Vs. First City Merchant Bank Ltd & Ors.

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(2013) 10 NWLR (pt. 1363) 501 at 521.

It was also contended that the Appellant?s argument in paragraphs 5.04 -5.11 (pages 3-5) of his brief relating to the legal personality of the Blacksmith And Iron Bender Association, Osere Zone Ilorin, the transferee of the disputed land, was the subject of the ruling of the trial Court delivered on 24/1/2017, contained at pages 171 to 176 of the record of appeal. The Appellant has not appealed against the said ruling and therefore he cannot smuggle this issue into his brief of argument in this appeal. He relied on the case of Ogbuehi Sylvester Vs. Theophilus Oguajuo Ohiakwu & Ors. (2014) 5 NWLR (pt. 1401) 467 at 506, where this Court held that a party to an appeal cannot argue contrary to any findings of the trial Court in the absence of any appeal against such findings. For this reasons, the Court was urged to uphold the preliminary objection and to strike out the four grounds of appeal and consequently dismiss the appeal in its entirety with substantial cost.

?In his response to the preliminary objection, the Appellant?s learned counsel submitted that the four

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grounds of appeal upon which this appeal was built are strictly issues of law. The Appellant?s ground one relates to whether the trial Court can rely on a rejected document. Ground two relates to whether the purported admission made at the Upper Area Court Akerebiata, can stand when the statement was made/obtained by force. Ground 3 deals with whether a non-juristic person can validly enter into contract while ground four relates to the dismissal of the Appellant?s counter claim by the trial Court. It was submitted that leave of Court is not required when the grounds of appeal are grounds of law as shown in the amended notice of appeal and therefore the case of Abiola & Sons Bottling Co. Ltd Vs. First City Merchant Bank (supra) relied upon by the Respondents is not apposite.

With regards to the legal personality of the Blacksmith and Iron Bender Association, the learned Appellants? counsel submitted that it (legal personality of the Association) formed part of the decision of the trial Court and therefore the Appellants can validly raise the issue as his ground of appeal. For this reason the decision of

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Ogbuehi Sylvester Vs.  Theophilus Oguajuo Ohiakwu & Ors. (supra) relied upon by the Respondents, is irrelevant. He urged the Court to ?strike out? the preliminary objection of the Respondents.

But assuming while not conceding the fact that this Court finds in favour of the preliminary objection, he submitted that it can only make an order striking out the appeal and not a dismissal as prayed for by the Respondents. He relied on the provisions of Order 7 Rule 6 of Court of Appeal Rules, 2016 in support.

DETERMINATION OF THE PRELIMINARY OBJECTION
The preliminary objection of the Respondents is predicated on two legs. The first leg of the objection is that the four grounds of appeal contained mixed law and facts for which the Appellant ought to have sought and obtained leave of Court to file and argue them. Therefore, having not obtained the required leave of Court before filing his notice of appeal, the appeal is incompetent. The 2nd leg of the objection relates to the legal personality of the Blacksmith and Iron Bender Association, Osere Zone Ilorin, which was decided upon by the ruling of the lower Court delivered on 24th January 2017, and upon

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which the Respondents alleged there was no appeal.

In determining the first leg of the preliminary objection aforesaid, I will refer to the provisions of Section 241(1) (a) and (b) of the 1999 Constitution of Nigeria, 1999 (as amended), which provides the right of appeal to this Court from a decision of the lower Court as follows:
241-(1)- ?An appeal shall lie from the decisions of the Federal High Court or a High Court to the Court of Appeal as of right in the following cases:
a) final decisions in any civil or criminal proceedings before the Federal High Court or a High Court sitting at first instance;
b) where the grounds of appeal involves questions of law alone, decisions in any civil or criminal proceedings.?
By the above provisions, it means any appeal, which grounds of appeal do not involve question of law alone, the Appellant requires leave of Court to appeal against that decision. See Chrome Air Services Ltd & Ors. Vs. Fidelity Bank (2018) 5 NWLR (pt. 1611) 160 at 180, paras. C-E; Ezenwaji Vs. U.N.N. (2017) 18 NWLR (pt. 1598) 499 and Metal Construction (W.A.) Ltd Vs. Migliore (1990) 2 NSCJ 20, C. A.

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But the Constitution did not provide any guide on how to distinguish the grounds of law and of facts, or grounds that are of mixed law and facts. It is the Supreme Court that has provided a guide to determine and distinguish grounds of appeal in several decisions including the case of C.A.S. Vs. Fidelity Bank, (supra), where it held thus:
?It is recognized that it is often difficult to distinguish between a ground of law and a ground, which is of mixed law and facts. Over time, a general rule of thumb employed by Courts to determine the nature of grounds of appeal has evolved. Where the complaint is that the trial or appellate Court misunderstood the law or misapplied the law to the proved or admitted facts, it is a ground of law. Where a ground of appeal questions the evaluation of evidence before the application of the law, it is a ground of mixed law and fact. There is generally no difficulty in determining whether a ground of appeal is a question of fact. ?
With above established principle of law in mind, I consider it expedient and for guidance to reproduce the Appellant?s grounds 1, 2, 3 and 4 together with their particulars below in

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order to determine the first leg of the preliminary objection of the Respondents. The grounds of appeal contained in the Appellant?s amended notice of appeal are reproduced below:
?GROUND ONE (1)
The Court erred in law and misdirected itself when it awarded the parcel of land measuring 50ft X 50ft to the claimant.
PARTICULARS
1. The claimants established their ownership by documentary evidence
2. The claimants attempted to tender the document covering the land measuring 50ft X 50ft purchased from Alhaji Mutalib Olarewaju Yakeen but same was objected to by the Defendant counsel.
3. The two counsels canvassed their arguments on the said document.
4. The Court ruled in favour of the defendant?s counsel and rejected the document on the ground that same was not prepared by a legal practitioner.
5. The Court cannot award the content of the said document sought to be tendered by the Claimants but rejected.
6. Exhibits P1 and P2 were documents of title emanating from Mallam Mustapha Mogaji to Black Smith and Iron Bender, while the same document of title was transferred to the claimants which is exhibit P2.

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GROUND 2
The Court erred in law when it relied on exhibit P9, which was obtained by force.
PARTICULARS
1. That it was on that basis and the likelihood of bias that the matter was transferred from UPPER AREA COURT Akerebiata to UPPER AREA COURT 1.
2. That the matter started de novo at UPPER AREA COURT 1 and judgment was entered in favour of the Appellant.
3. That the trial Court was wrong to have relied heavily and based his judgment on the said Exhibit.
4. Exhibit P9 is not a judgment of Court but a mere allegation at Upper Area Court Akerebiata.
GROUND THREE (3)
The Court erred in law when it granted reliefs 1, 2 and 7 adumbrated on the statement of Claims to the Claimant/Respondent.
PARTICULARS
1. Exhibit P2 was made in favour of Blacksmith and Iron Bender Association and Alhaja Toyin Haruna Kannike
2. Blacksmith and Iron Bender Association is not a juristic person
3. It is only the natural and juristic person that is recognized in the eyes of the law
4. Blacksmith and Iron Bender Association is neither a juristic person or a natural person
5. Blacksmith and Iron Bender

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Association cannot validly transferred (sic) possession having not been registered.
GROUND FOUR (4)
The trial Court erred in law not to have awarded the counter claim of the Appellant submerged in statement of defence.
PARTICULARS
1. Counter claim is a distinct and separate claims
2. The Appellant proved the counter claim at the trial Court
3. But the trial Court was wrong to have believed exhibit P10 and refused the counter claim
4. Exhibit P10 is the judgment of the Kwara State High Court delivered by Honorable Justice M. A. Folayan on the 29th January 2003
5. The said exhibit was non-suited by the Court.
6. It is legally wrong to rely on a case that was non suited
7. The trial Court therefore was wrong to have relied on the said exhibit P10 in reaching his decision
8. The Court based its believe on Exhibit P10 which contained that the 1st Claimant bought two (2) uncompleted buildings in 1977 and 1980 at the cost of N60, 000 and N70, 000 respectively.
9. The claimant/respondent did not state the status or stage of the said uncompleted building.
10. The defendant/appellant purchased his property at

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the sum of N120, 000. 00 on the 30th January 1986, equivalent to nine (9) and six (6) years interval to the purported purchase of the Claimant/Respondent land.
11. The trial Court did not avert its mind to the fact that land unlike other properties appreciate on daily basis.
12. The Court is therefore wronged(sic) to have held that presumption.?
A close scrutiny of the ground one shows that the Appellant?s complaint relates to the evaluation of the documentary evidence tendered and rejected, as well as the lower Court?s reliance on the rejected exhibit to award the disputed land to the Respondents. In other words, the Appellant?s complaint in ground one is the award of the disputed land to the Respondents, which the Appellant claimed was based on the rejected exhibit before it. This is a complaint on the misapplication of law, that is, basing of the lower Court?s decision on an exhibit, which it has rejected in evidence in the course of the trial. It is a ground that related to the misapplication of the law and therefore a ground of law and I so hold.
?With regards to the Appellant?s ground two, the

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complaint relates to the lower Court?s reliance on exhibit P9 in the judgment complained of. This ground of appeal is similar to ground one, in which the complaint of the Appellant is the lower Court?s reliance on exhibit P9 in reaching its decision, which exhibit the Appellant alleged was obtained by force and therefore an inadmissible evidence. Like ground one, ground two is also a ground of law.
On ground three, the Appellant?s complaint is in respect of the lower Court?s granting of the Respondents? reliefs 1, 2 and 7. It was upon the evaluation of the evidence and applying the applicable laws to the proved facts that the lower Court reached the conclusion to grant the claims of the Respondents. In other words, by his ground three, the Appellant alleged that the lower Court misapplied the law regarding proof to the claims of the Respondents before it. This ground can be accommodated as a ground of law alone, and it is a ground of law and I so hold. The first leg of the preliminary objection lacks merit and it is dismissed.
?The second leg of the Respondents? preliminary objection is related to the

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Appellant?s ground three, which is the legal personality or juristic status of the Blacksmith and Iron Bender Association Osere, resolved by the ruling delivered by the lower Court on 24/1/2017 at the interlocutory stage of the trial. The Appellant did not appeal against the said ruling and the legal personality of the Blacksmith and Iron Bender Association was not part of the judgment appealed against in this appeal. The Appellant?s answer to this ground of objection was a denial and a claim that the legal personality of the Blacksmith and Iron Bender Association indeed formed part of the judgment he appealed against.
?On this leg of the preliminary objection, the Respondents? predicated their preliminary objection on the particulars of ground three, wherein the Appellant mentioned the legal personality of the Blacksmith and Iron Bender Association. The law is trite that the particulars of a ground of appeal are different and must be differentiated from the ground of appeal. The primary essence of stating the particulars of the ground of appeal is to give notice to the respondent of the complaint of the Appellant against the decision

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appealed against in order to prevent surprise. See Nwosu vs. PDP & Ors. (2018) LPELR-44386- (SC) and Oraekwe Vs. Chukwuka & Ors. (2010) LPELR-9128 (CA).
The Appellant?s complaint in his ground three is that there was an error of law in the decision of the lower Court granting the claims of the Respondents. I think the appropriate thing to do is to incorporate this leg of objection in the Respondents? brief of argument in the main appeal. But at this stage, even without the particulars, ground three can stand on its own to support the appeal. This leg of objection is also dismissed
In the Appellant?s ground four, he complained that the lower Court was in error in not awarding (granting) his counter claim, which he ?submerged? in his statement of defence. I have gone through the statement of defence contained at pages 41 to 43 of the record of appeal and in paragraph 5, the Appellant had stated thus:
?Wherefore the Defendant resist the claim of the claimants and counter-claim his land described in paragraph 2(c) of the statement of defence.?
This ground of appeal is similar to ground three

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of the preliminary objection because the Court in its final decision granted the disputed land to the Respondents and refused the Appellant?s counter claim stated in paragraph 5 of his pleadings. My holding supra in respect of ground three being of question of law applies mutatis mutandis to this ground four of appeal. The Respondents? preliminary objection on this leg also lacks merit and it is hereby dismissed.
In effect all the grounds of appeal having been found to be grounds of law alone, it means that the Appellant was not required to seek leave of Court to file them. He is well within the provisions of Section 241(b) of the Constitution of the Federal Republic of Nigeria 1999 (as amended)  quoted above to appeal to this Court as of right. The totality of my findings is to the effect that the Respondents? preliminary objection is devoid of merit and consequently, it is dismissed. I will now proceed to determine the appeal on its merit.

APPELLANT?S SUBMISSIONS ON THE MAIN APPEAL
The Appellant?s issue one distilled from grounds 2 and 3 is whether the evidence presented by the Respondents in support of their

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claims, which the lower Court relied upon in granting the Respondents? reliefs 1, 2 and 7 was cogent and reliable. In arguing this issue, the learned Appellant?s counsel referred the Court to exhibit 9, the proceedings of the Upper Area Court Akerebiata, wherein the Court recorded that the Appellant had admitted to the fact that the Respondents allocated the disputed land to him. He then referred to paragraphs 2 H, I, J and K of the Appellant?s statement of defence contained at pages 41 to 42 of the record of appeal to submit that the Appellant was never served with the originating processes used to commence the proceedings before that Upper Area Court, and therefore the proceedings were conducted without jurisdiction. The Learned counsel referred to Adamu Vs. Akukalia (2007) 51 WRN 118 (CA) in support of the proposition.

?It was further argued that the lower Court in granting the Respondents? reliefs 1, 2 and 7 relied on exhibits ?P1? and ?P2?, but that exhibits (contained at pages 18-20 of the record of appeal), ought not to have been admitted by the lower Court if it had adverted its mind to the fact that

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the name of the Blacksmith and Iron Bender Association stated thereon was not a juristic person clothed with legal personality to transact business in that name. It was thus submitted that Blacksmith and Iron Bender Association is neither a business name nor a legal person known to law and could not transact business in that name. The Court was referred to the case of Nigeria Army vs. Samuel (2013) 39 WRN 39 at 51 to 52 where the Supreme Court held that a business name couldn?t sue nor defend an action in a Court of law because it is not recognized as a legal person. Relying further on the case of Utuk Vs. Liquidator (2010) 4 WRN 38 at 59-60, the learned counsel submitted that this Court has the power to reject (expunge) documents wrongly admitted (by the lower Court) and to mark them as rejected.

?With regards to exhibit ?P10? (the judgment of High Court), it was submitted that the learned trial Court ought not to believe its contents or rely on same to grant the Respondents? reliefs 1 and 2, in view of the fact that the Respondents who were parties in that case were non suited. Further more, it was contended that there was no

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expert witness called to testify as to the market value of the disputed land as at 1986 ?before the Court jumped into the conclusion to believe the evidence of the Respondents.? The Court was urged to resolve this issue in favour of the Appellant.

On issue two, it was argued that the Respondents built their case before the lower Court on documentary evidence to prove their claim to the title of the disputed land, including an agreement dated 10th September 1997. However, this agreement was tendered and rejected in evidence and it was so marked as shown at page 175 of the record of appeal. Surprisingly, the trial Court still made findings in favor of the Respondents, despite the fact that the foundation upon which their case was built has been destroyed. It was thus argued that apart from the rejected document, there was no other documentary exhibits before the lower Court in support of their claim to the land measuring 50ft X 50ft, which was only contained in the rejected document. The Court was urged to so hold and reliance was placed on the case of Macfoy Vs. UAC (1962) AC 150 to the effect that one cannot put something on nothing and

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expects it to stand. Finally on this issue, it was argued on the authority of the case of Okoli Vs. Enemo (2009) SSCQR (Vol. 2) 873 at 902, that the onus is on the plaintiff seeking a declaration of title to a land in dispute to establish his title on the strength of his own case and not on the weakness of the defendant?s case.

?In arguing Appellant?s issue three, the learned counsel adopted his arguments in respect of issues 1 and 2 above and submitted that the Appellant had established the fact that he bought the disputed land from Alhaji Bashiru Sarumi of Sarumi compound, Ilorin vide exhibit D3, and the fact that he had exercised rights of ownership and control over the land by building his permanent shop on it. Equally, the Respondents did not contradict the Appellant?s evidence even under cross-examination. It was therefore argued that the Appellant had proved his counter claim, but instead of awarding him the land, the trial Court believed exhibit P10 and disbelieved his exhibit D3 in awarding the land to the Respondents. The Court was therefore urged to hold that the Appellant had indeed proved his counter claim before the lower

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Court on the preponderance of evidence as required by law; to allow this appeal and set aside the judgment of the lower Court.

RESPONDENTS? SUBMISSIONS
The Respondents submissions are contained at pages 6 to 19 of their amended brief of argument filed on the 1st February 2019. Therein, the Respondents adopted the issues formulated by the Appellant for the determination of this appeal.

In response to the Appellant?s contention on issue one to the effect that he was forced to admit, in exhibit ?P9?, the fact that the disputed land belonged to the Respondents and they had given it to him, the learned Respondents? counsel submitted that exhibit ?P9? was the proceeding of a Court of competent jurisdiction, and there is nothing on it that supports the claim of the Appellant of being forced to admit that the disputed land belonged to the Respondents. The Appellant?s application for the transfer of the case from that Court to another was not a proper manner to challenge the Court?s record of proceedings. See Andrew & Anor. Vs. INEC & Ors. (2017) 7-12 MJSC 1 at 28-29. The Court was urged to

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note that the Appellant?s allegation in paragraph 5.02 of his brief of argument to the effect that his admission was obtained by force is a very serious allegation against the Upper Area Court, which must be strictly proved, and the Appellant having failed to do so, there is nothing on the record of appeal to support his allegation. It was further submitted that the exhibit ?P9? being documentary evidence speaks for itself, it remains authentic and valid and oral evidence cannot be allowed to contradict its content. The case of Owhonda V. Ekpechi (2003) 9-10 S.C. 1 at 19 and Section 168(1) of the Evidence Act 2011 were referred to in support of the argument.

In response to the Appellant?s claim that he was not served with the ?originating process? leading to the proceedings in exhibit ?P9?, it was submitted that an area Court including the Upper Area Court is a native Court, where a complaint can be laid informally without service of any processes and thus failure to serve a process would not vitiate that Court?s proceedings or oust its jurisdiction as contended by the Appellant. Learned Counsel

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referred to the evidence of the 1st Respondent under cross-examination contained in page 182 lines 3-9 and exhibit ?D1? contained at page 38 of the record of appeal to show that it was a direct complaint the Respondents made against the Appellant before the Upper Area Court Akerebiata. Moreover, that the Appellant is raising this issue on non-service of originating processes before the proceedings in exhibit ?P9? was conducted for the first time in this appeal. He did not raise it before the lower Court, and therefore a fresh issue, for which the Appellant needed to seek leave of Court to raise it as a new issue and having been raised without the leave of this Court, it is incompetent. The cases of Oseni vs. Bajulu  (2009) 12 S.C. (pt. II) 81 at 99, Ogbe Vs. Asade (2009) 12 S.C. (pt. III) 37 at 53 and Olufeagba Vs. Abdur-raheem (2009) 12 S.C. (pt. II) 1 at 31-32 were referred to in support of the principle of law, and in urging the Court to dismiss the argument of the Appellant on this issue.

?In response to the argument of the Appellant regarding the juristic personality of the Blacksmith and Iron Benders Association, the learned

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Respondents? counsel relied on his arguments contained in paragraphs 2.07 to 2.09 of the Respondents? brief, to the effect that the issue was settled by the trial Court in its ruling delivered on 24th January 2017. There was no appeal against that ruling, which is contained in pages 171 to 176 of the record of appeal. Furthermore, the Association was not a party before the lower Court or before this Court, and the prayer of the Appellant contained in paragraph 5.09 of his brief of argument for this Court to declare that Association a non-juristic personality would amount to denial of fair hearing to the Association. He referred to the decision in Ayoade Vs. Spring Bank PLC & Anor. (2014) 4 NWLR (pt. 1396) 93 at 129, where it was held that a Court has no jurisdiction to make an order against a party that has not been summoned and given an opportunity to be heard.

?In response to the argument of the Appellant on exhibit ?P10?, which he contended contained contradictions upon which the trial Court ought not to have believed its content; the learned Respondents? counsel submitted that the exhibit being documentary evidence

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speaks for itself, and the Appellant cannot use oral evidence to contradict it. Referring to pages 86 to 110 of the record of appeal containing exhibit ?P10?, he further submitted that there was no material or substantial contradiction on this exhibit, which purpose was meant to contradict and show that the Appellant?s claim in his exhibit ?D3? to the effect that he bought the disputed land in the year 1986 at the cost of N120, 000 was bogus, dishonest and outrageous. See the cases of Ikuepenikan Vs. The State (2011) 1 NWLR (pt. 1229) 449 at 455 and Makinde Vs. Akinwale (2000) 1 SC 89 at 93-94; both to the effect that contradictions in evidence which are not material. The Court was therefore urged to so hold and resolve issue one against the Appellant.

?In arguing issue two, the Respondents? learned counsel submitted that the entire argument of the Appellant under this issue was erroneous, misplaced and misleading. This is because the Appellant did not challenge the claim of the Respondents? source of ownership of the disputed land that they stated in both their pleadings and in their evidence including under

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cross-examination. He referred to and relied on the pleadings and evidence of the parties before the lower Court contained in pages 18 to 23, 16 to 17, 12-13, 41 to 43 and 182 to 184 of the record of appeal in urging the Court to so hold.

In response to the argument of the Appellant that the case of the Respondents before the lower Court was built on rejected documentary evidence and on exhibit ?P1? and ?P2?, the Respondents argued that apart from the rejected documents and exhibits ?P1? and ?P2?, there were other documents they relied upon before the trial Court, such as exhibits ?P9?, ?P10?, ?P3?, ?P4? and ?P5?, which are rent receipts issued to the Appellant by the 2nd Respondent for the use of the disputed land (contained at page 75 of the record of appeal), exhibit ?P6?, which is a photograph of the destroyed beacons with the name of the 2nd Respondent still inscribed on it, (see pages 27 and 215-216 of the record of appeal): and that the Appellant did not deny these documentary evidence in both his pleadings or when he

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cross-examined 1st Respondent in the course of the trial. It was therefore submitted that these documents are deemed admitted by the Appellant, and the learned trial Judge had properly evaluated all the evidence before reaching the decision to award the land to the Respondents. See page 216 of the record of appeal. The learned counsel urged the Court to so hold and to resolve issue two against the Appellant.

In arguing issue three, in which the Appellant raised the question whether the trial Court was right to have declined to award his counter claim, the learned Respondents? counsel submitted that the Appellant?s counter claim was entirely hinged on exhibit ?D3?. He referred the Court to page 213-214 of the record of appeal in which the trial Court?s position on the Appellant?s exhibit ?D4? was stated. The learned trial Judge doubted the genuineness of the Appellant?s exhibit ?D3? rather preferring the Respondents? exhibits ?P1, ?P2? and ?P9? and concluded that the Appellant?s exhibit ?D3? was never in existence as at the time of

30

the Upper Area Court?s proceedings (exhibit ?P9?). He drew the Court?s attention to the fact that the Appellant did not appeal against the part of the lower Court?s decision on his exhibit ?D3? and so this Court should not allow him to approbate and reprobate, that is, having admitted ownership of the land in dispute to the Respondent to suddenly turn around to claim the same land. The Court was urged to resolve issue three against the Appellant, dismiss the entire appeal and affirm the judgment of the lower Court.

In the Appellant?s reply brief filed on the 7th February 2019, it was submitted that the transfer of the direct complaint from Upper Area Court Akerebiata to Upper Area Court 1 makes the proceedings of the former Court to ?go to no issue, non-binding to both parties? because the matter commenced de novo before the latter Court. As such the lower Court was wrong to rely on exhibit ?P9? in its judgment.

On the legal personality of the Blacksmith and Iron Benders Association, the learned Appellant?s counsel while conceding that the Court cannot make an order

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against a party not before it, argued that the Court is entitled to scrutinize a document before it and make an order in respect thereof. See Aja Vs. Odin (2011) 41 WRN 39 in support of the argument. In this regard, the Court was urged to scrutinize exhibits P1 and P2 and find that the transferee and transferor of the disputed land were not juristic persons and could not legally transfer the land in dispute to the Respondents, and to treat the two exhibits ?as if both were never tendered? in the learned counsel?s words.

He further insisted that there was inconsistency in the evidence in chief of the 1st Respondent as PW1 (contained at page 171 of the record of appeal) and his evidence under cross-examination regarding the contents of exhibits P1 and P2, particularly in exhibits P10 wherein the 1st Respondent claimed he bought houses in 1986, but the year in the document was stated as 1977. It was argued that the difference in the years goes to the root of the Respondents? case because between 1977 and 1986 is nine years which is a long time for variation of cost of land. The Court was referred to the case of Olagbeni Vs. Oyewusi

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(2013) 29 WRN 112 at 136 to the effect that pleadings must tally with evidence for it to have value and Reg. RCCG Vs. Bankole (2011) 14 WRN 138 at 151 and Soetan Vs. Steliz Ltd (2011) 22 WRN 100 at 115 both to the effect that evidence which has been rejected cannot have probative value. The Court was urged to hold that the trial Court was wrong to have relied on the rejected document, to award its content to the Respondents.

In conclusion, the learned Appellant?s counsel submitted that contrary to the contention of the Respondents, the Appellant had indeed challenged the contents of the Respondents? exhibits P3, P4 and P6 (receipts of payment of rents) in course of the trial, as shown in the proceedings of 5/10/17 contained in pages 42 and 189 of the record of appeal. The Court was urged to allow this appeal and to set aside the decision of the trial Court.

DETERMINATION OF THE APPEAL
I have given due consideration to the respective briefs of argument of each party to this appeal. Clearly, the parties are in agreement on the three (3) issues formulated and submitted by the Appellant as being adequate for the determination of this

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appeal. I agree with them and I will determine this appeal on the Appellant?s formulated three issues.

ISSUE ONE
In this issue, the Appellant raised the question whether the evidence proffered by the Respondents before the lower Court was cogent and reliable enough to support its decision to award the disputed land to the Respondents. In determining this issue it is important to state the position of law regarding a claim for a declaration of ownership of land to the effect that the onus is on the plaintiff to establish his claim on the preponderance of evidence, by adducing cogent and reliable evidence, which prima facie entitles him to judgment. It is only when the plaintiff does this that the defendant will lead evidence to enable the Court consider on whose side the case preponderates. See Isitor Vs. Fakarode (2018) 10 NWLR (pt. 1628) 416, Oyewusi Vs. Olagbami (2018) 14 NWLR (pt. 1639) 297 at 317 C-D and Anagbado Vs. Faruk (2018) LPELR-44909 (SC) among others.

It is also trite law that the plaintiff can prove his claim of title to a disputed land in any of the methods prescribed in the locus classicus case of Idundun Vs. Okumagba

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(1976) 9-10 SC 227; namely (1) by traditional history or evidence or (2) by production of documents of title, (3) by exercise of numerous act of ownership over a sufficient length of time to warrant the inference that the person is the true owner, (4) by proof of act of long possession and enjoyment of the land and (5) by proof of connected or adjacent land in the circumstances rendering it probable that the owner of such connected land would in addition be the owner of the land in dispute. See also Pada Vs. Galadima (2018) 3 NWLR (pt. 1607) 436 and Anagbado Vs. Faruk (2018) LPELR- 44909 (SC), Anagbado Vs. Faruk (supra) and Oyewusi Vs. Olagbami (supra); where the Apex Court reiterated the principle of law established in Idundun Vs. Okumagba (supra).

In this appeal, the Respondents relied on the documents of purchase to establish their claim of title to the land in dispute as noted by the learned trial judge at page 211 of the record of appeal, thus:
?It is clear from the evidence of both parties that they are laying conflicting claims to the land in dispute and as rightly stated by both counsels title to land can be established in 5 ways?.

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It is from the evidence of the parties that both parties are laying claim to the disputed land by evidence of purchase thus relying on documents to establish the claims, and claimants are relying on Exhibits P1 and P2 while the defendant also (is) relying on Exhibit D3.?

It was these documents relied by the parties that the learned trial Judge considered and analyzed in reaching the conclusion to grant the claim of the Respondents. The question now arises, was the learned trial Judge right in his conclusion, in view of all the documentary evidence placed before him. To answer this question, I will examine the pleadings and the documentary exhibits each party placed before the lower Court.

In paragraph 3 of their statement of claim contained at pages 5 to 8 of the record of appeal, the Respondents stated thus:
?The 1st claimant bought the land described in paragraph 1 above in the name of 2nd Claimant jointly from one ALHAJI MUTTALUBU OLANREWAJU YAKEEN on the one hand and the BLACKSIMITH AND IRON BENDER ASSOCIATION, ILORIN, KWARA STATE on the other hand which Association in turn bought same from one MALLAM MUSTAPHA MONGAJI OF OSERE

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VILLAGE, ILORIN KWARA STATE. The evidence of purchase is hereby pleaded and same shall be relied on at the hearing of this suit.?

The above pleading was supported by paragraph 3 of the 1st Respondent?s written statement on oath at pages 12 to 15 of the record of appeal stating the same facts and adopted as his evidence-in-chief.

?The two agreements of purchase relied upon by the Respondents are contained at pages 16 to 23 of the record of appeal, and also admitted in evidence as exhibits ?P1? and ?P2? respectively. Exhibit ?P1? dated the 13th June 2000, by which Mallam Mustapha Mongaji sold the land in dispute to the Blacksmith and Iron Bender Association, which was represented in the agreement by Mallam Issa Kolawole and Mallam Hakeem Raji as the chairman and secretary of the Association respectively. Exhibit ?P2? is dated the 18th April 2002 by which the Blacksmith and Iron Benders Association sold the same land to the 2nd Respondent, and in this transaction, the Association was represented by the same Chairman and Secretary who signed the earlier agreement, that is, exhibit

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?P2?. The two agreements were drawn by legal practitioners and duly registered by the Respondents with the receipt of registration attached.

On his part, the Appellant relied on an agreement of purchase dated the 30th January 1986 between Alhaji Bashiru Sarumi as the transferor and himself as the purchaser of the land for the price of N120, 000 Naira. This agreement was also admitted in evidence as exhibit ?D3?. It was not registered in accordance with the provisions of Section 3 and 15 of the Land Registration Law CAP. 13, Laws of Kwara State 2006.

The Appellant? learned counsel had argued, rather vehemently, that the Blacksmith and Iron Benders Association, which had sold the land to the Respondents in exhibit ?P2? was not a juristic personality known to law and as such it could not legally transfer the land to the Respondents. In response to this argument the Respondents stated that the Appellant had raised the same objection before the trial Court in the course of the trial and a ruling delivered on the 24th January 2017, which the Appellant did not appeal against.

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To begin with, it is noted that the Respondents had pleaded at paragraphs 3 and 4 of their statement of claim that they purchased the land jointly from Alhaji Muttalubi Yakeen and Blacksmith and Iron Benders Association Osere. They had also listed and frontloaded these documents to their originating processes. In answer to the Respondents? pleadings aforementioned, the Appellant stated in in paragraph 2(e) of his statement of defence (contained at pages 41 to 43 of the record of appeal), that:
?The Defendant denied knowing the acclaimed seller of the piece of land to the claimants and deny knowing the said Iron Bender Association Osere.?

The above amounted to a general denial to the claim of the Respondents that they purchased the land from the Association, and the Appellant did not plead or raise the issue of the juristic personality of the Association in his pleadings. He is deemed to have admitted the paragraphs 3 and 4 of the statement of claim and the documents pleaded therein.

I note also that the ruling of the lower Court delivered on the 24th January 2017 (contained at pages 173 to 176 was in respect of the admissibility of exhibits

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?P1? and ?P2?. The learned trial Judge held therein, that the documents were admissible in evidence, having been duly pleaded and being relevant to the proceedings. On the personality of the Blacksmith and Iron Benders Association, the learned trial Judge held that:
?With regards to the arguments that the documents were executed by non-juristic person, it is my opinion that the mere assertions by the counsel to the defendant without further prove of the juristic status of the party to the document cannot be a basis for rejecting the documents in evidence since the claimant had raised proper foundation to the purpose for which the documents are tendered in evidence. Therefore, it is my view that the documents are admissible in evidence.?

The above ruling of the lower Court was on the admissibility of the documents of purchase tendered in evidence by the Respondents. The status of the transferor of the land was not in issue at that stage, but a matter to be considered with regards to the weight if any to be attached to the document in the final determination of the case when the evidence is being considered. But the

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Appellant did not raise the issue again after the above interlocutory ruling, even in his final written address (contained at pages 130 to 137 of the record of appeal) before the lower Court, which could have enabled it to make a finding on the juristic personality of the Association that transferred the land to the Respondents. Again as argued by the Respondents? counsel, the Appellant did not appeal against the above ruling of the lower Court regarding the admissibility of exhibits P1 and P2.
It is important to state here that an appeal is a continuation of the case from the lower Court and as an Appellate Court, we have no jurisdiction to determine an issue that had not been canvassed before the lower Court and on which it had not expressed an opinion. See Akpan Vs. Bob & Ors. (2010) LPELR-376 (SC), Onwere Vs. Nwazuo & Ors. (2012) LPELR- 20838 (CA) and Ndukwe Vs. Ekuma & Anor. (2018) LPELR- 43762 (CA). I therefore agree with the learned counsel for the Respondents that the issue of juristic personality of the Blacksmith and Iron Benders Association is a fresh issue, which the Appellant can only raise with the leave of this Court.

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Having not obtained the required leave, the argument thereon is discountenanced.

The learned trial judge reviewed the agreements of purchase that each of the parties relied on, as shown in pages 212- 213 of the record of appeal thus:
?On comparison of Exhibits P1 and P2 tendered by the claimant on all land and Exhibit D3 by the defendant, it is clear from Exhibit P1 that the transferor is said to be the beneficial owner by inheriting the same from time immemorial same having been acquired as a virgin land by first occupation and settlement, from Exhibit P2 the transferee in the Exhibit sold same to 2nd claimant and the 2 Exhibits were duly stamped as shown on its face and evidenced by the attached receipt which dated 23/5/14.
Exhibit D3 on the other hand was executed by one Alhaji Bashiru Sarumi and the defendant and the transferor is described as the beneficial owner of the land under native law and custom. The deed of transfer i.e. Exhibit D3 was executed on 30/1/1986 and same was prepared by S. Ade Yusuf Esq. the counsel to the defendant who signed Exhibit D3 on 14/10/2011, on the same date, the Vendor?s affidavit attached to the

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Exhibit was executed and signed?. Therefore since exhibits P1 and P2 were duly executed and stamped as required by law, and that the transferor of exhibit P1 has traced his root of title to the claimant, Exhibit P1 and P2 in my view are genuine documents while Exhibit D3 in my considered view is an after thought and designed to mislead this Court in view of the admission in page 1 of Exhibit P9 which is the record of proceedings of Upper Area Court Akerebiata alluded to by both parties and compared by the D1 and D2 tendered by the Defendant wherein the defendant stated that the Claimant in that suit i.e. the 1st Claimant gave him the land for usage and that he has been using the same and also admitted letting it out to one Emmanuel Isiaya and Razaq Salami?.?

The learned trial Judge found the documents relied upon by the Respondents as genuine. He also relied on exhibits P9, the proceedings of Upper Area Court Akerebiata in which the Appellant had pleaded guilty to the direct complaint lodged against him by the 1st Respondent (exhibit D1). The learned trial Judge further considered exhibit D2, the ruling of the Upper Area Court 1 Ilorin,

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in which it held that the 1st Respondent as the complainant before it, had established a prima facie case against the Appellant consequent upon which the Upper Area proceeded and framed a two counts charge of fraudulent and dishonest conversion of the Respondents? land, mischief by the destruction of the beacon placed on the land and damage to the land against the Appellant. Both are offences contrary to Sections 311 and 326 of the Penal Code Law. Also, duly considered by the learned trial Judge is exhibit P8, photographs showing the uprooted beacon with name of the 2nd Respondent ?Alhaja Kanike? still visibly written on it.
That not withstanding, the Appellant?s learned counsel argued that the Exhibit P9 relied upon by the lower Court in granting the claim of the Respondents was obtained from him by force, and it was his claim that the Upper Area Court Judge ordered police orderly to slap him in Court and that was why he admitted to the truth of the 1st Respondents? direct complaint. I agree with the submissions of the learned Respondent?s counsel that exhibit P9 being proceeding of a competent Court of law cannot

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be challenged by mere oral allegation against the Judge. The mode of challenging and impeaching a Court?s record of proceedings is by filing an affidavit by a party challenging it, and the affidavit must be served on the trial Judge or the Registrar of that Court. See Gonzee Nig. Ltd Vs. N.E.R.& D Council & Ors. (2005) LPELR-1332 (SC), and Okine Vs. Uko (2017) LPELR-42341 (CA) among others, and Section 147 of the Evidence Act 2011. The Appellant did not file any affidavit at the lower Court to challenge the proceedings of Upper Area Court Akerebiata, and therefore the record remained authentic. See Section 147 of the Evidence Act, 2011. Consequently, the learned trial Judge was right to have relied on it in his decision. Beside exhibit P9, there was also exhibit D2, the ruling of the Upper Area Court 1 Ilorin as well as other documents relied upon by the Respondents before the trial Court. In view of all the documentary evidence before the Court, I hold that the learned trial Judge was right in granting the Respondents? reliefs 1, 2 and 7. Consequently I resolve issue one against the Appellant.

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ISSUE 2
The Appellant?s complaint under this issue is stated in paragraphs 6.02 to 6.03 of his brief of argument, to the effect that the learned trial Judge relied on the agreement dated 10th September 1997 (of 1977 not 1997) in respect of the land measuring 50ft X 50ft which it had rejected in evidence, to award the disputed land to the Respondents. The argument of the learned Appellant?s counsel was that the foundation on which the Respondents built their case was destroyed by the rejection of this agreement in evidence. That the exhibits P1 and P2 are only in respect of land measuring 25ft X 50ft and not the one measuring 50ft X 50ft contained in the rejected agreement, and therefore there was no basis on which the land in that agreement was granted to the Respondents.

?In answer to this argument, the Respondents? Counsel submitted that it was erroneous for the Appellant to state that the foundation of the Respondents? claim to the disputed land was on the rejected agreement of 10th September 1977. That the Respondents had relied on other documents to prove their title to the disputed land; including exhibits P3, P4 and P5, which are rent receipts issued to

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the Appellant upon payment of rent to the Respondent in respect of the land. There was also exhibit P6, comprising of three photographs including the one showing the destroyed beacon in the name of the 2nd Respondent which was still on the land in dispute. He argued that the Appellant did not deny these documents in his pleadings or evidence nor did he cross-examine the PW1 on them at the trial.

As noted earlier in my determination of issue one, the claim of the Respondents is contained in their writ of summons, statement of claim and written statement on oath of the 1st Respondent as PW1, all contained at pages 1 to 30 of the record of appeal. In paragraph 2 of the statement of claim and corresponding paragraph 2 of the PW1 witness statement on oath, the Respondents claimed,
?The 2nd claimant is the owner of that piece and parcel of land being, lying and situate at Osere Area, Ilorin, Kwara State of Nigeria measuring 50ft X 50ft and 25ft X 50ft respectively.?

Note the use of the words ?that piece and parcel of land? by the Respondents in their pleadings and evidence. In the land law parlance, where the phrase

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?parcel of land? is used, it is always referred to one piece of land that was in dispute. This is because even in ordinary dictionary meaning of the word ?parcel? in relation to land refers to one portion of the land that was described and identified to be in dispute. The English synonym of ?parcel? in relation to land is ?plot of land?. See page 1221 of the Black?s Law Dictionary, Ninth Edition, in which ?parcel? is defined as:
?A tract of land; esp. a continuous tract or plot of land in one possession, no part of which is separated from the rest by intervening land in another?s possession.?

The pleading and evidence of the Respondents before the trial Court aforementioned referred to one piece of land described and located at Osere. I also note the pleadings of the Appellant In paragraph 1 (b) of his statement of defence (at page 41 of the record of appeal), wherein he stated in reply to the above quoted paragraph 2 of the statement of claim, thus:
?In answer to paragraph 2, the Defendant states that the claims of the claimants as the owners of the piece

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and parcel of land being and lying at Osere area Ilorin measuring 50 X 50ft X 25ft X 50ft respectively is totally false.?

He then proceeded to, in his paragraph 1(c) to ?lay claims to the said piece and parcel of land? which he re-stated was located at No. 2 Osere area Ilorin, but measuring ?135ft X 90ft X 80ft X 50ft.?

There is nothing in the record of appeal that showed that the identity of the land claimed by the Respondents in their pleadings and evidence, was canvassed or made an issue, not withstanding the fact that the Appellant had given the land a different measurement. To support this point, I rely on page 216 of the record of appeal, where the learned trial Judge, in reviewing exhibits P8, (the three photographs of the beacon with the name of the 2nd Respondent inscribed on it), held as follows:
1. ?Further, the claimant tendered exhibit P8, which are 3 number of photographs which comprises of photographs of a beacon in the name of the 2nd claimant, photograph of makeshift shops and a photograph of a heap of sand. The counsel of the defendant on Exhibit P8 contended that the exhibit is undated and

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unsigned and should not be relied upon by this Court. As earlier stated, exhibit P8 are three number photographs and I must state without mincing words that I am not aware of any law which requires that photographs must be dated and signed before same can be relied upon by the Court and since the claimant has laid foundation for the admissibility of the photographs, same shall be relied upon by this Court in determining this case and as earlier stated also one of the photographs contained a beacon having on it the name of the 2nd Claimant clearly written on it. This fact was alluded to in the claimant?s pleadings and the defendant by his pleading merely denied destroying the beacon, there is no contrary assertion from the defendant?s pleadings to show that the photograph of the beacon did not relate to the land in dispute and since the beacon is in the name of the 2nd claimant it goes to show that the land in dispute on which the beacon is made belongs to the 2nd Claimant more so that it is settled law that beacon constitutes an act of possession which could be relied upon in proof of title to land?.?

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I agree with the above analysis of the learned trial Judge in holding that the identity of the land claimed by the Respondents before the trial Court was not in dispute. The above findings did not show that the lower Court relied on the rejected exhibit in awarding the land to the Respondent, as contended by the Appellant. Even his description of the land in paragraph 1(b) of his statement of defence quoted above clearly showed that the Respondents claim only one piece of land and it was clearly identified before the trial Court. Consequently I resolve issue two against the Appellant.

ISSUE THREE
The Appellant? learned counsel in adopting his argument on issues 1 and 2 to support this issue, contended at paragraph 7.03 of his brief that the Appellant had established his counter claim through documentary evidence and his testimony before the lower Court. But the trial Court believed the Respondents? exhibit P10 and disbelieved his exhibit D3 in refusing his counter claim ?without holistically look into the said documents nor called expert to give his opinion.?

In response, the learned Respondents? counsel argued that the Appellant?s

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counter claim was hinged on exhibit D3, and he referred us to the findings of the trial Court at pages 213 to 214, where it found exhibit D3 to be unreliable, not genuine and an afterthought having been prepared in anticipation of the suit. Indeed the trial Court found at page 213 that:
2. ?With regards to Exhibit D3, the questions that readily comes to mind are why would the counsel wait until 25 years before he signs the document he prepared? Why would the vendors affidavit also take 25 years to be prepared and annexed to the deed of transfer? The only plausible explanation in my view and as rightly stated by counsel to the claimants is that the exhibit D3 was prepared in anticipation of this suit, bearing in mind the fact that defendant under cross-examination said that he had seen the vendors affidavit attached to Exhibit D3 and that he knew nothing about the affidavit and the date on it, thus creating doubt to its genuineness.?

The learned trial Judge further held at pages 216 to 217 regarding the Appellant?s counter claim as follows:
3. ?It would be recalled that the defendant counter claimed that he is the owner of the

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land in dispute which form part of the piece and parcel of land at Osere area belonging to him and that he is not responsible for the monetary claims of the claimants. As rightly stated by counsel to the defendant, the defendant hinged his claim to the land on Exhibit D3 and Exhibit D3 as stated above has been faulted by this Court. It cannot be relied upon by the Court to hold that the defendant has established his counter claim on the contrary, I hold that the defendant has failed to establish his counter claim in respect to title to the land in dispute and same hereby fails.?

In view of my consideration of the documentary evidence placed before the trial Court under issues 1 and 2 (supra), I have not seen any reason to interfere with the above findings of the lower Court. In effect, I agree with the findings of the lower Court and hold that the exhibit D3, which Appellant relied upon to support his counter claim was not reliable and the lower Court was right to so hold in dismissing his counter claim. Consequently, I resolve issue three (3) against the Appellant.

?Having resolved all the three issues against the Appellant, it means this

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appeal lacks merit and it is hereby dismissed. The judgment of the Kwara State High Court sitting at Ilorin, delivered on the 26th June 2018 by Hon. Justice I. A. ISIAQ is hereby affirmed. Cost of fifty thousand Naira (N50, 000) is hereby awarded to the Respondents.

IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.: I have had the privilege of reading, before now, the draft of the judgment just delivered by my learned brother Aliyu, JCA. Having equally perused the briefs of argument of the learned counsel to the respective parties vis–vis the records of appeal, I cannot but concur whole heartedly with the reasoning postulated in the judgment, to the conclusive effect that the instant appeal is grossly unmeritorious.

Hence, I hereby adopt the reasoning in question as mine, and accordingly dismiss the appeal, and affirm the judgment of the Kwara State High Court, Coram A. I. Isiaq, J.; delivered on July 26, 2018 in Suit No. KWS/174/2014.

HAMMA AKAWU BARKA, J.C.A.: I was opportuned reading in draft the judgment just read by my learned brother Balkisu Bello Aliyu JCA.

?Having also studied the arguments of

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learned counsel and the record of proceedings, I entirely agree with the resolution of the three issues identified, and also dismiss the appeal as wanting in merit.

?In the event, the judgment of J. A Isiaq of the Kwara State High Court in Suit No. KWS/174/2014 delivered on the 20/6/2018 is hereby affirmed. I abide on order made as to costs.

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Appearances:

S.N. Nasir, Esq.For Appellant(s)

S.H. Bayero, Esq.For Respondent(s)

 

Appearances

S.N. Nasir, Esq.For Appellant

 

AND

S.H. Bayero, Esq.For Respondent