AGAN v. KADUNA (2021)

AGAN v. KADUNA

(2021)LCN/15168(CA)

In The Court Of Appeal

(MAKURDI JUDICIAL DIVISION)

On Tuesday, May 18, 2021

CA/J/68/95

Before Our Lordships:

Ignatius Igwe Agube Justice of the Court of Appeal

Cordelia Ifeoma Jombo-Ofo Justice of the Court of Appeal

Yargata Byenchit Nimpar Justice of the Court of Appeal

Between

ENGR. BABA AGAN (SUBSTITUTED FOR AGAN ALUSU (DECEASED) BY ORDER OF THIS COURT) APPELANT(S)

And

SAMUEL ZUNGWENEN KADUNA (SUBSTITUTED FOR AHURUGH IJOPUE (DECEASED) BY ORDER OF THIS COURT) RESPONDENT(S)

RATIO

WHETHER OR NOT THE COURT HAS A RIGHT TO RAISE AN ISSUE SUO MOTU

It is trite law that a Court of law has the right to raise an issue suo motu, however, the Court must call on parties to address the Court on the issue before the Court can rely on it, see OMINIYI V ALABI (2015) LPELR-24399(SC) where the apex Court said:
“The settled position of the law, as correctly stated by learned counsel on both sides is that a Court is not entitled to raise an issue suo motu and decide on it without affording the parties an opportunity to be heard. This is because in doing so, the Court is seen to leave its exalted position as impartial arbiter and descend into the arena of conflict. See: Kuti v. Balogun (1978) 1 SC 53 @ 60; Obawole v. Williams (1996) 10 NWLR (pt. 477) 146; Stirling Civil Eng. (Nig.) Ltd. v. Yahaya (2005) 11 NWLR (pt. 935) 181; Omokuwajo V. F.R.N. (2013) 9 NWLR (R.1359) 300. There are a few exceptions to this general rule. In the case of Effiom V. C.R.S.I.E.C. (2010) 14 NWLR (Pt. 1213) 106, relied upon by learned counsel for the respondent, this Court reiterated the general principle stated above. His Lordship, Tabai, JSC, who wrote the lead judgment went on to state at page 133 – 134 H – A (supra): “As I indicated above this principle that the Court ought not to raise an issue suo motu and decide upon it without hearing from the parties applies mainly to issues of fact. In some special circumstances, the Court can raise an issue of law or jurisdiction suo motu and without hearing the parties decide upon it. Tukur V. Government of Gongola State (1989) 4 NWLR (pt. 117) 517 is instructive on this point. In that case, although the issue of venue was not raised and argued by the parties in their briefs, it being an issue of jurisdiction, was taken by the Court.” Per KEKERE-EKUN, J.S.C. PER NIMPAR, J.C.A.

WHETHER OR NOT IT IS THE DUTY OF THE TRIAL COURT TO EVALUATE EVIDENCE OF WITNESSES

This is a challenge to evaluation of evidence. It is trite that evaluation of evidence is the primary duty of a trial Court. The duty of a trial Court is to listen to the evidence of witnesses for both side, to examine all exhibits tendered in the course of the witnesses’ testimonies and make findings on them. It is always the plaintiffs that must prove their case and the appellate Court should not interfere except in special cases, see ADELUMOLA VS THE STATE (1988) 1 NWLR (Pt. 73) 683 SC which held thus:
“This law is that it is only where and when a Court fails to evaluate evidence at all or properly that a Court of Appeal can intervene, and evaluate or re-evaluate such evidence. As a general rule therefore, when the question of evaluation of evidence does not involve credibility of witnesses but against the non-evaluation or improper evaluation of the evidence, the appellate Court is in as good a position as the trial Court to do its own evaluation – See FATAI VS THE STATE (2013) 10 NWLR (pt. 1361) 1 at 21 SC. So, when the question of evaluation of evidence involves credibility of witnesses, and appellate Court cannot do much since it is the trial Court that saw them, heard them and watched their demeanour that is in the vantage position to believe or disbelieve witnesses, and this can never be captured by an appellate Court, which only has the “cold printed record to contend with” – See SOGUNRO & ORS VS YEKU & ORS (2017) LPELR-41905 (SC). “Credibility” is the quality of being convincing or believable, and since the trial Court has the liberty and privilege to believe one witness or disbelieve another witness, its findings predicated on the belief or the disbelief of witnesses, is almost sacrosanct, as this can only be questioned on appeal if it is against the drift of the evidence before a trial Court, when considered as a whole.”PER NIMPAR, J.C.A.

WAYS OF ESTABLISHING TITLE OF OWNERSHIP TO LAND

In a claim for declaration of title to land, the law is settled on the different ways to prove such title, see the case of ANAGBADO V. FARUK (2018) LPELR-44909(SC) where the apex Court held as follows:
“It has for long been a settled law, that claim of title to a land can be established in any of the following five ways or modes, namely:- (i) By traditional evidence, or (ii) By production of documents of title (iii) By the exercise of numerous and positive acts of ownership extending over a sufficient length of time to warrant the inference that the person is the true owner, (iv) By acts of long possession and enjoyment of the land; and (v). By proof of possession of connected or adjacent land and 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. In an effort to prove title to land, the plaintiff always has the onus to prove his title in any or more of the above mentioned ways and to prove acts of ownership sufficient enough to warrant the inference that he as the claimant, is the exclusive owner of the land claimed. See NWABISI vs IDIGO (1957) SCNJ 76. The plaintiff or claimant in title must satisfy the Court that he is entitled on the evidence adduced by him to obtain such declaration of title. In other words, the claimant or plaintiff must rely on the strength of his own case and NOT to rely the weakness of the defendant’s case. See ITAUMA v AKPE-IME (2000) 7 SC (pt. II)24.” Per SANUSI, J.S.C.
And the case of AJIBULU V. AJAYI (2013) LPELR – 21860(SC) where it was held thus:
“It is well settled in our legal system that proof of title must be established through one of the five ways as laid down in the case of Idundun v. Okumagba (1976) 9 – 10 SC.223 which are as follows:- (1) By traditional history or evidence or; (2) By documents of title; (3) By various acts of ownership, numerous and positive and extending over a length of time as to warrant the inference of ownership or (4) By acts of long enjoyment and possession of the land and; (5) By proof of possession of adjacent land in circumstances which renders it probable that the owner of such adjacent land would in addition be the owner of the land in dispute. The burden placed on the plaintiff is to prove at least one of the five ways and not conjunctively. The same principle was also applied in the cases of Mogaji v. Cadbury Ltd. (1985) 2 NWLR (Pt.7) p.373, Alli v. Alesinloye (2000) 6 NWLR (pt.40) p.117, Olohunde v. Adeyoju (2000) 10 NWLR (Pt.676) p. 562 and Adesanya v. Aderonmu(2000) 9 NWLR (Pt.672) 370.” Per OGUNBIYI, J.S.C.
See also the following cases – OLUBODUN & ORS V. LAWAL & ANOR (2008) LPELR-2609(SC); ODUNUKWE V. OFOMATA & ANOR (2010) LPELR-2250(SC) and SORONNADI & ANOR V. DURUGO & ANOR (2018) LPELR-40319 (SC). PER NIMPAR, J.C.A.

WHETHER OR NOT A CLAIMANT MUST SUCCEED ON THE STRENGTH OF HIS CASE AND NOT THE WEAKNESS OF THE DEFENCE IN AN ACTION FOR DECLARATION OF TITLE TO LAND

It is trite that a Claimant for declaration of title must succeed on the strength of his case and not on the weakness of the defence, see the case of YAKUBU V. JAUROYEL & ORS (2014) LPELR-22732(SC) wherein Per KEKERE-EKUN, J.S.C held thus:
“The law is settled that in an action for declaration of title, the plaintiff must succeed on the strength of his case and not on the weakness (if any) of the defence, except where the defence supports the plaintiff’s case. See: Onwugbufor V. Okoye (1996) 1 NWLR (424) 252; Shittu v. Fashawe (2005) 14 NWLR (946) 671: Eze v. Atasie (2000) 9 WRN 73 at 88; Adesanya V. Aderonmu (2000) 13 WRN 104 at 115 lines 10 – 35. The standard of proof is on a preponderance of evidence.”
And the case of ORIANZI V. A.G. RIVERS STATE & ORS (2017) LPELR-41737 wherein the apex Court held thus:
“In an action for declaration of title to land, the onus is on the claimant to establish his case on the balance of probabilities. It is also settled law that he must succeed on the strength of his case and not on the weakness of the defence. Section 133 (1) & (2) of the Evidence Act, 2011 provides: “133. (1) In civil

cases, the burden of first proving existence or non-existence of a fact lies on the party against whom the judgment of the Court would be given if no evidence were produced on either side, regard being had to any presumption that may arise on the pleadings. (2) If the party referred to in Subsection (1) of this Section adduces evidence which ought reasonably to satisfy the Court that the fact sought to be proved is established the burden lies on the party against whom judgment would be given if no more evidence were adduced and so on successively, until all the issues in the pleadings have been dealt with.” Thus notwithstanding the fact that the plaintiff must succeed on the strength of his own case, once he has adduced sufficient prima facie evidence to entitle him to the relief sought, the onus shifts to the defendant.” Per KEKERE-EKUN, J.S.C. PER NIMPAR, J.C.A.

YARGATA BYENCHIT NIMPAR, J.C.A. (Delivering the Leading Judgment): This Appeal is against the decision of the High Court of Justice, Benue State sitting in Makurdi delivered by HON. JUSTICE T. U. PUUSU on the 13th December, 1993 wherein the Court below dismissed the claims of the Plaintiff/Appellant and entered judgment in favour of the Respondent in the Counterclaim. The Appellant dissatisfied with the judgment, filed a Notice of Appeal dated 11th March, 1994 setting out 4 grounds of Appeal.

Facts leading to this appeal are straight forward and amenable to brief summary. The Plaintiff (Now Appellant) instituted an action claiming amongst other reliefs, title to a parcel of land situate at Ankpa Quarters Road, opposite Apostolic Church Makurdi and also known as Plot No. BN4276. Initially there were two defendants at the trial Court. The appeal is only against the 1st Defendant/Respondent

On the other hand, the Defendant/Respondent denied liability and filed a Statement of Defence accompanied with a Counterclaim. The Respondent’s counterclaim sought amongst other reliefs also a Declaration that he is the holder of

a valid Right of Occupancy No. BN4276 and is entitled to the exclusive possession and use of the parcel of land sold to him by the Appellant. With issues joined in the pleadings, the matter went to full trial with parties calling witnesses in proof of their respective pleadings. The following witnesses testified at the Court below, these are:
1. PW1: Engr. Baba Agan
2. DW1: Ahurugh Kaduna
3. DW2: Shagba Aba
4. DW3: Isaac Kajo Kankwe

The parties in the course of hearing tendered the following exhibits:
EXHIBIT 1: Right of Occupancy dated 28th September, 1981
EXHIBIT 1A: Site Plan
EXHIBIT 1B: Evidence of deposit of N50.00 for Right of Occupancy.

Upon consideration of the evidence and final closing addresses of counsel, the Court below granted the Respondent’s Counter claim and dismissed the case of the Appellant, thus the appeal.

As required by the rules of Court, parties filed and adopted their briefs at the hearing of the Appeal. The Appellant’s brief settled by S. O. IDIKWU, ESQ., is dated 2nd day of July, 2013, filed on the same day, it was initially deemed on

the 16/11/2016 but deemed again on the 17th day of February, 2021 and it distilled 4 issues for determination as follows:
1. Whether it is right in law for a trial Judge to raise a fundamental issue of law or fact while writing judgment and without calling upon the parties or their Counsel to address him on the matter, he goes on to determine the matter based on the issue he has suo muto raised. (Distilled from Ground 3)
2. Whether or not there is any evidence on the record to support the finding of the trial Judge that the Appellant sold the land to the Respondent, in view of the contradictory evidence of witnesses called by the Respondent. (Distilled from Ground 1)
3. Whether it is right in law for trial Judge to dismiss the Appellant’s claim and award the land to the Respondent when:
a. the Respondent did not have a valid counterclaim;
b. the Respondent did not describe with certainty the land allegedly sold to him or her; and
a. The evidence of sale adduced by the defence witnesses were contradictory.
(Distilled from Ground 2)
c. Whether the decision of the trial Judge was based on the evidence

available before the Court. (Distilled from Ground 4)

The Respondent’s Brief settled by G. DALLONG – OPADOTUN, ESQ., is dated 3rd July, 2007, filed on the 5th July, 2007 but deemed on the 17th day of February, 2021. Counsel to the Respondent adopted the issues formulated by the Appellant.

APPELLANT’S SUBMISSION
ISSUE ONE
The Appellant in arguing issue one submitted that he tendered Exhibit 1 (Right of Occupancy) which was not objected to by the Respondent (See P. 25 of the Records), however, the trial Court raised the issue of validity of Exhibit 1 suo motu at judgment stage. The Appellant reproduced the holding of the trial Court at page 24-32 of the Records of appeal to submit that the Court below was wrong to raise the issue suo motu without calling on the parties to address the Court below on the issue, this act amounts to a denial of natural justice and a breach of the fundamental right of the Appellant. Relying on OKORO IGABOR ONWUNALU & 2 ORS V. OBONOKEO OSADEME (1971) ANLR 15, the Appellant avers that a High Court does not have the authority to raise a fundamental objection without calling on parties

to address him, cited OGIAMIEN & ANOR (1967) N.S.C.C. P. 190 in support. Finally, the Appellant argued that failure to allow Counsel to parties address the Court has been described as a fundamental defect to adjudication. Appellant urged the Court to resolve issue one in his favour.

ISSUE TWO
The Appellant in arguing issue two submits that there was no evidence before trial Court for the trial Judge to base his findings. He reproduced the testimonies of DW1 and DW2 at pages 27-33 of the Record of Appeal and their responses under cross examination which is at the same pages. The Appellant alleged that the Respondent refused to call one Yahemba to testify for him even though the Yahemba was within jurisdiction. Also, the Appellant submit that the Respondent knew that if Yahemba was called, she would have given evidence against him, cited Section 149(d) of the Evidence Act, 2011. The Appellant submitted that in law a Plaintiff is allowed to rely on the evidence of the Defendant in support of his case and in this case, the Appellant relies on the testimony of DW2’s to prove his case, relied on CHIDI AKUNYILI V. IDEMILI EJIDIKE & 2 ORS

(1996) 4 SCNJ 251 in support. The Appellant avers that after the failure to call Yahemba, the Respondent did not adduce any evidence in proof of his counterclaim which is as good as if there was no counterclaim and if there was, it was abandoned. Therefore, the holding of the trial Court on the counterclaim occasioned a miscarriage of justice (See p. 651 of the record of appeal). The Appellant also avers that there are contradictions in the testimonies of the Respondent’s witnesses and he reproduced such testimonies (See pages 31, 33 and 35 of the record of appeal). He also states that with these contradictions, it is unsafe for any Court to conclude that the Appellant sold any piece of the land to the Respondent. Finally, the Appellant submits that what he was demanding was a kind of royalty for allowing the Respondent to settle on the land and the person to confirm that is Yahemba who was not called by the Respondent.

ISSUE THREE
The Appellant contends that a Defendant who wishes to file a Counterclaim shall give notice of at least 8 clear days in accordance with Form 25 of the High Court of Benue State Rules, citing

IJAMA OTIKA ODICHE V. CHIGOGWU (1994) 7-8 SCNJ (PT. 2) 317. He submits that it is also trite that for a Respondent to succeed, he must have a Counterclaim in which the land in dispute would be described and in the instant case, the Respondent did not describe the parcel of land the Respondent allegedly bought from the Appellant.

ISSUE FOUR
The Appellant reproduced the holding of the trial Court which is at pages 63-65 to submit that these findings are not based on evidence before the Court. According to the Appellant, he allowed the Respondent and another person to squat, then each of them constructed a round hut with thatched roof but as soon as he went back to Vandeikya, they added structures and when he saw it, he asked them to quit the land which they did not obey so he reported the matter to the police because the Respondent boasted that he had people in the land department who would give him title to that land (see P. 25 of the records) and this fact was confirmed by the Respondent at page 26-28 of Records. The Appellant avers that he did not sell the land to anybody especially the Respondent, yet the trial Court found for the Respondent (See P. 64 of record of

appeal).

The Appellant further argued that there was no evidence to compare with the Appellant’s Right of Occupancy (Exhibit 1) as the trial Court rejected Exhibits 1B and 1D. The Appellant submits that the findings of the trial Court was not based on evidence and also urge the Court to allow the appeal and to set aside the decision of the trial Court.

RESPONDENT’S SUBMISSION
ISSUE ONE
The Respondent in arguing issue one submits that the trial Judge was right to hold that the Right of Occupancy being relied upon by the Appellant as proof of his title to the disputed land was made after the Appellant had sold the said parcel of land to the 1st Respondent in 1971 and this issue was not raised suo motu by the trial Court but was based on the facts raised by the Appellant and Respondent at pages 3-10 and 25 of the Record of Appeal, thus, there is no need to call on parties to address the Court on same. The Respondent submits that both parties gave evidence in support of their pleadings and Counsel addressed the Court based on the averments in their pleadings and issues formulated for determination before the trial Court delivered

its judgment. Furthermore, the Respondent submits that it is trite that an Appellate Court will not interfere with the evaluation or appraisal of evidence and finding of fact by the trial Court except such findings are perverse or show misapprehension of the facts as held in OLADELE V. STATE (1991) 1 NWLR (PT. 170) 769 and ATOLAGBE V. SHORUN (1985) 1 NWLR (PT. 2) 360. Finally, the Respondent submits that the trial Court’s decisions was not perverse and also urge the Court to resolve issue one in his favour and dismiss this appeal.

ISSUE TWO
The Respondent argued that it is trite law that where the Appellant admits that the Respondent gained possession and was in possession of a portion of the land in dispute by pledge, the onus shifts to the Appellant to prove the pledge which he alleges and when he fails to prove such, then the presumption of law, having regards to the provision of Section 146 of the Evidence Act is that the Respondent is the owner of the land which he is in possession as held in EZEUDU V. OBIAGWU (1986) 2 NWLR (PT. 21) 208. The Respondent submits that it is trite that in native law and custom, transactions on landed matters must

be concluded in the presence of witnesses and the Appellant failed to call witnesses to collaborate the averments in his pleadings. However, the Respondent gave evidence of how the Appellant sold the parcel of land to him and the Respondent handed money to him in the presence of elders most especially Chinyam who was the elder that handed the money to the Appellant and this fact which was not contradicted by the Appellant signifies admission as held in KOSILE V. FOLARIN (1989) 3 NWLR (PT. 107) 1. The Respondent reproduced the testimonies of the DW2 and DW3 at pages 35 of the Record of Appeal to submit that even if there are contradictions in the testimonies of the Respondent’s witnesses, such contradictions are not material enough to lead to a miscarriage of justice as it is trite law that not every contradiction in the evidence of witnesses would warrant interfering with the decision of the trial Court, relied on OLADELE V. STATE (Supra). Furthermore, the Respondent contends that all contradictions pointed out by the Appellant are not material for the trial Judge to disbelieve the evidence of sale of the parcel of land to the Respondent. The

Respondent urge the Court to resolve issue two in his favour and to dismiss this appeal.

ISSUE THREE
The Respondent contends that the trial Judge was right to have awarded the said portion of land to the Respondent based on his Counterclaim which is contained at page 11 of the Records of Appeal. The Respondent submits that the Benue State High Court Civil Procedure Rules provides for the filing of a Statement of Defence together with a Counter Claim. The Respondent filed a Counterclaim and successfully led evidence to prove same, therefore, it will be out of place for the Appellant to contend that the Respondent had no valid Counterclaim and neither did he abandon same. The Respondent avers that the facts contained in his Counterclaim were sufficient for the trial Court to rely upon to enter judgment in his favour, more so, same facts were not challenged or rebutted by the Appellant. The Respondent asserts that he has been in long possession which is in prima facie proof of ownership unless there is someone with better title as held in BADEJO & ORS V. SAWE (1984) ANLR 319. Continuing, the Respondent states that by the averments in page 11 of his

Counterclaim which he claims for declaration of title to the parcel of land, it clearly destroyed the assertion of the Appellant that the Respondent did not seek for a declaration. According to the Respondent, the Appellant failed to identify the parcel of land claimed, even with the invitation of the Surveyor General of Ministry of Lands and Survey of Benue State to identify the land based on Exhibit 1A (the site plan) which he tendered but unfortunately, it did not see the light of day (see P. 26 and 42 of the Records).

Continuing, the Respondent argued that the law is trite that where there is doubt as to the identity of the land in dispute in an action for declaration of title, a Plaintiff cannot succeed unless he can prove clearly the specific area claimed as held in EZEUDU V. OBIAGWU (1986) 2 NWLR (PT. 21) 208; SECTIONS 136 and 137 of the EVIDENCE ACT, 2011. Assuming, the Respondent has a duty to prove the land which he is in possession with precision, Exhibit 1B and paragraph 6 and 8 of his statement of defence has clearly described the disputed land. Also, at the visit to locus in quo the Respondent properly identified the land, which he has been in

possession for long. The Respondent urges the Court to dismiss this appeal and affirm the findings of the lower Court.

ISSUE FOUR
The Respondent adopted his argument under issue two here and further submits that it is also trite that in native law and custom transactions on landed matters must be concluded in the presence of witnesses and the Appellant failed to call witnesses to collaborate the averments in his pleadings, therefore, the trial Judge was right to hold as he did at page 63 of the Record of Appeal. It is trite that it is not the function of the Appeal Court to substitute its own view for those of the trial Court, particularly where the issue depends on the credibility of witnesses as held in ONWOAMANAM V. FATUADE (1986) 2 NWLR (PT. 21) 199. The Respondent urges the Court to resolve this issue in favour of the Respondent and dismiss the appeal.

RESOLUTION
Upon a careful consideration of the Notice of Appeal, the record of Appeal and the respective briefs of the parties, the Court shall adopt the 4 issues donated by the parties being issues agreed by the parties. The Court shall however, resolve them seamlessly for expediency

and because evaluation of evidence runs through the issues formulated for resolution and so to avoid repetition.

The Appellant contended under issue one that the trial Judge raised the issue of the validity of the right of Occupancy suo motu, nullified it and went on to dismiss the claim of the Appellant. The right of occupancy was tendered as Exhibit 1, it was admitted without any objection and it was not in any form that can be said to be illegal. The Respondent argues that the issue is closely tied to the title of the Appellant and since it was issued after the alleged sale of part of the land to the Respondent, it was therefore illegal. It is trite law that a Court of law has the right to raise an issue suo motu, however, the Court must call on parties to address the Court on the issue before the Court can rely on it, see OMINIYI V ALABI (2015) LPELR-24399(SC) where the apex Court said:
“The settled position of the law, as correctly stated by learned counsel on both sides is that a Court is not entitled to raise an issue suo motu and decide on it without affording the parties an opportunity to be heard. This is because in doing so, the Court is

seen to leave its exalted position as impartial arbiter and descend into the arena of conflict. See: Kuti v. Balogun (1978) 1 SC 53 @ 60; Obawole v. Williams (1996) 10 NWLR (pt. 477) 146; Stirling Civil Eng. (Nig.) Ltd. v. Yahaya (2005) 11 NWLR (pt. 935) 181; Omokuwajo V. F.R.N. (2013) 9 NWLR (R.1359) 300. There are a few exceptions to this general rule. In the case of Effiom V. C.R.S.I.E.C. (2010) 14 NWLR (Pt. 1213) 106, relied upon by learned counsel for the respondent, this Court reiterated the general principle stated above. His Lordship, Tabai, JSC, who wrote the lead judgment went on to state at page 133 – 134 H – A (supra): “As I indicated above this principle that the Court ought not to raise an issue suo motu and decide upon it without hearing from the parties applies mainly to issues of fact. In some special circumstances, the Court can raise an issue of law or jurisdiction suo motu and without hearing the parties decide upon it. Tukur V. Government of Gongola State (1989) 4 NWLR (pt. 117) 517 is instructive on this point. In that case, although the issue of venue was not raised and argued by the parties in their briefs, it being an issue of

jurisdiction, was taken by the Court.” Per KEKERE-EKUN, J.S.C.

The issue of the validity of a right of occupancy in issue here revolves around facts and when it was applied for and whether it should cover the entire land claimed or excludes portions claimed by the Respondent. It is clearly an issue of fact and therefore cannot come under the exceptions allowed for a Judge to raise an issue suo motu and resolve same without calling on parties to address the Court. There was nothing on the face of the Exhibit to show that it was illegal. It was tendered without any objection from the Respondent. It was made in 1981 while the suit was filed in 1986 so it cannot be said to have been made while proceedings were contemplated. Even if so, it cannot be declared illegal, it can only be discountenanced in determining the claim. The trial Judge in resolving the question of who has title over the land in issue at pages 64 said thus:
“The sale to each defendant was before the grant of the right of occupancy issued to the plaintiff in 1981. The grant encompassing the two parcels of land belonging to the defendants was made in error because of misrepresentation

made by the plaintiff to the issuing authority. That grant is declared invalid and of no effect.”

The trial Judge should have also determined when the application for title was made before it can be conclusively said that the Appellant misrepresented facts and in any case the claim of the Appellant is that he did not sell any land to the Respondent but allowed the Respondent to be on the land. The trial Judge definitely went beyond what was before him to arrive at the findings above which is perverse and must be set aside. Obviously, the Court below digressed from law to facts and apart from the issue of invalid right of occupancy; he also raised the issue of misrepresentation which was not the case of either of the parties before him and that error made him grant a relief not sought for, again not by either party in the case. The error is fundamental because he relied on it to dismiss the claim of the Appellant. The Respondent cannot have the Appellant as his root of title and turn round to deny him. The Court below couldn’t have affirmed the part surrender to the Respondent and in the same vein hold that the Appellant has no title. In doing

so, it impeached the claim or defence of the Respondent. In any case, the Appellant claimed he did not sell the land to the Respondent but merely allowed the Respondent a temporary occupation and therefore, nothing stopped him from applying for title over the entire land.

The trial Judge exceeded his mandate and the failure to call on the parties to address him before he resolved the issue raised suo motu has breached the right to fair hearing and once a party is not heard before a decision is made on any matter touching his interest, the said decision cannot stand because such a breach is fundamental, see the following cases: EFFIOM & ORS V. CROSIEC & ANOR (2010) LPELR-1027(SC); STIRLING CIVIL ENGINEERING (NIG) LTD V. YAHAYA (2005) LPELR-3118(SC); CHUKWUEKEZIE V. APGA & ANOR (2019) LPELR-47240(CA); NNPC & ANOR V. EFEBO (2019) LPELR-47904(CA) and NWAKWU & ANOR V. ANIETO (2001) LPELR-5721 (CA).
Flowing from above, issue one as donated by the Appellant is resolved in favour of the Appellant. The argument of the Respondent is misconceived because the issue raised was not pure law or jurisdiction nor was it the question of

evaluation. A trial Judge cannot in evaluating documentary evidence go outside the document to fish for reasons to ascribe value to the document. Exhibit 1 is a right of occupancy and it should have been considered as such and if other pieces of evidence impeach it, then, it is the effect of those pieces of evidence to be considered and not to outrightly and without any invitation, declare the right of occupancy invalid and impute misrepresentation on the Appellant. The judgment breached rules of fair hearing and must be set aside.

Ordinarily, this should be the end of the appeal with the setting aside of the judgment appealed against, however, as an intermediate Court, the admonition from the apex Court is that the Court should still proceed to resolve the other issues, see EAGLE SUPER PACK (NIG) LTD V. A.C.B PLC (2006) LPELR-980(SC) wherein the Supreme Court held thus:
“When an intermediate appellate Court reaches a conclusion on one or some of the issues raised before it, it should normally proceed to consider the other issues bearing in mind that its conclusion may be set aside by a higher Court in the hierarchy.” Per OGUNTADE, J.S.C

And the case of MBONU V. IGBOJEKWE & ANOR (2013) LPELR-21197(CA) where the Court held that:
“The general rule, when an intermediate appellate Court reaches a conclusion on one issue or some issues raised before it, it should normally proceed to consider the other issues bearing in mind that its conclusions may be set aside by the Court higher in hierarchy. There are exceptions to the practice. One of them is; where the appellate reaches the decision to send the case back to the trial Court for re-hearing or trial de novo it should normally refrain from considering the other issues on the merits of the case as doing this may prejudice a fair determination of the issues of the hearing. See Oguntade JSC in EAGLE SUPER PACK (NIG) LTD v. A.C.B. PLC (2006) (supra).” Per EKO, J.S.C.
It is in obeisance to that call that I shall now resolve the other issues.

In continuation of his arguments under issue two, the Appellant contended that the evidence adduced by the witnesses called by the Respondent was contradictory and therefore should not have been believed so as to lead to the finding that the Appellant sold the land to the Respondent. The trial Judge

simply held at pages 64 thus:
“I disbelieve the Plaintiff and believe the defendants and their witnesses that the respective pieces of land were sold out to them.”

(2013) 10 NWLR (pt. 1361) 1 at 21 SC. So, when the question of evaluation of evidence involves credibility of witnesses, and appellate Court cannot do much since it is the trial Court that saw them, heard them and watched their demeanour that is in the vantage position to believe or disbelieve witnesses, and this can never be captured by an appellate Court, which only has the “cold printed record to contend with” – See SOGUNRO & ORS VS YEKU & ORS (2017) LPELR-41905 (SC). “Credibility” is the quality of being convincing or believable, and since the trial Court has the liberty and privilege to believe one witness or disbelieve another witness, its findings predicated on the belief or the disbelief of witnesses, is almost sacrosanct, as this can only be questioned on appeal if it is against the drift of the evidence before a trial Court, when considered as a whole.”
The credibility or otherwise of witnesses, and the ascription of probative value to the evidence of a witness are entirely within the province of a trial Court. An Appellate Court cannot, and should not disturb such exercise unless it was not done, or if done, not properly

performed before an Appellate Court can perform such duty.

The Appellant’s contention is that the findings are not based on the evidence before the Court therefore, the Appeal Court can interfere. The Appellant reviewed the evidence of Respondent’s witnesses and picked holes in their testimonies. DW1, the Respondent told the Court that he bought the land and one Yehemba went with him to pay N100.00 and later paid N150.00 through one Chinyan after the elders’ intervention upon Appellant’s complaint. He told the Court that he bought the land from the Appellant but no documents were tendered to confirm same and no witness was called to also confirm the sale. He attempted to tender a Right of occupancy and Survey plan but both were rejected. DW2 told the Court that the land belongs to the Appellant (Plaintiff) (See page 33 of the record of appeal) and that he was at the meeting where the Appellant complained about the attitude and activities of the Respondent. That the N100 paid to Appellant was not done in his presence. He did not say the money was the purchase price for the land. He also admitted that the Appellant allowed the

Respondent to be on the land. He never talked about purchase of the land by the Respondent but that the N100.00 was a sign of gratitude. On the other hand, the Respondent said it was a sale but without supporting documents or evidence of payment. Appellant highlighted the contradictions in the case of the Respondent and contended that he can rely on the evidence of DW2 which confirmed that Appellant owns the land.

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. In an effort to prove title to land, the plaintiff always has the onus to prove his title in any or more of the above mentioned ways and to prove acts of ownership sufficient enough to warrant the inference that he as the claimant, is the exclusive owner of the land claimed. See NWABISI vs IDIGO (1957) SCNJ 76. The plaintiff or claimant in title must satisfy the Court that he is entitled on the evidence adduced by him to obtain such declaration of title. In other words, the claimant or plaintiff must rely on the strength of his own case and NOT to rely the weakness of the defendant’s case. See ITAUMA v AKPE-IME (2000) 7 SC (pt. II)24.” Per SANUSI, J.S.C.
And the case of AJIBULU V. AJAYI (2013) LPELR – 21860(SC) where it was held thus:
“It is well settled in our legal system that proof of title must be established through one of the five ways as laid down in the case of Idundun v. Okumagba (1976) 9 – 10 SC.223 which are as follows:- (1) By traditional history or evidence or; (2) By documents of

title; (3) By various acts of ownership, numerous and positive and extending over a length of time as to warrant the inference of ownership or (4) By acts of long enjoyment and possession of the land and; (5) By proof of possession of adjacent land in circumstances which renders it probable that the owner of such adjacent land would in addition be the owner of the land in dispute. The burden placed on the plaintiff is to prove at least one of the five ways and not conjunctively. The same principle was also applied in the cases of Mogaji v. Cadbury Ltd. (1985) 2 NWLR (Pt.7) p.373, Alli v. Alesinloye (2000) 6 NWLR (pt.40) p.117, Olohunde v. Adeyoju (2000) 10 NWLR (Pt.676) p. 562 and Adesanya v. Aderonmu(2000) 9 NWLR (Pt.672) 370.” Per OGUNBIYI, J.S.C.
See also the following cases – OLUBODUN & ORS V. LAWAL & ANOR (2008) LPELR-2609(SC); ODUNUKWE V. OFOMATA & ANOR (2010) LPELR-2250(SC) and SORONNADI & ANOR V. DURUGO & ANOR (2018) LPELR-40319 (SC).
With the five methods stated and a party is expected to establish any but not all the methods in proof of title over land. In this case the Appellant by various acts of ownership, he

established he was in possession and such was admitted by the Respondent. He exercised acts of ownership by allowing the Respondent to occupy part of the land. There is no evidence to show that he was legally divested of his equitable interest in the land. He also had a Right of Occupancy issued by the State government, which was admitted in evidence as Exhibit A. Appellant’s position was not challenged.

It is the view of the learned trial Judge that the counterclaim of the Respondent succeeded and therefore the land belongs to the Respondent. The Court below can only arrive at such finding backed by evidence before the Court. The evidential burden was not dislodged by the Respondent to warrant the declaration of title in her favour. Under the counterclaim, the Respondent became a Claimant and must also prove her title as required by law. She traced her presence on the land to the Appellant. She claimed she bought the land but by mere word of mouth. Her witness contradicted her in every material particular relevant to proving her alleged title. No document was presented to suggest the sale to the Respondent, no witness to the sale was called.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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to his case. See ORIANWO & ORS V OKENE & ORS (2002) LPELR- 2759(SC) which held:
“It is trite that Plaintiffs are entitled to take advantage of evidence for the Defendants that support their case – Egonu v. Egonu (1978) 11/12 SC 111; Akinola v. Oluwo (1962) 1 All NLR 224; (1962) ANLR 225.” Per OGUNDARE, J.S.C.

The Appellant’s original ownership of the entire land was not contested and he tendered a Right of occupancy to confirm his title. The Respondent admitted she came onto the land through the Appellant and alleged she bought the land. Instead, her witness affirmed the title of the Appellant and also that the Appellant allowed the Respondent to be on the land. He further told the Court how the Appellant reported the rude attitude of the Respondent to the elders who advised Respondent to pay some money to the Appellant as appeasement. DW3 told the Court that the land belonged to the Appellant but he sold a portion to the Respondent, however, he was not a witness to the sale. He only participated in the elders meeting to resolve the issue between the Appellant and the Respondent. He also said the payment of N150 was appeasement for the

Appellant to allow the Respondent remain on the land. DW4 testified for the 2nd Defendant and said he bought land from the Appellant and there were witnesses which he named and was able to process his right of occupancy over the portion he bought. DW5 testified for the 2nd Defendant too and said he witnessed a sale to the 2nd Defendant and but also said the information about the sale was given to him by the 2nd Defendant. The DW6 also testified for the 2nd Defendant.

In the evidence of all the witnesses none mentioned knowing of the sale to the Respondent. It was only the Respondent who talked about a sale but no witness called to support her claim. The person named as witness to the transaction was Yahemba who was not called to testify. The other witnesses backed up the 2nd Defendant and not the Respondent. Those witnesses also do not know the transaction between the parties in this appeal since the 2nd Defendant at the Court below is not a party to the appeal having been struck out of the Appeal on the application of the Appellant. That being the case, there is no need to consider the evidence of witnesses to the party struck out which also have no

relevance to the case against the Respondent. There is also nothing useful to the case of the Respondent.

Obviously, the case of the Plaintiff’s was not challenged by the Respondent as required by law. He is in possession and even the Respondent admitted he let her into the portion in contention. So Appellant’s equitable title is earlier in time and he has not lost possession except the portion given to the Respondent to occupy temporarily. He can only be dislodged by a person with a better title. The evidential burden shifted to the Respondent to offset what the Appellant presented which remained unchallenged. The case for the Respondent was clearly contradictory. The evidence of the Respondent was contradicted by the DW1, her witness, who told the Court below that the land belongs to the Appellant.

A contradiction was defined in the case of IDAGU V. STATE (2018) LPELR-44343(SC) wherein the apex Court held thus:
“The word “contradiction” comes from two Latin words – contra meaning opposite, and dicere, which means to say. To contradict is, therefore, to speak or affirm the contrary, and a piece of evidence is contradictory to

another when it asserts or affirms the opposite of what the other asserts. It is settled law that it is not every minor contradiction that matters; for a trial Judge to disbelieve a witness, the contradiction in his evidence must be on a material point. In effect, the law allows room for minor discrepancies in the evidence of witnesses, which may not be fatal to the Prosecution’s case – Akpan V. State (1991) 3 NWLR (Pt 182) 646 SC. See also Ochemaje v. State (2008) 15 NWLR (Pt.1109) 57 SC, wherein this Court per Tobi, JSC, explained what this means as follows: Contradiction definitely arise in evidence of witnesses in Court. That explains the human nature and the humanity in witnesses. Although witnesses see and watch the same event, they may narrate it from different angles, in their individual peculiar focus, perspective or slant. This does not necessarily mean that the event that they are narrating did not take place. It only means most of the time that the event took place, but what led to the event was given different interpretations, arising from the senses of sight and mind dictated by their impressions and idiosyncrasies. That is why the law says that

contradictions, which are not material or substantial will go to no issue. Thus, the contradiction in the testimony of a witness, which will be fatal, must be substantial; minor discrepancies that do not affect the credibility of a witness may not be fatal – Uche V. State (2015) LPELR-249693 (SC).” Per AUGIE, J.S.C.
And also the case of GARBA V. STATE (2017) LPELR-43348(CA) where the Court held thus:
“According to Collins English Dictionary, 4th Edition 2006, the term ‘contradiction’ is defined as ‘1) Opposition: denial 2) A declaration of opposite 3) A statement that is at variance with itself 4) conflict of inconsistency, as between events, qualities, etc. 5) A person or thing containing conflicting qualities 6) Logic; a statement that is false under all circumstances’. In the case of IKUEPENIKAN V. STATE (2011)1 NWLR (Pt. 1229) P. 449 at 490 paras C-D, this Court, per Amina Augie JCA (as she then was) gave the meaning of contradiction, thus; “The words ‘contradiction’ comes from two latin words ‘contra’, which means opposite, and ‘diction’, which means to say. So, to contradict is to speak or affirm the contrary.” In his submission before this

Court, learned counsel for the appellant contended that the evidence led by prosecution before the trial Court, as to who stabbed the deceased was contradictory. The question that readily comes to mind in resolving this issue is what constitutes contradiction in evidence of witnesses. In the case of IKUEPENIKAN v. STATE (supra), it was held that: “A piece of evidence is contradictory to another when it asserts or affirms the opposite of what the other asserts, and not necessary when there are some minor discrepancies in details between both pieces of evidence.” See also GABRIEL v. STATE (1989) 5 NWLR (pt. 122) p. 457 at 468 paras G-H AND OGOALA V. STATE (1991) 2 NWLR (Pt. 175) P. 509.” Per JAURO, J.C.A.

Where the case of a party is contradictory, the effect in law is settled, see YAKUBU V. JAUROYEL & ORS (2014) LPELR-22732(SC) wherein the apex Court held thus:
“It is also trite that where the evidence adduced by the plaintiff is contradictory, he would have failed to discharge the onus of proof on him.” Per KEKERE-EKUN, J.S.C.
And the case of IGE & ANOR V. AKOJU & ORS (1994) LPELR-1451(SC) where Per OLATAWURA, J.S.C has this to say:<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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“Where a party’s evidence is contradictory as in this case, no reliable Tribunal will believe the party.”
Furthermore, the case of ETIM V. AKPAN & ORS (2018) LPELR-44904(SC) where the Supreme Court held thus:
“…Unfortunately, the testimonies, which he, [the appellant], adduced were so evidently contradictory and inconsistent that they could not establish that the said exhibit was the result sheet of a primary election, the conduct of which, was authorized by the National Working Committee of the second respondent as required by law. The effect is that these conflicting versions render his evidence very unreliable and untenable, C.D.C. (Nig.) Ltd v SCOA (Nig.) Ltd [2007] 6 NWLR (pt. 1030) 300. This must be so because such contradictions in the evidence of the plaintiff and his witness are disastrous; they actually, have the effect of destroying the case of the plaintiff, Audu v Guta [2004] 4 NWLR (pt 864) 463. As this Court held in National Investment Properties Co. Ltd v The Thompson Organization Ltd and Ors (1969) NMLR 99, 104: A Plaintiff must call evidence in support of his pleadings and evidence which is in fact adduced, which is

contrary to his pleadings, should never be admitted. It makes no difference that the other side did not object or that the Judge did not reject it. It is of course the duty of counsel to object to, in one word, inadmissible evidence; but if notwithstanding this, evidence is still, through oversight or otherwise admitted, then it is the duty of the Court when it comes to give judgment to treat the inadmissible evidence as if it had never been admitted. The explanation for this prescription is simple: the standard of proof is on the preponderance of evidence. Thus, where the evidence adduced by the plaintiff is contradictory, he would have failed to discharge the onus of proof on him, Yakubu v Jauroyel and Ors (2014) LPELR-22732 (SC) 69; E -G. That was the fate of the plaintiff’s case at the trial Court. His case must therefore, fail.” Per NWEZE, J.S.C.
The contradiction that will affect the case of a party must be material and must affect a substantial point in issue and the question is whether the contradiction in the case of the Respondent is material so as to impeach the defence? I say it is, because the Respondent cannot blow hot and cold in the same

case. See OYELOLA & ORS V BABALOLA & ANOR (2015) LPELR-41839(CA) where the Court held thus:
“When there are contradictory and inconsistent evidence in a party’s evidence, it is the duty of Court to reject it. See Chief N.T. Okolo vs. Mark Dakolo (2006) 7 SCNJ 284; Ezekwesili vs. Onwuagbu (1998) 3 NWLR (pt. 541) 217 @ 242. Also in Ayinde vs. Abiodun (1999) 8 NWLR (pt.616) 587 @ 595, this Court held on effect of contradictions in evidence of a party, thus: “Once there are such grave contradictions in the evidence of a party, his case invariably becomes weakened as the overall evidence is taken with a pinch of salt and is regarded as unreliable and ought to be rejected. See. Oluma vs. Onyuna (1996) NWLR (pt. 443) page 449; Onughogu vs. State (1974) p SC.1.”

The Appellant also challenged the format of the counterclaim contending that it did not comply with Form 25 of the High Court of Benue State Civil Procedure Rules. There is no need to waste time on this as the counterclaim by practice usually accompanies or is attached to the statement of defence. Agreed that it is a separate claim as held in the case of OROJA & ORS V. ADENIYI & ORS

(2017) LPELR-41985(SC) wherein apex Court held thus:
“…a counterclaim is always considered as an independent, separate and distinct claim which a trial Court must always consider. A trial Court confronted in a suit with both the main and counterclaims, must give separate judgment on each of the claims as each of such claim is independent of one another in this instant case” Per SANUSI, J.S.C. “A counterclaim is an independent action where the parties in the main action are in reverse roles. The plaintiff becomes the defendant, while the defendant becomes the plaintiff. See Oyegbola v. Esso West Africa (1966) 1 ALL NLR P.170; Ogbonna v A.G. Imo State (1992) 1 NWLR (Pt. 220) P.647. A counter-claim does not depend on the outcome of the main claim. Once the main claim is concluded in whatever form, be it dismissed or discontinuance, the hearing of the counter-claim must commence.” Per RHODES-VIVOUR, J.S.C.
And the case of BIRMA & ORS V. DAMCIDA & ANOR (2016) LPELR-41610(CA) where the Court held thusly:
“The lower Court obviously overlooked the fact that a counterclaim is a separate and distinct cause of action and has all the tapestry of an

action. It is a weapon of offence which enables a defendant to enforce a claim against a plaintiff as effectively as in an independent action and a separate decision is given in respect of a counterclaim – Maobison Inter-Link Associated Ltd Vs UTC Nigeria Ltd (2013) 9 NWLR (Pt. 1359) 197, Nsefik Vs Muna (2014) 2 NWLR (Pt. 1390) 151. Thus, the abandonment by a plaintiff of his main claim does not, and cannot amount without more to the abandonment of the counterclaim by a defendant. A counterclaim must be accorded the same attention as the main claim in an action and where a trial Court fails to consider a counterclaim a miscarriage of justice is occasioned and such a judgment is liable to be set aside – Olowolaramo Vs Umechukwu (2003) 2 NWLR (Pt. 805) 537, Isyaku Vs Master (2003) 5 NWLR (Pt. 814) 443, Oduakpu Community Bank Nig Ltd Vs Ibeto & Co Ltd (2007) All FWLR (Pt. 350) 1409.” Per ABIRU, J.C.A.
It however does not mean that it must be filed separately. The objection is belated and untenable. It is hereby discountenanced.

The defence of the Respondent outrightly failed and the counterclaim also collapsed, so on which evidence did the trial

Judge find for the Respondent on title? The Respondent in her Counterclaim, averred that she is the owner of the piece of land covered by Right of Occupancy No.: BN 10748 and therefore entitled to exclusive possession. No Right of occupancy was tendered with such particulars. To counterclaim in those terms presupposes that the method adopted by the counterclaimant in proof of the counterclaim was document of title and none was tendered. All she tendered was Revenue receipt as Exhibit 1B showing she applied for a Right of occupancy, I agree with the Appellant that there was no evidence of sale before the Court below, the evidence of the Appellant was unchallenged and supported by the testimony of DW2.

Learned Counsel to the Respondent argued that the sale was under Native law and Custom, the simple answer is that there was still no evidence of such before the Court below to have influenced the Court to enter judgment for the Respondent under the counterclaim. And if there was any such sale under Native Law and custom, there must be a witness to such transaction. In any case, the same Respondent pleaded a Right of occupancy which was also not tendered.

Therefore, the contention of the Respondent in defence of the judgment is not supported by law. I therefore agree with the Appellant and resolve issue two in favour of the Appellant.

On issue three which seeks to know whether the findings of the trial Judge were right and Issue Four further seek to find out if the decision can be supported by evidence on record. I find it a repetition of issue two because having found that the trial Judge was wrong because the findings made by the Court below were not founded on the evidence before the Court, the findings therefore are perverse and must be set aside. This is a classical case of when the Appellate Court can interfere to evaluate evidence and make appropriate findings. Having reviewed the evidence before the trial Court, the trial Judge erred in entering judgment for the Respondent. It was not backed by evidence and the trial Judge raised the issue of the validity of the Right off Occupancy suo motu without giving the parties an opportunity to address the Court on it before relying on it to find for the Respondent. Therefore, to simply say “I do not believe the Plaintiff” when his evidence is

not challenged is perverse and cannot be allowed to stand. A Judge cannot just say I believe or don’t believe a witness without evidence to influence or justify that belief, there must be verifiable basis for such a belief, see OKORO V STATE (1998) LPELR-2493(SC) where the apex Court held:

“It is trite that a trial Court must give the reason to believe the evidence of a witness and disbelieve the other. There is no magic in the expression ‘believe’ or ‘disbelieve.”
The question is what is being believed? Is it not the facts as presented by the witness in evidence? When what the witness has spoken has no value or relevance to the issue to be determined, how can “I believe” or “do not believe” help the case of the party. The Court believes facts as presented which are relevant to the issue under consideration. The law is on the side of the Appellant and therefore, the trial judge’s disbelief has little effect in this case.

It is also made out by the Court below that the location and size of land was not established, that is to say the identity of the land was also not established, however, the settled position

is for the Respondent to make it an issue in the statement of defence, failure to do so means the identity of the land was not in issue, see ANYANWU & ORS V. UZOWUAKA & ORS (2009) LPELR-515(SC) wherein the apex Court held thus:
”In NWOBODO EZEUDU & ORS v ISAAC OBIAGWU (1986) 2 NWLR (Part 21) 208 at 220 this Court, Per Oputa JSC, spoke of the circumstances when an issue of identity of land can appropriately be said to be raised. The Court said: “The identity of land in dispute will be in issue, if, and only if, the Defendants in their Statement of Defence made it one – that is if they disputed specifically either the area or the size or the location or the features shown on the Plaintiffs’ plan. When such is the case then the identity of the land becomes an issue. We have in our Courts almost tacitly accepted that it is a ritual in land cases for the Plaintiff to prove the features on the boundary and call all boundary men before it can be held that he has established the identity of the land in dispute. This erroneous belief accounts for a good deal of delays in land cases. The onus on the Plaintiff is an onus to prove an issue. Where

therefore the identity of the land is not an issue, there, I will make bold to say that the mere production of the Plaintiffs’ plan is enough to establish the identity of the land. In fact, in such cases the plan can and should be tendered by consent.” Per TABAI, J.S.C.
And the case of FATUADE V. ONWOAMANAM (1990) LPELR-1253(SC) wherein the Supreme Court held thus:
“While it is the law that in an action for declaration of title to land, the burden is on the plaintiff to prove the identity of the land to which his claim relates – Kwadzo v. Adjei (1944) 10 W.A.C.A. 274, in this case, in my view, on the facts before the trial Court, the identity of the subject matter in dispute was not in question. The identity of the land would only be in issue if, and only if the defendant in his statement of defence made it one. See Ezeudu v. Obiagwu (1986) 2 NWLR (Pt. 21) 208 at 210.” Per KAWU, J.S.C.
In following the above decisions, the case of ADEKUNLE V. IBRU (2018) LPELR-44119(CA) wherein the Court held that:
“… In the words of UWAIFO, JSC in ADENLE Vs. OLUDE (2009) 9 – 10 SC 124; (2002) LPELR – 129 (SC); “the law is that the identity of land in

dispute will be in issue only if the defendant in his statement of defence makes it so by specifically disputing either the area or size covered or the location as shown in the plaintiff’s plan (if there is a plan), or as described in the statement of claim.” See also EZEUDU & ORS Vs. OBIAGWU (1986) 2 NWLR (Pt 21) Pgs. 208 at 220, where OPUTA, JSC held that “the identity of land in dispute will be in issue, if, and only if, the Defendants in their Statement of Defence made it one – that is they disputed specifically either the area or the size or the location or the features shown on the Plaintiff’ plan. When such is the case then the identity of the land becomes an issue.” See: further ANYANWU & ORS vs. UZOWUAKA & ORS (2009) 12 NWLR (Pt. 1159) Pg. 445 SC. It is therefore established in the light of the foregoing decisions of the Supreme Court, that identity of a disputed land will only be in issue where the Defendant made it one in his Statement of Defence…. While stating that the onus of establishing with certainty and precision the area of land to which a Plaintiff claims rest on him, when the identity of the land is dispute is in issue,

EDOZIE, JSC, held as follows: “The question of the identity of the land in dispute being in issue will only arise when the defendant raises it in his statement of defence in a trial where pleadings were ordered and filed or the cross-examination of the adversary and his witnesses or in his own testimony where the trial is without pleadings.” In the instant appeal where pleadings were ordered at the trial Court, the question of identity of land was never a question in issue. The learned trial judge was therefore right in his conclusion. I have no hesitation in agreeing with him in this regard.” Per ABUBAKAR, J.C.A.

Furthermore, the Right of occupancy had a plan attached to it which shows the land in dispute and other portions not in dispute, that is to say the entire land as claimed by the Appellant, the identity and size. The Respondent was also claiming through the Appellant so she cannot raise the issue of identity of the land which is the same land claimed by the Appellant. The Respondent cannot contend long possession as argued because the Appellant’s possession was earlier in time and longer in duration to that of the Respondent. The trial

Judge also averred to other persons being on the land, well, not being parties, the trial Judge had no business taking cognizance of people who are not before the Court as the Court cannot make a case for the parties before it not to talk of those not before the Court. A Court is limited by the claim and pleadings before it, see the case of OJO-OSAGIE V. ADONRI (1994) LPELR-2386(SC) where the apex Court held thus:
“…it cannot be over emphasized that Courts of law must limit themselves only to issues raised by the parties in their pleadings as to act otherwise might well result in the denial to one or the other of the parties of his right to fair hearing. See Metalimpex v. AG Leventis & Co. Ltd. (1976) 2 S.C. 91; Braide v. Kalio (1927) 7 NLR 34; George v. Dominion Flour Mills Limited (1963) 1 SCNLR 242, Oniah v. Onyia (1989) 1 NWLR (Pt.99) 514, Shell B.P. Ltd. v. Abedi (1974) 1 All NLR (Pt.1) 1: and Alhaji Ogunlowo v. Prince Ogundare (1993) 7 NWLR (Pt.307) 610 at 624. So too, when an issue is not placed before an appellate Court, save of course such fundamental matters as touching on the jurisdiction or competence of a Court or the constitutionality

of an act or thing directly in issue in a cause, the appellate Court has no business whatsoever to deal with such an issue. See Shitta-Bey v. Federal Public Service Commission (1981) 1 S.C. 40; Saude v. Abdullahi (1989) 7 SCNJ 216 at 229; (1989) 4 NWLR (Pt.116) 387; Florence Olusanya v. Olufemi Olusanya (1983) 3 S.C. 41 at 56 – 57; (1983) 1 SCNLR 135; and Ochonma v. Unosi (1965) NMLR 321 at 323.” Per IGUH, J.S.C.
The apex Court in SKYE BANK ANOR V. AKINPELU (2010) LPELR-3073(SC) held that:
“… it was not the duty of the lower Court to make out its own case outside the evidence and pleadings of the parties. See the cases of Adeniji v. Adeniji (1972) 4 SC 10; Dipcharima v. Alli (1974) 1 SC 45; Overseas Construction Company Limited v. Greek Nigeria Limited & Anor (1985) 3 NWLR Pt. 13, 407.” Per OGEBE, J.S.C.
It was followed by the Court in ETIM V. CLASEN VENTURES & ORS (2011) LPELR-3827(CA) where the Court held thusly:
“… It is settled, that a trial Court is strictly bound to limit itself to the issues raised by the parties in their pleadings. Indeed, doing otherwise might as well result in denial of justice to one or the

other of the two disputing parties, or setting up an entirely different case from the one which the parties placed before it and in respect of which the issues have been joined in their pleadings. See N.I.P.C. Ltd. v. Thompson Organisation (1969) 1 All NLR 138; George v. Dominion Flour Mill Ltd. (1963) 1 SCNLR 117; Akinlagun v. Oshoboja (2006) 12 NWLR (Pt. 993) 60; A.S.E.S.A. v. Ekwenem (2009) 13 NWLR (Pt.1158) 410. Per OREDOLA, J.C.A.

Another aspect of the judgment appealed against was the finding of the trial Judge that he did not believe that the Appellant merely allowed the Respondent to squat on the land. Good as that pedestrian argument could be, the case in Court was one that required proof according to law. There was no evidence of sale to the Respondent so the question of the Right of Occupancy issued after the sale could not arise. It can become relevant when there is evidence that the Appellant sold the land to the Respondent.

Upon a careful review of the evidence before the trial Court, I find for the Appellant that he made out a case for a declaration of title and hereby grant the claim of the Appellant. The judgment delivered by

the trial Court was not based on evidence before the Court and therefore perverse and the duty of the Court is to set such aside.

Having determined all the issues donated for determination in this appeal in favour of the Appellant, the appeal is meritorious and succeeds. The judgment of the trial Court delivered by HON. JUSTICE T. U. PUUSU on the 13th December, 1993 is hereby set aside. In its place I enter judgment for the Appellant and make the following orders:
i. A DECLARATION of title is hereby made in favour of the Appellant to that entire piece or parcel of land situated at Ankpa Quarters Road, opposite Apostolic Church, Makurdi and covered by Right of Occupancy No: BN 4276 issued on the 28th September, 1981.
ii. A perpetual injunction restraining the Respondent, her Agents or servants from further entry upon or occupation of the said plot.
Appeal succeeds and I make no order as to cost.

IGNATIUS IGWE AGUBE, J.C.A.: Having read in advance the draft of the Judgment of my learned Brother, Hon. Justice Y. B. Nimpar, JCA; I am bound to concur with his reasoning and conclusions on the facts, issues and

the appropriate principles of law as established therein.

Accordingly, I adopt the entire Judgment as mine and also endorsed His Lordship’s position that the Appeal is meritorious and hereby succeeds. Consequently, the Appeal is hereby allowed. I abide by the Order as to costs.

CORDELIA IFEOMA JOMBO-OFO, J.C.A.: I read in draft before now the lead judgment just delivered by my learned brother NIMPAR, JCA., and I agree with the reasoning and conclusions reached therein.

The appeal is imbued with merit and is accordingly allowed by me. The judgment of the High Court of Benue State, sitting in Makurdi, per Hon. Justice T. U. Puusu, J., and delivered 13th December, 1993 is also set aside by me.
I abide by the consequential order made in the leading judgment.

Appearances:

Appellant in person For Appellant(s)

E.I. IAREN For Respondent(s)