SALE v. AJARI (2020)

SALE v. AJARI

(2020)LCN/15413(CA)

In The Court Of Appeal

(GOMBE JUDICIAL DIVISION)

On Thursday, November 12, 2020

CA/G/63/2018

RATIO

TITLE TO LAND: ON WHOM LIES THE BURDEN TO PROVE TITLE TO THE DEFINED AREA IN AN ACTION FOR DECLARATION OF TITLE TO LAND

It is mandatory that a party seeking a declaration of title to land must first of all identify the land with certainty. It is therefore, the primary duty placed on a plaintiff who comes to Court to claim a declaration of title to land is to show the Court clearly, the area of land to which his claim relates so that the land can be identified with certainty.
In other words, in an action for declaration of title to land, the onus is on the plaintiff to prove title to a defined area to which the declaration can be attached Idehen Vs Osemwenkhae (1997) 10 NWLR pt 525 pg 282. Dada Vs Dosunmu (2006) 18 NWLR pt 1010 pg 134. PER UZO IFEYINWA NDUKWE-ANYANWU, J.C.A.

TITLE TO LAND: RELEVANCE OF THE PROOF OF THE DEFINITE, PRECISE AND ACCURATE BOUNDARIES OF THE LAND IN DISPUTE

It is an age-long principle of law that any person claiming an interest in land must prove the exact location of the land and the precise area to which his claim relates. This is the foremost and fundamental duty on a claimant in a land dispute. In other words, the first duty of a claimant in a claim for title to land is to show clearly the area of land to which his claim relates, as no Court will grant a declaration to an unidentified area. Title can only be granted in respect of a piece of land with definite, precise and accurate boundaries.
Thus, the Supreme Court in the case of Tukuru V Sabi (2013) Vol. 222 LRCN (Pt. 1) 87, A-K, per Onnoghen, JSC, stated as follows:
“It is settled law that the first duty of a Claimant of title to land is to show clearly the area of land which his claim relates, the exact boundaries, its extent, etc. The above requirement is not satisfied by merely tendering the Survey Plan of the land in dispute without adducing oral evidence as to the features on the land, the boundary neigbours, etc, particularly where the defence denies the identity of the land in dispute, as in the instant case. Apart from the requirement of certainty of the land claimed, it is also the duty of the plaintiff in a declaration of title suit to succeed on the strength of his case as he is not allowed to rely on the weakness of the defence except where the defence supports that of the plaintiff.” (Emphasis supplied)
See also Kolo V Lawan (2018) LPELR-44378(SC) 12, D-E, per Ariwoola, JSC; Min. of Lands & Housing, Bauchi State V Tirwun (2017) LPELR-43314(CA) 19-20, C-B, per Abiru, JCA; Amadi V Nwosu (2014) LPELR-24428(CA) 83-84. F-D, per Agube, JCA; Ilona V Idakwo (2003) 18 NWLR (Pt. 830) 53; Odofin V Oni (2001) 3 NWLR (Pt. 701) 488; Adesanya V Aderonmu (2000) 9 NWLR (Pt. 672) 370. PER JUMMAI HANNATU SANKEY, J.C.A.

TITLE TO LAND: WHETHER A CERTIFICATE OF OCCUPANCY IS A CONCLUSIVE PROOF OF TITLE TO LAND

It is the law that even though a certificate of occupancy is prima facie evidence of title or possession, it is however not conclusive proof of title to the land to which it relates. See the cases of Nigerian Air Force & Anor V. Wing Commander Fibril Bala Adamu (2018) LPELR- 44369 (CA), Per Adefope-Okojie, JCA (PP27-29, Paras E-A), Adole V. Gwar (2008) LPELR-180(SC), Per Onu, JSC (P.A, Paras D-E). In the case of Adole V. Gwar (Supra), it was held:
“A Certificate of Occupancy issued on the Land Use Act, it must be stressed, cannot be said to be conclusive evidence of any interest or valid title to land in favour of the grantee; it is only prima facie evidence of such right, interest or title without more and may in appropriate cases be effectively challenged and rendered in-valid, null and void. See Mohamoud J. Lababedi v. Lagos Metal Industries (Nig.) Ltd. (1973) NSCC. 1 at 6.”
Per ONU, JSC (P.17, paras. D-E). PER JAMES GAMBO ABUNDAGA, J.C.A.

TITLE TO LAND: WAYS BY WHICH TITLE TO LAND CAN BE PROVED

Indeed, production of title document is one of the methods by which title to land can be proved. There are indeed 5 ways by which title to land can be proved. The five ways are:
(1) By traditional evidence
(2) By production of title document
(3) By proving acts of ownership numerous and positive enough to warrant an inference that the person is the true owner; such as selling, renting out or farming of the land.
(4) By proving act of long possession and enjoyment of the land
(5) By proof of possession of adjacent land.
See the following cases:- Monday Daspan V. Chankat Nimdem (2016) LPELR-43803 (CA), per Jauro JCA, (pp. 13-14, paras E-B), Idundun & Ors V. Okumagba (1976) LPELR- 1452(Sc) per Fatayi-Williams, JSC (PP. 23-26, para D), Piaro V. Tenalo (1976) LPELR 2919 (Sc) per Obaseki, JSC (P15 paras A-E), Okonkwo & Anor V. Okolo (1988) LPELR-2481(SC) Per Oputa, JSC(P.38 pars, as b – E).
The Respondent who pleaded production of title documents as his root of title must also know that it carries with it the need for the Court to inquire into a number of questions. This issue was lucidly put in the case of Michael Romaine V. Christopher Romaine (1992) LPELR -2953 (SC) thus:-
“…one of the recognized ways of proving title to land is by production of a valid instrument of grant: See Idundun v. Okumagba (1976) 9-10 S.C. 227; Piaro v. Tenalo (1976) 12 S.C. 31, p.37; Nwadike v. Ibekwe (1987) 4 NWLR (pt.67) 718. But it does not mean that once a claimant produces what he claims to be an instrument of grant, he is automatically entitled to a declaration that the property which such an instrument purports to grant is his own. Rather, production and reliance upon such an instrument inevitably carries with it the need for the Court to inquire into some or all of a number of questions, including; (i) whether the document is genuine and valid; (ii) whether it has been duly executed, stamped and registered; (iii) whether the grantor had the authority and capacity to make the grant; (iv) whether the grantor had in fact what he purported to grant; and (v) whether it has the effect claimed by the holder of the instrument.” Per NNAEMEKA-AGU, JSC (Pp. 15-16, paras. E-B).
See also Moses V. Onu & Anor (2013) LPELR-20348 (CA), Per Nadukwe-Anyanwu, JCA (PP. 29-30), Anagbado V. Faruk (2016) LPELR-41634 (CA), Per Bdliya, JCA (P. 39, Paras C-E). PER JAMES GAMBO ABUNDAGA, J.C.A.

TITLE TO LAND: CIRCUMSTANCE IN WHICH THE IDENTITY OF LAND IN DISPUTE WILL BE AN ISSUE

It is settled law that the identity of land in dispute will only be an issue if and only if the defendant in his statement of defence makes it one. In other words, the identity of the land in dispute will only be an issue where the defendant in his statement of defence specifically disputes the description of the land given in the plaintiffs’ statement of claim. See the case of Adesina vs. BAC Electrical Co Ltd (2007) All FWLR (Pt. 369) 1279, Aremu vs. Adetoro (2007) 16 NWLR (Pt. 1060) 244, Gbadamosi vs. Dairo (2007) 3 NWLR (Pt. 1021) 282, Atuchukwu vs. Adindu (2011) LPELR-382 (CA) Per Ogunwuiji, JCA (Pp. 30-31, Paras F-B. PER JAMES GAMBO ABUNDAGA, J.C.A.

DUTY OF COURT: WHETHER A COURT CAN REFORMULATE ISSUES FOR DETERMINATION

It is trite law that the Court can re-frame or reformulate issues for determination, and this, the Court can do for its convenience, precision and clarity. See Okunlola & Anor V. Shoyinka & Anor (2019) LPELR-48362 (CA). PER JAMES GAMBO ABUNDAGA, J.C.A.

Before Our Lordships:

Jummai Hannatu Sankey Justice of the Court of Appeal

Uzo Ifeyinwa Ndukwe-Anyanwu Justice of the Court of Appeal

James Gambo Abundaga Justice of the Court of Appeal

Between

BUJI ALHAJI SALE APPELANT(S)

And

ALHAJI MAINA AJARI RESPONDENT(S)

JAMES GAMBO ABUNDAGA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Judgment of the High Court of Borno State, in the Konduga Judicial Division, holden at Maiduguri in Suit No. BOHC/KDG/CV/07/2017, delivered by Hon. Justice M.S. Umara on 10th October, 2017.

At the High Court (herein after to be referred to as “the trial Court” or “the lower Court”), the Respondent, who was then the plaintiff took out a writ of Summons endorsed with a statement of claim which was subsequently amended, by which he claimed against the Appellant (who was then the 1st defendant) and one other person by name, Musa Alh. Bulama Bukar, the following reliefs:-
(a) A DECLARATION that the claimant is entitled to the farmland measuring 4.5 hectares situate in between at Kachallah Burari Kura/Gana Area, Nzuda Village, Gumusuri Road, Damboa Local Government Area of Borno State, Borno State.
(b) A DECLARATION that the defendants are trespassers.
(c) AN ORDER of this Honourable Court direction (sic) the Defendants to give up immediate vacant possession of the farmland in dispute to the claimant.
(d) AN ORDER of the Honorable Court of perpetual injunction restraining the defendants, their agents, privies, servants, workmen or heirs, representatives from continuous trespassing on or interfering with the farmland in dispute.
(e) The sum of One Million Naira Only (N1,000,000.00) as a general damages.
(f) The cost of this suit.

The Respondent’s case was subsequently discontinued against the 2nd defendant. The 1st defendant filed a statement of defence by which he urged the trial Court to dismiss the Respondent’s Suit as same according to him was baseless and lacking in merit. The Respondent reacted to the Appellants’ Statement of defence by filing a reply to the statement of defence.

After the exchange of pleadings, the matter proceeded to trial at which both parties adduced oral and documentary evidence followed with exchange of counsel’s final written addresses.

Following the adoption of written addresses, the trial Judge gave a considered judgment in which he found for the Respondent. Piqued by this judgment, the Appellant headed to this Court for redress. He filed a notice of appeal on 20th December, 2017 containing seven grounds of appeal, inclusive of the omnibus ground of appeal.

On due compilation and transmission of the record of appeal to this Court, counsel proceeded to file their briefs of argument.

The appeal came up for hearing on 10/09/20. At the hearing, the Appellant’s brief argument, settled by AR Abdulsalam Esq, and filed on 3/7/18 and deemed properly filed and served on 27/11/18 was adopted by him. Mr. S. Alhaji, who held brief for Yusuf Abubakar, adopted the Respondent’s brief of argument which was settled by S. Alhaji and filed on 21/12/18.

The Appellant distilled three issues for determination in his brief of argument.
The issues are:-
1. “Whether by the preponderance of evidence before the Lower Court; the Claimant/Respondent had discharged the burden of proof placed on him by the law in declaration of title to land to warrant the learned trial judge shift the burden on the Defendant/appellant”. (Grounds 1, 4, 5 and 7).
2. “Whether by virtue of Exhibits A, A1 and B tendered by the Claimant/Respondent; the learned trial judge was right to have held that the farmland in dispute belongs to the Claimant/Respondent which Exhibits are not capable of conferring title to land on the claimant having failed to tender the judgment of the trial Court”. (Ground 2 and 3)
3. “Whether by the evidence before the Lower Court; it is right for the learned trial judge to hold that the Claimant/Respondent has proved the act of trespass and accordingly the appellant is liable for trespass when there are admitted facts that the appellant is in possession of the farmland in dispute”. (Ground 6).

The Respondents also distilled three issues in his brief of argument. The issues so distilled are:-
1. “Whether or not from the evidence adduced by the clamant/Respondent before the trial Court had he discharged the burden of proof for declaration of title to land to warrant the trial Court to enter judgment in his favour against the appellant and was there shift of the burden of proof on the side of the appellant by the trial Court”. This issue No:1 relates to grounds 1,4,5, and 7 of the appellant’s appeal.
2. “Whether or not by virtue of tendering exhibits A, A1 & B by the Respondent at the trial Court, tendering the judgment of Marghi Area Court, is he entitled to the judgment entered in his favour by the aforesaid trial Court in respect of conferring the title to the farmland in dispute to him”. This issue No: 2 relates to grounds 2 and 3 of the appeal of the appellant.
3. ‘Whether or not based on the evidence before the trial Court, has the Respondent proved the act of trespass on the appellant in respect of the respondent’s farmland in dispute”. This issue No: 3 relates to ground No: 6 of the appeal of the appellant.

As can be seen the issues formulated by the Appellant and the Respondent are similar except for minor differences in wordings.

I have taken a critical look at the issues formulated by the parties vis-à-vis the pleadings, evidence led and arguments canvassed by counsel. I have come to the conclusion that the issues are so intricately tied together, that issue two particularly, cannot be resolved in isolation from issues one and three. Considering the three issues together in one fell swoop that is all-embracing will give the judgment a more holistic pattern. And in my humble view, the following one issue is comprehensive enough to accommodate all the three issues formulated by the parties: “Whether on the evidence before the trial Court the Respondent proved his case to be entitled to judgment”.

Submissions of Appellants’ counsel
It is submitted for the Appellant that by the preponderance of evidence before the Lower Court the Respondent did not discharge the burden of proof placed on him and as such the burden cannot shift to the Appellant. Referring to an aspect of the judgment of the Lower Court at page 10 lines 20-27 and page 108 lines 5-10 which faulted the insufficiency of evidence adduced by the Appellant who was the defendant, it is further submitted that it is trite law that the onus of proof in an action for declaration of title to land is on the plaintiff/Claimant and never shifts except in a few cases, such as where the evidence called by the defendant supports the plaintiff’s case.

Counsel cites the case of Mogaji V. Odofin (1978) 4 SC 101, and Aremu V. Adetoro (2007) ALL FWLR (Pt 338) p 85 at 1993 paras A-C and F and P. 998 paras B, where the Supreme Court held that unless the two parties are agreed on the identity of the land the plaintiff who claims title must prove identity of the land, by specific and unequivocal evidence as to the boundaries of the land in dispute. Counsel submits that the Respondent did not prove his case; hence the Lower Court was in error in giving him judgment. Counsel points out that the Respondent mentioned 4.5 hectares as the size of the land claimed whereas the Appellant denied same and claimed the land which is his, and in his possession to be 2.0 hectares which the Respondent admitted to be bounded at the Southern side of the farmland of the father of the Appellant’s father, Alh Sale.

Counsel further submits that the Respondent’s claim is hinged on a root of title based on a purported judgment and writ of Possession of an Area Court in Suit No. 149/1985 and customary certificate of occupancy dated 12th May, 1986. However counsel points out that the judgment was not tendered, even when the alleged judgment is being contested between the parties.

It is further submitted for the Appellant that a plaintiff whose claim of title is based on instrument of grant does not automatically succeeds, but that such a method of proof of title carries with it the need for the Court to inquire into some or all of the following:-
(a) Whether the instrument is genuine and valid.
(b) Whether the grantor had capacity and authority to make the grant,
(c) Whether it was duly executed and stamped
(d) Whether the grantor had in fact what he purports to grant
(e) Whether it had the effect claimed by the grantee. Counsel finds strength in this submission on the case of Divine Ideas Ltd V. Umoru (2001) ALL FWLR (pt 380) P. 1468 at 1500 paras D-F.

It is submitted that a party who relies on a grant as his root of title to land must therefore not only prove the grant but the title of the grantor unless the title of the grantor was admitted by the defendant. That a plaintiff seeking declaration of title, if he traced his title to a particular person must go further to prove how that person got his own title. Where he fails a defendant who had no counter claim need not answer such plaintiff’s case at that stage upon such defective evidence since the plaintiff would not have made a prima face case. The following cases are cited by counsel in support of his submissions:- Ogunleye V. Oni (1990) 2 NWLR (Pt 135) p. 745, Oluma V. Onyuma (1996) 4 NWLR (Pt 434) p. 449, Ikegbunam V. Onwubuya (2007) ALL FWLR (Pt 345) P. 379 at 386-387 paras E-A.

It is further submitted that the failure to tender the judgment upon which the writ of possession was drawn and issued is tantamount to gross miscarriage of justice, raising suspicion, and invocation of Section 167(d) of the Evidence Act, 2011. In support, the case of Union Bank of Nigeria Plc V. Nwuche (2007) ALL FWLR (Pt 383) p.179 at 188 paras F-H is cited. Also cited is the case of Adeniran V. Alao (2001) 18 NWLR (Pt. 745) P. 361.

Furthermore, on Exhibits “A” “A1” and “B” tendered by the Respondent, it is submitted that these Exhibits are not capable of conferring title to land on the Respondent without the judgment of the Court upon which the Exhibits are predicated. Counsel thus submits that the burden on the Respondent was not discharged by the mere tendering of Exhibits “A” “A1” and “B”. Further cited are Alli V. Alesinloye (2000) 4 SCNJ 264, Odofin V. Ayoola (1984) 11 SC 42, Adole V. Gwar (2008) All FWLR (Pt. 423) P. 1217 at paras C-E.

Counsel further contended that the Respondent’s customary certificate of occupancy tendered as Exhibit B before the Lower Court was predicated on the writ of possession issued by the Marghi Area Court in 1985 which judgment was not tendered. It is therefore submitted that the legal status of Exhibit “A” and “A1″ (that is, the writ of possession and the customary certificate of occupancy) must be deemed defective.

It is also the contention of Appellant’s Counsel that there is preponderance of evidence on the part of the Appellant that there was a Suit between his father and the Respondent, and that this assertion could only be disputed by the Respondent’s claim that there was a Suit between Alhaji Maina V. Alhaji Sale in 1985 by tendering the judgment; which the Respondent could not enforce in the lifetime of the Appellant’s father, but proceeded to file another suit in 2017 about 32 years after the purported judgment.

Counsel further points out that there is evidence before the learned trial Judge that Appellant’s grandfather Kachallah Bura was the founder of the village where the land is situate, and the village named after the Appellants’ grandfather. Counsel refers this Court to the evidence of DW1, DW2, DW3 and DW 4 at pages 31-41 of the record of appeal. He refers to the Respondent’s reply to the statement of defence at pp 42-44 of the record in support of which there is no evidence. It is submitted that the said reply is thus deemed abandoned. It is contended that as shown by the evidence called by the Appellant where the traditional history of the land in dispute is proved, the Appellant had proved a letter title and therefore the Lower Court had no option than to set aside the customary certificate of occupancy, and to discountenance it as invalid, defective and/or spurious.
We are referred to the case of Abdullahi V. Hedima (2011) All FWLR (Pt 564) P. 125 at 138 paras A-C.

Still on the certificate of occupancy, it is submitted that a certificate of occupancy is a prima facie evidence of title to land but not conclusive proof of title. Counsel further submits that in law any person without title to land in respect of which a certificate of occupancy was issued acquires no right or interest. Cited in support is the case of Okunowo V. Mdajo (2011) ALL FWLR (Pt. 590) Pp. 1396-1397.

Appellant’s submission on the survey plan attached to the customary right of occupancy is that the essence of a survey plan is to merely identify the land in dispute because a survey plan does not and cannot constitute by itself a root of title to land.

In the premise of the above submissions, Counsel submits that the Respondent did not prove title of the grantor and that judgment given in his favour is a miscarriage of justice, and urged this Court to invalidate Exhibits “A”, “A1” and “B” and allow the appeal. In regard to the award of damages for trespass, it is submitted that the Respondent has not proved possession. Counsel went further to submit that in an action for trespass, two separate and independent issues must be considered; namely,
(a) Whether the plaintiff established his actual possession of the land.
(b) Whether the defendant trespasses on the land.

That the Respondent herein failed to establish his possession of the land in dispute, and therefore the claim of trespass ought to have been dismissed. Counsel relies on the case of Odumade V. Ogunnaike (2011) ALL FWLR (Pt. 556). It is pointed out that there is no evidence that the Respondent was in exclusive/actual possession; that the Respondent pleaded that the Appellant unlawfully trespassed into the land in dispute. However, no act of trespass by the Appellant was pleaded and evidence led in proof. Counsel refers to the evidence adduced by the Respondent to prove the point that there is no evidence to prove the act of trespass allegedly committed by the Appellant. It is submitted that it is trite law that where it is shown by pleadings and evidence of both parties that the issue turn out to be that of which of the two competing claimants has a right to possession or occupation of farm land, the law will ascribe such possession to the person who proves a better title. Cases called in aid of this submission by the Appellant are Olohunde V. Adeyoju (2000) FWLR (Pt 24) 1355, (2000) 10 NWLR Pt. 676) 562, Anyanwu V. Uzowuaka (2009) ALL FWLR (Pt 499) P. 411 at 448 paras B-C.

Finally, Counsel submits that a claimant who fails to establish how the defendant unlawfully entered his land cannot maintain an action in trespass. Cases cited to buttress the submission are:- Kasunmu V. Abeo (1972) 2 SC; Akinterinwa V. Oladunjoye (2000) FWLR (pt 10) P. 16901, (2000) 4 SCNJ P. 149, Adekanye V. Grand Service Ltd (2007) ALL FWLR (Pt387) 855 at 870, paras C-D.

The Court is urged to resolve the issue in favour of the Appellant and to allow the appeal and set aside the Judgment of the Lower Court.

Submission of Respondent’s Counsel
It is submitted for the Respondent that the burden of proof in a claim of declaration of title to land is always on the claimant, and that in the instant appeal the Respondent has discharged that burden. It is submitted that evaluation of evidence is the business of the trial Court, and that the trial Court properly evaluated the evidence before it. Counsel submits that the submissions of Appellant’s counsel and the authorities cited should be discountenanced. Counsel submits that even though the land claimed by the Appellant is different from the Respondent’s land which is 4.5 hectares; the Appellant trespassed into the Respondents’ land. He refers us to the Respondent’s amended statement of claim and the evidence of witnesses who testified. That based on both the documentary and oral evidence adduced at the trial Court, the Respondent discharged the burden of proof placed on him as there was proper evaluation of the evidence adduced by the trial Court.

In regard to Exhibits “A”, “A1” and “B” tendered by the Respondent, it is submitted that the trial Court was right in finding that the farm land measuring 4.5 hectares belongs to the Respondent because those documents are valid and subsisting since they have not been revoked or set aside by the issuing authorities; and that the two documents are pleaded, relevant and unchallenged, and were properly tendered and admitted in evidence as public documents. The Court is referred to Sections 104(1), (2) & (3) and 105 of the Evidence, Act, 2011. Also referred to are Muniyas (Nig) Ltd V. Ashafa (2011) 6 NWLR (Pt. 1242) 85 at page 104 paras F-H & 105 paras F-G, Adim V. NBC Ltd (2010) 9 NWLR (Pt. 1200) 543 at 564 para G.

It is further submitted that there are 5 ways of proving title to land. Counsel lists them out, and submits that of the five, the Respondent was successful in fulfilling two of them, which are:
(1) Production of title document
(2) By proving act of ownership numerous and positive enough to warrant an inference that the person is the true owner of such.

It is further submitted for the Respondent that one can prove title by one of the methods only. Cited in support of this submission is the case of Ayoola V. Odofin (1984) use 120, OFEM V. Efukwa (Supra). It is submitted that by tendering the writ of possession and the customary certificate of right of occupancy, the Respondent has complied with the requirements of the law for establishing his title to the land.

As respects the issue of trespass, it is submitted that the Respondent proved the act of trespass against the Appellant. That for an act of trespass to be established, the Respondent must be in actual or constructive possession. Counsel went further to submit that the Respondent has proved by preponderance of evidence that he was in constructive exclusive possession of the land when the Appellant trespassed thereon. Thus, Counsel submits the Respondent is entitled to Judgment.

Resolution
At the onset of the resolution of the submissions of counsel in this appeal it is imperative to state the standard and burden of proof in a claim of declaration of title to land. On what the standard/burden of proof in land matters is, this Court in the case of Bulus Hamman vs. Aminu Umar Baba (2019) LPELR-48 932(CA) said:
“It is important to note that in all cases relating to declaration of title to land, the burden of proof lies on the party claiming title to prove his case by credible evidence in line with his pleadings; his case will collapse if he fails to discharge that duty. The burden of proof shall be discharged on the balance of probabilities in civil proceedings. See Mojeed v Adegoke (2007) 4 SCNJ 77 Ratio 3 and Kazeem v Mosaku (2007) 2 SCNJ 135 Ratio 1. Even if the Appellant in the instant case admitted liability before the lower Court, the Respondent cannot rely on such admission of liability to obtain judgment.

He must prove his claim of title to the disputed land – Anyanru v Mandilas(2007) 4 SCNJ 388 Ratio 1.”
Per BAYERO, JCA (Pp. 38-39, paras. E-B)
See also SUU vs. Jobak (Nig) LTD (2012) LPELR- 7932(CA), per Mbaba JCA (pp64-68 paras B-C). That is the law. The Respondent bears the burden of proof. It does not lie in his mouth to pick holes in the Appellant’s case. The burden will only shift to the defendant after he had successfully adduced evidence to establish a prima facie case, which if not successfully rebutted by the Appellant would entitle him to judgment.
In the case of Anyanru V. Mandilas (2007) 10 NWLR (Pt. 1043) 462 at 477, it was held:
“It’s a matter of law, in civil proceedings, the plaintiff must succeed on the strength of his case and does not have to wait to rely on, or take advantage of the weakness of the case of his opponent. This is more so, in land matters and declaratory reliefs…” The requirement of the law regarding the onus placed on a party claiming a declaratory relief as claimed by the Appellant in the present case is trite. A claim for a relief of declaration, whether of title to land or not, is not established by an admission by the defendant, because the plaintiff must satisfy the Court by cogent and credible evidence called by himself to prove that, as a claimant, he is entitled to the declaratory relief…”

What I must decide in this appeal is whether the Respondent who is the beneficiary of the judgment on appeal was able to discharge the burden on him by cogent and credible evidence on the standard spelt out above.

The first step towards the proof of title to land is that the identity of the land must be clearly ascertained unless the land and boundary of the land in dispute is known to both parties and is not put in issue by the defendant.
In the case of Aigbobahi & Ors V. Aifuwa & Ors (2006) LPELR-267(SC), it was held:
“It is trite law that a party seeking a declaration of title to land must show with certainty the land to which his claim relates, failing which his claim must fail.” Per Onnoghen, JSC (P.26, para F)
It is settled law that the identity of land in dispute will only be an issue if and only if the defendant in his statement of defence makes it one. In other words, the identity of the land in dispute will only be an issue where the defendant in his statement of defence specifically disputes the description of the land given in the plaintiffs’ statement of claim. See the case of Adesina vs. BAC Electrical Co Ltd (2007) All FWLR (Pt. 369) 1279, Aremu vs. Adetoro (2007) 16 NWLR (Pt. 1060) 244, Gbadamosi vs. Dairo (2007) 3 NWLR (Pt. 1021) 282, Atuchukwu vs. Adindu (2011) LPELR-382 (CA) Per Ogunwuiji, JCA (Pp. 30-31, Paras F-B.

The pleadings of the parties show clearly that the identity of the land was put in issue in the Appellant’s statement of defence. Paragraphs 3, 4, 5, 6 and 7 of the Respondent’s Amended statement of claim, and paragraphs 3, 4, 5, 8, and 9 the Appellants statement of defence are instructive. The said paragraphs of both the Amended statement of claim and statement of defence are hereunder reproduced for ease of reference.

Paragraphs 3, 4, 5, 6 and 7 of the Amended Statement of claim:
3. “The claimant avers that the farmland in dispute, the subject matter of this suit measuring 4.5 hectres is situate in between at Kachallah Burari Kura/Gana Area, Nzuda village, Along Gumsuri road, Damboa Local Government, Borno State.”
4. “The claimant avers that the said farmland in dispute he became the title holder of it through the judgment of Marghi Area Court, which was delivered on the 6th day of June, 1985 in his favour in Suit No. 149/1985 against the father of the 1st defendant who is called Alhaji Sale.”
5. “The claimant hereby pleaded the writ of possession and takardan Izni Malaka of the Marghi Area Court dated the 6th June, 1985 related to the farmland in dispute.”
6. “The claimant avers that the said farmland in dispute is covered by Customary Certificate of Occupancy dated the 12th day of May, 1985 No. 000467 plot No. Bp1 to Bp6 (4.5) is hereby pleaded and the claimant shall rely on it at the hearing of this suit.”
7. “The claimant avers that the farmland in dispute also has a site plan is hereby pleaded and shall be relied upon at the hearing of this suit.”
Paragraphs 3, 4, 5, 8 and 9 of the Statement of defence:
(3) “The 1st defendant deny paragraph 3 of the claim and puts the claimant to the strictest proof thereof and further reply that there is no any farmland known to him measuring 4.5 hectares situate at Kachallah Burari Area of Nzuda Village of Damboa Local Government.”
(4) “That in further answer to paragraph 3, the 1st defendant state that all he knows is that his father Late Alhaji Sale once in 2004 has a legal tussle with Lawan Bulama which judgment was delivered in favour of the 1st defendant’s father on the 8th July, 2004 by Marghi Sharia Court Division in Damboa in Suit No: CV/37/04 in which writ of possession (Form 15) was issued and the said writ is hereby pleaded and will be relied upon at this suit, the English version of the writ of possession is also pleaded.”
(5) “The 1st defendant denies paragraphs 4 and 5 of the claim and states that the farmland known to him is not up to 4.5 hectares but all in all not more than 2 hectares which is boarded and bounded to the north by a big tree up to the Mango trees which is the boundary to the claimant’s farmland, to the south by mango trees to Alh. Mala’na farmland and the West by the way to Chibok Local Government.”
8. “The 1st defendant denies paragraph 6, 7, and 8 of the claim and put the claimant to the strictest proof thereof and state that he don’t (sic) know anything about any case in 1985 nor does he know any land as described by the claimant.”
9. “The 1st defendant states further that the only farmland known to him is the one he inherited from his father late Alhaji Sale the one described in the writ of possession in Suit No: CV/37/04 as enumerated here above in paragraphs 5, 6 and 7 and himself and predecessors have been in active possession of the farmland for over 100 years back.”

The Respondent’s reply to the statement of defence did not help to resolve the issue of the identity of the land in dispute. Rather, it further polarized it.

It is pertinent in this regard to refer to paragraphs 5 and 7 of the said reply which can be located at page 43 of the record of appeal. It is thus pleaded in the said paragraphs:
“5 The Claimant in response to paragraphs 4 and 5 of the 1st defendant’s statement of defence the claimant avers that the legal tussle between the late father of the Defendant and Lawal Bulama over a farmland has nothing to do with the Claimant’s farmland which measuring (sic) 4.5 hectres situate in between Kachalla Burari Kura/Gana Villages.”
“7. The Claimant in response to paragraphs 6,7 and 8 of the 1st defendant’s statement of defence the claimant avers that the farmland measuring 4.5 hectres has nothing to do with the farmland of late Alhaji Sale, the father of the 1st Defendant which is different farmland entirely and the villages of Kachalla Burari Kura/Gana were formerly one village called Nzada Village under the village head called Lawan Nzuda Mairi.”

The parties are therefore not at ad idem as to the size of the land, and its location. The need to prove with precision and certainty the identity of the land cannot be obviated.

The Respondent’s proof of identity of the land is based on the documents tendered by him in proof of his case. They are
(i) Exhibits “A” and “A1” the Hausa and English versions of the writ of possession allegedly issued to him in Suit. No 149/85 wherein the Area Court Judge Damboa ordered that possession of the land be given to him.
(ii) Exhibit “B” the customary Certificate of Occupancy issued in the Respondent’s favour by Damboa Local Government Council on 12/5/86. The said certificate of occupancy has annexed to it at the back, a survey plan.
Serious questions/issues have been raised by the Appellant on these documents.
The first of the questions is that the writ of possession is predicated on the Judgment of Area Court, Damboa. That the Judgment ought to be tendered since he has denied knowledge of any such judgment. The contention of the Appellants in effect, is that the writ of possession is made up.
Counsel submits that the failure of the Respondent to tender the judgment should attract the invocation of Section 167 (d) of the Evidence Act, 2011. That the doctrine of withholding evidence should apply to the effect that the Respondent has refused to tender the judgment because if tendered it would be unfavourable to his case.
Now, despite the stout denial by the Appellant of any such litigation that culminated in the issuance of the writ of possession, the Respondent refused/failed to use the platform of his reply to the Appellants statement of defence to plead, and lead evidence to establish the existence of such a litigation over the land in dispute by tendering the judgment in evidence. There can be no writ of possession without a judgment because it is from the judgment that an order and writ of possession are drawn. These defaults in my view has far reaching legal implication. The first is that there is a failure to join issue with the Appellant on an issue of utmost importance to the determination of the case by failing to address the issue of the judgment which produced Exhibits “A” and “A1” in the Reply to the statement of defence. The function of a reply to the statement of statement is as stated in the case of Offonry V. Emezi & Anor (2012) LPELR- 15356 (CA), where it was held:-
“… It is trite law that, a Plaintiff who desires to deny any special allegation in a statement of defence, has a duty to file a Reply thereto. The function and importance of filing a reply by a plaintiff to a statement of defence arises where the Plaintiff wishes to admit, deny or object to issues raised by the defendant in the statement of defence.”
Per TSAMMANI, JCA (P.19, paras. E-G). Where there is a failure to file a reply to fresh issues raised in the statement of defence, the fresh issues or facts raised are deemed admitted. This is the position of the law as held in the case of Obiozor V Nnamua (2014) LPELR- 23041 (CA):
“As the Supreme Court held in UNITY BANK PLC v. BOUARI (2008) 2-3 SC (Pt. 11) 1, a reply is necessary where a statement of defence raises a fresh issue that was not raised or anticipated by the statement of claim. See also EGESIMBA v. ONUZURUIKE (2002) 9-10 SC. Such fresh facts that have been elaborately pleaded with specific details require a specific denial, in a reply. In this case there was no denial at all as no reply was filed. Where a fresh fact is pleaded in a statement of defence, if the plaintiff does not file a reply denying such fact, then he has admitted the fresh facts as correct. The Supreme restated the effect of the failure by the plaintiff to file a reply where necessary in A.G. OF ABIA STATE v. A-G OF THE FEDERATION & ORS (2005) 6 SC (Pt. 1) 63. thus- “Having regard to the several complaints of the plaintiff, one would have expected the plaintiff to file a reply to this averment so that the defence proffered by the 1st defendant would at the very least, be put in doubt. This the plaintiff did not do. Then the legal effect of such a failure surely is recognized as an admission of those facts pleaded by the 1st defendant. It is therefore not a question of estoppel as argued by the plaintiff. The situation therefore is not for the plaintiff to argue that the 1st defendant had wrongly raised the defence of estoppel in law. In my humble view, what the 1st defendant had stated in plain language is, that the plaintiff cannot be heard to complain about the averments made by the 1st defendant that meetings were held to resolve whatever payments were due from the plaintiff in respect of the debts it inherited and those which the State incurred after its creation. In my humble view, the position of the 1st defendant in the circumstances is that the plaintiff having not pleaded anything to the contrary to the averments made by the 1st defendant on the point is estopped from denying that such meetings were held as copiously pleaded in the statement of the 1st defendant as amended.” Per AGIM, JCA (Pp. 51-53, paras. E-A). See also Odu-Alabe V. Ologunebi (2015) LPELR-25746 (CA), Per Augie, JCA (as she then was) (Pp. 35-36, para E).
Secondly, as earlier stated in this judgment, a writ of possession must necessarily be predicated on a Judgment, and where, as in this appeal, the only way by which the assertion of the Appellant that the writ of possession is not genuine can be proved wrong is to tender the judgment, the blatant failure/refusal to plead and tender the judgment can only lead to the presumption that the said judgment is withheld because if tendered it would be unfavourable to the Respondent. Therefore I am on the same page with the Appellant that the refusal/failure to plead and tender the judgment of the Area Court, Damboa in Suit No: 149/85 amounts to withholding evidence under Section 167 (d) of the Evidence Act, 2011.
See the following cases: Tegwonor V. State (2007) LPELR-4674(CA), Per Ibeyeye, JCA (P29 paras B-D, UNILORIN v. Adesina 2008) LPELR- 5072 (CA), Per Agube, JCA (Pp. 92-93, paras D-B), Adamu V State (2014) LPELR-23299 (CA), Per Shuaibu, JCA(pp. 38-39, paras E-A), Mozie & Ors V. Mbamalu & Ors (2006) LPELR-1922 (SC),Per Oguntade, JSC(P67, paras C-D.)
The foregoing can only lead me to one conclusion, that is, that, Exhibits “A” and “A1” is not a product of any suit that was litigated upon between the Respondent and the Appellant in respect of this land.

There is something else that raises doubt about Exhibits “A and “A1” being a writ of possession in respect of the land in dispute. There is no description of the location and the size of the land in the said writ of possession. How then can this writ be tied to the land in dispute, especially where the Appellant’s reaction to the claim of the Respondent of a previous litigation on this land between him and the Respondent is one of total denial? The Respondent also put in evidence the customary right of occupancy issued to him by Damboa Local Government Council (admitted in evidence as Exhibits B) as his title document. On the question whether this document positively proves the identity of the land I shall first deal with the question whether it is capable of conferring title to the land on the Respondent. The submission of the Appellant is that it cannot because as contended by the Respondent, it is predicated on the Judgment of the Damboa Area Court in suit No 149/85 which has not been proved, as same was not tendered in evidence despite being put in issue by the pleadings and evidence. It was also submitted by the Appellant that the said Exhibit B is pleaded and tendered in evidence as a document of title and must therefore meet certain criteria as laid down in law. A number of decided cases are cited in support of counsel’s argument.

Now, if I must ask myself those questions, can I truly come to the conclusion that the Customary right of Occupancy is capable of conferring title to this land on the Respondent? In paragraph 6 of the Amended Statement of claim, the Respondent pleaded:
“The claimant avers that the said farmland in dispute is covered by customary certificate of occupancy dated the 12th day of May, 1986 No. 00467 Plot No. BP 1 to Bp (45) is hereby pleaded and the claimant shall rely on it at the hearing of this Suit.”

As can be seen, the basis upon which the said certificate of occupancy was issued is not pleaded. However, in the Respondent’s written statement on oath, he averred thus in paragraph 5:
“That after I obtained the writ of possession from Marghi Area Court and applied for customary certificate of occupancy at the Damboa Local Government Council and the said Customary Certificate of occupancy was issued to me in 1986 in respect of my farmland in dispute”.

It would seem that the customary right of occupancy was granted on the strength of writ of possession issued in the judgment of Marghi Area Court. In that case, the Certificate of occupancy is based on a false foundation because as earlier noted the judgment of that Court has not been produced, and upon the failure to produce it without justified reason, the Respondent is caught by the presumption in Section 167 (d) of the Evidence Act which is to the effect that it was not produced because if produced it will be unfavorable to the Respondents’ case. I also noted that the Appellant pleaded and gave evidence to show that there was no such judgment. However, the Respondent failed to respond to that fact in his reply to the statement of defence raising the inference that he is deemed to have conceded to the Appellant’s claim that there was no such judgment to back up the writ of possession issued in his favour. It is the law that even though a certificate of occupancy is prima facie evidence of title or possession, it is however not conclusive proof of title to the land to which it relates. See the cases of Nigerian Air Force & Anor V. Wing Commander Fibril Bala Adamu (2018) LPELR- 44369 (CA), Per Adefope-Okojie, JCA (PP27-29, Paras E-A), Adole V. Gwar (2008) LPELR-180(SC), Per Onu, JSC (P.A, Paras D-E). In the case of Adole V. Gwar (Supra), it was held:
“A Certificate of Occupancy issued on the Land Use Act, it must be stressed, cannot be said to be conclusive evidence of any interest or valid title to land in favour of the grantee; it is only prima facie evidence of such right, interest or title without more and may in appropriate cases be effectively challenged and rendered in-valid, null and void. See Mohamoud J. Lababedi v. Lagos Metal Industries (Nig.) Ltd. (1973) NSCC. 1 at 6.”
Per ONU, JSC (P.17, paras. D-E).
On the state of the facts reviewed and the law, Exhibit “B”, (the customary right of occupancy) cannot confer title to the land it relates to the Respondent.

It is important to comment on the site plan annexed to the customary right of occupancy. The survey plan describes the land thus:
“The land under this certificate of occupancy covers an area of one (sic) four and half hectares on plot No. BP1 to BP6 at Kachallah Burari Village Unit along Damboa/Giemsusi Local as indicate(s) on be (sic) plan attached.”

Interesting! The writ of possession on which strength the certificate of occupancy was allegedly issued did not indicate the size of the land. The Judgment on which strength the writ of possession was issued was not tendered in Court, and as presumed in this Court, it does not exist. One therefore wonders where the Local Government Council got the size of the land as 4.5 hectares from. This only shows that in issuing the certificate of occupancy, the Local Government Council (Damboa Local Government Council) merely played the script of the Respondent without any factual basis.

The only conclusion, I can possibly reach is that the customary right of occupancy is also not capable of conferring title to the land on the Respondent. In sum, both Exhibits “A” and “A1” and “B” which is the only evidence produced to prove title to the land, and by reasonable inference the identity of the land have failed to prove the identity of the land.

The situation is aggravated for the Respondent by the failure of the Court to visit the land in view of the contention between the Appellant and the Respondent on the location of the land, its size and whether or not it was litigated upon by the Respondent and the Appellant’s forbears in 1985. I should elaborate on this for avoidance of doubt. On 8/7/2017, the Appellant as defendant closed his case. One would have expected the trial Court to adjourn for visit to the land (Locus in quo) but instead, it adjourned for adoption of counsel’s final addresses. (See 62 of the record of appeal) After the adoption of written addresses the Court adjourned for judgment. (See page 63 of the record of appeal).

It is therefore evident that there was no visit to the locus in quo, which in my view was necessary in view of the radical claims of the parties as to the location, size and whether the land was litigated upon in 1985, and also especially, as to the Appellant’s claim that his forbear litigated on the land with one Lawan Bulama in 2004 in Suit No CV/37/04 and got Judgment on 8/7/2004 and his father was issued a writ of possession. By granting the Respondent’s reliefs over a land of 4.5 hectares as against the 2 hectares which the Appellant said is the size of his land, the trial Judge unwittingly gave judgment to include land that was not in contest between the Appellant and Respondent even if the trial Judge considered the issue of the identity of the land and reached the conclusion that the land claimed by the Respondent was the same land the Appellant claimed to be his, and was litigated upon.

In the premise of all that I have said on the issue of proof of identity of the land, I will not mince words in stating that the Respondent did not properly identify the land in dispute, and ought to have had his claims dismissed without even considering the merits of his claims. In the case of Isezuo & Anor Vs. Sanni & Anor (2013) LPELR-21974 (CA), the Court stated categorically:
“There is no doubt that in an action for declaration of title to land, the identity of the land in dispute is required to be proved before proof of title to land becomes relevant. See Michael Odunze & Ors. V. Nwosu Nwosu & Ors. (2007) 5 SCNJ 234. The Court will not make a declaration or an injunction where the area in dispute is not certain or clearly delineated.”
Per OGUNWUMIJU, JCA (P.24, paras. B-D).
See also the case of EPI & Anor V. Aigbedion (1972) LPELR-1151(SC), Per Fatayi-Williams, JSC (P. 8 Paras D-F), Ojiako & Anor V. Ewuru & Ors (1995) LPELR-2373(SC), Per Kutigi, JSC (P.A Paras D-F).

Having stated my take on the issue of identity of the land, I consider it imperative to consider the merit of the case, and that is to say, consider whether the Respondent proved his claims to title and other reliefs before the trial Court to entitle him to the judgment he got.

I have earlier stated the five ways by which title to land can be proved. The methods are trite in law. However, on pain of repetition and for ease of reference, I state them briefly here. They are:-
(1) By traditional evidence
(2) By production of title document
(3) By proving acts of ownership numerous and positive enough to warrant an inference that the person is the true owner; such as selling, renting out or farming of the land.
(4) By proving act of long possession.
(5) By proof of possession of adjacent land.

The Appellant pleaded production of title document, and acts of long possession.
I will start with production of title document.

The title documents upon which the Respondent’s claim is founded, is the writ of possession issued to him in Suit No 149/85 by Damboa Area Court (Exhibits “A” and “A1”, and the customary right of occupancy (Exhibit B) issued on the strength of Exhibits “A” and “A1”. The claims of the Respondent based on these Exhibits unsettles my mind. If as pleaded, by the Respondent that there is a case between him and the Appellant’s father, which makes the Appellant, a privy of his father, is it legal for the Respondent to have instituted this action without the action being caught up with abuse of Court or judicial process? Abuse of Court process was defined in the case of Chief B.A Allanah V. Mr Kanayo Kpolokwu & Ors (2016) LPELR-40724 (SC) as:
“The common feature of abuse of process of Court centres on improper use of judicial process by a party in litigation aimed at or targeting or interference with due administration of justice. To my mind, some of the features of abuse of Court process include the under mentioned features, even though they are by no means exhaustive. These features are: (i) Filing of multiplicity of actions on the same subject matter against the same opponents on the same issues or numerous actions on the same matter between the same parties even where there is in existence, a right to commence the action. (ii) Instituting different actions between the same parties simultaneously in different Courts even though on different grounds. (iii) Where two or more similar processes are used in respect of the exercise of the same right, for instance, a cross appeal and a respondent’s notice. (iv) Where two actions are instituted in Court the second one asking for relief which may however be obtained in the first, the second action is, prima facie vexatious and an abuse of Court process. See cases of Okorocha vs PDP (2014) 7 NWLR (Pt.4406) 213; Saraki vs Kotoye (1992) 9 NWLR (Pt.204) 156; Ogoejeofo vs Ogoejeofo (2006) 3 NWLR (Pt.996) 206.”
Per SANUSI, JSC (Pp. 13-14, para C)
See also Bendel Feed & Flour Mill Ltd V. NIMB Ltd (1999) LPELR-40724 (Sc), per Galadima, JCA (P.34, Paras C-E), Labaran V. Kalshingi (2004) LPELR-12516 (CA) Per Obadina, JCA (Pp. 12-13, Paras B-A). This issue is raised obiter. I shall go no further on this issue because the law preludes me to raise it suo moto and decide it without inviting counsel to address me on it.

Let me at this juncture step away from the issue raised obiter and delve into the substance of the appeal, and to consider whether the Respondent was able to establish his claims based on the documents he tendered and were admitted in evidence as Exhibits “A”, ”A1” and “B”.
I have earlier on dealt with the question whether those Exhibits are capable of conferring title on the Respondent. I reached the unmistaken conclusion that they cannot.
I adopt fully the reasoning and conclusion aforesaid.
I have on the onset of this Judgment dealt with the standard/onus of proof in a land matter. See the case of Momoh & Ors V. Umoru & Ors (2011) LPELR-8130 (SC).
The trial judge appears to have found for the Respondent based also in the loopholes he identified in the Appellant’s case. I refer to page 109, lines 16-25, and page 110 lines 6-16 of the record. The trial judge was in grave error in so holding. He could only find in favour of the Respondent based on the Appellant’s case if an aspect of it supports the case of the opponent (that is the Appellant) but I see nothing in the aspects of the Appellant’s case referred to by the trial Judge that positively supports the Respondent’s case. Therefore the onus on the Appellant to defend his title can only arise where the plaintiff/Respondent on the strength of his own case made out a prima facie case that would entitle him to judgment if the Appellant did not adduce better evidence of title.
The Respondent also pleaded acts of long possession to establish his entitlement to declaration of title and damages for trespass. It is pleaded in paragraph 10 of the Amended statement of claim. The said paragraph 10 states:
“The claimant avers that the said farm land in dispute has been in his possession since 1985 and up to now until the defendants.” (sic).
The Respondent’s possession as can be seen is rooted in the judgment of the Marghi Area Court upon which the writ of possession Exhibits “A” and “A1”, and the customary right of occupancy (Exhibit ”B”) are predicated. Therefore, the said possession is not independent of the Judgment of the Marghi Area Court, Exhibits “A”, “A1” and “B”. The Respondent’s possession will cease to have any potency where the said Exhibits collapse.
I have in considering the question whether Exhibits “A”,”A1” and “B” are in law capable of conferring title to the land in dispute arrived at the conclusion that they cannot. It follows naturally that the Respondent’s possession must collapse because you cannot put something on nothing and expect it to stand. See the case of Labaran Fagge V. Rakiya Amadu (2015) LRELR-25920 (CA) which supports my position as expressed above.
See also the case of Fatimehin V. Lawani (2014) LPELR-23476 (CA), Per Akinbami, JCA (P.48, paras A-D, Akaose V. Okoye & Ors (2016) LPELR-40172(CA), Per Yakubu, JCA(P. 25,paras A-C).
There is nothing else that is useful to further consider in this appeal.

I come to the conclusion that the three issues upon which this appeal has been considered is resolved in favour of the Appellant, and against the Respondent. The appeal therefore succeeds and is hereby allowed.

In consequence, the Judgment of the trial Court delivered on 10th October, 2017 is hereby set aside. I substitute for the said judgment, an order dismissing the Respondent’s claims.
There shall be no order as to cost.

JUMMAI HANNATU SANKEY, J.C.A.: I have read in advance the lead Judgement of my learned brother, Abundaga, J.C.A.

My lord has comprehensively dealt with all the issues arising for determination in the Appeal. I agree with his reasoning and conclusion, but will add a few words.

It was evident from the pleadings of the parties that they joined issues on the identity of the land in dispute. Therefore by law, it was obligatory for the Respondent, as Claimant, to have established with certainty the area of land which he claimed. This is more so that his instrument of title to the land was a Customary Right of occupancy which had as its basis, a Writ of possession ostensibly granted by the Area Court Damboa. The said Writ of possession did not contain the dimensions, measurements and size of the land allegedly awarded to the Respondent.
Therefore, since the Appellant vigorously contested the authenticity of the Writ of possession, it was incumbent upon the Respondent to have produced the Judgment of the Area Court upon which the Writ of possession was hinged, and which subsequently gave birth to the Customary right of occupancy, the Respondent’s document of title.
The Respondent having failed to produce the said Judgment, the presumption of law in Section 167(d) of the Evidence Act, 2011 was rightly invoked against him, that if the Judgment had been produced, it would have been unfavourable to his case. Thus, the Writ of possession and the Customary right of occupancy were successfully impugned and cannot be the basis of any award by the Court.
It is an age-long principle of law that any person claiming an interest in land must prove the exact location of the land and the precise area to which his claim relates. This is the foremost and fundamental duty on a claimant in a land dispute. In other words, the first duty of a claimant in a claim for title to land is to show clearly the area of land to which his claim relates, as no Court will grant a declaration to an unidentified area. Title can only be granted in respect of a piece of land with definite, precise and accurate boundaries.
Thus, the Supreme Court in the case of Tukuru V Sabi (2013) Vol. 222 LRCN (Pt. 1) 87, A-K, per Onnoghen, JSC, stated as follows:
“It is settled law that the first duty of a Claimant of title to land is to show clearly the area of land which his claim relates, the exact boundaries, its extent, etc. The above requirement is not satisfied by merely tendering the Survey Plan of the land in dispute without adducing oral evidence as to the features on the land, the boundary neigbours, etc, particularly where the defence denies the identity of the land in dispute, as in the instant case. Apart from the requirement of certainty of the land claimed, it is also the duty of the plaintiff in a declaration of title suit to succeed on the strength of his case as he is not allowed to rely on the weakness of the defence except where the defence supports that of the plaintiff.” (Emphasis supplied)
See also Kolo V Lawan (2018) LPELR-44378(SC) 12, D-E, per Ariwoola, JSC; Min. of Lands & Housing, Bauchi State V Tirwun (2017) LPELR-43314(CA) 19-20, C-B, per Abiru, JCA; Amadi V Nwosu (2014) LPELR-24428(CA) 83-84. F-D, per Agube, JCA; Ilona V Idakwo (2003) 18 NWLR (Pt. 830) 53; Odofin V Oni (2001) 3 NWLR (Pt. 701) 488; Adesanya V Aderonmu (2000) 9 NWLR (Pt. 672) 370.
In the instant case, it is indisputable that from the totality of the evidence before the trial Court, the Respondent squandered every opportunity he had to produce credible evidence before the trial Court to show clearly the area of land to which his claim relates, the exact boundaries, its extent, e.t.c., in spite of the Appellant’s disputation over the identity of the land in his pleadings. This is more so that while the Respondent’s Customary right of occupancy covered an area 4.5 hectares, it was not borne out by the Writ of possession which was the basis of the purported right of the Respondent over the land. Therefore, it was right to wonder how the Damboa Local Government Council estimated the extent of land over which it issued the Respondent the right of occupancy.
Consequently, I agree with the lead Judgement that the Respondent did not properly identify the land in dispute, and therefore his claim should have been peremptorily dismissed without further ado, on this ground alone. See Isezuo V Sanni (2013) LPELR 21974 (CA) 24, B-D, per Ogunwumiju, JSC; Ojiako V Ewuru (1995) LPELR-2373 (SC) per Kutigi, JSC.

In the result, for these reasons and for the more detailed reasons in the lead Judgement, I also find merit in the Appeal. It succeeds and is allowed. I endorse the Orders made in the lead Judgement.

UZO IFEYINWA NDUKWE-ANYANWU, J.C.A.: I had the privilege of reading in draft form, the judgment just delivered by my learned brother ABUNDAGA JCA. It is mandatory that a party seeking a declaration of title to land must first of all identify the land with certainty. It is therefore, the primary duty placed on a plaintiff who comes to Court to claim a declaration of title to land is to show the Court clearly, the area of land to which his claim relates so that the land can be identified with certainty.
In other words, in an action for declaration of title to land, the onus is on the plaintiff to prove title to a defined area to which the declaration can be attached Idehen Vs Osemwenkhae (1997) 10 NWLR pt 525 pg 282. Dada Vs Dosunmu (2006) 18 NWLR pt 1010 pg 134.

The Respondent herein was relying on the weakness of the Appellant’s case which shouldn’t be. In a claim for declaration of title to land the onus is on the plaintiff to establish his claim upon the strength of his own case and not upon the weakness of the case of the Appellant. The Respondent must therefore satisfy the Court that upon the pleadings and evidence adduced by him, he is entitled to the declaration sought Gbadamosi Vs Dairo (supra) Dada vs Dosunmu (supra) Onisaodu Vs Elewuju (2006) 13 NWLR pt 998 pg 5, 7, Ajiboye Vs Ishola (2006) 13 NWLR pt 998 pg 628.

For these and the more comprehensive reasoning in the lead judgment, I must also allow this appeal and set aside the judgment of the lower Court. I also make no order as to cost.

Appearances:

A. R. ABDULSALAM, ESQ. For Appellant(s)

S. ALHAJI, ESQ. For Respondent(s)