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Home » Nigerian Cases » Supreme Court » Abe & Anor V. Damawa & Anor (2022) LLJR-SC

Abe & Anor V. Damawa & Anor (2022) LLJR-SC

Abe & Anor V. Damawa & Anor (2022)

LAWGLOBAL HUB Lead Judgment Report

TIJJANI ABUBAKAR, J.S.C. 

This appeal is against the judgment of the Court of Appeal Makurdi Division delivered on the 24th day of May, 2011. The Court of appeal in its judgment affirmed the decision of the High Court of Justice Benue State delivered by Justice T.U.F Puusu. At the trial Court, by the statement of claim of 16th April, 2003, the 1st Respondent as plaintiff claimed as follows:

a. “N300,000.00 general damages in trespass

b. N300,000.00 general damages for the delay caused plaintiff’s intended development of plot.

c. Perpetual injunction restraining the defendant, his privies and agents from further trespass on disturbance of the plaintiff on the plot

d. A declaration that the plaintiff is the owner of plot BNC 7143 by virtue of deemed right of occupancy and by confirmatory allocation approval of his right by the Benue State Government.”

The case of the 1st Respondent as Plaintiff at the trial Court is that he had been in possession of a plot of land near judges quarters Makurdi, measuring 1120m since 1970 and had planted mango and orange trees thereon. That in April 2001, he applied to the 2nd Respondent, Ministry of Lands and Survey, Makurdi for the issuance of statutory right of occupancy in respect of the said land. That the 2nd Respondent, after conducting necessary investigations, allocated the land to him with a right of occupancy No. BNC 7143. At the trial, he tendered the process as Exhibit B. Sometimes in 2003, he went to the land and discovered that the 1st Appellant started erecting structures on the said land. The 1st Appellant informed him that he was in the land with the authority of 2nd Appellant. He (1st Respondent) told the 1st Appellant that the land belonged to him. Notwithstanding this information, the 1st Appellant began to erect a building on the land. He made a report to the 2nd Respondent who issued a stop work notice and invited the parties for a meeting. The 2nd Appellant and the 1st Respondent attended the meeting. At the meeting, the 2nd Appellant allegedly stated that a file had been opened for him in respect of the land at the 2nd Respondent’s office but was missing. According to the 1st Respondent, the 2nd Appellant was unable to produce the file number or any other information to show that he had documents to support his claim to the land.

The 2nd Appellant who was joined as a party in the course of the proceedings filed a statement of defence and counter-claim. The 2nd Respondent herein (was also joined as 3rd defendant at the trial Court) he filed a statement defence and defence to the counter-claim of the 2nd Appellant. At the trial, the 1st Respondent tendered the right of occupancy dated 20th August, 2003 issued to him by the 2nd Respondent. It was admitted in evidence and marked as exhibit A1. The 2nd Respondent supported the 1st Respondent’s claim.

The 2nd Appellant’s claim was that he applied to the 2nd Respondent sometime in 1983 for the allocation of a plot of land. That the application was approved and sometime in 1998, some staff of the 2nd Respondent took him to the land and that he took possession thereof. He pleaded that he fenced the land and planted some economic trees and had remained in possession thereof. That in 2003, he started the construction of a building on the land which was being supervised by his friend, the 1st Appellant. he contended that the 1st Respondent suddenly appeared and claimed that the land belonged to him.

After pleadings were filed and exchanged, the parties called witnesses and tendered various exhibits. At the conclusion of trial, the learned trial judge gave judgment in favour of the Plaintiff/Respondent. Aggrieved by the decision of the trial Court, the two Appellants lodged their appeal at the Court of appeal, Makurdi Division. The lower Court in its judgment dismissed the appeal and affirmed the judgment of the trial Court. Dissatisfied with the decision of the lower Court, the Appellant filed a notice of appeal to this Court containing 6 grounds of appeal on the 16th day of August, 2011.

Learned counsel for the Appellants Tsuwa M.A Esq., filed the joint Appellants brief of argument on the 11th day of January, 2014, the joint Appellant’s brief of argument was deemed as properly filed and served on the 14th day of May, 2015. counsel nominated 4 issues for determination. The issues nominated for discourse by the Appellants are reproduced as follows:

  1. “Whether or not there is evidence on the record adduced by the plaintiff/1st respondent before the trial High Court in respect of paragraph 3 of the pleadings to the effect that he acquired the land in dispute from his uncle, one Ujo Damawa. (Ground 1 of the grounds of appeal)
  2. Whether or not Exhibit A1 was prepared by a person interested in the subject matter of the suit contrary to the provision of Section 91 (3) of the Evidence Act Cap 112, Laws of the Federation of Nigeria 1990. (Grounds 2 and 4 of the grounds of appeal)
  3. Whether the doctrine of lis pendis applies to the facts and circumstances of this case. (Ground 3 of the grounds of appeal)
  4. Whether or not 1st and 2nd defendants/appellant’s 3rd issue for determination in the Court below, which bothered on the 2nd defendant/appellant’s counter-claim at the trial High Court, was considered and thus formed part of the judgment of the trial Court and whether the 2nd defendant/appellant was entitled to the grant of the reliefs sought in his counter-claim since there was no evidence to it by the 1st respondent who was the plaintiff at the High Court. (Distilled form grounds 5 and 6 of the grounds of appeal)

On the other hand, the learned Counsel for the 1st Respondent Obafemi Agaba Esq., filed the 1st Respondent’s brief of argument on the 15th day of February, 2022, the said brief was deemed as properly filed and served on the 21st day of February, 2022. Counsel nominated 3 issues for determination, the issues are also reproduced as follows:

  1. “Having regard to Exhibit A1 (the statutory right of occupancy) duly issued to the 2nd respondent in favour of the 1st respondent, whether the 1st respondent has proved his case and entitled to a declaration of title in respect of plot BNC 7143?
  2. Having regards to the date of commencement of the suit, the date of joinder of the 2nd respondent, the date the statutory right of occupancy was approved, whether Exhibit A1 was issued by a person interested when proceedings were pending in Court contrary to the provisions of Section 91 (3) of the Evidence Act?
  3. Whether the Court of appeal was right in dismissing the counter-claim of the 2nd appellant, same having not been proved on the standard required by law.”

On behalf of the 2nd Respondent, learned counsel Chief Kinglsey Chuku Esq., filed the 2nd Respondent’s brief of argument on the 17th day of January, 2022, the brief was deemed as properly filed and served on the 21st day of February, 2022, when the appeal was heard. Counsel nominated four issues for determination as follows:

  1. Whether there is evidence on the record adduced by the 1st respondent/plaintiff before the trial Court in respect of paragraph three of the pleadings to the effect that he acquired the land in dispute from his uncle, Ujo Damawa.
  2. Whether or not Exhibit A1 was by a person interested in the subject matter of the suit contrary to the provision of Section 91 (3) of the Evidence Act Cap 112 Laws of the Federation of Nigeria 1990.
  3. Whether the doctrine of lis pendes applies to the facts and circumstances of this case.
  4. Whether or not the 1st and 2nd defendant/appellant’s 3rd issue for determination in the Court below, which bothered on the 2nd defendant/appellant’s counter-claim at the trial High Court and whether 2nd defendant/appellant was entitled to the grant of the reliefs sought in his counter-claim since there was no defence to it by the 1st respondent who was the plaintiff at the High Court.

SUBMISSIONS OF COUNSEL FOR THE APPELLANT

ISSUE ONE

Learned counsel for the Appellant submitted that the law is well settled that in an action where title to land is in issue, the party claiming that he has better title must prove his title by cogent, satisfactory and conclusive evidence. Such a party must succeed on the strength of his own case. Counsel cited the case of ODUMOSU V. OLUWOLE (2004) FLWR (Pt 191) 1628 at 1644 and NSIRIM V. NSIRIM (2002) FWLR (Pt. 96) 433 to support this submission. Learned counsel further submitted that by paragraph 3 of the 1st Respondent statement of claim at the trial Court, it was pleaded as follows:

“The plaintiff is the holder of a piece of land near judges quarters Makurdi measuring 1120 by area of coverage which he had pre-possessed before applying to the Benue State Bureau of Lands and surveys on 3rd April, 2001 for title deeds. The plaintiff’s late uncle Ujo Damawa who gave the plot to plaintiff first acquired the land.”

Learned counsel submitted further that the 1st Respondent in his evidence on oath and under cross-examination before the Court below, as PW1 on the 4th November, 2004 said he applied for the land and was allocated same by the 2nd Respondent. He denied ever stating that he got the land from his late Uncle Ujo Damawa. Learned counsel submitted that the evidence of the 1st Respondent in this case is at variance with the pleaded facts and therefore the Court below ought to have dismissed the 1st Respondent’s claim of title. Learned counsel submitted that the refusal of the trial Court to take into cognizance the inconsistencies from the 1st Respondent’s testimony is a grave error which occasioned a miscarriage of justice.

Counsel submitted that where the concurrent findings of the two lower Courts are perverse, or there have been procedural or substantive errors committed by those Courts which led to miscarriage of justice, such findings will be interfered with. The decision in AGU V. NNADI 12 SCNJ 238 at 254 was relied by the learned counsel in support of this submission.

See also  Kelly V. State (2022) LLJR-SC

Counsel finally urged this Court to interfere with the concurrent findings since the 1st Respondent’s evidence was at variance with his pleadings and therefore his case ought to fail. Learned Counsel urged this Court to resolve this issue in favour of the Appellants against the Respondents.

ISSUE TWO

Learned counsel for the Appellant submitted that the law has since been settled that a document which is made by an interested party in respect of proceedings which are already pending or while proceedings are anticipated will be inadmissible in respect of the already pending proceedings. Counsel cited the provisions of Section 91 (3) of the Evidence Act CAP 112, Laws of the Federation in support of his argument.

Learned counsel submitted that it was in evidence before the trial Court that the dispute in this case began on the 10th February, 2003 when the 1st Respondent first reported a case of criminal land trespass and inciting disturbance against the Appellants at the police station, the application for writ of summon was made on the 16th April, 2003, the writ was issued on the 25th April, 2003 while Exhibit A is dated 20th May, 2003 but was actually collected by the 1st Respondent on 11th September, 2003. Counsel further submitted that Exhibit A was issued while the proceedings in this case were pending and so it offends Section 91 of the Evidence Act cited above. Learned Counsel submitted that in the initial statement of claim dated 16th April, 2003, Exhibit A1 was not even pleaded hence when it was tendered on 8th March, 2004, and objection was raised by the learned Counsel for the Appellant’s, 1st Respondent’s counsel applied to withdraw it and thereafter he (1st Respondent’s counsel) applied to amend the said pleadings wherein he pleaded the same document.

Learned counsel submitted that it is for the same reason stated herein that he appealed and urged this Court to expunge Exhibit A1 which was inadvertently and erroneously received in evidence and relied upon as the sole basis of the findings of the lower Court in favour of the 1st Respondent. Learned Counsel urged this Court to resolve this issue in favour of the Appellants against the Respondents.

ISSUE THREE

Learned Counsel for the Appellant submitted that it was in evidence before the trial Court that the dispute in this case began long before the approval of the allocation which was made by the land use Allocation Committee to the 1st Respondent on the 27th March, 2003 and thus A1 which formed the fundamental basis of finding for the 1st Respondent by the trial Court was issued.

Learned counsel submitted that, to put it in a simpler way, the dispute between the Appellant and 1st Respondent over the plot of land started before the approval of the allocation was made and the 2nd Respondent was aware of this dispute right from the beginning and even participated in it before the matter went to Court.

Counsel submitted that being a party to the proceedings, the 2nd Respondent ought not to have issued Exhibit A1 in favour of the 1st Respondent against the 2nd Appellant while the case was pending in Court. Counsel urged this Court to resolve this issue in favour of the Appellants against the Respondents.

ISSUE FOUR

Learned counsel submitted that the 1st and 2nd defendants/appellant’s 3rd issue for determination in the Court below, which bordered on the 2nd defendant/appellant’s counter-claim at the trial Court was considered and thus formed part of the judgment of the trial Court.

Counsel added that from the totality of the entire pleadings on record, it is clear that neither the plaintiff nor the 3rd defendant who are the respondents in this appeal filed a defence to the 2nd defendant/appellant’s counter-claim.

Counsel contended that the counter-claim is a separate suit of its own and the parties thereto must file a defence to it otherwise they will be deemed to have admitted it. Counsel cited the case of MAOBISON V. U.T.C (NIGERIA) (2013) 4 S.C.N.J 137 at 147. To support his submissions.

Counsel finally urged the Court to resolve all the issues in favour of the appellants against the Respondents and allow the appeal.

SUBMISSIONS OF COUNSEL FOR THE 1ST RESPONDENT

ISSUE ONE

Learned counsel for the 1st Respondent submitted that the crux of the Appellant’s appeal on this issue is that the evidence of the 1st Respondent on his root of title derived from his late uncle Ujo Dawawa in 1970 was at variance with his pleadings. He also contended that the 1st Respondent’s pleading in his amended statement is that he acquired the land in dispute through his uncle, while at the trial, no evidence was led to establish this fact.

Learned counsel submitted that in response to the above that pleadings do not constitute evidence and as such, issues or matters for which no evidence is led are deemed abandoned. Counsel cited the decision in IDIKA & ORS V. ERISI (1988) 5 SCJN 2081 at 219.

Learned counsel contended that the law is well settled that it is not every finding or pronouncement of a Court that should be the basis of an appeal. The 1st Respondent having abandoned the traditional or customary root of title, the trial judge did not make any pronouncement on the issue as a ratio to ground an appeal on that basis. Counsel referred the Court to the case of OGUNYADE V. OSHUNKEYE (2007) LPELR 2355 (SC).

Learned counsel submitted that it has long been settled that a plaintiff may prove his title to land through any of the following method as laid down in the celebrated case of IDUNDUN V. OKUMAGBA (1976) 9-10 SC 227.

  1. By traditional evidence.
  2. By production of documents of title authenticated and executed.
  3. By acts of ownership extending over a sufficient length of time numerous and positive enough as to warrant the interference of true ownership.
  4. By acts of long possession and enjoyment.
  5. Proof of possession of connected or adjacent land in circumstance rendering it probable that the owner of such connected or adjacent land would, in addition is the owner of the land in dispute.

Counsel further submitted that, to prove title to land, plaintiff is only required to establish one of the five ways and not all. Counsel relied on THOMAS NRUAMAH & ORS V. REUBEN EBUZOEME & ORS (2013) LPELR -19771 (SC).

Learned counsel submitted that in establishing his title, the 1st Respondent led credible evidence that on the 3rd April, 2003, he applied to the 2nd Respondent for issuance of the statutory right of occupancy that upon investigation, due diligence and confirmation of the non-existence of a third party interest, charge or encumbrance, the land use and allocation committee on the 27th March, 2003 approved the 1st Respondent’s application for a statutory right of occupancy.

Learned counsel submitted that 1st Respondent established his title to the land in dispute on the balance of probability and therefore entitled to a declaration of title. Counsel relied on the decision in DANJUMA TANKO V. OSITA ECHENDU (2010) LPELR -3135 (SC).

Counsel finally urged this Court to resolve this issue in favour of the 1st Respondent against the Appellants.

ISSUE TWO

Learned counsel for the 1st Respondent submitted that the contention of the Appellant on this issue is that Exhibit A1, the statutory right of occupancy, was issued during the pendency of the suit and therefore inadmissible in law. Counsel submitted that the Appellant also contended that Exhibit A1 was issued by a person interested when the proceedings were pending and claimed that on the basis of the doctrine of lis pendis, the 2nd Respondent was precluded from parting with the land during the pendency of the trial.

Learned counsel submitted that Exhibit A1 was not issued during the pendency of the suit. Counsel further submitted that the approval of the right of occupancy in favour of the 1st Respondent was given on 27th March, 2003, as at that time, no litigation was anticipated. Counsel contended that on 20th August, 2003, when the right of occupancy was issued, the 2nd Respondent was not yet a party to the suit, he was joined on the 18th October, 2003, after the approval and issuance of the right of occupancy.

Learned counsel cited the decision in ENEKWE V. INTERNATIONAL MERCHANT BANK OF NIGERIA LIMITED & ORS (2006) LPELR-1140 (SC) to submit that the Appellant has not complied with the ingredients that a party must prove before pleading lis pendis.

Counsel submitted that from the evidence on record, no litigation was pending as at 27th March, 2003 when the land use allocation committee approved the 1st Respondent’s application for Exhibit A1.

On whether Exhibit A1 was made by an interested party, counsel submitted that a person who is performing an act in his official capacity cannot be a person interested under Section 91 (3) of the Evidence Act, and the case of SENATOR LADOJA V. SENATOR ABIOLA ADEYEMI AJIMOBI & ORS (2016) LPELR-40658 (SC), FIRST BANK OF NIGERIA LIMITED (1991) LPELR -1364 (SC).

Learned counsel submitted that going by the decisions of Court in the above mentioned cases, the 2nd Respondent in the performance of his official duties, cannot be properly described as interested party in this suit. The appellant has not shown any pecuniary or any other material interest of the 2nd Respondent. Counsel therefore urged this Court to resolve this issue in favour of the Respondents against the Appellants.

ISSUE THREE

Learned counsel for the Respondent submitted that the concurrent findings of the trial Court and the lower Court in dismissing the counter-claim of the 2nd Appellant is proper in law and unassailable as there is no scintilla of evidence upon which the counter-claim would be grounded.

Counsel submitted that the Appellant’s claim that the counter-claim be deemed admitted is not only faulted but strange to our jurisprudence.

See also  Afolabi Coker V Mariamo Oguntola & Ors (1985) LLJR-SC

Learned counsel cited the case of OROJA & ORS V. EBENEZER ILO ADENIYI & ORS (2017) LPELR- 41985 (SC) to argue that a counter-claim is an independent action that must be proved on the balance of probability.

Learned counsel submitted that the Appellant has not led any evidence in support of his counter-claim and the Court of appeal was right in dismissing the Appellant’s counter-claim. Finally, counsel urged this Court to dismiss the Appellant’s appeal and affirm the concurrent findings of the trial and lower Courts.

SUBMISSIONS OF COUNSEL FOR THE 2ND RESPONDENT

ISSUE ONE

Learned counsel for the 2nd Respondent submitted that it is the Appellant’s contention that both the trial and lower Courts glossed over the 1st Respondent’s pleadings in paragraph 3 of its statement of claim and would have arrived at a different conclusion if it has reviewed the same. Counsel also mentioned the Appellant contended that the 1st Respondent led evidence at variance with its pleadings.

Learned counsel agreed with the submissions of the Appellant that evidence led which is at variance with a party’s pleadings goes to no issue, but counsel argued that this, is not in issue in this appeal.

Learned counsel submitted that in this appeal, the 1st Respondent pleaded two sources from which he obtained the title to the land in dispute, the first being from his late uncle, Ujo Damawa in 1970 and the second source being through Exhibit A1 issued by the 2nd Respondent. Counsel further submitted that the 1st Respondent led evidence with regards to his second source and abandoned the first source.

Learned counsel cited the case of JOLAYEMI V. ALAOYE (2004) 12 NWLR (pt. 887) 322 at pg. 340 to submit that, fact pleaded without leading evidence on the same is considered abandoned. Counsel also cited the case of ABUBAKAR V. JOSEPH (2008) 13 NWLR (pt.1104) 307 pg.357 to submit that it is the position of the law that pleadings do not constitute evidence.

Learned counsel submitted that on the basis of the authorities provided above, once evidence is not led on a particular pleading, it is deemed abandoned, thus the trial and the lower Courts rightly held that the 1st Respondent abandoned its pleading that he acquired the title from his uncle.

Learned counsel submitted that it is factually incorrect for the Appellant to argue that the lower Court glossed over the pleadings in paragraph 3 of the 1st Respondent’s statement of claim. Counsel Urged this Court to resolve in favour of the Respondents against the Appellants.

ISSUE TWO

Learned counsel submitted that the Appellant’s contention that Exhibit A1 issued to the 1st Respondent was prepared in anticipation of litigation by an interested person and that contradict Section 91 of the Evidence Act CAP 112 Laws of the Federation 1990.

Learned counsel submitted that the argument of the Appellant is misconceived, that the Appellant has failed to show to the Court on what basis the 2nd Respondent is a person interested in the outcome of the proceedings.

Counsel further argued that the 2nd Respondent is not a party interested in the outcome of the litigation, the decision to award the grant of statutory right of occupancy had been taken before the filing of this suit and the 2nd Respondent was not aware of the pendency of this suit during the making of Exhibit A1.

Learned counsel cited the case of UTC (NIG) PLC V. LAWAL (2004) 5 NWLR (pt. 1400) 221 at 245 to submit that a person acting in its official capacity is not regarded as a person interested, and the Court ought to give the provision of Section 91 of the Evidence Act a narrow interpretation.

Learned counsel maintained that looking at the chronology of events, it is impossible to identify the 2nd Respondent as a person interested. Counsel therefore urged this Court to resolve this issue in favour of the Respondents against the Appellants.

ISSUE THREE

learned counsel submitted that the doctrine of lis pendis is not applicable in this appeal, the doctrine according to counsel relates to stopping the sale of a disputed property by a party in the dispute during the pendency of litigation.

Learned counsel submitted that the doctrine of lis pendis applies to a situation where a party to the dispute transfers its interest in the disputed property to a third party during the pendency of litigation. This is not the situation in the present appeal.

Counsel stated that in the present case, the 2nd Respondent who was not a party to the dispute had already resolved via its land use and allocation committee to issue a statutory right of occupancy to the 1st Respondent prior to the commencement of the action.

Learned counsel submitted that it is clear from the facts of this case that the doctrine of lis pendis is not applicable. He urged this Court to so hold.

ISSUE FOUR

Learned counsel submitted that it is the Appellant’s contention that the lower Court did not consider the 3rd issue it raised for the determination proffered at the lower Court and that it was entitled to the award of reliefs sought in its counter-claim.

Learned counsel began argument by contending that the Appellant is not allowed by law to attack the decision of the trial Court at this stage.

Learned counsel submitted that to be entitled to judgment, a counter-claimant must succeed on the strength of its case. The 1st and 2nd Appellant’s counter-claims were not proved to entitled them to any reliefs. Counsel relied on the case of USMAN V. GARKE (2003) 14 NWLR (pt. 8400 261 at 285.

However, learned counsel cited the case of MAOBISON INTER-LINK LTD V. UTC NIG. PLC (2013) 9 NWLR (pt. 1359) 197 at 209 to argue that failure to file a counter-claim in a matter is of no issue where the plaintiff succeeds in its claim. Learned counsel added that in the instant appeal, as the 1st Respondent won at the trial Court, even if the Respondent had not responded to the appellant’s counter-claim, it would have been of no issue.

Counsel finally urged the Court to resolve all the issues in favour of the respondents and dismiss the appeal.

RESOLUTION

In my humble view, the issues formulated by the learned Counsel for the 1st and 2nd Respondent in this appeal can conveniently be collapsed into or accommodated by the issues crafted by the Appellant. I will therefore adopt the Appellant’s issues as the issues apt for discussion in the determination of this appeal.

ISSUE ONE

The Appellant is challenging the decision of the lower Court on the ground that the 1st Respondent’s evidence was at variance with his pleadings and therefore his case ought to have failed. On this issue, the lower Court in its judgment at page 271 of the record of appeal held as follows:

“throughout the course of his evidence before the lower Court, the first respondent did not adduce any evidence in respect of the pleading in paragraph 3 to the effect that he acquired the land from his uncle Ujo Damawa. It follows that the aspect of his pleading is deemed abandoned. His case would therefore stand or fall on the documentary evidence being relied upon. The question put to him under cross-examination relating to the acquisition of the land through Ujo Damawa, which 1st respondent denied, did not refer to any evidence adduced by him. It could not therefore be said that his evidence was at variance with his pleadings, his case rested on the processing of an application for the grant of a statutory right of occupancy through the Benue State Bureau of land and surveys. His evidence was to the effect that he followed due process in acquiring the land. The evidence was supported by documentary evidence and through the evidence of DW3, Michael Nev, an official of the Ministry of Lands and Survey Makurdi who testified on behalf of the 2nd respondent (3rd defendant at the Court below)

As observed earlier in this judgment, a claimant for a declaration of title to land is entitled to rely on any of the methods laid down in Okumagba’s case (supra) to establish his title. In the instant case, I am of the view and I do hold that the evidence led by the 1st respondent was consistent with his pleadings relying on documentary evidence.”

The decision of the lower Court above cannot be faulted. The 1st Respondent having failed to prove his pleadings in support of his claim that he inherited the land from his uncle Ujo Damawa, the said pleadings can be said to be abandoned. This Court from a line of decisions held that- The law is trite that evidence not based on pleaded facts go to no issue and the Court cannot rely on in the resolution of dispute. This Court in MAGNUSSON V. KOIKI & ORS (1993) LPELR- 1818(SC) held as follows:

“Where also a party’s pleadings is not supported by evidence those paragraphs of the pleadings will certainly be deemed to have been abandoned (see Bala v. Bankole (supra).”

See also the case of UZODINMA & ANOR V. IHEDIOHA & ORS (2020) LPELR-50260(SC) where the Court held that “It is trite law that pleading is no evidence and where evidence is not led to support the pleading, evidence led thereat goes to no issue.”

It is also the position of the law that to succeed in a case of declaration of title to land, a party must plead and prove the method by which he acquired the said title, ownership of land cannot be claimed by a party without establishing ownership. See FASORO VS BEYIOKU (1988) 2 NWLR (Pt 76) 263, NWOFOR VS NWOSU (1992) 9 NWLR (Pt 264) 2291, ONWUGBUFOR V. OKOYE (1996) 1 NWLR (Pt 424) 252, UNITED BANK FOR AFRICA PLC V. AYINKE (2000) 7 NWLR (Pt 663) 83, OYENEYIN V. AKINKUGBE (2010) 4 NWLR (Pt 1184) 265. A claimant must satisfy the Court on the following: (a) the precise nature of the title claimed, that is to say, whether it is title by virtue of original ownership, customary grant, conveyance, sale under customary law, long possession, or otherwise; and (b) evidence establishing the nature of the title claimed. See OBAWOLE V. COKER (1994) 5 NWLR (Pt. 345) 4161, ADESANYA V. ADERONMU (2000) 9 NWLR (Pt 672) 370 at 382, EDOHOEKET V. INYANG (2010) 7 NWLR (Pt 1192) 251, OBINECHE VS AKUSOBI (2010) 12 NWLR (Pt 1208) 383.

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In his amended statement of claim at paragraphs 3, 4 and 51 found at pages 3 of the records of appeal, the paragraphs have not only proved the ownership of the 1st Respondent but also narrated how he legally acquired the property in dispute from the 2nd Respondent. The relevant paragraphs are reproduced as follows:

  1. “The plaintiff is holder of a piece of land near judge quartiers Makurdi, measuring 1120m by area coverage which he had proposed before applying to the Benue State Bureau of Lands and Surveys on the 3rd April, 2001 for title deeds. The plaintiff’s late uncle Ujo Damawa who gave the plot to plaintiff first acquired the land in 1970.
  2. Upon paragraph 3 hereof, a file under application No. BNC 7143 was opened and his application processed to issue of right of occupancy.
  3. The survey and planning investigation revealed that no contrary interest was existing or had pre-existed but the plaintiff’s application and these reports informed the Bureau top chat the plaintiff’s application on the March, 2003 and the land use and allocation committee to approve the plaintiff’s title on 27th March 2003.”

In addition, DW3 in his testimony before the Court testified as follows;

“…I work with the ministry of lands and survey, Makurdi. I leave at No. 66 Iyorchia Ayu road, Makurdi, my duties include representing the commissioner on lands matters in Court, processing of papers for title documents, settlement of Court disputes administratively. I have file No. BNC 7143 in respect of the plaintiff. I see the file, tendered, admitted without objection and is marked as Exhibit b and is deemed read. The plaintiff is the holder of plot No. BNC 7143 Markurdi. The Court should declare the plaintiff as the statutory holder of the said plot. The counter-claim should be dismissed as being frivolous and vexatious.”

The testimony of DW3 above has not been discredited during cross-examination. It is the law that once there is sufficient evidence on record from which the trial Court arrived at its finding of fact, the Appellate Court cannot interfere with such findings. See CHIEF J. OKEOWO V. ATTORNEY GENERAL OF OGUN STATE (2010) 5 7 SC (Pt. 11) 129, MILITARY GOVERNOR OF LAGOS STATE & 4 ORS V. ADEBAYO ADEYIGA & 6 ORS (2012) 2 SC (Pt. 1) 68, OSUJI V. EKEOCHA (2009) 6 – 7 SC (Pt. 11) 91, CYRIACUS NNADOZIE & 3 ORS V. NZE OGBUNELU MBAGWU (2008) 1 SCNL 219, OYIBO IRIRI & ORS V. ESE-RORAYE ERHURHOBARA & ANOR (1991) 3 SCNJ 1.

In the instant case, it is very clear from the records that the lower Court was justified in its decision to affirm the findings of the trial Court, I endorse the decision of the lower Court that the 1st Respondent as rightly found by the trial Court is the rightful and lawful owner of the property in dispute.

This issue is therefore resolved in favour of the Respondents against the Appellants.

ISSUE TWO

Under issue number two, the contention of the Appellant is that Exhibit A1 which is the statutory right of occupancy was prepared by a person interested in the matter. The appellant maintained that Exhibit A1 contradicts the provisions of Section 91 (3) of the Evidence Act.

This Court in U. T. C. (NIG) PLC V. LAWAL(2013) LPELR- 23002(SC) defined who an interested party is, the Court held as follows and I quote;

“A person interested” is said to mean one who has pecuniary or other material interest in the result of the proceeding. A person whose interest is affected by the result of the proceedings, and therefore would have a temptation to pervert the truth to serve his personal or private ends. It does not mean an interest in the sense of intellectual observation or an interest purely due to sympathy. It means “an interest in the legal sense, which imports something to be gained or lost.” See Holton V. Holton (1946) 2 All ER 534 at 535; Nigeria Social Insurance Trust V. Klifco Nigeria Ltd (2010) 13 NWLR (Pt.1211) 307; (2010) 8 SCM 212.

I agree with the learned counsel for the 2nd Respondent that the Appellant has not in any way shown or demonstrated to this Court on what basis the 2nd Respondent is a person interested in the outcome of the proceedings.

In view of the available facts on record, the 2nd Respondent as a maker of Exhibit A1 was not and could not be said to be qualified to be persons interested to render the said documents inadmissible and thereby wrongly admitted by the Court below. The documents were relevant and were properly admitted and relied on by the Court below. More so, as at the time the Exhibit A1 was issued, 2nd Respondent was not a party to the proceedings, the 2nd Respondent was acting in the course of its official duty and before it was joined as a party in the suit.

Accordingly, the above issue should be and is hereby resolved against the appellant in favour of the Respondents.

ISSUE THREE

The contention of the Appellant here is that by the doctrine of lis pendis, the 2nd Respondent ought not to have issued Exhibit A1 in favour of the 1st Respondent.

The lower Court on this issue held at page 276 of the records as follows;

“l am of the humble view that the doctrine does not apply to the circumstances of this case. This is because the 1st respondent had begun processing his application long before the dispute arose between him and the appellant. He became the owner of the right of occupancy on the date it was approved i.e on 27/3/03. This was before the writ of summons was filed.”

This Court on the doctrine of lis pendis, in the case of ENEKWE V. IMB (Nig) Ltd (2007) FWLR (Pt.349) 1053 at 10731 spelt out what a party invoking the doctrine must establish to succeed, the Court held as follows:

“In order for the doctrine of lis pendis to apply, the party relying on it must prove the following:

1) The object of the suit must be to recover or assert title to specific property;

2) The property must be real property

3) At the time of the sale of the property, the suit in question, was pending.

All the above conditions must exist, in the case. In other words, a matter based on the doctrine of lis pendis will fail, if any of the conditions is not satisfied.”

From the facts available in the record, the writ of summons was entered on the 28th April, 2003 see page 1 of the records of appeal, it is also on record as contained in paragraph 5 of the 1st Respondent’s amended statement of claim that the land use and allocation committee approved the 1st Respondent application on the 27th March, 2003.

Having said this, the doctrine of lis pendis in this case is not applicable as it failed to comply with the third requirement provided in the case of ENEKWE V. IMB (Nig) Ltd (supra)

I also resolved this issue in favour of the Respondents against the Appellants.

ISSUE FOUR

The contention of the Appellants is that since both 1st and 2nd Respondents failed to file any defence to the 2nd Appellant’s counter-claim, the counter-claim is deemed to have been admitted.

The lower Court held in its judgment at page 285 of the records as follows:

“learned counsel for the appellants argued that the 2nd appellant was entitled to judgment on the ground that there was no defence for this counter-claim. I have examined the entire record and I am unable to find any submission on this issue before the lower Court. Since it was not raised before the Court it as not considered in the judgment. Issues for determination can only be formulated from the grounds of appeal filed. A ground of appeal must be formulated from the judgment complained of.”

It is settled law that issues for determination must relate or be tied to the grounds of appeal and where such issues do not relate with the grounds of appeal, they become incompetent.

See OJEGBE V. OMATSONE (1999) 6 NWLR (Pt. 608) 5 91, ONYESOH V. NNEBEDUN (1992) 3 NWLR (Pt. 229) 315, OLOWOSAGO V. ADEBANAJO (1988) 4 NWLR (Pt.88) 275.

For any party to succeed in showing that the Court exercised its discretion wrongly, the party has the onus to establish that the discretion was not exercised judiciously and judicially, i.e. that the discretion was exercised in an arbitrary manner and without due regard to all relevant considerations. See NATIONAL BANK OF NIGERIA LTD V. GUTHRIE (NIG) LTD (1993) 3 NWLR (Pt 284) 643 and STATOIL (NIG) LTD V. STAR DEEP WATER PETROLEUM LTD (2015) 16 NWLR (Pt. 1485) 361.

There is no doubt that the concurrent findings of the two lower Court were not perverse or made in error to warrant interference by this Court. The concurrent findings must not be disturbed.

I also resolve this issue in favour of the Respondents against the Appellants.

Having resolved all the issues in favour of the Respondents against the Appellants, it follows therefore that the Appellant’s appeal is devoid of a jot of merit and therefore deserves to be and is hereby dismissed.

The judgment of the lower Court delivered on the 24th day of May, 2011 in appeal no. CA/J/51/2007 is affirmed.

Parties in this appeal shall bear their respective costs.


SC.469/2011

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