(2019) lpelr-46806(ca)lawpavilionpersonal.com/ipad/books/46806.pdf · their vendors otherwise the...

BARAU & ORS v. CONSOLIDATED TIN MINESLTD & ORS

CITATION: (2019) LPELR-46806(CA)

In the Court of AppealIn the Jos Judicial Division

Holden at Jos

ON MONDAY, 25TH FEBRUARY, 2019Suit No: CA/J/285/2014

Before Their Lordships:

ADZIRA GANA MSHELIA Justice, Court of AppealTANI YUSUF HASSAN Justice, Court of AppealBOLOUKUROMO MOSES UGO Justice, Court of Appeal

Between1. JOSHUA BARAU2. DA DALYOP DIH3. MR. PAM DUNG DEME

- Appellant(s)

And1. CONSOLIDATED TIN MINES LTD2. MINISTRY OF LANDS, SURVEY AND TOWNPLANNING, PLATEAU STATE3. JOSHUA S.B. GYEL

- Respondent(s)

RATIO DECIDENDI

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1. ACTION - CLAIM(S)/RELIEF(S): Whether a main claim and an alternative relief can begranted at the same time"On the grant of both claim No. 3 and its alternative claimNo. 4 by the lower Court, it stands both law (see G.K.F. Investment Nig Ltd v. NITEL Plc (2009)15 NWLR (PT 1184) 344; U.B.N. Penny-Mart Ltd (1992) 5 (NWLR (PT 240) 228 @ 241) andlogic on the head for something which is claimed only as an alternative to be granted alongwith the main thing to which it is alternative. That will not only amount to doublecompensation (G.K.F. Investment Nig Ltd v. NITEL Plc supra), it also means technically givinga claimant what he did not claim. Such relief ought not to be allowed to stand. But thequestion is whether the appellants against whom the claim was neither made nor granted canproperly challenge it. The answer is No. Appellants not being the ones against whom thoseorders were made cannot assert as they purported to do in their Notice of Appeal that theyare 'dissatisfied' with the judgment on that ground and it should be set aside. The Courtseldom grants audience to persons whose interests are not affected by issues before it. Thatseems the case with appellants. But then, that is not the end of the matter, as the biggerquestion is whether this Court should in any event allow such very incongruous order to standin the records on the ground simply that the wrong person has drawn its attention to it. I thinknot. The framers of the enabling statute of this Court and its Rules seem to have anticipatedsituations like this hence they conferred necessary general powers in this Court by Section 15of the Court of Appeal Act 2004 to deal with them. That provision (S.15) reads: 15.The Courtof Appeal may from time to time make any order necessary for determining the real questionin controversy in the appeal, and may amend any defect or error in the record of appeal and... shall generally have full jurisdiction over the whole proceedings as if the proceedings hadbeen instituted in the Court of Appeal as a Court of first instance and may re-hear the case inwhole or in part ..." The Rules of this Court 2016 also provide in its Order 4 Rules 3 and 4 that:Or. 4 R.3: The Court shall have power to draw inferences of fact and to give any judgment andmake any order which ought to have been given or made, and to make such further order(s)as the case may require, including any orders as to costs. R.4. The powers of the Court underthe foregoing provisions of this Rule may be exercised notwithstanding that no appeal orRespondent's notice has been given in respect of any particular part of the decision of theCourt below, or by any particular party to the proceedings in that Court, or that any groundfor allowing the appeal or for affirming or varying the decision of that Court is not specified insuch a notice; and that the Court may make any order, on such terms as the Court thinks just,to ensure the determination of the merits of the real question in controversy between theparties. These powers have been further confirmed and exercised in a number of casesincluding Akpan v. Umoh (1999) 6 NWLR (PT 627) 156 @ 166; Okeowo & Ors v. Migliore& Ors. (1979) N.S.C.C. 210 @ p. 238-23; Chikere v. Okegbe (2000) 7 SCNJ 154 @ 166;Osurinde v. Ajamogun (1992) 6 NWLR (PT 264) 156 @ 191-193 (S.C.) and Ikuomola v.Oniwaya (1990) 3 NSCC 95 @ p.101, 105. In the event, the judgment of the High Court ofPlateau State of 29th April 2014 in Suit No. PLD/J/242/2002 granting alternative relief 4 isamended and the said relief No. 4, which is alternative to main relief 3, is hereby struckout."Per UGO, J.C.A. (Pp. 47-50, Paras. C-C) - read in context

2. APPEAL - FRESH POINT(S) ON APPEAL: Whether a party can raise the defence of statuteof limitation as a fresh issue on appeal"It must be pointed out, first, that issue of statute bar wasnot raised by appellants at the lower Court; it is rather being raised for the first time onappeal and without the requisite leave of Court (see Agu v. Ikewibe (1991) 3 NWLR (PT 180)385; Bankole v. Pelu (1991) 11 SCNJ 108 @ 131 -133). In Ibrahim v. Lawal (2015)LPELR-24736 (S.C.) at p. 42 - 44 the apex Court emphasized the necessity to first obtain leaveof this Court to raise limitation statute on appeal if it was not raised before the trial Court.Unless leave is first obtained, this Court may not even hear appellant on the issue: Saude v.Abdullahi (1989) LPELR-3017 (S.C.) p.80-81 (Oputa J.S.C.), Adegoke Motors Ltd v. Adesanya(1989) 3 NWLR (PT 109) 250 supra (Oputa J.S.C.)."Per UGO, J.C.A. (Pp. 45-46, Paras.C-A) - read in context

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3. EVIDENCE - PROOF OF TITLE TO LAND: Whether production of documents of title is asufficient proof of title to land where the title of a grantor is in issue"Starting with the argument that because 1st appellant reliedon documents of title including Right of Occupancy in proof of his ownership of the disputedland, while it is true that production of documents of title is one of five independent ways ofproving ownership of land as stated in Okumagba's case and the endless line of authoritiesfollowing it, I am afraid learned silk is with due respect wrong in his contention thatproduction of title documents without more suffices in every circumstance including this one.The contention of learned silk will be correct only where the title of such grantors or vendorsis not made an issue in the case. Once a claimant's vendor's title is put in issue, he must, tosucceed, first prove his said vendor's title as he cannot get a better title than that of hisvendor. That is an application, so to speak, of the trite position that one cannot give what onedoes not have, otherwise expressed as nemo dat quod non habet in Latin. In Dosunmu v. Joto(1987) 2 NSCC 1182 @ 1193, (1987) 4 NWLR (PT 65) 197, (1987) LPELR-961 (SC) p.27 - 28the apex Court (Oputa, J.S.C.) confirmed this position as follows: "When a plaintiff in a landcase relies on and proves a conveyance as his root of title, he does not need to go beyond hisvendor and then proceed to prove that vendor's title as well. Just how far will such a plaintiffhave to go to succeed - as far back as Adam I suppose? Unless the title of his/her vendors hasbecome an issue (in which case those vendors will be joined as parties to prove or defendsuch title) parties to a land case whose titles are rooted in Deeds of Conveyance need notplead or prove the title of their vendors. It will be enough for them to plead and prove onlytheir own root of title, certainly not those of their vendors." His Lordship (Oputa, J.S.C.)elaborated on this issue a year later in Fasoro v. Beyioku (1988) 2 NWLR (PT 76) 263 @ 271,(1988) LPELR-1259 (S.C) p.16-17 thus while rejecting similar argument of learned silk: "Fromthe above, the question to be answered in this appeal appears to be: "Did the plaintiffssucceed in proving a valid transfer of the land in dispute from the Olayalo family (in whom, asthey pleaded, the radical title resides), to them?" "Put in a different way - did Exhibits B, C, Dand E transfer a valid legal title from the vendors therein to the plaintiffs especially as thedefendants had specifically pleaded in paragraph 30 of their amended statement of defencethat the plaintiffs' vendors were not the owners of the land that they purported to convey tothe plaintiffs and they thus had no right to sell to anybody? The learned trial judge advertedto this fact but somehow conveniently brushed it aside saying that 'the fact that the Deeds ofConveyance were not executed in Olayalo's family name is not in issue in this case.' Ofcourse, it was very much in issue when the plaintiff's vendors' title and their capacity to sellthe land are both challenged by the defendants, the onus is on the plaintiffs to establish thattitle. Also, from the plaintiffs' own pleadings, radical title was originally vested in the Olayalofamily. It was thus their duty to trace the devolution of that title form the Olayalo family totheir vendors otherwise the principle of nemo dat quod non habet will apply." See alsoBalogun v. Akanji (1988) 1 NWLR (PT 70) 301 (S.C.) and more recently Aiyeola v. Pedro (2014)13 NWLR (PT 1424) 409 @ 442 (S.C). It is a similar position the appellants particularly 1stappellant found him/themselves when they averred that the land in dispute originallybelonged to Dih family of 2nd and 3rd appellant and 3rd respondent countered that the sameland rather belonged customarily to his own vendors, the Jok family, and not 1st appellant'svendor's Dih family. It was thus incumbent on 1st appellant to first plead and prove the titleof his Dih family vendors to stand any chance of success in his counterclaim and defence to3rd respondent's counterclaim. He failed woefully to do that so the trial judge was on firmground in his decision."Per UGO, J.C.A. (Pp. 13-16, Paras. B-E) - read in context

4. EVIDENCE - TRADITIONAL EVIDENCE/HISTORY: Whether evidence of traditional historymust be given only by members of the immediate family or community of the land owners forit to be admissible"...counsel is also correct in his contention that it is not the law that unless members of aclaimant's vendor or grantor's family testify to the traditional history pleaded by him, hisevidence will be incomplete and deemed hearsay."Per UGO, J.C.A. (P. 26, Paras. A-B) - read incontext

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5. EVIDENCE - ADMISSION/ADMITTED FACT(S): Whether admitted facts need further proof;examples of such admitted facts"Proof is about disputed facts and not otherwise. Factsadmitted need no further proof. This well-settled position of the law also finds statutoryexpression in Section 123 of the Evidence Act 2011. In Akinlagun v. Oshoboja (2006) LPELR348 @ p. 33, (2006) 12 NWLR (PT 993) 60, (2006) 5 S.C. (PT11) 100 the Supreme Court(Ogbuagu, J.S.C.) reconfirmed this trite position thus: "It is now firmly settled that what isadmitted needs no further proof. There are too many decided cases in respect thereof: seeAkpan Obong Udofia v. Okon Akpan Udofia (1940) 6 WACA 216 @ 218, 219, ... Alhaji Ndayakov. Alhaji Dantoro & 6 Ors (2004) 5 SCNJ 152 @ 172, (2004) 13 NWLR (PT 889) 189. Seealso Section 75 of the Evidence Act which is clear and unambiguous. It therefore in myrespectful view becomes idle for the appellants who expressly and clearly admitted that theyare customary tenants of the respondents' family to now argue or submit that (perhaps withtongue in cheek) the incidents of customary tenancy were not proved by the respondents."Similar conclusion was reached by the apex Court (Kawu, J.S.C.) earlier on in Fatuade v.Onwoamanam (1991) NWLR (PT 131) 322, (1990) LPELR-1253 (S.C.) p.12 - 13 thus: "Ground 3reads:- "The judgment of the Court of Appeal are (sic) wrong in law and in fact in that the saidjudgment overlooked and failed to consider the finding of the learned trial judge did not availherself of the opportunity of adducing oral evidence from the Ojora Chieftaincy family whowere alleged to be the plaintiff's landlord and who could positively prove her title." "Again, theissue before the trial Court was not as the Court of Appeal correctly identified, whether theland was acquired from the Ojora family by the plaintiff. The issue was whether the plaintiffwas the owner of the house which the defendant claimed belonged to the plaintiff's husbandwho had sold to him. In fact, both parties would appear to have agreed that the land originallybelonged to the Ojora Chieftaincy family. In this regard the defendant tendered exhibits D2Aand D2E which he claimed were issued by the Ojora Chieftaincy family relating to theproperty. In the circumstances, I do not see any need or necessity for the plaintiff to call awitness from the Ojora Chieftaincy family to prove the grant of land." This dictum inOnwoamanam's case also answers the other limb of Mr. Akubo's argument that Da Gyel'straditional evidence was inadmissible and weightless hearsay so he needed to call membersof Jok family to confirm it for the Court to properly rely on it. Besides the fact that Da Gyel'spleading of his vendors' Jok family's ownership of the disputed land was admitted byappellants, it is not even the law, as confirmed by even Fatuade v. Onwoamanam above, thata member of a claimant's grantor or vendor's family must always testify in support of histraditional history before such claimant can succeed in his claim. This same contentionrejected in Onwoamanam's case was again canvassed before the apex Court nine years laterin Alli v. Alesinloye (2000) 77 LRCN 742 @ 786 - 788, (2000) 6 NWLR (PT 660) 177, (2000)FWLR (PT 15) 2610, (2000) 4 S.C. (PT 1) 111, (2000) 4 SCNJ 264) and again rejected. ?What ismore, in the instant case there was also the evidence of D.W.4 called by Da Gyel in support ofhis case. D.W.4 while admitting, apparently honestly, that he did not know or meet Jok thefounder of Jok family (who must conceivably be long dead before his birth), and that he is noteven from Jok family and has no relationship with that family, went on to state under cross-examination that Davou Zang Jok (now dead, according to D.W.4) was related to him, that heknew Davou Zang Jok owned the said land hence he witnessed the transaction for him, thatDavou Zang got the land from his father Zang, and that he even knew when Late DavouZang's father was farming the disputed land (See p. 796 and 797 of the records). That alsoadds further weight to the traditional history of the land related by Da Sambo Bashi Gyel. Thisis even more so when nothing in the records suggests that this witness was taken up on hisclaims."Per UGO, J.C.A. (Pp. 31-35, Paras. F-D) - read in context

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6. EVIDENCE - HEARSAY EVIDENCE: Whether evidence of traditional history is an exceptionto the general rule on hearsay evidence"I wish to only add, in further answer to learned silk'scontention about hearsay evidence that, hearsay evidence is actually admissible in proof oftraditional history of land ownership, exception having been made for its admission bySection 66 of the Evidence Act. In fact it has been said too by high authority that the rationalebehind this statutory exception is the universal condition of illiteracy of years past, and thatthe provision applies not only to claims in land cases but to all claims (including chieftaincyclaims founded on traditional history) which owe their origin to antiquity and could only beproved by oral evidence: Popoola v. Adeyemo (1992) 3 NSCC 46 @ 59 - 60."Per UGO,J.C.A. (Pp. 35-36, Paras. D-B) - read in context

7. EVIDENCE - PRESUMPTION OF REGULARITY: Presumption of regularity for official orjudicial acts carried out"...I also note that both witness statements of Da Gyel weremade before the Commissioner for Oaths and carry the usual declaration/attestation that thewitness statements of Da Gyel were made by him before the Commissioner for Oaths. Theyalso bear the said Court official's signature and stamp of Court. In that circumstance thepresumption enshrined in Section 168 of the Evidence Act that says "when any judicial orofficial act is shown to have been done in a manner substantially regular it is presumed thatformal requisites for its validity were complied with" will inure to the benefit of Da Gyel, evenmore so when there is nothing to suggest that it was suggested to Da Gyel by learned silkduring cross-examination that he did not make any or all of his witness statements. SeeUdeagha v. Omegara (2010) LPELR-3856 (C.A.) p.18 -19, (2010) ALL FWLR (PT 542) 1785 @1800 - 1801, (2010) 11 NWLR (PT 1204) 168 @ 195. In any event, the burden of proof, and infact the duty to rebut the presumption provided by Section 168 of the Evidence Act that LateDa Gyel did not sign his two witness statements is on the appellants who are asserting it, justlike it is the duty of a person who alleges forgery of a document produced by his opponent toprove that the said document is actually forged as he alleges: Aderounmu v. Olowu (2000) 2S.C. (PT 11) 1 @ 6, (2000) LPELR-141 (S.C.) P.12; Oketie v. Olughor (1985) SCNJ 217 @ 230 -231."Per UGO, J.C.A. (Pp. 41-42, Paras. B-C) - read in context

8. JUDGMENT AND ORDER - ERROR/MISTAKE IN JUDGMENT: Whether everyerror/mistake/slip in a judgment will result in a judgment being set aside"while it is undoubtedly a correct statement of the law thatsale of family land by head of family is voidable while sale of family land as personal land byeven head of family is void (Olorunfemi v. Ojo (1993) NWLR (PT 313) 542 @ 555 (S.C); Cokerv. Ogunsola (1982) 2 NWLR (PT 5) 87 (S.C); Odekilekun v. Hassan (1997) LPELR-2206 (S.C.) p.15-16), it does not appear to me that the lower Court's conclusion that 2nd appellant sold thedisputed land to 1st appellant as his personal property instead of family land of Dih family issupported by the evidence in the records. Second appellant deposed in paragraph 6 of hiswitness statement of 2nd June 2010 that he 'sought for and obtained' the consent of principalmembers of Dih Family before the land was sold to 1st appellant. This was confirmed byD.W.3, Pam Dung Deme, of the same Dih family when he swore in paragraph 6 of his witnessstatement of the same 02/06/2010 that 2nd appellant 'sought for and obtained' the consentof principal members of the Dih Family before the land was sold to 1st appellant. Bothwitnesses adopted these statements in their evidence in Court yet none of them waschallenged on this assertion. It is therefore bewildering how the lower Court arrived at theconclusion that 2nd appellant sold Dih family land as his personal property. Little wonder Mr.Pwul for 3rd respondent was unable to defend this finding of the lower Court. I agree withhim, just as I equally agree with his further submission that since the decision of the lowerCourt dismissing the counterclaim of 1st appellant on grounds of his failure to plead andprove his said vendor's title is correct, its apparent wrong finding that 2nd appellantpurported to sell family land as personal land and that voided the sale becomes of nomoment. Judgments are not upset for every misstatement. If a judgment would be the samewithout a wrong finding or misstatement complained of, it will stand nevertheless: seeBankole v. Pelu (1991) 11-12 S.C. 116 @ 120 lines 1-24; Ukaegbu v. Ugoji (1991) 6 NWLR(PT196) 127 @ 147 (S.C.); Agu v. Nnadi (2003) M.J.S.C. 51 @ 58; Ifeanyi-Chukwu Osondu Ltdv. Soleh Boneh (2000) SCNJ 18; Okeahialam v. Nwamara (2003) FWLR (PT 176) 635. That isthe case here."Per UGO, J.C.A. (Pp. 16-18, Paras. F-E) - read in context

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9. LAND LAW - ACTS OF POSSESSION AND OWNERSHIP: Whether acts of possession canbe considered where the title to land pleaded has not been proved"As for the acts of possession said to have been exercised by1st appellant over the land as alluded to by Mr. Akubo, those acts will be of no avail since 1stappellant failed to prove his title upon which he purported to exercise them: See again Fasorov. Beyioku (1988) 2 NWLR (PT 76) 263, (1988) LPELR-1249 (S.C) p.14-15 where it was saidthus: "When therefore a plaintiff pleads Sale and Conveyance as his root of title, he eithersucceeds in proving the Sale or Conveyance or he fails. Where he succeeds, he wins andwhere he fails his case ought to be dismissed: see Akerele v. Atunrase (1969) 1 ALL N.L.R.201. Having thus failed to prove the title he pleads, it will be wrong of him to turn around torely on acts of ownership or acts of possession which acts are in the nature of thingsderivable from and rooted in the radical title pleaded." In fact, having failed to prove hisradical title, 1st appellant's said acts of possession are actually acts of trespass: see Fasoro v.Beyioku (1988) LPELR-1249 (S.C) @ p.18; Ogbechie v. Onochie (1988) 1 N.S.C.C.211."Per UGO, J.C.A. (Pp. 18-19, Paras. E-E) - read in context

10. LAND LAW - IDENTITY OF LAND: Instance when the identity of land will not be in issue"I am afraid the argument of appellants on need for 3rdrespondent's father to prove identity of the land he counterclaimed does not fare bettereither. I am rather in complete agreement with the lower Court that appellants in theirdefence did not join issues with 3rd respondent's father on identity of disputed land towarrant that. The law is well settled that identity of disputed land will only be in issue whenthe defendant makes it so in his defence to the claim: see Fatuade v. Onwoamanam (1991)NWLR (PT 131) 322, (1990) LPELR-1253 (S.C.), Anyanwu v. Uzowaku (2009) ALL FWLR (PT499) 41. Related to that is that, where from the evidence or processes filed by parties theidentity of the disputed land is clear, for instance where the defendant in agreement withplaintiff in his statement of defence repeatedly refers to a disputed land as 'the disputedland', it will not be open to him to raise issue of identity of disputed land at address stage:Atolagbe v. Shorun (1985) 1 NWLR (PT 2) 360 @ 374 - 376; Osho v. Ape (1998) 8 NWLR (PT562) 492 @ 506 - 507; Oshodi v. Eyifunmi (2000) 1 SCNJ 295 @ 325; Motanya v. Elinwa(1994) 7 NWLR (PT 356) 252 @ 361; Ayuya & Ors v. Yonrin & Ors (2011) 5 SCM 16@ 38. Furthermore, even though a plaintiff's description of the disputed land is vague but thedefendant claims a counterclaim and in it clearly identifies the land, a declaration which willotherwise not be granted can be granted on that basis: Okedare v. Adebara (1994) 6 NWLR(PT 349) 157 (S.C). The same principle applies where the defendant clearly identifies adisputed land in his statement of defence: Anyanwu v. Uzowaku (2009) ALL FWLR (PT 499)41. ?Here, appellants never indicated even remotely in their processes or evidence that theland in dispute claimed by 1st and 3rd respondents separately, which land 1st appellant alsocounterclaimed and even added he was in possession, was not clear to him. What is more,3rd respondent as earlier shown averred in paragraph 4 of his counterclaim that the very landin dispute which he said he bought from Jok family is what the 1st appellant claimed 2nddefendant also sold to him. He even went on to further say in paragraphs 7 and 8 of the samecounterclaims that appellants and 1st respondent had continuously disturbed his quietpossession of the said land. Appellants filed a defence to that claim but never suggestedthere that they did not know the land he was talking about. On the contrary, they proceededheadlong in their defence to that counterclaim to assert that: i. 2nd defendant is one of thebeneficial owners of the disputed land and same was acquired by the 1st defendant [1stappellant] vide Right of Occupancy No. PL 35934. (para 3.) ii. That 1st, 2nd and 3rddefendants [appellants] aver that 1st defendant [1st appellant] has carried out developmenton the land in question in exercise of bona fide right of claim having acquired the land fromthe family of the original owners, namely the 2nd and 3rd defendants [2nd and 3rdappellants] devoid of any encumberance. (para 6.) iii. The 1st defendant [1st appellant] willshow at the trial that he has since become the registered owner of the said land having beenissued with R of O No. Pl 35934 by the appropriate authority with the consent of the owners.(para 8.) Having so clearly agreed with 3rd respondent's father on the identity of the disputedland, it amazes me that appellants could turn around to say they were after all not clearabout the identity of the same land and 3rd respondent should have given them furtherdescription of same. That contention, with all due respect to the learned silk, does not seemto me seriously made."Per UGO, J.C.A. (Pp. 36-39, Paras. B-C) - read in context

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11. LIMITATION LAW - STATUTE OF LIMITATION: Circumstances in which statute of limitationis not applicable"...it is settled law (1) that whether an action is barred bylimitation statute is done with reference to the averments in the writ of summons andstatement of claim regarding when the cause of action accrued: Elabanjo v. Dawodu (2006)15 NWLR (PT 1001) 76; Egbe v. Adefarasin (No. 2) (1987) 1 NWLR (PT 47) 1 and, (2) thedefence being a special one must be first pleaded by the defendant in his/her statement ofdefence as required by the Rules of Court before he/she can properly raise it in theproceeding: SeeOlagunju v. PHCN (2011) 4 MJSC 114 @ 127. In this case not only didappellants fail to raise defence of limitation in their defence to 3rd respondent's counterclaim,there is also no averment in the counterclaim of 3rd respondent regarding the date appellantsentered the disputed land to guide the Court in calculating when 3rd respondent's cause ofaction arose and became barred by the unnamed limitation statute. Without that this Courtwill be practically engaging in speculation in embarking on the course suggested byappellants of determining when cause of action accrued to 3rd respondent that has beenbarred by a limitation statute. That is assuming one was even minded to discountenanceappellants' failure to plead statute bar as a defence. Defence of Limitation of action or statutebar, I hold, is out of the question."Per UGO, J.C.A. (Pp. 46-47, Paras. B-B) - read incontext

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BOLOUKUROMO MOSES UGO, J.C.A.(Delivering the

Leading Judgment): This appeal is against the judgment

of the High Court of Plateau State in Suit No.

PLD/J/242/2002 in which it dismissed the counterclaim of

appellants against 1st respondent and granted the rival

counterclaim of the 3rd respondent’s Late father, Da

Sambo Bashi Gyel (aka Da S.B. Gyel), for declaration of

ownership and ancillary relief against appellants and 1st

respondent over the same land.

Third respondent and one Alhaji Muniru Baba originally

commenced the said action against appellants as

defendants but Alhaji Muniru Baba was later struck off,

leaving 3rd respondent as sole plaintiff.

Along the line, the Plateau State Ministry of Lands, Survey

and Town Planning joined the suit as 4th defendant.

Later on, Da Sambo Bashi Gyel, the now deceased father of

the present 3rd respondent, for whom 3rd respondent was

substituted in this Court, was on his own application also

joined to the suit as 5th defendant.

First respondent’s claim in the suit was basically for a

declaration against all appellants and 3rd respondent that

it

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was the only legal title holder of all the land situate at

Bukuru, Jos and covered by Right of Occupancy No. PL

14800 granted it by the Plateau State Government for 99

years, that for that reason, it was entitled to an order of

injunction and damages against appellants for trespassing

on it. It however transpired that 3rd respondent’s ‘lawyers’

prepared and signed its writ of summons and statement of

claim as Markus Y. Saleh & Co., for which the trial Court in

its final judgment held, rightly, that same rendered its

action incompetent, Markus Y. Saleh & Co. not being a

human being and so incapable of being a legal practitioner

enrolled to practice law in Nigeria.

However, before the order striking out 1st respondent’s

suit, which order was only made in the course of its final

judgment, not only had appellants filed a defence to the

suit, 1st appellant in particular had even counterclaimed

against it for ownership of the same parcel of land.

In the same vein, Da Sambo Bashi Gyel, upon joining the

suit as 5th defendant, also counterclaimed not just against

the original plaintiff/1st respondent but against appellants,

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too, for ownership of the same land. His claims were for:

1. A declaration that the defendant, counterclaimant

is the customary title holder of the disputed land

having acquired same from the customary title

holders and is entitled to the quiet possession and

enjoyment of same exclusively.

2. A declaration that the subsequent purported sale of

the disputed land and or of any part or portion

thereof, by the 2nd defendant to the 1st defendant is

a nullity and of no legal effect, the purported sale of

the disputed or of any part or portion thereof, coming

much after the disputed land had been legally sold to

the defendant and when there was no interest left in

the disputed land which the 2nd defendant who has

no interest in the land, can sell or transfer and or

assign to the 1st defendant.

3. A declaration that the title acquired by the plaintiff

over the disputed land or on any part or portion

thereof was illegally and or wrongly acquired and

thus a nullity and of no legal effect.

4. Alternatively, A declaration that the interest and or

title acquired by the plaintiff in the disputed land was

temporary and for a specific term cannot extinguish

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the interest of the customary title holders in the

disputed land and which interest the defendant

counter claimant has duly and or validly acquired.

5. An order declaring that the plaintiff and the other

defendants have wrongly and illegally prevented the

defendant counterclaimant from further development

of the disputed land from the enjoyment of same as

the title holder.

6. An order declaring that any document of title

purported to have been issued in favour of the

plaintiff or the 1st defendant by the 4th defendant or

by any other person or authority is a nullity and of no

legal effect.

7. An order of perpetual injunction restraining the

plaintiff, the other defendants, their privies, assigns,

successors in interest or title or any person or group

howsoever called, purporting to be acting on the

instructions of the plaintiff or that of the other

defendants from going into the disputed land for

anything whatsoever.

8. The sum of ₦500,000.00 (Five Hundred Thousand

Naira) only as general damages against the plaintiff

and the other defendants jointly and severally, for all

the hardships which the plaintiff and the other

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defendants have subjected the defendant

counterclaimant to.

9.The cost of this action.

In other words, there were three sets of claimants to the

same land: one by 1st respondent as the original plaintiff

and originator of the suit, another – a counterclaim - by 1st

appellant but against 1st respondent only, and a third one

by 3rd respondent’s late father against appellants and 1st

respondent.

The case o f Late Da Sambo Bashi Gyel as 5th

defendant/counterclaimant (now substituted by his son, the

3rd respondent) was that he acquired the land in issue on

12/12/1990 by way of purchase from the customary title

holders, the Jok family of Jos, under Berom custom and

same was evidenced by Exhibit 20 made in Hausa

Language but translated into English Language as Exhibit

20A. In paragraph 61 of his statement of defence which he

further adopted in his counterclaim and witness statements

on oath, he traced the traditional history of the ownership

of the said land from its founding by Jok down to Simon

Danboyi Zang and his uncle Davou Zang Jok of Jok family

from whom he bought it. He maintained that 1st appellant

who claimed to have bought the same land from the 2nd

and

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3rd appellants of Dih family in 1994 three years after his

purchase did not buy from the rightful owners so his (1st

appellant’s) said purchase was null and void.

In their defences to 3rd respondent’s Late father’s

counterclaim, whereas appellants asserted that 1st

appellant bought his land from 2nd appellant of Dih family

who they claimed is ‘one of the bona fide customary

owners’ of the said land and that 1st appellant had since

his purchase been issued a Right of Occupancy No. PL

35934 by the Plateau State Governor over the said land and

had even entered into possession of the said land, first

respondent on its part relied strongly on three successive

Rights of Occupancy it held over the disputed land first -

the first being granted it in 1948 for twenty-one years, the

second a re-grant in 1969 for another twenty years term,

and finally a third one for 99 years in 1993 evidenced by

Right of Occupancy No. PL 14800.

In its judgment of 29/04/2014, the High Court of Plateau

State, after striking out 1st respondent’s suit on grounds of

its incompetence for reasons as earlier, proceeded to

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consider the counterclaims of 1st appellant and 3rd

respondent and dismissed 1st appellant’s counterclaim

against 1st respondent on the grounds first that he (1st

appellant) failed to plead and prove the title of his vendors

[2nd and 3rd respondents] as required by law and secondly

that in any event, 2nd respondent sold family land as his

personal land so the said sale was null and void. It then

went to consider the counterclaim of 3rd respondent and

upheld it in its entirety including its alternative relief 4

after dismissing all the arguments of the 1st respondent

and appellants against it.

Both sets of vanquished defendants to the said

counterclaim are dissatisfied and promptly lodged separate

appeals to this Court against that judgment. Consolidated

Tin Mines Ltd, the original plaintiff, is appellant in sister

Appeal No. CA/J/248/2018. In fact, both appeals were

moving together until they parted ways in 2018.

In this appeal, Joshua Barau and his vendors as appellants

have framed the following three wordy issues for

determination:

1. Whether given the pleadings of the 1st appellant

and evaluation of evidence led, the learned trial judge

was

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right in relying on the case of Onwugbufor v.

Okoye (1996) 1 SCNJ 1 @ 21 and arriving at the

conclusion that the 1st appellant did not plead and

prove the origin of his title or trace conclusively the

title of his vendors to the disputed land and thereby

declaring the sale of the land to the 1st appellant by

the 2nd appellant as void on ground that the 2nd

appellant sold the land in his personal capacity.

2. Whether from the preponderance of evidence led

vis-à-vis the burden of proof and in the absence of

clear identity of the land claimed, the learned trial

judge was right in entertaining and granting the

counterclaim of the 3rd respondent by relying on the

evidence of the 3rd respondent and arriving at the

conclusion that the appellants admitted the

traditional history stated by the 3rd respondent

despite the fact that the evidence of the 3rd

respondent was a bunch of hearsay and his specimen

signatures in conflict with the one on his witness

statement on oath.

3. Whether the learned trial judge was right in

granting relief (vi) in the counterclaim of the 3rd

respondent despite the fact that it was statute barred

and also

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granting alternative relief, to wit, relief (iv) along

with relief (iii) in the counterclaim of the 3rd

respondent.

Whereas the 2nd respondent (Plateau State Ministry of

Lands, Survey and Town Planning) did not respond to the

appeal, 1st and 3rd respondents filed briefs of argument

and framed their own issues for determination and argued

them. First respondent framed a single issue while 3rd

respondent distilled six issues for determination which I am

not in any doubt are subsumed in the three issues of

appellants.

Under Issue 1, appellants through their counsel, P.A.

Akubo, S.A.N., who also adopted their brief in Court, first

made the point that the case of 1st appellant was not

predicated on traditional history as to necessitate pleading

and proof of origin of title of his vendors as the trial judge

held. Counsel submitted that 1st appellant’s case was

rather predicated on his Right of Occupancy No. PL35938

(Exhibit 17) dated 12/04/2002 and his other documents of

title, namely Sale Agreement (Exhibit 14), Site Plan

(Exhibit 15) and Change of Ownership (Exhibit 16). Citing

the cases of Idundun v. Okumagba (1976) 9-10 S.C.

227 @ 246-250,

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Thompson v. Arowolo (2003) 7 NWLR (PT 818) 163

and Onwugbufor v. Okoye (1996) 1 SCNJ 1 @ 21,

learned silk submitted that production of documents of title

is one of five independent ways of proving ownership of

land so a party need not rely on more than one of them to

succeed and for that reason, the learned trial judge was

wrong in holding that mere production of his title

documents as 1st appellant did was not enough, that he

needed to plead and prove conclusively the title of his

vendors and his failure to do that was fatal to his case.

On another wicket, learned senior counsel faulted the

decision of the lower Court upholding the contention of 3rd

respondent that 2nd appellant sold family land as his

personal land and that rendered the said sale void. Counsel

submitted that it did not lie in the mouth of 3rd respondent

who is not a member of 2nd and 3rd appellants’ Dih family

who sold the said land to 1st appellant to say 2nd appellant

sold it as his personal land. No member of Dih family

disputed 2nd respondent’s right to sell the said land to 1st

appellant and none came to Court to challenge that

evidence; on the contrary, counsel observed, both 2nd and

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3rd appellants confirmed on oath that 2nd appellant is not

only the head of Dih family, he also sought and obtained the

consent of principal members of that family to sell the land

to 1st appellant. It follows, therefore, counsel argued, that

the conclusion of the lower Court on this point is faulty.

Learned silk next drew our attention to the acts of

possession namely building a bungalow on it, putting a

tenant thereon and securing Statutory Right of Occupancy

No. PL35938 (Exhibit 17) over the same land already

exercised on the disputed land by appellant and urged us to

hold that the lower Court was wrong in its decision that 1st

appellant failed to prove his case by the required standard

because he failed to plead and prove the origin of his title

by tracing conclusively the title of his vendors.

Both 1st and 3rd respondents were opposed to this

argument of appellants but had separate reasons for their

positions. Whereas 1st respondent (appellant in

CA/J/248/2018) through its counsel, M.Y. Saleh, S.A.N.,

relied heavily on what it regards as the potency of its three

Statutory Rights of Occupancy over the said land as

overriding and extinguishing the purchases and

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conveyances including the rival Right of Occupancy No. PL

PL35938 claimed by 1st appellant over the said land, Mr.

F.M. Pwul for 3rd respondent, citing a number of cases,

supported the lower Court’s decision on need for 1st

appellant to plead and prove the title of his vendors,

especially as the said vendor’s title was not admitted but

rather made an issue. Right of Occupancy, Mr. Pwul

submitted, is only prima facie and rebuttable evidence of

title and once it is shown that someone else had better title

to the area of land over which it is issued, it becomes

useless. Counsel was however ambivalent on the other

aspect of the lower Court’s finding that 2nd appellant sold

family land as personal land and that on its own also voided

the sale. He was nevertheless quick to add that assuming

but without conceding that the lower Court was wrong on

that point, the judgment would still be the same in view of

the lower Court’s undoubted correct finding on the effect of

1st appellant’s failure to plead and prove his vendor’s root

of title, which he argued completely knocked off the case of

appellants.

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Resolution of issue 1

There is no doubt that appellants’ arguments on this issue

is against the dismissal of 1st appellant’s counterclaim.

Their argument here is in two limbs and I shall consider

them in their separate parts.

Starting with the argument that because 1st appellant

relied on documents of title including Right of Occupancy

in proof of his ownership of the disputed land, while it is

true that production of documents of title is one of five

independent ways of proving ownership of land as stated in

Okumagba’s case and the endless line of authorities

following it, I am afraid learned silk is with due respect

wrong in his contention that production of title documents

without more suffices in every circumstance including this

one. The contention of learned silk will be correct only

where the title of such grantors or vendors is not made an

issue in the case. Once a claimant’s vendor’s title is put in

issue, he must, to succeed, first prove his said vendor’s title

as he cannot get a better title than that of his vendor. That

is an application, so to speak, of the trite position that one

cannot give what one

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does not have, otherwise expressed as nemo dat quod non

habet in Latin. In Dosunmu v. Joto (1987) 2 NSCC 1182

@ 1193, (1987) 4 NWLR (PT 65) 197, (1987)

LPELR-961 (SC) p.27 – 28 the apex Court (Oputa, J.S.C.)

confirmed this position as follows:

“When a plaintiff in a land case relies on and proves a

conveyance as his root of title, he does not need to go

beyond his vendor and then proceed to prove that

vendor’s title as well. Just how far will such a plaintiff

have to go to succeed – as far back as Adam I

suppose? Unless the title of his/her vendors has

become an issue (in which case those vendors will be

joined as parties to prove or defend such title) parties

to a land case whose titles are rooted in Deeds of

Conveyance need not plead or prove the title of their

vendors. It will be enough for them to plead and prove

only their own root of title, certainly not those of

their vendors.”

His Lordship (Oputa, J.S.C.) elaborated on this issue a year

later in Fasoro v. Beyioku (1988) 2 NWLR (PT 76) 263

@ 271, (1988) LPELR-1259 (S.C) p.16-17 thus while

rejecting similar argument of learned silk:

“From the above, the question to be answered

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in this appeal appears to be:

“Did the plaintiffs succeed in proving a valid transfer

of the land in dispute from the Olayalo family (in

whom, as they pleaded, the radical title resides), to

them?”

“Put in a different way - did Exhibits B, C, D and E

transfer a valid legal title from the vendors therein to

the plaintiffs especially as the defendants had

specifically pleaded in paragraph 30 of their amended

statement of defence that the plaintiffs’ vendors were

not the owners of the land that they purported to

convey to the plaintiffs and they thus had no right to

sell to anybody? The learned trial judge adverted to

this fact but somehow conveniently brushed it aside

saying that ‘the fact that the Deeds of Conveyance

were not executed in Olayalo’s family name is not in

issue in this case.’ Of course, it was very much in

issue when the plaintiff’s vendors’ title and their

capacity to sell the land are both challenged by the

defendants, the onus is on the plaintiffs to establish

that title. Also, from the plaintiffs’ own pleadings,

radical title was originally vested in the Olayalo

family.

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It was thus their duty to trace the devolution of that

title form the Olayalo family to their vendors

otherwise the principle of nemo dat quod non habet

will apply.”

See also Balogun v. Akanji (1988) 1 NWLR (PT 70) 301

(S.C.) and more recently Aiyeola v. Pedro (2014) 13

NWLR (PT 1424) 409 @ 442 (S.C).

It is a similar position the appellants particularly 1st

appellant found him/themselves when they averred that the

land in dispute originally belonged to Dih family of 2nd and

3rd appellant and 3rd respondent countered that the same

land rather belonged customarily to his own vendors, the

Jok family, and not 1st appellant’s vendor’s Dih family. It

was thus incumbent on 1st appellant to first plead and

prove the title of his Dih family vendors to stand any

chance of success in his counterclaim and defence to 3rd

respondent’s counterclaim. He failed woefully to do that so

the trial judge was on firm ground in his decision.

And coming to the second limb of appellants’ argument,

while it is undoubtedly a correct statement of the law that

sale of family land by head of family is voidable while sale

of

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family land as personal land by even head of family is void

(Olorunfemi v. Ojo (1993) NWLR (PT 313) 542 @ 555

(S.C); Coker v. Ogunsola (1982) 2 NWLR (PT 5) 87

(S.C); Odekilekun v. Hassan (1997) LPELR-2206 (S.C.)

p. 15-16), it does not appear to me that the lower Court’s

conclusion that 2nd appellant sold the disputed land to 1st

appellant as his personal property instead of family land of

Dih family is supported by the evidence in the records.

Second appellant deposed in paragraph 6 of his witness

statement of 2nd June 2010 that he ‘sought for and

obtained’ the consent of principal members of Dih Family

before the land was sold to 1st appellant. This was

confirmed by D.W.3, Pam Dung Deme, of the same Dih

family when he swore in paragraph 6 of his witness

statement of the same 02/06/2010 that 2nd appellant

‘sought for and obtained’ the consent of principal members

of the Dih Family before the land was sold to 1st appellant.

Both witnesses adopted these statements in their evidence

in Court yet none of them was challenged on this assertion.

It is therefore bewildering how the lower Court arrived at

the conclusion that 2nd appellant sold Dih family

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land as his personal property. Little wonder Mr. Pwul for

3rd respondent was unable to defend this finding of the

lower Court. I agree with him, just as I equally agree with

his further submission that since the decision of the lower

Court dismissing the counterclaim of 1st appellant on

grounds of his failure to plead and prove his said vendor’s

title is correct, its apparent wrong finding that 2nd

appellant purported to sell family land as personal land and

that voided the sale becomes of no moment. Judgments are

not upset for every misstatement. If a judgment would be

the same without a wrong finding or misstatement

complained of, it will stand nevertheless: see Bankole v.

Pelu (1991) 11-12 S.C. 116 @ 120 lines 1-24; Ukaegbu

v. Ugoji (1991) 6 NWLR (PT196) 127 @ 147 (S.C.);

Agu v. Nnadi (2003) M.J.S.C. 51 @ 58;Ifeanyi-Chukwu

Osondu Ltd v. Soleh Boneh (2000) SCNJ 18;

Okeahialam v. Nwamara (2003) FWLR (PT 176) 635.

That is the case here.

As for the acts of possession said to have been exercised by

1st appellant over the land as alluded to by Mr. Akubo,

those acts will be of no avail since 1st appellant failed to

prove his title upon which he purported to

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exercise them: See again Fasoro v. Beyioku (1988) 2

NWLR (PT 76) 263, (1988) LPELR-1249 (S.C) p.14-15

where it was said thus:

“When therefore a plaintiff pleads Sale and

Conveyance as his root of title, he either succeeds in

proving the Sale or Conveyance or he fails. Where he

succeeds, he wins and where he fails his case ought to

be dismissed: see Akerele v. Atunrase (1969) 1 ALL

N.L.R. 201. Having thus failed to prove the title he

pleads, it will be wrong of him to turn around to rely

on acts of ownership or acts of possession which acts

are in the nature of things derivable from and rooted

in the radical title pleaded.”

In fact, having failed to prove his radical title, 1st

appellant’s said acts of possession are actually acts of

trespass: see Fasoro v. Beyioku (1988) LPELR-1249

(S.C) @ p.18; Ogbechie v. Onochie (1988) 1 N.S.C.C.

211.

In summary, I resolve issue 1 against appellants.

Issue 2: Appellants argued Issue 2 on different fronts. First,

their counsel, Akubo, S.A.N., citing the decisions of this

Court in Akhigbe v. Paulosa (Nig.) Ltd (2006) 12

NWLR (PT 994) 373 @ 384 and U.B.A. Plc v. Samba

Petroleum

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Co. Ltd (2006) 12 NWLR (PT 994) 373 @ 384, argued,

wrongly on the facts no doubt, that since 1st respondent

who initiated the action did not make any claim against 3rd

respondent (3rd respondent having joined the action on his

own application) and since a counterclaim by its very

nature is a cross-action to the original plaintiff’s claim, 3rd

respondent’s counterclaim against his clients the

appellants was incompetent and the lower Court was wrong

in rejecting their argument to that effect.

On a second wicket learned senior counsel made the trite

point that in any case 3rd respondent could only succeed

on the strength of his counterclaim and not on the

weakness of the defendant’s, in this case appellants’ claim.

Learned silk then submitted that 3rd respondent’s

counterclaim was not proved and the lower Court wrong in

upholding it. To buttress that contention counsel argued,

first, that there were obvious discrepancies between 3rd

respondent’s signature on his two witness statements on

oath and Exhibit 21 (a document which he seems to have

been made to sign in Court) thus suggesting that the said

witness statements did not belong to him.

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On still another front, he argued that the traditional

evidence of ownership of the disputed land that was

adduced by 3rd respondent was exposed on cross-

examination to be full of inadequacies, sweeping

statements and generally hearsay, even more so as 3rd

respondent did not call any person from Jok family of his

vendors to confirm the traditional history he pleaded. The

evidence of his only witness, Mr. Rwang Pei (D.W.4),

learned silk submitted, did not fill these inadequacies as

D.W.4, according to counsel, rather even ‘confessed’ that

he is not from Jok family, did not even know Jok and has no

relationship with Jok family. Counsel disagreed with the

learned trial judge that appellants admitted the traditional

history pleaded by 3rd respondent so it was not necessary

for him to call members of Jok family to confirm his claim.

Counsel next observed that 3rd respondent pleaded a Right

of Occupancy No. PL 16951 he claimed was issued him by

2nd respondent yet he did not produce it at the trial. On

that basis, learned silk asked us to invoke Section 167(d) of

the Evidence Act against him and hold that he did not

produce it

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because if he did it would have been against him.

Learned silk also complained that 3rd respondent did not

prove the identity, boundaries and size of the land claimed

by him so the lower Court was again wrong in granting his

counterclaim.

For all these reasons, learned silk urged us to resolve issue

2 in appellants’ favour.

Mr. Saleh, S.A.N., for 1st respondent and P.M. Pwul for 3rd

Respondent were again opposed to these contentions of

appellants but again differed on their reasons. Mr. Saleh,

while pointing out that appellants relied on traditional

history of the ownership of 2nd and 3rd appellant who sold

the land to 1st appellant and so they had a duty to plead

and prove that history, resorted once again to his earlier

argument of the potency of the Rights of Occupancy 1st

respondent had over the disputed land. He submitted once

again that they superseded and extinguished whatever

rights appellants had over it going by the provisions of

Section 5(2) of the Land Use Act. In support of this, he

cited the cases of Adole v. Gwar (2008) 3-4 S.C. 78;

Ibrahim v. Mohammed (2008) 4 SCM 40 and Nigerian

Engineering Works Ltd v. Denap

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Limited & Anor (2002) 2 SCM among others. Learned

silk next submitted that the same Section 167(d) of the

Evidence Act invoked by appellants against 3rd respondent

should be rather invoked against appellants for their failure

to tender a certain File No. PL 35934 which they pleaded

was with the 2nd respondent and contained documents that

were useful to their case.

Mr. Pwul for 3rd respondent on his part first argued, in

response to the attack of appellants on the competence of

3rd respondent’s counterclaim, that contrary to the

submission of appellants, 3rd respondent’s father’s

counterclaim was not only against appellants but also

against 1st respondent as the original plaintiff in the action,

and to that extent the decision of this Court inAkhigbe v.

Paulosa (Nig.) Ltd (2006) 12 NWLR (PT 994) 373 @

384 relied on by Mr. Akubo rather supports 3rd

respondent.

Mr. Pwul next supported the lower Court’s decision

rejecting the argument of appellants of inconsistencies in

Late Da Gyel’s (D.W.5) signatures in his witness

statements, especially D.W.5’s explanation that he had two

signatures one of which he uses for bank and the

second for other transactions.

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Learned counsel also dismissed appellants’ argument that

3rd respondent did not prove the traditional history he

pleaded and al l the evidence he adduced were

inadequacies, sweeping assertions and hearsay. He

submitted that appellants admitted the traditional history

pleaded by 3rd respondent, that all they tried to do even in

evidence was to show, unsuccessfully he submitted, that

2nd and 3rd appellant who sold the land to 1st appellant

are also descendants of Jok, the ancestor of Simon Danboyi

Zang and his uncle Davou Zang Jok who sold to 3rd

respondent. In any event, learned counsel continued, the

traditional history of a piece of land need not necessarily be

given by a member of the vendor’s family, for which he

cited Alli v. Alesinloye (2000) 4 SCNJ 254 @ 289.

On appellants’ argument that 3rd respondent did not prove

the identity of the land claimed by him, Mr. Pwul submitted

that appellants did not join issues with 3rd respondent on

identity of the disputed land so it is not open to them to

argue to the contrary.

Resolution of issue(s)

Competence of counterclaim: The attack by appellants

of

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the counterclaim of 3rd respondent can be easily disposed

of, for it is founded on quicksand. The records just do not

support their argument that 1st respondent as initiator of

the action did not claim against 3rd respondent and he did

not also counterclaim against it but only against them. First

respondent following the grant of 3rd respondent’s

application to join the action further amended its statement

of claim and claimed not only against appellants but also

3rd respondent’s father who became 5th defendant to the

suit. The said Further Amended Statement of Claim of 1st

respondent dated and filed on 6th May 2009 is contained at

pages 169 – 180 of the records. The counterclaim of 3rd

respondent which spans pages 531 – 534 also shows that

he claimed against all the existing parties on record.

Appellants’ contention on this issue is accordingly rejected.

Traditional history of 3rd respondent’s vendor:

whether it was not admitted by appellants and

implication of its admission, if at all, by appellants:

Here again I am in complete agreement with Mr. Pwul not

only on his submission that the traditional history of the

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disputed land as pleaded by Late Da Sambo Bashi Gyel, the

father of 3rd respondent, was admitted by appellants,

counsel is also correct in his contention that it is not the

law that unless members of a claimant’s vendor or

grantor’s family testify to the traditional history pleaded by

him, his evidence will be incomplete and deemed hearsay.

Starting from the traditional history of the land, 3rd

respondent’s father averred in paragraph 61 of his

amended statement of defence as follows:

61.The defendant acquired his interest in the disputed land

by way of customary purchase from the customary title

holders in the accordance from the Berom people of Gyel

native law and custom as follows:

i. That he acquired the disputed land from the customary

title holders Simon Danboyi Zang and Davou Zang Jok of

the Lo-Jok family of Gyel.

ii. That Jok, whose name became the name of the family of

the customary title holders, was the founder or the person

that first cleared and put to any form of use the disputed

land.

iii. that on the death or demise of Jok (founder of the

disputed land), the land and or interest in same passed to

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his only male child Zang in accordance with the Berom

native law and custom, and who continued in possession

and enjoyment of the disputed land unchallenged and or

without let or hindrance up to the time he died or passed

on.

iv. On the demise of Zang, the disputed land devolved on or

passed to his two sons namely, Danboyi and Davou, all of

whom continued to enjoy the disputed land without let or

hindrance.

v. Danboyi Zang later died leaving behind him a son by

name Simon Danboyi Zang and his brother Davou Zang Jok.

vi. Simon Danboyi Zang and his uncle Davou Zang Jok

continued in possession of the disputed land without let or

hindrance up to the time that they decided to divest

themselves of their interest in the disputed land by way of

customary sale of same to the defendant counterclaimant

Da S. B. Gyel (Da Sambo Bashi Gyel).

vii. the customary sale was carried out in the presence of

witnesses before the traditional heads of the area where

the disputed land is situate, the Gwom Rwei of Gyel, then

District Head of Gyel, did not only confirm the title of the

defendant’s vendor to the disputed land, but endorsed the

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sale of same to the defendant as did other lesser chiefs or

heads in the area.

viii. the defendant paid fully the purchase price for the

disputed land in the presence of witnesses and was

immediately led into possession of same, where he

commenced some development as confirmed by the

plaintiff.

Late Gyel adopted these averments in his counterclaim

against appellants and went on to further specifically aver

regarding 2nd appellant (1st appellants’ vendor) in

paragraph 4 of his same counterclaim thus:

3. That while the defendant was in possession of the

disputed land that his two vendors died.

4. That it was after the demise of the Defendant’s vendors

as above stated that Dalyop Dih, the 2nd defendant (who

claimed to be a member of Jok family of the defendant’s

vendors) took the land and purportedly sold same to the 1st

defendant (Joshua Barau Esq.).

What was appellants’ response to this specific averment

that 2nd appellant Dalyop Dih who purportedly sold the

disputed land to the 1st appellant did so claiming to be a

member of Jok family of 3rd respondent’s vendors? It is at

page 3 of

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their Defence to the said Counterclaim where they averred

as follows:

(3).In answer to paragraph 4 of the claim the 1st, 2nd and

3rd Defendants aver that the 2nd defendant is one of the

bona fide beneficial customary owners of the disputed land

and same was acquired by the 1st defendant vide right of

Occupancy No. PL 35934. (Italics mine.)

Clearly, appellants were not by this averment denying

paragraph 4 of 3rd respondent’s father’s counterclaim;

they were rather simply saying/admitting his assertion that

2nd appellant actually sold the disputed ‘claiming to be a

member of Jok family of the defendant’s vendor.’ What

appellants simply added is that he is actually ‘one’ of the

bona fide members of Jok family and not just claiming to be

one of them. Any doubt that may have lingered in anybody’s

mind about this admission was dispelled first from the

questions put to Late Da S.B. Gyel (D.W.5) by Akubo, S.A.N.

for appellants during his cross-examination. Da S.B. Gyel, is

shown at p.803 of the record to have answered Mr. Akubo

for appellants thus:

“I am not from Jok family. I am from Gura Riyom

which is part of Gyel.

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I do not know the number of children Jok had. I do

not know much about Jok family. I do not know that

Jok had eight children. I do not know that Dih is the

son of JOK. I do not know that Dalyop is the son of

Jok.” (Italics mine.)

All these answers, I completely agree with Mr. Pwul for 3rd

respondent, could only have been in response to

suggestions by appellants seeking to show and confirm

their contention in paragraph 3 of their defence to the

counterclaim that 2nd appellant Dalyop Dih is actually also

a descendant of Jok through his father Dih who is one of

eight sons of Jok, the undisputed ancestor of 3rd

respondent’s vendors and so also one beneficial owner of

the land through its founder, Jok. It is therefore not open to

learned silk nor his clients the appellants, having failed to

get the admissions they wanted from 3rd respondent’s Late

father Da S.B. Gyel, to now try to give a different spin to

those very answers by arguing that Da Gyel made ‘vague,

sweeping’ and inadmissible ‘hearsay’ statements about the

traditional history he pleaded. I am in no doubt that

appellants admitted

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3rd respondent’s father’s traditional history of his vendors

as pleaded. If anything, D.W.2 (3rd appellant) of same Dih

family in evidence reinforced appellants’ admission of 3rd

respondent’s vendors, Late Simon Danboyi and Davou Zang

Jok’s connection to Jok, the admitted founder of the land as

pleaded by 3rd respondent’s father, Da Gyel. This witness,

after also adding flesh to his side’s admission by saying “I

am a member of Dih Family, the Head are Jok Mitin, Zang

Jok, Delgok Jok, Gang Pwak Jok, Dalyop Jok and Dalyop Zi,”

(Note the several Joks), went on to admit under cross-

examination from Mr. Bashiri for 3rd respondent thus:

“I know Danboyi Zang Jok, Davou Zang Jok. They are

truly descendants of Jok. Danboyi Zang died and left

his son Simon.”

Instructively, Davou Zang Jok and Simon, son of Danboyi

Zang Jok are the two persons 3rd Respondent claimed sold

the land to him on behalf of their family, so what else did

appellants want Da Gyel to prove by way of his vendors’

history and their Jok family’s ownership of the disputed

land? Proof is about disputed facts and not otherwise. Facts

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admitted need no further proof. This well-settled position of

the law also finds statutory expression in Section 123 of the

Evidence Act 2011. In Akinlagun v. Oshoboja (2006)

LPELR 348 @ p. 33, (2006) 12 NWLR (PT 993) 60,

(2006) 5 S.C. (PT11) 100 the Supreme Court (Ogbuagu,

J.S.C.) reconfirmed this trite position thus:

“It is now firmly settled that what is admitted needs

no further proof. There are too many decided cases in

respect thereof: see Akpan Obong Udofia v. Okon

Akpan Udofia (1940) 6 WACA 216 @ 218, 219,… Alhaji

Ndayako v. Alhaji Dantoro & 6 Ors (2004) 5 SCNJ 152

@ 172, (2004) 13 NWLR (PT 889) 189. See also

Section 75 of the Evidence Act which is clear and

unambiguous. It therefore in my respectful view

becomes idle for the appellants who expressly and

clearly admitted that they are customary tenants of

the respondents’ family to now argue or submit that

(perhaps with tongue in cheek) the incidents of

customary tenancy were not proved by the

respondents.”

Similar conclusion was reached by the apex Court (Kawu,

J.S.C.) earlier on in Fatuade v. Onwoamanam (1991)

NWLR (PT 131) 322, (1990) LPELR-1253 (S.C.) p.12 –

13 thus:

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“Ground 3 reads:-

“The judgment of the Court of Appeal are (sic) wrong in law

and in fact in that the said judgment overlooked and failed

to consider the finding of the learned trial judge did not

avail herself of the opportunity of adducing oral evidence

from the Ojora Chieftaincy family who were alleged to be

the plaintiff’s landlord and who could positively prove her

title.”

“Again, the issue before the trial Court was not as the

Court of Appeal correctly identified, whether the land

was acquired from the Ojora family by the plaintiff.

The issue was whether the plaintiff was the owner of

the house which the defendant claimed belonged to

the plaintiff’s husband who had sold to him. In fact,

both parties would appear to have agreed that the

land originally belonged to the Ojora Chieftaincy

family. In this regard the defendant tendered exhibits

D2A and D2E which he claimed were issued by the

Ojora Chieftaincy family relating to the property. In

the circumstances, I do not see any need or necessity

for the plaintiff to call a witness from the Ojora

Chieftaincy family to prove the grant of land.”

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This dictum in Onwoamanam’s case also answers the other

limb of Mr. Akubo’s argument that Da Gyel’s traditional

evidence was inadmissible and weightless hearsay so he

needed to call members of Jok family to confirm it for the

Court to properly rely on it. Besides the fact that Da Gyel’s

pleading of his vendors’ Jok family’s ownership of the

disputed land was admitted by appellants, it is not even the

law, as confirmed by even Fatuade v. Onwoamanam

above, that a member of a claimant’s grantor or vendor’s

family must always testify in support of his traditional

history before such claimant can succeed in his claim. This

same contention rejected in Onwoamanam’s case was again

canvassed before the apex Court nine years later in Alli v.

Alesinloye (2000) 77 LRCN 742 @ 786 - 788, (2000) 6

NWLR (PT 660) 177, (2000) FWLR (PT 15) 2610,

(2000) 4 S.C. (PT 1) 111, (2000) 4 SCNJ 264) and again

rejected.

What is more, in the instant case there was also the

evidence of D.W.4 called by Da Gyel in support of his case.

D.W.4 while admitting, apparently honestly, that he did not

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know or meet Jok the founder of Jok family (who must

conceivably be long dead before his birth), and that he is

not even from Jok family and has no relationship with that

family, went on to state under cross-examination that

Davou Zang Jok (now dead, according to D.W.4) was

related to him, that he knew Davou Zang Jok owned the

said land hence he witnessed the transaction for him, that

Davou Zang got the land from his father Zang, and that he

even knew when Late Davou Zang’s father was farming the

disputed land (See p. 796 and 797 of the records). That also

adds further weight to the traditional history of the land

related by Da Sambo Bashi Gyel. This is even more so when

nothing in the records suggests that this witness was taken

up on his claims.

I wish to only add, in further answer to learned silk’s

contention about hearsay evidence that, hearsay evidence

is actually admissible in proof of traditional history of land

ownership, exception having been made for its admission

by Section 66 of the Evidence Act. In fact it has been said

too by high authority that the rationale behind this

statutory exception is the universal condition of illiteracy of

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years past, and that the provision applies not only to claims

in land cases but to all claims (including chieftaincy claims

founded on traditional history) which owe their origin to

antiquity and could only be proved by oral evidence:

Popooola v. Adeyemo (1992) 3 NSCC 46 @ 59 – 60.

Proof of identity of the disputed land by 3rd

respondent: I am afraid the argument of appellants on

need for 3rd respondent’s father to prove identity of the

land he counterclaimed does not fare better either. I am

rather in complete agreement with the lower Court that

appellants in their defence did not join issues with 3rd

respondent’s father on identity of disputed land to warrant

that. The law is well settled that identity of disputed land

will only be in issue when the defendant makes it so in his

defence to the claim: see Fatuade v. Onwoamanam

(1991) NWLR (PT 131) 322, (1990) LPELR-1253

(S.C.), Anyanwu v. Uzowuaka (2009) ALL FWLR (PT

499) 41. Related to that is that, where from the evidence

or processes filed by parties the identity of the disputed

land is clear, for instance where the defendant in

agreement with plaintiff in his statement of

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defence repeatedly refers to a disputed land as ‘the

disputed land’, it will not be open to him to raise issue of

identity of disputed land at address stage: Atolagbe v.

Shorun (1985) 1 NWLR (PT 2) 360 @ 374 – 376; Osho

v. Ape (1998) 8 NWLR (PT 562) 492 @ 506 – 507;

Oshodi v. Eyifunmi (2000) 1 SCNJ 295 @ 325;

Motanya v. Elinwa (1994) 7 NWLR (PT 356) 252 @

361; Ayuya & Ors v. Yonrin & Ors (2011) 5 SCM 16 @

38. Furthermore, even though a plaintiff’s description of

the disputed land is vague but the defendant claims a

counterclaim and in it clearly identifies the land, a

declaration which will otherwise not be granted can be

granted on that basis: Okedare v. Adebara (1994) 6

NWLR (PT 349) 157 (S.C). The same principle applies

where the defendant clearly identifies a disputed land in his

statement of defence: Anyanwu v. Uzowuaka (2009) ALL

FWLR (PT 499) 41.

Here, appellants never indicated even remotely in their

processes or evidence that the land in dispute claimed by

1st and 3rd respondents separately, which land 1st

appellant also counterclaimed and even added he was in

possession, was not clear to him.

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What is more, 3rd respondent as earlier shown averred in

paragraph 4 of his counterclaim that the very land in

dispute which he said he bought from Jok family is what the

1st appellant claimed 2nd defendant also sold to him. He

even went on to further say in paragraphs 7 and 8 of the

same counterclaims that appellants and 1st respondent had

continuously disturbed his quiet possession of the said

land. Appellants filed a defence to that claim but never

suggested there that they did not know the land he was

talking about. On the contrary, they proceeded headlong in

their defence to that counterclaim to assert that:

i. 2nd defendant is one of the beneficial owners of the

disputed land and same was acquired by the 1st defendant

[1st appellant] vide Right of Occupancy No. PL 35934.

(para 3.)

ii. That 1st, 2nd and 3rd defendants [appellants] aver that

1st defendant [1st appellant] has carried out development

on the land in question in exercise of bona fide right of

claim having acquired the land from the family of the

original owners, namely the 2nd and 3rd defendants [2nd

and 3rd appellants] devoid of any encumberance. (para 6.)

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iii. The 1st defendant [1st appellant] will show at the trial

that he has since become the registered owner of the said

land having been issued with R of O No. Pl 35934 by the

appropriate authority with the consent of the owners. (para

8.)

Having so clearly agreed with 3rd respondent’s father on

the identity of the disputed land, it amazes me that

appellants could turn around to say they were after all not

clear about the identity of the same land and 3rd

respondent should have given them further description of

same. That contention, with all due respect to the learned

silk, does not seem to me seriously made.

Purported differences in 3rd Respondent’s father’s

signature in Exhibit 21 and his two witness

statements on Oath. Like the trial judge, I also fail to see

substance in this contention of appellants. Da Gyel, under

cross-examination by Akubo for appellants, stated that he

had two signatures one of which he uses in signing bank

documents and the other for other documents. It is not very

clear from the records whether Da Gyel was made to sign

his said two signatures in open Court, but the records at

pages 801-802 show a plain sheet of paper (Exhibit 21)

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containing two handwritten signatures marked 1 and 2

which Mr. Akubo tendered from the Bar without objection

from Mr. Bashiri for Da Gyel. There is nothing to suggest

that it was put to Da Gyel in the witness box that there was

a discrepancy between Exhibit 21 and his two witness

statements. On the contrary, it seems it is Mr. Akubo’s own

comparison outside Court of these two signatures with the

ones contained in the two witness statements of Da Gyel in

the records that forms the basis of learned silk’s argument

of inconsistencies in the said signatures. The learned trial

judge, founding his decision on Late Da Gyel’s assertion

that he had two different signatures for banking and other

things as earlier said, rejected that contention of learned

silk. I am in agreement with the trial judge. If anything, the

signature of Da Gyel in the additional statement at p. 542 of

the records is as close as it can possibly be to Signature

No. 1 on Exhibit 21 in the circumstances it was made,

contrary to learned silk’s contention. One must also note

that Da Gyel’s two statements were all interpreted to him

from English

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Language to Hausa and both witness statements bear the

interpreters’ names and signature with the necessary jurat

in each of them. That means that Da Gyel was not literate,

which fact could well explain whatever little differences

that may have existed in the said signatures that learned

silk is capitalizing on.

I also note that both witness statements of Da Gyel were

made before the Commissioner for Oaths and carry the

usual declaration/attestation that the witness statements of

Da Gyel were made by him before the Commissioner for

Oaths. They also bear the said Court official’s signature and

stamp of Court. In that circumstance the presumption

enshrined in Section 168 of the Evidence Act that says

“when any judicial or official act is shown to have been

done in a manner substantially regular it is presumed that

formal requisites for its validity were complied with” will

inure to the benefit of Da Gyel, even more so when there is

nothing to suggest that it was suggested to Da Gyel by

learned silk during cross-examination that he did not make

any or all of his witness statements. See Udeagha v.

Omegara (2010) LPELR-3856 (C.A.) p.18 -19, (2010)

ALL FWLR (PT

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542) 1785 @ 1800 – 1801, (2010) 11 NWLR (PT 1204)

168 @ 195. In any event, the burden of proof, and in fact

the duty to rebut the presumption provided by Section 168

of the Evidence Act that Late Da Gyel did not sign his two

witness statements is on the appellants who are asserting

it, just like it is the duty of a person who alleges forgery of

a document produced by his opponent to prove that the

said document is actually forged as he alleges:

Aderounmu v. Olowu (2000) 2 S.C. (PT 11) 1 @ 6,

(2000) LPELR-141 (S.C.) P.12; Oketie v. Olughor

(1985) SCNJ 217 @ 230 – 231. That proof they failed to

provide. For each and all of these reasons, I also dismiss

this ground of appellants’ argument.

Failure to produce Right of Occupancy No. PL 16951:

I am also not impressed by the heavy weather learned silk

for appellant tried to make of Da Gyel’s failure to produce

the Right of Occupancy No. PL 16951 he pleaded. The issue

that should bother us is whether he was able to produce his

primary source of title to the disputed property, exhibit 20

translated into English Language in Exhibit 20A, which he

claimed Jok family of his vendors issued him.

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That, he produced and it was nowhere suggested that the

said family did not sell to him. Anything else, including the

said Right of Occupancy No PL 16951 which he later

admitted, apparently frankly, under cross-examination, was

not actually issued to him, could only be additional

evidence to Exhibit 20 without which any such Right of

Occupancy may even be just a useless document: see

Ibrahim v. Mohammed (2003) FWLR (PT 156) 902 @

922 (S.C.). In the result, I unhesitatingly resolve issue 2

against appellants.

On issue 3, appellants submitted first, that 3rd

respondent’s father’s counterclaim was statute barred and

the lower Court wrong in granting it, and secondly, that the

lower Court also granted alternative claim 4 of 3rd

respondent after granting his 3rd claim to which claim 4

was alternative.

The response of Mr. Pwul for 3rd respondent to these

arguments is that the Rules of the lower Court, specifically

Order 26 Rule 6(1) and (2), require, mandatorily, that

Limitation statute be pleaded before it can be invoked and

since appellants failed to do that, it was not open to them to

argue application of Limitation statute.

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As for the grant of 3rd respondent’s alternative claim 4

alongside his main claim 3, counsel argued that neither

claim was sought or granted against appellants, but only

against 1st respondent who has not complained, so

appellants lack standing to complain about their grant.

Assuming that he was wrong in that argument, he

continued, the grant of those two reliefs has not affected

the judgment in any way; that the judgment of the lower

Court against appellants will stand even without alternative

claim No. 4 so their complaint is merely academic. For

these reasons, counsel further urged us not only to resolve

this issue against appellants but also dismiss Ground 15 of

their Notice and Grounds of appeal where it was raised.

In further response in the reply brief of appellants, Mr.

Akubo argued that statute bar is an issue that strikes at the

jurisdiction of the Court to entertain the claim so it can be

raised at any time in the proceedings. On the alternative

relief 4, learned silk argued that if 3rd respondent is

correct in his response that appellants lack standing to

question the grant of claim 3 and its alternative claim 4

since they were

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not directed at appellants, it means in effect that 3rd

respondent cannot also seriously argue against the

dismissal of 1st appellant’s counterclaim since it was also

only made against 1st respondent and not him. At any rate,

learned silk went on, appellants having filed pleadings

against the counterclaim of 3rd respondent, they are

parties affected by it and so entitled to challenge any part

of the judgment that they do not agree with.

Resolution of issues

Application of limitation statute: It must be pointed out,

first, that issue of statute bar was not raised by appellants

at the lower Court; it is rather being raised for the first

time on appeal and without the requisite leave of Court (see

Agu v. Ikewibe (1991) 3 NWLR (PT 180) 385; Bankole

v. Pelu (1991) 11 SCNJ 108 @ 131 -133). In Ibrahim v.

Lawal (2015) LPELR-24736 (S.C.) at p. 42 – 44 the

apex Court emphasized the necessity to first obtain leave of

this Court to raise limitation statute on appeal if it was not

raised before the trial Court. Unless leave is first obtained,

this Court may not even hear appellant on the issue: Saude

v. Abdullahi (1989) LPELR-3017 (S.C.) p.80-81 (Oputa

J.S.C.),

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Adegoke Motors Ltd v. Adesanya (1989) 3 NWLR (PT

109) 250 supra (Oputa J.S.C.).

But even assuming that appellant could properly raise that

issue before us without our leave (the particular Limitation

statute was not even stated by appellants), it is settled law

(1) that whether an action is barred by limitation statute is

done with reference to the averments in the writ of

summons and statement of claim regarding when the cause

of action accrued: Elabanjo v. Dawodu(2006) 15 NWLR

(PT 1001) 76; Egbe v. Adefarasin (No. 2) (1987) 1

NWLR (PT 47) 1 and, (2) the defence being a special one

must be first pleaded by the defendant in his/her statement

of defence as required by the Rules of Court before he/she

can properly raise it in the proceeding: SeeOlagunju v.

PHCN (2011) 4 MJSC 114 @ 127.

In this case not only did appellants fail to raise defence of

l imitation in their defence to 3rd respondent’s

counterclaim, there is also no averment in the counterclaim

of 3rd respondent regarding the date appellants entered

the disputed land to guide the Court in calculating when

3rd respondent’s cause of action arose and became barred

by

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the unnamed limitation statute. Without that this Court will

be practically engaging in speculation in embarking on the

course suggested by appellants of determining when cause

of action accrued to 3rd respondent that has been barred

by a limitation statute. That is assuming one was even

minded to discountenance appellants’ failure to plead

statute bar as a defence. Defence of Limitation of action or

statute bar, I hold, is out of the question.

On the grant of both claim No. 3 and its alternative claim

No. 4 by the lower Court, it stands both law (see G.K.F.

Investment Nig Ltd v. NITEL Plc (2009) 15 NWLR (PT

1184) 344; U.B.N. Penny-Mart Ltd (1992) 5 (NWLR

(PT 240) 228 @ 241) and logic on the head for something

which is claimed only as an alternative to be granted along

with the main thing to which it is alternative. That will not

only amount to double compensation (G.K.F. Investment

Nig Ltd v. NITEL Plc supra), it also means technically

giving a claimant what he did not claim. Such relief ought

not to be allowed to stand. But the question is whether the

appellants against whom the claim was neither made nor

granted can properly challenge it. The answer is No.

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Appellants not being the ones against whom those orders

were made cannot assert as they purported to do in their

Notice of Appeal that they are ‘dissatisfied’ with the

judgment on that ground and it should be set aside. The

Court seldom grants audience to persons whose interests

are not affected by issues before it. That seems the case

with appellants.

But then, that is not the end of the matter, as the bigger

question is whether this Court should in any event allow

such very incongruous order to stand in the records on the

ground simply that the wrong person has drawn its

attention to it. I think not. The framers of the enabling

statute of this Court and its Rules seem to have anticipated

situations like this hence they conferred necessary general

powers in this Court by Section 15 of the Court of Appeal

Act 2004 to deal with them. That provision (S.15) reads:

15.The Court of Appeal may from time to time make

any order necessary for determining the real question

in controversy in the appeal, and may amend any

defect or error in the record of appeal and ... shall

generally have full jurisdiction over the whole

48

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proceedings as if the proceedings had been instituted

in the Court of Appeal as a Court of first instance and

may re-hear the case in whole or in part..."

The Rules of this Court 2016 also provide in its Order 4

Rules 3 and 4 that:

Or. 4 R.3: The Court shall have power to draw

inferences of fact and to give any judgment and make

any order which ought to have been given or made,

and to make such further order(s) as the case may

require, including any orders as to costs.

R.4. The powers of the Court under the foregoing

provis ions of th is Rule may be exerc ised

notwithstanding that no appeal or Respondent’s

notice has been given in respect of any particular part

of the decision of the Court below, or by any

particular party to the proceedings in that Court, or

that any ground for allowing the appeal or for

affirming or varying the decision of that Court is not

specified in such a notice; and that the Court may

make any order, on such terms as the Court thinks

just, to ensure the determination of the merits of the

real question in controversy between the parties.

These powers have been further confirmed and exercised

in

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a number of cases including Akpan v. Umoh (1999) 6

NWLR (PT 627) 156 @ 166; Okeowo & Ors v. Migliore

& Ors. (1979) N.S.C.C. 210 @ p. 238-23; Chikere v.

Okegbe (2000) 7 SCNJ 154 @ 166; Osurinde v.

Ajamogun (1992) 6 NWLR (PT 264) 156 @ 191-193

(S.C.) and Ikuomola v. Oniwaya (1990) 3 NSCC 95 @

p.101, 105. In the event, the judgment of the High Court

of Plateau State of 29th Apri l 2014 in Suit No.

PLD/J/242/2002 granting alternative relief 4 is amended

and the said relief No. 4, which is alternative to main relief

3, is hereby struck out.

That having been done, issue 3 is also resolved against the

appellants.

In the final analysis, this appeal fails and is dismissed and

the judgment of the lower Court subject to the amendment

here made is affirmed.

There shall be costs of ₦100,000.00 against appellants in

favour of 3rd respondent only.

ADZIRA GANA MSHELIA, J.C.A.: I read before now the

Judgment of my learned brother Ugo, J.C.A. just delivered.

I completely agree with his reasoning and conclusion that

the appeal is devoid of merit and ought to be dismissed. My

learned brother had adequately considered and resolved

the

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issues raised for determination in this appeal. I have

nothing more to add but to adopt same as mine. I too

dismiss the appeal and abide by the consequential orders

contained in the lead Judgment, costs inclusive.

TANI YUSUF HASSAN, J.C.A.: I read a draft of the

leading judgment delivered by my learned brother,

BOLOUKUROMO MOSES UGO, J.C.A. I agree with his

Lordship's reasoning and conclusion dismissing the appeal.

I abide by the order as to costs.

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Appearances:

P.A. Akubo, SAN with him, S.Y. Tsok, Esq., A.J.Adudu, Esq. and Miss G.S. OrshioFor Appellant(s)

E.L. Madaki, Esq. for 1st respondent.

F.M. Pwul, Esq., for 3rd respondent.

Second respondent is unrepresented. ForRespondent(s)

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