ABE & ANOR v. DAMAWA & ANOR

Judgment

TIJJANI ABUBAKAR, J.S.C. (Delivering the Leading Judgment) : 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.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>

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.

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.

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.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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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.

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: 3. “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. 4. Upon paragraph 3 hereof, a file under application No. BNC 7143 was opened and his application processed to issue of right of occupancy. 5. 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.

MARY UKAEGO PETER-ODILI, J.S.C.: I am at one with my learned brother, Tijjani Abubakar JSC in the judgment just delivered by him and to underscore the support in the reasonings from which the decision emanated, I shall make some comments.

This is a further appeal from the decision of the Court of Appeal, Makurdi Division or lower Court or Court below, Coram: Kudirat M.O. Kekere-Ekun JCA (as he then was), Ali Abubakar Babandi Gumel and Uchechukwu Onyemenam JJCA.

The judgment was delivered on the 24th day of May, 2011 in which the Court below upheld the decision of the Benue State High Court delivered on the 27th day of September, 2005 per T.U.F. Puusu J.

FACTS BRIEFLY STATED The 1st respondent instituted this suit before the Benue State High Court sitting in Makurdi, claiming to be the owner of the piece of land in dispute against the appellants and the 2nd respondent.

According to his claim contained in his pleadings before the Court below, he had previously been given the land in dispute by his late uncle, one Ujo Damawa, who had acquired the land in 1970. That on 3rd April, 2001, he applied to the Benue State Bureau for Lands and Survey (now Ministry of Lands and Survey) for title deeds over the said piece of land.

That in January, 2003 when he went to the plot which is along Judges quarters in Makurdi he met the 1st Appellant who had dropped some burnt bricks thereon and when he confronted him, the 1st Appellant as to who owned the land he said was merely working for 2nd the appellant.

The case of 2nd appellant on the other hand is that some time around 1983 he applied for a piece of land with the Benue State Bureau for Lands and Survey and his application was approved. That sometime in 1998, the staff of the Benue State Bureau for Lands and Survey took him to the site and showed him the plot of land in dispute which he took possession of, fenced the four corners of the plot, planted some economic trees thereon and has remained in possession since then.

That sometime in 2003, he started to build a three (3) bedroom flat thereon, and the 1st appellant who is a building engineer and friend was assisting him in supervising the work, when the 1st respondent suddenly appeared and claimed that the plot was his own. At that material time, the 2nd Appellant’s structure had reached the roofing stage and the 1st respondent with the aid of thugs pulled down the roof of the structure before proceeding to institute this suit for declaration of title, injunction and general damages for trespass.

It is pertinent to point out that while the suit was commenced on 25th April, 2003, the Right of Occupancy No. BNC 7143, which formed the bedrock of the learned trial Court’s finding for the 1st respondent is dated 20th of May, 2003 and was issued to the 1st respondent on 11th day of September, 2003.

At the end of the proceedings, the trial Court found for the 1st respondent and dissatisfied with the judgment of the trial Court, the appellants appealed to the Court of appeal, sitting in Makurdi.

On the 21/2/2022 date of hearing, learned counsel for the appellant, M.A Tsuwa Esq., adopted the brief of argument filed on 11/12/2014 and deemed filed on 15/5/2015. He distilled four issues for determination, viz: 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 provisions of Section 91(3) of the Evidence Act CAP 112 Laws of the Federation of Nigeria 1990. (Distilled from grounds 2 and 4 of the grounds of appeal). 3. Whether the doctrine of lis pendens applies to the facts and circumstances of this case. (Ground 3 of the grounds of appeal). 4.

Whether or not the 1st and 2nd Defendant/Appellant’s 3rd issued 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 High Court and whether the 2nd Defendant/Appellant was entitled to the grant of the relief’s sought in his counter-claim since there was no defence to it by the 1st respondent who was the Plaintiff at the High Court. (Distilled from grounds 5 and 6 of the grounds of appeal).

Obafemi Agaba Esq., learned counsel for the 1st respondent adopted the brief of argument filed on 15/2/2022 and deemed filed on 21/2/2022. He raised three issues for determination as follows: 1. Having regard to Exhibit A1 (the Statutory Right of Occupancy) duly issued by 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 BNC7143. 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?

Learned counsel for the 2nd respondent, Chief Kingsley Chuku adopted the brief of argument filed on 17/1/2022 and deemed filed on 21/2/2022. He nominated four issues for determination after modifications from those of the appellants and they are thus: 1. Whether there is evidence on the record adduced by the 1st Respondent/Plaintiff before the trial Court in respect of paragraph 3 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 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. 3. Whether the doctrine of lis pendens applied 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, was considered and thus formed part of the judgment of the trial High Court and whether the 2nd Defendant/Appellant was entitled to the grant of the relief’s sought in his counterclaim since there was no defence to it by the 1st respondent who was the Plaintiff at the High Court.

I see issue 1 of the 1st respondent as all encompassing in the determination of this appeal and I shall make use of it as a sole issue.

SINGLE ISSUE Having regard to Exhibit A1 (the Statutory Right of Occupancy) duly issued by the 2nd respondent in favour of the 1st respondent, whether the 1st respondent had proved his case and title to a declaration of title in respect of plot BNC 7143.

Learned counsel for the appellants made submissions which are captured in the bullet point form hereunder thus:

The judgment of the Court below is perverse and contrary to the flow of the evidence which as before it, since: 1. The plaintiff/ 1st respondent’s evidence on record is at variance with his pleadings; his case is thus inconsistent and ought to fail. 2. Exhibit “A1” which formed the fundamental basis of finding for the Plaintiff/1st respondent was a document made while the proceedings were anticipate and pending and so caught by the provisions of Section 91(3) of the Evidence Act, 1990 and the doctrine of lis pendis and so should be expunged. 3.

The 2nd Defendant/Appellant’s counter-claim was never defended and so deemed established, thus entitling him to judgment without more.

In place of the judgment of the Court below, we urge you to allow this appeal and grant the 2nd appellant’s Counter-Claim as none of the respondents filed a defence to same and thus are deemed to have admitted same.

ALTERNATIVELY We urge you to remit back the matter for retrial by another judge of the Benue State High Court. He cited many judicial authorities such as the following: 1. Nsirim v Nsirim (2002) FWLR (pt.96) 433 at 441. 2. Lebile v C&S Church ​(2003) 1 SCNJ 463 at 474 3. Gaji v Paye (2003) 5 SCNJ 20 at 36 4. Ogidi v Egba (1999) 6 SCNJ 107 at 136 5. Bua v Dauda (2003) 43 WRN 1 at 20 6. Maobison v U.T.C (Nigeria) (2013) 4 SCJ 137 at 147

Learned counsel for the 1st respondent canvassed positions which are captured simply thus: a. The 1st respondent has established and proved title to the disputed land by the production of documents of title (Exhibit A1). b. The 1st respondent established a superior title to the disputed land and has proved this to the satisfaction of the Court on the balance of probability. c. Exhibit A1 was not made when proceedings were pending or contemplated and therefore not contrary to the provisions of Section 91(3) of the Evidence Act. d.

Exhibit A1 was issued by the 2nd Respondent in his official capacity with no personal, pecuniary, or material interest, whatsoever. e. Exhibit A1 was not issued by a party that was interested when proceedings were pending. f. The 2nd appellant has not proved his counter-claim and therefore not entitled to a declaration of title to land. g. The alternative prayers of the appellants to remit this suit for trial by another Judge of the Benue State High Court is completely misconceived in law, baseless and lacking in merit.

In support of that position, learned counsel for the 1st respondent cited many judicial authorities such as the following:- 1. Ogunyade v Oshunkeye (2007) LPELR-2355 (SC) 2. Adeleke & Ors v Iyanda & Ors (2001) LPELR-114 (SC) 3. Enekwe v International Merchant Bank of Nigeria Limited & Ors (2006) LPELR-1140 (SC) 4. Senator Ladoja v Senator Abiola Adeyemi Ajumobi & Ors (2016) LPELR-406588 (SC) 5. Oroja & Ors V Ebenezer Ilo Adeniyi & Ors (2017) LPELR-41985 (SC) The stance of the 2nd respondent is captured as follows: 1.

The Honourable lower Court properly appraised the 1st respondent’s (then plaintiff’s) statement of claim as it properly considered the issues raised in paragraph 3 of the 1s respondent’s statement of claim at page 20 of its judgment (page 271 of the records) 2. The 1st respondent pleaded two sources from which he obtained his title to the disputed land, to wit, the first being from his late uncle, Ujo Damawa in 1970 and the second source being via statutory right of occupancy from the 2nd respondent on April 3, 2001.

He led evidence with regards to his right to the land via the second source pleaded which is the statutory right of occupancy issued by the 2nd respondent; thus, he is deemed to have pursued this claim and abandoned the claim that he obtained the land from his uncle, Ujo Damawa. 3.

Exhibit A1 which is the statutory right of occupancy was not prepared by a person interested in pending litigation as first, the 2nd respondent was acting in its official capacity and the appellants have not proved otherwise, secondly, the decision to award the grant the statutory right of occupancy had been taken before the filing of this suit and finally, the 2nd respondent was not a party to the suit before issuing Exhibit A1. 4.

The doctrine of lis pendens does not apply to the instant appeal as it does not concern a sale of property and the 2nd respondent was not a party to the suit at the time the statutory right of occupancy was granted to the 1st respondent. 5. Issue 4 as raised by the appellants seeks to attack the decision of the trial Court which is the High Court of Benue State on Appeal to the Supreme Court lacks the jurisdiction to hear this issue. 6.

The 1st and 2nd respondents properly addressed the issues raised in the appellants’ counter-claim at the trial Court 1 their respective addresses before the Court. Furthermore, the appellants did not prove their counter-claim at the trial Court to be entitled to judgment based on it.

In support of the position, learned counsel for the 2nd respondent cited some judicial authorities like the following: 1. Jolayemi v Alaoye (2004)12 NWLR (pt.887) 322 at 340 2. Idundun v Okumagba (1976) 9-10 SC 227 3. NSITF v Klifco Nig Ltd (2010) 13 NWLR (pt.1211) 270 at 324. 4. Orlu v Onyeka (2018) 3 NWLR (pti607) 467 at 489 5. Opara v D.S. (Nig) Ltd (2006) 15 NWLR (pt.1002) 342 at 371-372 6. Usman v Garke (2003) 14 NWLR (pt.840) 261 at 285.

RESOLUTION In a nutshell, the stand of the appellants is that the two Courts below glossed over the pleadings in paragraph 3 of the plaintiffs (1st respondent) amended statement of claim and their evidence. That those Courts would have come to a different conclusion if they had dispassionately appraised the pleadings in the said paragraph.

That posture of the appellants is not consistent with the record as pleadings do not constitute evidence and since issues or matters for which no evidence was led are deemed abandoned. Therefore the 1st respondent having not led any evidence on the traditional root of title is deemed to have abandoned his pleading in that regard. See Idika & Ors v Erisi (1988) 5 SCNJ 208 at 219, Jolayemi v Alaoye (2004) 12 NWLR (pt.887) p.322 at 340.

In this case, the 1st respondent had pleaded two sources from which he obtained his title to the disputed land, the first being from his late uncle, Ujo Damawa in 1970 and the second source being through a statutory right of occupancy from the 2nd respondent on 3rd April, 2001. The first claim he is deemed to have abandoned leaving the second source. It is now settled in law that pleadings do not constitute evidence. See ABUBAKAR v JOSEPH (2008) 13 NWLR (PT.1104) 307 (P.357, that: “It need be stressed that averments in pleadings and on which no evidence is adduced are deemed abandoned.

This is because, pleadings do not constitute or amount to evidence. See the case of CHIEF UWEGBA & 4 ORS V. ATTORNEY-GENERAL, BENDEL STATE, NIGERIA & 3 ORS (1986)1 NWLR (PT.16) 303 AT 317.”

The point has to be made that there are numerous means to which a claimant may assert title to land. These include: traditional evidence, production of documents of title duly authenticated and executed, acts of ownership extending over a sufficient length of time, acts of long possession and enjoyment and proof of possession of connected or adjacent land in circumstances rendering it probable that the owner of such connected or adjacent land would in addition be the owner of the land in dispute.

It follows that a Claimant is entitled to use either or all of these means to claim title in so far as the sources do not contradict each other. See the case of IDUNDUN v OKUMAGBA (1976) 9-10 SC 227.

In the instant appeal, the 1st Respondent pleaded two sources which are not contradictory but only led evidence on one and abandoned the other.

The lower Court properly appraised the pleadings in paragraph 3 of the 1st respondent’s (then plaintiff’s) statement of claim.

Indeed the position of the appellants is incorrect as the two Courts below properly appraised the 1st respondent’s statement of claim before arriving at their judgments.

To clarify the point, see paragraphs 3, 4 and 5 of the 1st respondent’s statement of claim reproduced below: “3. The plaintiff is the holder of a piece of land near Judges Quarters Makurdi measuring 1120m by area coverage which he had prepossessed before applying to the Benue State Bureau of Lands and Surveys on 3rd of April 2001 for title deeds. The plaintiff’s late uncle Ujo Damawa who gave the plot to plaintiff first acquired the land in 1970. 4. Upon paragraph 3 hereof a file under application No. BNC 7143 was opened and his application processed to issue of Right of Occupancy No.

BNC 7143 to the plaintiff. 5.

Survey and planning investigations revealed that no contrary interest was existing or had pre-existed but the plaintiff’s and these reports informed the Bureau top chat (sic) the plaintiff’s application on 4th March, 2003 and the land use and allocation committee to approve the plaintiff’s title on the 27th March 2003.” ​ For emphasis, the Court below had held in regard to the averments of the 1st respondent in paragraph 3 of the statement of claim thus:- “Throughout the course of his evidence before the lower Court, the 1st 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 that aspect of his pleadings is deemed abandoned. His case would therefore stand or fall on the documentary evidence being relied to acquisition of the land through Ujo Damawa, which the 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 Lands and Surveys.

His evidence was to the effect that he followed due process in acquiring 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).”

The situation evidently speaks for itself as to what the trial judge did and followed up by the Court below and therefore the assertion by the appellants of a glossing over portions of pleadings and evidence is not borne out of the record.

The crux of whether Exhibit 1A (the Right of Occupancy issued in favour of the 1st Respondent) was issued by an interested person when proceedings were pending, contrary to the provisions of Section 91(3) of the Evidence Act (as amended). The Appellants have contended that Exhibit A1 was issued during the pendency of the suit and therefore inadmissible in law. Secondly, the Appellants submitted that Exhibit A1 was issued by a person interested when proceedings were pending.

They urged that on the doctrine of lis pendens, the 2nd Respondent was precluded from parting with the land during the pendency of the suit.

I agree with learned counsel for 1st respondent that Exhibit A1 was not issued during the pendency of the suit. To establish this point, the dates of application for the Right of Occupancy, the date of commencement of the suit, the date of issuance of the Right of Occupancy and the date the 2nd Respondent was joined as a party are critically material. I shall recast what transpired in this case thus: a. The application for Right of occupancy was made by the 1st Respondent on 3rd April 2001. b. The approval by the Land Use and Allocation Committee was given on 27th March, 2003. c.

The Right of Occupancy was issued on 20th August, 2003. d. The initial suit was commenced against the 1st Appellant on 16th April, 2003. e. The 2nd Respondent was joined as a party to the suit on 18th October, 2003.

From the above dates, the approval of the Right of Occupancy in favour of the 1st Respondent was given on 27th March 2003. As at the date the R of O was approved, no litigation was anticipated nor contemplated. As of 20th August, 2003 when the R of O was issued to the 1st Respondent, the 2nd Respondent was not yet a party to the suit. He was only joined on the 18th October 2003, after the approval and issuance of the R of O. Clearly, in view of the following material and undisputed facts, Exhibit A1 was not issued during the pendency of the suit.

To establish lis pendens, a party must prove the following ingredients, to wit: a. The object of the suit must be to recover or assert title to specific property. b. The property must be real property. c. 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 ENEKWE v. INTERNATIONAL MERCHANT BANK OF NIGERIA LIMITED & ORS (2006) LPELR-1140(SC) where the Court posited thus: “In order for the doctrine of lis pendens 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 pendens will fail if any of the conditions is not satisfied. See generally Barclays Bank of Nigeria Ltd v. Alhaji Ashiru, supra; Ogunsola v. National Insurance Corporation of Nigeria (1991) 4 NWLR (Pt.188) 762; Chief Ikeanyi v.

African Continental Bank Ltd. (1991) 7 NWLR (Pt.205) 626; Chief Nsirim v Nsirim (1995) 9 NWLR (Pt.418) 144 Dr. Alakija v. Alhaji Abdulai (1998) 6 NWLR (Pt.552) 1.” Per NIKI TOBI, JSC (Pp.21-22), paras. G-D).

The records bear out that no litigation was pending or contemplated as at 27th March, 2003 when the Land Use Allocation committee approved the 1st Respondent’s application for Right of Occupancy. The issuance of the right of occupancy after the commencement of the suit was an official act performed by the 2nd Respondent who was not yet a party to the suit. By operation of law, the title to the property had passed before the commencement of the suit.

On whether Exhibit A1 was made by an interested party, it is without doubt 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. On this, I refer my Lords to SENATOR LADOJA v. SENATOR ABIOLA ADEYEMI AJUMOBI & ORS (2016) LPELR-40658(SC) where the Court held thus: “In respect of what is referred to as a person interested, I shall refer to the case of Nigerian Social Insurance Trust v.

Klifco Nigeria Ltd (2010)LPELR 22-23 Paras C-E as follows: “As regards the phrase “a person interested “I agree with the respondent that the phrase has been examined in the case of Evan v. Noble (1949) 1 KB 222 at 225 where a person not interested in the outcome of action has been described as, a person who has no temptation to depart from the truth one side or the other, a person not swayed by personal interest but completely detached, judicial, impartial, independent’.

In order words, it contemplates that the person must be detached, independent, and non-partisan and really not interested which way in the context the case goes. Normally, a person who is performing an act in official capacity cannot be a person interested under Section 91(3). I think the phrase ‘a person interested ever moreso has been quite definitively put in the case of Holton v.

Holton (1946) 2 AER 534 at 535 to mean a person 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 by the result of the proceedings, and, therefore would have no 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. C.P.C. v.

Ombugadu (2013) ALL FWLR (Pt.706) 405 at 472-472 Para H-B when considering and determining who is a person interest under Section 91(3), Evidence Act, a person interested is a person who has a pecuniary or other material interest and 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 purely due to sympathy, It means an interest in the legal sense which imports something be gained or lost.

For effect Section 83(3) of the Evidence Act 2011 stipulates thus: 83(3) “Nothing in this section shall render admissible as evidence any statement made by a person interested at a time when proceedings were pending or anticipated involved a dispute as to any fact which the statement might tend to established.

In concluding, it needs be stated in keeping with Section 83 (3) of the Evidence Act, 2011 and judicial authorities which abound that as a general rule or principle, a document made by a party to a litigation or person interested when proceedings are pending or is anticipated as in the case at hand, such evidence is not Admissible. See Highgrade Maritime Services Ltd v. F.B.N. Ltd (1991) 1 NSCC 199 at 135; Anyaebosi & Ors v R. T. Briscoe Nig.

Ltd (1987) 2 NSCC 805 at 823.” Per MARY UKAEGO PETER-ODILI, JSC (Pp.94-96) (underlining mine) See also the decision in HIGHGRADE MARITIME SERVICES LIMITED v. FIRST BANK OF NIGERIA LIMITED (1991) LPELR-1364(SC) where the Court held thus:- “This in my opinion does not make D.W.2 or the official or servant, maker of the document, a person interested in the proceedings as provided in Section 90(3) of the Evidence Act.

Section 90(3) of the Act provides as follows – “Nothing in this section shall render admissible as evidence any statement made by a person interested at a time when proceedings were pending or anticipated involving a dispute as to any fact which the statement might tend to establish.” Thus the general principle is that the document made by a party to a litigation or person otherwise interested when proceedings are pending or is anticipated is not admissible. Barkway v. South Wales Transport Co. Ltd. (1949) 1 K.B. 54.

The disqualifying interest is a personal not merely interest in an official capacity. See Bearmans Ltd v. Metropolitan Police District Receiver (1961) 1 NLR 634. Where however the interest of the maker is purely official or as a servant without a direct interest of a personal nature, there are decided cases that the document is not thereby excluded. See Evon v. Noble (1949) 1 K.B. 222. See The Atlantic and The Battyk (1946) 62, T.L.R. 461. Re: Powe, Powe v. Barclays Bank Ltd (1956) P.110; Galler v. Galler (1955) 1 W.L.R. 400.” Per ADOLPHUS GODWIN KARIBI-WHYTE, JSC (Pp. 32-33)

Following from those guiding lights in the judicial authorities laid down by this Court, there is nothing on which the 2nd respondent can be described as a party interested upon which Exhibit A1 can be jettisoned. Again of note in this regard is that appellants did not object to the admissibility of Exhibit A1 at the trial Court and so it is too late in the day to bring up the objection on the admissibility of the document. See Orlu v. Onyeka (2018) 3 NWLR (pt.1607) 467 at 489.

“As rightly observed by the lower Court, the appellant who was represented by counsel and did not object to the reception of the documents the plaintiff/respondent’s tendered in support of his claim in evidence cannot now complain that it is wrong of the two Courts to have relied on the unchallenged and uncontroverted evidence.” On the issue, Whether the doctrine of lis pendens applies to the facts and circumstances of this case (Ground 3 of the grounds of appeal).

I have no hesitation in stating that the doctrine of lis pendens is inapplicable to this appeal. The doctrine relates to the sale of a disputed property by a party in the dispute during the pendency of litigation. This instant appeal does not concern such a situation therefore the push by the appellant along that line would not fly.

In defining a situation where Lis Pendens applies, the Supreme Court in BUA V DAUDA (2003) 13 NWLR (PT. 838) 657 AT PAGE 686 held that: “The situation in which the doctrine of lis alibi pendens operates is fairly clear. Where litigation is being prosecuted in regard to property and one of the parties purports to transfer by sale the legal estate is that property to a third party, who may have no notice of the litigation, the transaction of sale is ineffective.

See Osagie v Oyeyinka (1987) 2 NSCC 840 at 849.” Sale of the legal estate in that property to a third party, who may have no notice of the litigation, the transaction of sale is ineffective. See OSAGIE V. OYEYINKA (1987) 2 NSCC 840 AT 849.”

In the case at hand, 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 institution of this action.

Furthermore, at the point of issuing the statutory right of occupancy to the 1st respondent, the 2nd respondent was still not a party to the pending dispute concerning the land Thus, this appeal does relate to the sale of land by a party to a dispute to a third party but it involves the allocation of a statutory right of occupancy by a non-party to an applicant for allocation.

The doctrine of lis pendens clearly has been brought out of context as it does not apply herein. With regard to the question, 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, was considered and thus formed part of the judgment of the trial High Court and whether the 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.

In regard to this point, I cannot but agree with learned counsel for the 2nd respondent that the appellants have been attacking the decision of the trial Court at the Apex Court, ignoring the decisions of the Court of Appeal from which the appeal before this Court has come. The implication of the style taken on by the appellants is to situate the Apex Court as an appellate Court to the trial Court, leaving out the intermediate Court below.

The invitation by the appellants to carry out the appeal from the trial Court which is what is implied by the appellant’s posture is an invitation this Court rejects. See NIKI TOBI JSC OPARA V D.S. (NIG) LTD (2006) 15 NWLR (PT.1002) 342 AT PAGES 371-372, that: “An appellant has no right in our adjectival law to use the appellate forum to attack the judgment of a trial Court in this Court in some apparent disguise in respect of complaints against the Court of Appeal when in reality the complaints are against the judgment of the High Court.

In such a situation, this Court will not be carried away by the traditional appellate language of: “The Court of Appeal erred in law…” When in reality the appellant is complaining against the judgment of the High Court. This Court will therefore carefully examine the judgment of the Court of Appeal to see whether the ground of appeal is really on the judgment of the Court of Appeal. If the result of the examination is in or to the contrary, then this Court is entitled to come to the conclusion that there is no valid ground of appeal against the decision of the Court of Appeal.

That is not all, If in the course of the examination, this Court comes to the decision that the ground of appeal attacks the judgment of the High Court, this must come to the conclusion that it has no jurisdiction to hear the appeal on the ground that this Court cannot hear appeal straight from the High Court.”

It is not correct that respondents did not address the issues in appellants’ counter-claim. The issues in the 1st and 2nd appellants’ counter-claims were sufficiently controverted in the 1st respondent’s statement of claim such that the presentation of the 1 st respondent’s case addressed the entirety of the counterclaim. Due to this, there was no need of filing a defence to the counter-claim.

Again, the 2nd respondent filed a defence to the 1st appellant’s counter-claim, The 2nd respondent’s statement of defence and defence to counter-claim answer the same questions of the rightly holder of plot BNC 7143 and due process in the issuance of title deeds, in favour of the 1st respondent.

The 1st respondent also amended his statement of claim on 5/4/2004 after the 2nd appellant filed his statement of defence on 28/10/2003. This amended defence sufficiently answered all the issues raised in the appellants’ counter-claims.

The appellants need be reminded that a counter-claim must succeed on the strength of their case to entitle them to judgment. The Supreme Court agreed with this position in USMAN V. GARKE (2003) 14 NWLR (PT.840) 261 AT PAGE 285, where the Court held that: “A plaintiff who fails to file a reply in defence of a defendant’s counter-claim may have the counter-claim resolved against him on the premise that his failure so to do means that he has no defence to the counterclaim. However, the defendant, to succeed, still has to establish the counter-claim.

In the instant case, the counter-claim of the appellant was not established by him hence the failure of the respondent to file a reply in defence of the counter-claim was of no moment.” (Emphasis mine) Furthermore, the Apex Court has decided that in MAOBISON INTER-LINK LTD. v. U.T.C. (Nig.) PLC (2013) 9 NWLR (PT.1359) 197 AT PAGE 209, that failure to file a counter-claim in a matter is of no issue where the Plaintiff succeeds in its claims. Specifically, the Court held that: “Ordinarily, failure of a plaintiff to file a defence to a counter-claim may not be damaging if he succeeds in his claim.

The success may afterall render useless the counter-claim, depending on the nature of the counter-claim, (Ogbonna v. A-G, Imo State (1992)1 NWLR (pt.220) 647 referred to.)” This referenced case is on all fours with the instant appeal as the 1st respondent (then Plaintiff) won at the trial Court; thus, even if the respondents had not responded to the appellant’s counter-claims, it would have been of no issue. ​In the instant appeal, the 2nd Appellant had to prove a better title and the damages claimed on the preponderance of evidence to be able to succeed.

The filing or non-filling of a defence to a counter-claim did not and could not affect the fortune of the counter-claimant as even if 1st respondent filed no defence to the counter-claim, the appellants are duty bound to call evidence in support thereof. This is because a counter-claim is an independent action that must be proved on the balance of probability. See OROJA & ORS v.

EBENEZER ILO ADENIYI & ORS (2017) LPELR-41985 (SC) where this Court held as follows: “There is a rich case law on the meaning and purport of a counter-claim and I shall have recourse to a few in aid at this point in time. See Effiom v Iron Bar (2000)1 NWLR (Pt678) 341 where it was held thus- “A counter-claim is an independent action and it needs not relate to or be in anyway connected with the plaintiffs’ claim or raised out of the same transaction. It is not even analogous to the plaintiff’s claim. It need not be an action of the same nature as the original claim.

A counter-claim is to be treated as an independent action. See also the case of Okonkwo v. C.C.B. (2003) FWLR (Pt.154) 457 at 508, where the nature of a counter-claim had been clearly spelt out as follows:- “Counter-claim though related to the principal action is a separate and independent action and our adjectival law requires that it must be filed separately. The separate and independent nature of a counter-claim is borne out from the fact that it allows the defendant to maintain an action against the plaintiff as profitably as in a separate suit.

It is a weapon of defence which enables the defendant to enforce a claim against the plaintiff as effectually as an independent action. As a matter of law a counter-claim is a cross-action with its separate pleadings, judgments and costs. See also Hassan v Regd. Trustees Baptist Convention (1993) 7 NWLR (Pt.308) 679 at 690, wherein it was held that:- “The fate of a counter-claim being an independent action does not depend upon the outcome of the plaintiff’s claim.

If the plaintiff’s case is dismissed, stayed or discontinued, the counter-claim may nevertheless be proceeded with.” Per Mary UKAEGO PETER-ODILI, JSC (Pp,11-13, paras E-B)

In trying to establish the counter-claim, the 2nd appellant testified as follows:-<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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“I applied for a statutory right of occupancy to the Ministry of Lands etc some 15 years ago. My application was processed and approved by the Land Use and Allocation Committee. In 1998, the site plan was shown to me at Judges Quarters Area, along Gboko road, Makurdi, A file was opened for me at the Ministry of lands. I took possession of the land and I dropped 3000 blocks of burnt brick, 5 trips of sharp sand and fenced the four corners. I planted 2 mango trees and 2 orange trees on the land. These acts were done in 1998. I was also farming on the land.

Under cross-examination by the learned counsel to the 2nd respondent, the 2nd appellant stated as follows: “I do not have any document to show that I applied for title deeds… when payments are made, receipts are given. I have a receipt but it is with my counsel. The receipt I have is for the opening of a file. The receipt in respect of processing of title documents is missing. I was not issued a right of occupancy over the piece of land.”

The learned trial judge held as follows at pages 287-288 of the records: “The only document tendered for the 2nd defendant is Exhibit C – certified true copy of the Minutes of the Land Use Allocation committee held on 31/7/2003 and certified on 8/3/2005. Attached to the Minutes is a receipt no. 0082677 dated 25/1/2005 for N2,000.00 described as payment as certified true copy of BN 9748. “This is the only document the 2nd defendant has over the land. I may say this is a worthless document or documents (inclusive of the receipt) to establish good title over the land.

The receipt cannot be a true copy of Plot BN 9748. The receipt was issued on 25/1/2005 about five years after this case has been filed in Court. The 2nd defendant claimed he applied for a statutory grant some 15 years ago but he has not shown any evidence that he applied for such as grant. Where is the receipt issued in respect of the application 15 years ago? 2nd defendant has also failed to produce the minutes where the Land Use and Allocation Committee met and approved the grant of a statutory right of occupancy to him.

All things considered, it is clear the appellants have no fighting chance in this appeal which I see no merit in. I also dismiss it and abide by the consequential orders made. Appeal dismissed.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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JOHN INYANG OKORO, J.S.C.: I have had the privilege of a preview of the judgment just delivered by my learned brother, Tijjani Abubakar, JSC. I agree with the reasons therein advanced to arrive at the conclusion that the appeal has no merit and deservedly dismissed. To prove title to land, it has become settled that either of the five methods laid down in the case of Idundun Vs. Okumagba (1976) 9 – 10 SC227 will suffice.

In this case, the 1st Respondent sufficiently established that he applied to the 2nd Respondent for issuance of Statutory Right of Occupancy which was approved upon due diligence and confirmation that the land was free of any third party interest. From the evidence adduced therefore, the 1st Respondent’s title over the disputed parcel of land is sufficiently proved. The concurrent judgment of the two lower Courts are unassailable. I have nothing meaningful to add to the lead judgment but to adopt same in toto and also dismiss the appeal. I so hold. Appeal dismissed.

ABDU ABOKI, J.S.C.: I had the opportunity of reading in draft the lead judgment of my learned brother, TIJJANI ABUBAKAR, JSC. I am in complete agreement with his Lordship’s reasoning and conclusion.

In lending my support to the lead judgment, I wish to add a few words.

The 1st Respondent instituted this action at the High Court of Benue State, claiming to be the owner of the piece of land in dispute. According to him, he had acquired the land in dispute from his Uncle, one Ujo Damawa (deceased). That sometime in 1983, he applied for a piece of land with the Benue State Bureau for Land and Survey (now Ministry of Lands and Survey) for the title deeds over the said Land. His Right of Occupancy was dated 20th May, 2003 and issued 11th September, 2003.

That in January 2003, he went to the land and met the 1st Appellant who claimed that the land belonged to the 2nd Appellant.

The 2nd Appellant however stated that around 1983, he applied for land with the 2nd Respondent and his application was approved. Then in 1998, he was taken to the land in dispute, and he took possession, fenced it and has remained in possession ever since. ​ At the end of trial, the trial Court entered judgment in favour of the 1st Respondent. Dissatisfied, the Appellants appealed, unsuccessfully to the Court below, which affirmed the judgment of the trial Court.

Still aggrieved, the Appellants appealed to this Court. The following issues were raised on their behalf: 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 from his Uncle one Ujo Damawa? 2. Whether or not Exhibit A1 was prepared by a person interested in the subject matter of the suit contrary to the provisions of Section 91 (3) of the Evidence Act, CAP 112 LFN 1990? 3.

Whether the doctrine of lis pendens applies to the facts and circumstances of this case? 4. Whether or not the 1st and 2nd Defendants/Appellants’ 3rd issue for determination in the Court below, which bordered on the 2nd Defendant’s/Appellant’s counter-claim at the trial 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 defence to it by the 1st Respondent, who was the Plaintiff at the High Court?

The 1st Respondent raised the following issues, as follows: 1. Having regard to Exhibit A1 (the Statutory Right of Occupancy) duly issued by the 2nd Respondent in favour of the 1st Respondent, whether the 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 of 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?

For the 2nd Respondent, these issues were distilled, that is: 1. Whether 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 from his Uncle Ujo Darnawa? 2. Whether or not Exhibit A1 was prepared by a person interested in the suit contrary to the provisions of Section 91(3) of the Evidence Act, CAP 112 LFN 1990? 3. Whether the doctrine of lis pendens 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 bordered on the 2nd Defendant’s/Appellant’s counter-claim at the trial High Court was considered and thus formed part of the judgment of the trial Court was considered and this formed part of the judgment of the trial High Court and whether the 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?

The submissions of learned Counsel on both sides have been summarized in great detail by my learned brother, TIJJANI ABUBAKAR, JSC in the lead judgment, which I adopt as mine.

My comments in support of the lead judgment are in respect of the Appellant’s Issues 1 and 2.

By Paragraph 3 of the 1st Respondent’s statement of Claim, he claimed thus: “3. The Plaintiff is the holder of a piece of land near Judges Quarters, Makurdi measuring 1120m by area coverage which he had prepossessed before applying to the Benue Sate Bureau of Lands and Surveys on 3rd of April 2001 for title deeds. The Plaintiff’s late Uncle Ujo Damawa who gave the Plot to the Plaintiff first acquired the land in 1970.”

The 1st Respondent in his evidence said that after acquiring the land from his uncle, he applied to the Benue State bureau for Land and Survey (now Ministry of Lands and Survey) for the title Deeds over the said Land. His Right of Occupancy was dated 20th May, 2003 and issued 11th September, 2003. This evidence was supported by the testimony of DW3.

I find that the led evidence to establish paragraph 3 of his pleadings.

The Court below affirmed the judgment of the trial Court, where it held that: “…The main body of Exhibit C does not mention Plot BN 9748… The 2nd Defendant (now 2nd Appellant) claimed he applied for a statutory right grant, some 15 years ago, but he has not shown any evidence that he applied for such a grant. Where is the receipt issued in respect of the application 15 years ago? The 2nd Defendant has also failed to produce the minutes where the Land Use and Allocation Committee met and approved the grant of a statutory right of occupancy to him.

If the 2nd Defendant was able to get Exhibit C, which he tendered through DW4, he could as well have obtained the Minutes where the LUAC met and approved the grant to him.”

I agree with these conclusions.

On whether Exhibit A1 was made by a person interested, Section 91(3) of the Evidence Act, provides that- “Nothing in this section shall render admissible as evidence any statement made by a person interested at a time when proceedings were pending or anticipated involving a dispute as to any fact which the statement might tend to establish.” The grant of Exhibit A1 (the Statutory Right of Occupancy) was made in 27/3/2003, and the suit was commenced on 28/4/2003. In Yu’a v.

Dikwa (2000) LPELR-10938, it was held that: “A person who is not personally interested in the result of a litigation cannot be described as one “interested” in the proceedings under the provisions of Section 91(3). It seems to me that it is this “Personal interest” element in Section 91(3) that excludes documents tendered by such persons as independent contractors or those purely on official assignment, such as policemen, officials or servants without direct interest of a personal nature in the litigation or the result of the litigation.

It would also exclude a person whose interest in the litigation cannot be identified, such as where there is no evidence establishing it. A person who may not be affected, one way or the other, by the result of a particular litigation ought not to be regarded as being “interested” in it, in terms of Section 91(3). See also UTC v. LAWAL (2013) LPELR-23003 SC. Consequently, I hold the view that the 2nd Respondent, who was the maker of Exhibit A1, was not a person interested in the suit.

Moreover, there is nothing in the records, to demonstrate that the 2nd Respondent is a person interested in the outcome of the proceedings. The Appellants herein have led no evidence to that fact.

It is for these and the more detailed reasons in the lead judgment of my learned brother, TIJJANI ABUBAKAR, JSC that I also find this appeal to be devoid of merit. It is accordingly dismissed. The judgment of the lower Court is affirmed. ​ I abide by the consequential orders contained in the lead judgment. Appear dismissed.

IBRAHIM MUHAMMAD MUSA SAULAWA, J.S.C.: Having had the privilege of a preview of the judgment just delivered by my learned brother, the Hon. Justice Tijjani Abubakar, JSC, I can not but agree with the reasoning postulated therein to the conclusive effect that the present appeal grossly lacks merits.

Hence, I too hereby dismiss the appeal and affirm the judgment of the Court of Appeal Makurdi Judicial Division, delivered on May 24, 2012 in appeal no. CA/J/51/2007. Appeal dismissed.