ABOABA v. OGUNDIPE

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YARGATA BYENCHIT NIMPAR, J.C.A. (Delivering the Leading Judgment):This appeal is against the judgment of the Lagos State High Court in Suit No: ID/316/2010 delivered on the 11th day of December, 2013 by HON. JUSTICE B.A. OKE LAWAL. The Court below, entered judgment in favour of the Respondent as per relief 1 and 2 of the Respondent’s claim.

The Appellant being dissatisfied with the said decision filed a Notice of Appeal dated 11th December, 2013 setting out 3 grounds of appeal. The Appellant was 2nd Defendant to the Respondent’s claim before the trial Court which states thus:
1. An order that the claimant is the rightful person entitled to the grant of statutory right of occupancy of all the parcel of land situate at off Igando Road, Idimu Alimosho Local Government, Lagos.
2. Possession of all the parcel of land as described in the Certificate of Occupancy.
3. Perpetual injunction restraining the Defendants from further acts of trespass and encroachment of all the parcel of land situate at off Igando Road, Idinmu, Alimosho Local Government, Lagos State.
4. General damages of N1,000,000.00 (one Million Naira)
5. Cost of this action.
The claim of the Respondent as reproduced above was initiated by Originating Summons procedure but the Court ordered pleadings to be filed. The Appellant applied to be joined as second defendant claiming that the land in dispute belongs to him. The Respondent had claimed that it was his father who bought the piece of land and a Certificate of Occupancy issued by the Lagos State Government before it was assigned to him. The Appellant denied the Respondent’s claim and the matter went to trial with each side calling one witness each in proof of their respective pleadings and a total of 16 Exhibits were tendered. The Court below upon the consideration of evidence and written addresses of counsel entered judgment for the Respondent, thus this appeal.
The Appellant’s brief settled by A.M. Makinde Esq., is dated 10th February, 2014 filed on the same day and it presented 3 issues for determination as follows:
i. Whether the burden of proving the identity of the land in dispute could be properly discharged by the respondent in the absence of a composite plan and whether the appellant was wrongfully saddled with the burden of proving the identity of his land by the learned trial judge.
ii. Whether the learned trial judge was in error when she relied on Exhibits E1 and E5 which were the statements of one Mr. Yekini Olusegun Adebimpe made to the police on the 14/11/2009 as evidence in arriving at her decision to enter judgment in favour of the respondent the appellant when the said Mr. Yekini Olusegun Adebimpe was not called as a witness to testify before the Court?
iii. Whether from the totality of the evidence before the Court the respondent is entitled to the judgment entered in his favour or to a dismissal of his case in its entirety?

The Respondent’s Brief settled by Chief Sesan Ogunkanmi is dated 5/10/2016 filed the same day and it also distilled 3 issues for determination as follows:
a. Whether the Respondent has not discharged the burden of proving the identity of the land in dispute to warrant the lower Court in granting all the reliefs sought by him and whether it is incumbent on him having discharged that burden to go on a voyage of discovery by engaging in the procurement of a composite plan.
b. Whether the learned trial judge was right in

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admitting Exhibit E1 and E5 and acted on it which were statement made by one Yekini Adepimbe which statement were certified by a competent Court who claimed to be the surveyor of the Appellant Predecessor-in-title and who sold the parcel of land to the Appellant on behalf of the said Predecessor-in-title and whether it is the responsibility of the Respondent to call the said Yekini Adebimpe as a witness and that of the Appellant.
c. Whether in the instant case this matter was even defended in view of the admission of one Niyi Aboaba who claimed to be the brother of the Appellant that he did not have the consent and authority of the Appellant to defend the matter and was not given any authority by way of valid power of attorney and whether the said witness was not a busy body.
After a careful review of the record of appeal and the briefs of arguments for the respective parties, I am inclined to adopt the issues presented by the Appellant for determination in this appeal. That way, the complaint of the Appellant shall be fully resolved.

ISSUE ONE
Whether the burden of proving the identity of the land in dispute could be properly discharged by the respondent in the absence of a composite plan and whether the appellant was wrongfully saddled with the burden of proving the identity of his land by the learned trial judge.
The Appellant submitted that from the pleadings of parties and evidence before the Court, the identity of the land was in dispute and the Respondent (claimant at the lower Court) had the sole burden of proving with certainty the identity of the land before he can be granted title to the land, he referred to OWHONDA V EKPECHI(2003) 9-10 SC 1, EPI V AIGBEDION (1972) 10 SC 53, ATANDA v AJANI (1989) 3 NWLR (Pt.111), IGWE v KALU (2002) 7 S.C. (pt 2) 236. According to the Appellant the lower Court ought to have dismissed the action of the Respondent for failure to tender a survey and composite plan to ascertain the identity of the land, citing FASANYA V ADEKOYA(2001) FWLR (PT 3) 516. The Appellant further submitted that he has no burden to discharge as far as the identity of the land was concerned and the lower Court erred in finding otherwise.
However, the Respondent argued that the identity of the land was not in dispute as the documents presented by the Appellant were untenable in law. In any case, the Respondent submitted that he was able to state the identity of his land and the burden had therefore shifted to the Appellant to prove his title to the land by attaching a composite plan thereto. He referred to KAIYAOJA V EGUNLA (1974) 12 SC 55, AROMIRE V AWOYEMI (1972) 2 SC 1, NGENE v IGBO (1991) 7 NWLR (Pt.203) 358, KYAN V KYAN (2001) 5 SC (PT 2) 192. The Respondent also argued that he need not lead any evidence on identification having made a prima facie case to prove his title. He also submitted that before identity of land can be raised as an issue, the party raising it must have denied knowledge of the location of the land, citing ADENLE v OLUDE (2002) 18 NWLR (PT.799) 413, MR. P OGUNYANWO & 40 ORS V M/S AUGUSTA OLUWOLE (2009) 4 FWLR (10344-10558) 10404.
In his reply brief, the Appellant submitted that the burden of proving the identity of the land never shifts and always rests on the party claiming title, in this case, the Respondent. He referred to AREMU V ADETORO (2007) ALL FWLR (PT 388) 985.
RESOLUTION
In a declaration of title to land, the burden is on the plaintiff or claimant to establish the identity of the land in dispute otherwise the claim for declaration of title will be dismissed. The pleadings lay a foundation on the identity of the land and it becomes an issue only where the defendant by his pleadings specifically disputes the description of the land given in the claimant’s statement of claim, see ETIM & ORS V UMOH & ORS (2014) LPELR-22790 (CA); ADENLE v OLUDE (2002) 9 SCNJ 94; ADELUSOLA V AKINDE (2004) ALL FWLR (PT. 218) 776. On the contrary, where both parties from the pleadings and evidence before the Court are ad idem on the identity of the land in dispute, then, there will be no issue as to the identity of the land. The issue of identity of the land must therefore be clearly ascertained, see OGEDENGBE v BALOGUN(2007) 9 NWLR (1039) 380; OKONKWO V OKONKWO (2010) LPELR-9357 (SC); DIKE v OKOLOEDO (1999) 10 NWLR (PT. 623) 359 AND OGUN V AKINYELU (2004) 13 NWLR (PT. 905) 962.
The Appellant contends here that the Respondent, claimant at the lower Court, was saddled with the burden of identifying the land in dispute by the Court below while the Respondent submits that identity of the land was never in

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issue. The starting point is the pleadings of both sides. The Respondent in the statement of claim averred to the origin of the land as a family land partitioned among the different branches of the Abisiwa family, that his root is from Iyape branch and location is at Off Igando Road, Idimu, Lagos. The Respondent also averred that he bought the land from his father and it is covered by survey Plan No: OKL93/122D dated 12th day of May, 1993 and a Certificate of occupancy dated 27th March, 1997. He also relied on a deed of assignment between himself and his father dated 22nd day of March, 1999 and averred that one Mrs. Modupe Oyinlola Soyanwo (nee Odumosu) is a boundary neighbor.
The Appellant in his statement of defence linked the root of his land to Iyewure branch of Abisiwa family after partitioning. That by a deed of conveyance dated 19th December 1975, Justice Ishola Oluwa transferred 20 acres to Mrs. Modupe Oyinlola Soyannwo (Odumosu). The land was fenced and demarcated into plots and his plot is Brock E, plot 7, Eagle Gloria Syndicate Estate, Idimu Lagos. paragraph 12 of the Appellant’s pleadings averred that composite plan by the claimant in suit No: ID/2876/2000 clearly indicates the land of Modupe Oyinlola Soyannwo but it was not tendered in evidence. Therefore, the root of the title for each of the parties is not from the same source, the Appellant claims from Iyewure branch while the Respondent claims from Iyape branch.
From the above pleadings, the issue of identity of the land was put in issue by the Appellant. The Appellant had made an adverse claim which is contrary to the position taken by the Respondent in the claim at the lower Court. The Appellant having pleaded a composite plan in which the land of the Appellant was clearly demarcated, the Respondent had a burden of depicting where exactly the land he claims is, whether on the composite plan or another one which would show how the two pieces of land overlaps or are situated. The issue of identity was therefore raised by the Appellant which the Respondent was duty bound to establish as settled by law, see SIMON NWAGU V ELDER RUFUS FADIPE (2012) LPELR-7966(CA) wherein the Court held that the burden is on the Claimant to prove the identity of the land in dispute and that the burden does not shift. See also AREMU v
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ADETORO (2007) 16 NWLR (pt. 1060) 244 at 257; ODICHE V CHIBOGU (1994) 7 NWLR (PT. 3544) 78 and IJADE V OGUNYEMI (1996) 9 NWLR (PT. 470) 17. Whether there was evidence to establish the pleadings is another issue, suffice it to say that by the pleadings, identity of the land in dispute was put in issue. The Court below also agreed to this in the judgment appealed against (see page 254 of the record of appeal 4th paragraph from the bottom).
The burden of establishing the identity of the land in dispute cannot be transferred to the Appellant, it remains the duty of the claimant and in this case the respondent herein. Whether the burden was discharged shall be the subject of issue three. This issue is resolved in favour of the Appellant.
ISSUE TWO
Whether the learned trial judge was in error when she relied on Exhibits E1 and E5 which were statements of one Mr. Yekini Olusegun Adebimpe was not called as a witness to testify before the Court.
Under this issue, the Appellant submitted that the lower Court erred in basing its findings on Exhibits E1 and E5 the extra judicial statements made by one Mr. Yekini Olusegun Adebimpe who

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was not called as a witness during trial. The Appellant submitted that the evidence is inadmissible and no evidential value should be placed on them. He also argued that a certificate of occupancy is not conclusive evidence of any valid title to the grantee and that the statements of Mr. Yekini Olusegun Adebimpe cannot be conclusive proof of the Respondents title to the property in dispute. He referred to the case of KUTI V TUGBOBO (1967) 1 ALL NLR 311; LAYONU V STATE (1967) 1 ALL NLR 198; DANIEL V IROERI (1985) 1 NWLR (PT 3) 541; ADOLE v GWAR (2008) 3-4 SC 75 and OGUNLEYE V ONI (1990) 4 SC 130 in proof of his submissions.
On the other hand, the Respondent submitted that the Exhibits were duly certified and no objection was raised as to its admissibility at the lower Court, therefore, the Appellant has no right to complain about its reliance on appeal, referring to PILLARS NIGERIA LTD V DESBORDES & ORS (2009) 4 FWLR (PT 492) 8181, OMEGA BANK V. OBC LTD (2005) CLRJ 1. According to him, the Appellant was at liberty to call the said Yekini Adebimpe as a witness which he never did and the trial Court was therefore right to have based his findings on the evidence before it as evidence not controverted can be acted upon by the Court, cited OWIE V IGHIWI(2005) 5 NWLR (PT 917) 84 SC, UMANAH V ATTAH (2006) 17 NWLR (PT 1009) 503 SC, DADA & 2 ORS V LAWANI (1980) 3-4 SC 108, ODULAJA V HADDAD (1973) 11 SC 35, NWABUOKU V OTTIH (1961) 2 SCNLR 232.
The Appellant in his reply brief contended that the said Exhibits E1 and E5 constitute hearsay evidence and do not pass the test for admissibility of public documents because there was no payment showing it had been certified, he relied on OKORO V STATE (1998) 12 SCNJ 84, TABIK INVESTMENT LTD V GTB (2011) ALL FWLR (PT 602) 1592. He also insisted that it is the Respondent who is relying on the said Exhibits that has the burden of calling the maker.
RESOLUTION
The question here is the weight to attach or ascribe to the two documents tendered during trial. Exhibits E1 and E5 are statements made by one Yekini Olusegun Adebimpe to the Police. The said person was not called as a witness but the certified true copies of the statements were admitted in evidence without objection. The law is trite that when admissible documents are admitted without objection, a party cannot attempt to vitiate same on appeal. See KOSSEN (NIG) LTD V SAVANNAH BANK (NIG)1995 9 NWLR (PT.421). However, the rule has exception such that in cases where the documents are inadmissible in law but admitted all the same without objection, such can be expunged by the Court at judgment stage, see ENWEREM V ABUBAKAR & ANOR (2016) LPELR-40369 (CA); OKAFOR V OKPALA (1995) 1 NWLR (PT.374) 749 and I.B.W.A. V. IMANO LTD (2001) 3 SCNJ 160 where the apex Court held thus:
“It cannot be over- emphasized that Court of law is expected in all proceedings before it to admit and act only on legal evidence. Accordingly, where a trial Court inadvertently admits evidence which is absolutely inadmissible, it has a duty generally not to act upon it but rather to discountenance it. So, too if a document is unlawfully received in evidence in the trial Court, an appellate Court has the inherent jurisdiction to exclude and discountenance the document even though counsel at the trial did not object to its admission in evidence.
Therefore, the standard rule of the thumb concerning documentary evidence is that neither the Court,nor the parties have the power to admit without objection, a document that is by no way or circumstances admissible in law, see BROSSETTE MANUFACTURING NIG LTD v M/S OLA ILEMOBOLA LIMITED & ORS (2007) 14 NWLR (PT. 1053) 109.
The question then is, are the Exhibits admissible in law? Exhibits E1 and E5 are documents in the custody of the police and therefore public documents which can only be admissible in their original form or as certified True copies. The reasons are obvious and settled, see JOHN BABANI ELIAS V FEDERAL REPUBLIC OF NIGERIA (2016) LPELR- 4079(CA) on the judicial interpretation of Section 90(1) of the Evidence Act, 2011 that the only admissible form of secondary evidence of public documents is a certified true copy. To put it differently, when originals of the documents are not tendered, then it has to be certified true copies and no other. Clearly, the relevant documents in issue were duly certified as required by law, see pages 272 – 283 of the record of appeal.
The next rule of the thumb in admissibility of evidence is primarily founded on relevancy, see STEPHEN HARUNA V THE ATTORNEY GENERAL OF THE FEDERATION (2012)

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LPELR-7821(SC) wherein the apex Court held that admissibility is based on relevance, because relevance determines admissibility. Therefore, once evidence is relevant for the proper determination of any fact in issue, the Court is bound to admit it, see also A.C.B.LTD v GWAGWADA (1994) 5 NWLR (PT. 342) 25; KUBOR V DICKSON(2012) LPELR- 9817(SC) and EMEKA S. ENEM CHUKWU V CHIMAROKE OKOYE & ANOR (2016) LPELR-40027 (CA). In essence, the criteria for admissibility of a document is generally based on the following:
i. whether the document has been pleaded
ii. whether it is relevant to issue in dispute
iii. whether it is legally admissible
See OKONJI V NJOKANMA (1999) 14 NWLR (PT- 638) 250; FBN V JIBO (2006) 9 NWLR (PT.985) 261 and HAJIYA BINTA KURAYE V FEDERAL REPUBLIC OF NIGERIA (2014) LPELR-23963 (CA).
Flowing from above, the admissibility of the two exhibits cannot be impeached on admissibility based on relevancy.
The argument of the Appellant is on weight or value to be ascribed to the exhibits. His contention is that the maker was not presented to be cross examined and therefore, the evidence cannot be used by the Court in arriving at a decision. It is a legal principle that admissibility and weight are two different sides of a piece of evidence. The apex Court in MOTANYA V ELINWA (1994) 7 NWLR (PT.356) 252 held that the legal admissibility of a piece of evidence is one thing, while the weight the Court would attach to such evidence is quite another. Here, the maker of the exhibits was not called as a witness in the trial, to be cross examined on the facts stated in the two exhibits which are detrimental to the Appellant. The trial Court still went ahead to make use of the content of the exhibit in arriving at a decision.
It is trite that where the maker of a document is not called to be cross examined, the Court should not attach any probative value on such documents admitted in the absence of admissible oral evidence by person who can explain their purport are of no useful purpose, see NBC PLC V UBANI (2009) 3 NWLR (PT. 1129) 512; G. CHITEX IND. LTD V OCEANIC BANK INTERNATIONAL NIG LTD (2005) 14 NWLR (PT. 945) 392; ALAO V AKANO (2005) 11 NWLR (PT. 935) 160. The question as to which of the parties should call the witness is of no consequence, the fact still remains that an extra judicial statement made by a person or evidence of a witness who is not presented or called to be cross examined lacks probative value and cannot be used by the Court in arriving at a decision. This position has been established in a long line of cases some of which are;IKARIA V STATE(2014) 1 NWLR (PT. 1389) 639; SUNDAY ASUMOGHA V THE STATE (2015) LPELR -24534(CA); SHOFOLAHAN V STATE (2013) 17 NWLR (PT. 1383) 281; ISIAKA V THE STATE (2011) ALL FWLR (PT.583) 1966 and the apex Court in BUHARI V INEC (2008) 19 NWLR (PT. 1120) 246 at 415 held thus:
“The witnesses who tendered the document were not the maker and so cannot be cross examined on the content of the documents. A cross examination prays a vital role in the truth searching process of evidence procured by examination in chief it relates to authenticity or veracity of the witness; a Court of law is entitled not to place probative value on evidence which does not pass the test of cross examination.”
The rule in requiring the maker to be called for purposes of cross examination has been explained in the case ofOMEGA BANK NIG. LTD V OBC LTD (2005) 1 SCNJ 150 where the Supreme Court explained thus:
“It is the general principle of law that a maker of a document is expected to tender it in evidence. There are two basic exceptions to this principle of law; (i) The maker is dead (ii) The maker can only be procured by involving the party in so many expenses that could be outrageous in the circumstances of the case. The rationale behind this principle of law is that while a maker of a document is in a position to answer questions on it, the non maker of it is not in such a position. In the latter situation, a Court of law will not attach any probative value to the document and the document that a Court does not attach any probative value is as good as the mere paper on which it is made.
After all probative value is the root of admissibility of evidence. I should not be understood as saying documentary evidence cannot be admitted in the absence of the maker. As a matter of law, documentary evidence can be admitted in the absence of its maker. See IGBODIM V OBIANKE (1976) 9 -10 SC 179. After all relevance is the key of admissibility. In the hierarchy of our adjectival law, probative value

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comes after admissibility. And so a document could be admitted without attaching probative value to it. That is the point I am making. Basically, admissibility and weight to be attached to the document are two different things.
The purpose of cross examination is to safeguard the truthfulness and accuracy of what the person said and to test the credibility of such a witness. Cross examination is also a tool used to weaken, qualify or destroy the case of the other side. It is a potent weapon in the hands of a skilled party. This should not be seen to mean that a party is bound to call a particular witness or a host of witnesses, far from it. The law is settled that a party has the discretion to call only those witnesses relevant to establish its claim and he is merely required to call witnesses that can give cogent and credible evidence to support the claim, see AKINTOLA V SOLANO (1986) 2 NWLR (PT.24) 598. However, where there is no opportunity to cross examine a witness whose statement is to be relied upon, then the principle of fair hearing would have been breached thereby affecting the proceedings, see IFEANYI PETERKIN OKEREKE & ANOR V HON. MATHEW IBE & ORS (2008) 11 NWLR (PT.831) 231 at 262 where the apex Court held that cross examination is a right available to parties in litigation and it cannot be taken away. Where an opportunity is given and a party fails to make use of it then, he should be bound by the evidence of such a witness, see GAJI V PAYE (2003) 8 NWLR (PT. 823) 583.
In this case, the Respondent having failed to call the said author of Exhibit E1 and E5 to present him for cross examination, the Court cannot use the contents of the said exhibits in arriving at a decision. The Court had relied heavily on the said exhibits to arrive at a decision (see pages 257 – 258), and the decision based on the wrong use of Exhibits E1 and E5 to ground a finding is perverse and must be set aside. The fundamental reason I repeat is the breach of fair hearing. Failure to present the author of the exhibit for cross examination is breach of fair hearing and it has a devastating effect on a trial, see EMMANUEL V UMANA & ORS (2016) LPELR 40659 (SC).
Breach of fair hearing shall nullify any proceeding conducted. I resolve this issue in favour of the Appellant.
ISSUE THREE
Whether from the totality of the evidence before the Court the respondent is entitled to the judgment entered in his favour or to a dismissal of his case in its entirety?
The Appellant while submitting that a plaintiff must rely on the strength of the case rather than the weakness of the opponent’s case, gave reasons why the Respondents were not entitled to judgment at the lower Court. According to him, the Appellant’s witness, Niyi Aboaba was not given a valid power of attorney to defend the matter on behalf of the Appellant and consequently, a busy body in this matter. He also submitted that the trial judge was in error to have relied on Exhibits E1 and E5 in arriving at a decision and that there was evidence to show that as at 2006, a building had already been erected on their land. The Appellant further argued that the title documents he tendered takes priority over that of the Respondent and that based on the dispute, the Respondent had the duty to identify with certainty, his portion of the land. He therefore urged the Court to set aside the declaration of title in favour of the Respondents relying on the following cases in proof of his submissions; ONIBUDO V AKIBU (1982) 7 SC 60, ELIAS V OMOBARE (1982) 5 SC 25, KUTI V TUGBOBO(SUPRA), LAYONU V STATE (1967) 1 ALL NLR 198, OWHONDA V EKPECHI (2003) 910 SC 1.
However, the Respondent submitted that the documents tendered by the Appellant in proof of his title were photocopies, un-certified and have no probative value. He further submitted that the trial Court was convinced that the Respondent had proved his title to the land with the exhibits tendered and there was satisfactory evidence to warrant the judgment awarded in his favour, same having not been rebutted by credible evidence. He cited ONIBUDO V AKIBU (SUPRA). He finally submitted that the identity of the land was never in issue, that the Court is confined to the pleadings and issues joined by parties and therefore urged this Court to dismiss the appeal with punitive costs.
The Appellant in his reply submitted that the documents of the Appellant confer equitable interest on him since he was in possession, referring to ONWUAMA V EZEOKOLI (2002) FWLR (PT 100) 213 in support.

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RESOLUTION
It is settled law that the duty of evaluation isprimarily that of the trial Court. Evaluation of evidence was described aptly by OPUTA, JSC (of blessed memory) in ONWUKA v EDIALA (1989) 1 NWLR (pt. 96) 182 at 208 thus:
“Evaluation of evidence is basically the assessment of the facts by the trial judge to ascertain which of the parties to a case before it has more preponderant evidence to sustain his claim.”
Evaluation of evidence is borne out of a reasoned belief of the evidence of one of the contending parties. The Court has the duty to consider the evidence on the issues joined, decide which side weighs heavier on the scale and make logical findings. See SALISU BADA IRAWO OSAN & ANOR V CHIEF J.O. FOLARIN (2007) LPELR-9040 (CA) and ANSA V ISHIE (2005) 15 NWLR (PT.948) 210.
It is not in doubt that Courts have moved away from the use of the words ‘I believe or I do not believe without giving reasons why the Court arrived at that conclusion. The Court must state the reasons for the preference of one witness over the other, see EMEKA S. ENEMCHUKWU V CHIMAROKE OKOYE & ANOR(2016) LPELR- 40027(CA).Before arriving at such station, the Court has a duty to perform before accepting or rejecting a piece of testimony. The duty is to set up an imaginary scale and put all the pieces of evidence presented by the parties, the claimant on one side while the defendant on the other and then to weigh same for the purpose of giving it value, see WOLUCHEM V GUDI (2004) 3 WRN 20; AYORINDE V AYORINDE(2010) LPELR-3833(CA). Therefore, the mere engagement in restating the evidence of parties without appropriate analysis thereof, such as giving reasons for preference of one over the other does not constitute evaluation of evidence.
The Court below in giving judgment to the claimant apart from relying on Exhibits E1 – E5, also relied on the certificate of occupancy which it said was not rebutted or contradicted. I have dealt with the Court reliance on the said Exhibits under issue 2 which I need not repeat. However, as regards the certificate of occupancy, it is trite that a certificate of occupancy is not conclusive proof of title as certain factors must be established to give it a foundation. A certificate of occupancy is only prima facie proof of title which is rebuttable. If successfully challenged, it will give way. The apex Court in the case of MR. AUDU OTUKPO v APA JOHN & ANOR (2012) LPELR-20519(SC) had this to say:
“In order to succeed in a claim of title a party who held a certificate of occupancy will need to show his root of title that is through his vendor and that the vendor or seller has to show valid title to the land over which the purchaser secured his certificate of occupancy. This is because the certificate of occupancy can only be valid if the root of title originates from customary owners of the property. See also ALHAJI AMINU SULEIMAN v ALHAJI TUKUR ADAMU (2016) LPELR-40316 and LATEJU V FABAYO (2012) 9 NWLR (PT. 1304) 159 at 179.

The Court below rightly held that based on pleadings and the evidence presented by the parties, both parties are claiming root from different branches of the family of Abisiwa which had long been partitioned. Before going into the details of the evidence before the Court, the Court will put to rest the argument that the witness of the Appellant did not have a power of attorney to testify and therefore the Appellant did not defend the claim.The substantive law that governs evidence and competence of witnesses is the Evidence Act particularly Section 175(1) which provides thus:
All persons shall be competent to testify, unless the Court considers that they are prevented from understanding the questions put to them, or from giving rational answers to these questions, by reasons of tender years, extreme old age, disease, whether of body or mind or any cause of the same kind.”
Thus, subject to qualifications in the above section, all persons are competent to testify. Now, was the said witness to the Appellant disqualified or caught by the provisions of the section quoted above? The only reason given by the Appellant was because he is related to the Appellant and testified without a power of attorney. Does he need a power for attorney to testify? I think not. The fact that the Appellant himself did not testify does not mean that the suit was defended on his behalf. Must a party testify on his behalf in a suit? It is trite that a party is not under any duty to call a particular number of witnesses to prosecute a claim. The requirement is for the party to call relevant witnesses that can give cogent and credible evidence upon which to

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establish the claim. This fact I have earlier stated in the judgment. See the case of OKECHUKWU UZOMA V DR. VICTOR ASODIKE (2009) LPELR-8421 (CA) which held thus:
“No rule of law also prescribes that a party in the proceedings must himself appear in person and testify or tender the documents he relies on in proof of his case. See LAWAL V UNION BANK (1995) 2 SCNJ 132 at 147 and SHITTU V FASHAWE (2005) 7 SCNJ 337 at 354.
Per EJEMBI EKO, JCA (as he then was).

It is settled that in land matters, anybody connected with the land whether due to family link with the land or as a witness to what happened to the land or a party to a transaction on the land is definitely a competent witness, see UMEOJIAKO V EZENAMUO (1990) NWLR (PT. 126) 253. You will notice that I have tried to settle the non contentious issues without re-evaluating the evidence to either agree with the Court or disagree. This is because in view of the finding under issue two in which I resolved that the hearing is tainted by the breach in fair hearing, the trial itself is compromised and cannot stand. The Court below used the evidence in Exhibit E1 and E5 as basis to believe and disbelieve witnesses. It is not possible for the Court to sift out the evidence in order to arrive at a decision. Consequently, the Court cannot arrive at a decision with the tainted trial which breached the Appellant’s right to fair hearing. The trial is hereby nullified.
Therefore, the judgment in Suit No: ID/316M/2010 is hereby set aside. The suit is returned to the Chief Judge Lagos State for retrial before another judge and it should be given accelerated hearing, time having been lost since the first trial. Each party to bear its cost.
TIJJANI ABUBAKAR, J.C.A.: My learned Brother YARGATA BYENCHIT NIMPAR JCA, granted me the privilege of reading in draft the lead Judgment just rendered. I am in agreement with the comprehensive reasoning and conclusion and therefore adopt the entire judgment as my own with nothing extra to add.
UGOCHUKWU ANTHONY OGAKWU, J.C.A.: Where the constitutional guarantees of the right to fair hearing have been breached, it is fatal to the decision of the Court as the decision arrived at is bound to be set aside. See OTAPO vs. SUNMONU (1987) 2 NWLR (PT 58) 587, F. M. B. N. LTD vs. ADU (2000) 11 NWLR (PT 618) 309 at 318-319 and GBENEYEI vs. ISIAYEI (2014) LPELR (23216) 1 at 25-26.
As succinctly demonstrated in the resolution of issue number two in the leading judgment of my learned brother, Yargata Byenchit Nimpar, JCA, which I was privileged to read in draft, the reliance by the lower Court on Exhibits E1 and E5, when the maker of the documents was not called to testify in order for him to be subjected to cross examination, violated the Appellant’s right to fair hearing. Accordingly, the proceedings of the lower Court is a nullity. I therefore also allow the appeal and I abide by the consequential orders made in the leading judgment, inclusive of the order as to costs.
Appeal allowed.