Kantin Kwari Market Traders Association & Ors V. Bashir Labaran & Ors (2016)

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OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.

This is an appeal against the judgment of the Kano State High Court delivered by Hon Justice Kabiru M. Auta on the 4th May 2015 wherein judgment was entered against the Appellants, suing as Plaintiffs.
Dissatisfied, the Appellants filed a Notice of Appeal to this Court, dated 4/5/15.

Briefs of arguments were filed in accordance with the rules of Court. The Appellant’s Brief was settled by B.Y Gambo Esq., dated 14/07/2015 and filed on 15/07/2015, while the Respondent’s Brief was settled by Rilwanu Umar Esq. dated 12/10/2015 but filed on 16/10/2015.

The Respondents, in addition, filed a Notice of Preliminary Objection, to the hearing of the appeal on 16th October 2015, dated 13th October 2015.
The grounds for the Preliminary objection are as follow:
i. That the 1st Appellant is registered under Part C of CAMA.
ii. That the 1st Appellant is registered as incorporated trustee and can only sue through its incorporated trustees,
iii. That the 1st Appellant is not a juristic personality, only a juristic personality can sue and be sued.

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iv. That the 1st Appellant does not have locus standi to sue the respondents.Â

The Preliminary Objection was argued at Pages 5-8 of the Respondent’s Brief.
In response, the Appellant filed a Reply, dated 29/2/16.

I shall summarily dispense with the Preliminary Objection of the Respondent, as the issues raised therein, and which also form the 1st issue for determination raised by the Respondents, were never raised in the Court below.

It is trite law that an issue of fact or law which was not raised, argued and pronounced upon by a trial Court cannot be validly raised as a ground of appeal or as an issue for determination before the appellate Court. To raise such an issue, the leave of the appellate Court must be sought and obtained. Such an issue or argument made is, in consequence, not competent and goes to no issue. See Idufueko v Pfizer Products Ltd (2014) 12 NWLR Part 1420 Page 96 at 122 Para A per Galadima JSC; Compagnie Generale De Geophysique (Nig) Ltd v Aminu (2015) 7 NWLR Part 1459 Page 577 at 591 Para G per Rhodes- Vivour JSC.
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The Respondent’s Preliminary Objection and the 1st issue raised by the Respondents in their Brief of

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Argument are thus incompetent, I hold, and are accordingly struck out.

The case of the Appellants, as Plaintiffs before the lower Court, by their pleadings, is that they have been traders in Kantin Kwari Market, Kano, for over 25 years and have been on the disputed space in front of the house of Alhaji Labaran Na Kyauta (hereafter referred to as ???Alh Labaran”), whose house is covered by a Certificate of Occupancy No 8181. They have been trading uninterruptedly on the said land and had been paying rent to the Fagge Local Government Council. They possess Temporary Permits over the land. Upon the death of Alhaji Labaran in 1983, his house was shared among his legal heirs.
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They denied that the land in dispute formed part of late Alh Labaran’s land and accused the 1st and 2nd Respondents, sons of the Deceased owner, of conniving with the 3rd and 4th Respondents, to obtain an extension permit to extend from the land covered by their C of O, to the land occupied by the Appellants. The only landlords recognized by them is Fagge Local Government Council. They contend that the aim of the Respondents is to own the land space and deprive about 300 other

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traders of earning a livelihood.

They thus instituted an action against the Respondents claiming the following:
1. A declaration that the Defendants have no legal right over the land space in dispute in front of the house with certificate of occupancy no. 8181 at Kantin Kwari market.
2. A declaration that the said Land space in dispute in front of Late Alhaji Labaran’s house does not and has never formed part of certificate of occupancy no 8181.
3. A declaration that the Plaintiffs are the legal occupants of the land space they are occupying in front of Late Alhaji Labaran’s house their title having not been challenged by anybody over years and having lawfully been paying the appropriate tax to Fagge Local Government Council.
4. An order of perpetual injunctions restraining the Defendants, either by themselves, agents, servants, their privies or whosever assign (sic) from dealing, tempering or interfering with the quite possession of the said space by the Plaintiff.
5. An order compelling the Defendants to pay the sum of N2,000,000 to the Plaintiffs as damages.
6. Cost of filing this suit.

At trial the Appellants called

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three witnesses, with a number of documents tendered by them. The Respondents called two witnesses and also tendered some documents. The case of the Appellants was, however, closed by the trial Court before conclusion of the evidence of their third witness.

While the 1st and 2nd Respondents filed separate Statements of Defence and Counter Claims, albeit seeking similar reliefs against the Appellants, the 3rd and 4th Respondents filed no statements of Defence.

The contention of the 1st and 2nd Respondents in their Statements of Defence is that the Appellants are trespassers on the land, without the permission of the Late Alh Labaran or his successors in title. They allege that the Appellants are their Tenants at Will and were staying on the premises as Licensees. They contend that the Appellants were given portions of the land merely to trade or, insisting that the land in dispute is parking space for the occupants of the land covered by the said C of O.
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The land, they claim, was formerly used as access to their (1st and 2nd Respondents) land until when the Appellants sought the use of the place for their petty trading. It was their case that

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the continued stay on the land of the Appellants constitutes a nuisance and a hindrance to easy access to their shops covered by the said C of O. Their case is that they obtained temporary permission from the 3rd Respondent to use this parking space for easy access to their shops. Fagge Local Government Council, they claim, had no legal rights over the said land, arguing that the taxes paid by the Appellants to the said Local Government are general to all traders doing business on the land.

The 1st Respondent Counter Claimed for the following:
a. A declaration that the land space where the Plaintiffs are occupying lying and situated at Fagge Takudu Kano is part and parcel of Gidan Labaran Nakyauta covered by Certificate of Occupancy No 8181.
b. A declaration that the land space of Gidan Labaran Nakyauta Kantin Kwari Market is parking space of Gidan Labaran which covered by Certificate of Occupancy No.8181.
c. A declaration that the Plaintiff are Tenants at will that were given a space freely on the Land situated in the front of Gidan Labaran Nakyauta Kantin Fagge Ta Kudu Kano.
d. A declaration that the temporary permit given to the 1st and

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2nd Defendants by the 3rd and 4th Defendants is legal and subsisting.
e. An order of this Honorable Court dismissing the Plaintiffs claim with cost of N3 million naira to be jointly and severally liable for vexations claims (sic).

The 2nd Respondent Counter Claimed for the following:
a. A declaration that the land space where the Plaintiffs are occupying lying and situated at Fagge Takudu Kano is part and parcel of Gidan Labaran Nakyauate covered by Certificate of Occupancy No.8181.
b. A declaration that the land space in front of Gidan Labaran Nakyauate Kantin Kwari Market is parking space of Gidan Labaran Nakyauate which covered by Certificate of Occupancy No. 8181.
c. A declaration that the Plaintiff are licensee on the Land space situated in front of Gidan Labaran Nakyauate Kantin Kwari Fagge Ta Kudu Kano
d. An order of this Honourable Court dismissing the Plaintiff claim with cost.

The case of the 1st and 2nd Respondents was presented through two witnesses, heirs of the deceased Alh Labaran Na Kyauta. They also tendered some documents.

The lower Court, in its judgment, held that the relationship

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between the parties is that of a landlord and a tenant at will. He held the space in front of the 1st and 2nd Respondent’s house to be an “appurtenance/attachment” to the house and that the superior title is the Certificate of Occupancy relied upon by the 1st and 2nd Respondents. He held that the Appellants were in breach of their Tenants’ covenant. Possession, he held, cannot ripen to ownership. He thereupon dismissed the Appellants’ claim.

On the Counter Claim, he reiterated his finding that the Appellants were tenants at will of the 1st and 2nd Respondents and that the Appellants have failed to meet the criteria for the grant of a declaratory order. The Respondents, he held, were entitled to the reversion of the space in front of the house and had the right to serve seven days’ notice of the owner’s intention to recover possession on the Appellants. He, in consequence granted the Counter Claim but refused the claim for damages.

In the Appellant’s Brief, two issues were formulated for the Court’s determination, namely:
1. Whether the trial Court was right when it refused to open the case of the Appellants even when an application was filed to

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that effect and whether the Appellants were afforded fair hearing to conduct their case before the trial Court.
2. Whether the Respondents have proved their case before the trial Court to warrant the grant of their reliefs.

In the Respondent’s Brief, 3 issues were formulated, namely:
1. Whether the 1st Appellant can sue and maintain any action against the Respondent without its registered trustees vis-a-vis whether non juristic person has locus standi to filed an action and maintain same (sic).
2. Whether a party who is accorded opportunity to be heard and deliberately failed to utilise same can complain of fair hearing
3. Whether the trial Court was wrong when it granted in part the relief sought by the Respondents vis-a-vis whether the Respondent have provide their case in part (sic).
???
Having dispensed with the 1st issue raised by Counsel to the Respondents, it is the opinion of this Court that the issues raised by the Appellants better encapsulate the issues for determination, which this Court accordingly adopts, albeit slightly abridged. The issues raised by the Respondents shall be considered under these issues, namely:<br< p=””>

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1. Whether the trial Court was right when it refused to re-open the case of the Appellants, in spite of the fact that an application to this effect was filed and whether the Appellants were afforded fair hearing in the conduct of their case before the Court.
2. Whether the Respondents have proved their case before the trial Court, to warrant the grant of their reliefs.

Arguing the 1st issue, the learned Counsel to the Appellants submits that the trial Court failed to give attention to two applications filed by it. One was for stay of proceedings consequent upon an appeal filed by them against the rejection of some documents tendered by their witnesses during the trial. The 2nd application was to set aside the ruling of the Court closing its case. He argued that it is a cardinal principle of our law that once an application is placed before the Court, same must be heard and determined either way. He referred this Court to the case of Alh Muhammed Mai Gari Dingyadi & Anor v. INEC & Ors (2010) 4 – 7 SC Part 1 Page 76
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In response, the Respondents’ Counsel submitted that when a party was given “armful” opportunities to be heard but

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deliberately failed to utilize the same, he cannot hold the Court and the parties to ransom and be heard to complain of lack of fair hearing. He cited FHA v Kalejaiye 2011 All FWLR Part 562 Page 1633 at 1651 Para C-F. He contended that the Appellants consistently absented themselves and can’t be heard to complain. Justice, he submitted is both for the Appellants as well as the Respondents. He cited the case of MILAD Lagos State & Ors v Adeyiga & Ors 2012 2 SCM Page 200-201 Para B-I A-C.

It is indeed true, as submitted by learned Counsel to the Respondents, that a party who had the opportunity to be heard and failed to utilize the same, cannot complain of breach of fair hearing. It is also true that justice is a two way traffic, for the Appellants, as well as for the Respondents.
It was held in Federal Housing Authority v Kalejaiye (2010) 19 NWLR Part 1226 Page 147 at 170 Para A-F; (2011) All FWLR Part 562 Page 1633 at 1651 Para C-F per Onnoghen JSC, as follows:
“It must be pointed out that the role of the Court in adjudication is to maintain a level playing field for the parties by offering them equal opportunity to present their case

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or grievances; if they so wish. Once the opportunity is offered, it is the duty of a party to litigation or his counsel to utilize same in accordance with the rules of procedure and substantive law. Where, however, he or his counsel fails or neglects to utilize the opportunity so offered, he cannot turn round to blame the Court for the loss of the opportunity as the Court will not allow a party to hold the opponent or the Court to ransom under the guise of the desire to protect the principles of fair hearing.
To me the right to fair hearing remains the right to opportunity to be heard on any matter affecting one’s right(s). Once that opportunity is offered, the duty of the Court ends there.???
Learned Counsel to the Respondents also cited the case of Military Governor Lagos State v Adeyiga (2012) 5 NWLR Part 1293 Page 291 at 320 Para B-C where it was held, per Adekeye JSC that:
“???whenever a party has been given ample opportunity to ventilate his grievances in a Court of law but chooses not to utilize same, he cannot be heard to complain of breach of his right to fair hearing as what the Court is expected to do by virtue of Section 36

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of the 1999 Constitution is to provide a conducive atmosphere for parties to exercise their right to fair hearing.”

The question from the foregoing is thus whether the Appellants were given the opportunity to be heard and refused to utilize this opportunity.

The Appellants Counsel has directed this Court to the Ruling of the lower Court, at Pages 57-58 of the Record of Appeal, rejecting documents sought to be tendered by the Appellants’ witness. Also, to the Notice of Appeal and Motion for Stay of Proceedings filed in consequence of their interlocutory appeal.

He also directed the Court’s attention to Motion on Notice, dated 27/11/14 and contained at Page 209 of the Record, seeking the following orders:
1. “An order of this honourable Court vacating the order closing Plaintiffs case and opening defence
2. An order of this honourable Court opening the Plaintiff’s case.
3. Any order deemed to be made by this honourable Court”

Counsel also further drew the Court’s attention to the proceedings of the Court striking out the Appellant’s motions.

???The proceedings of 13/11/14, contained at pages 59 and 60 of the Records of the Court,

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are as follow:
Rilwanu Umar appearing for the 1st and 2nd Defendants.
Plaintiff are absent and unrepresented.
Umar: This matter is slated for ruling. Plaintiffs are absent and unrepresented, although duly served. The proof of service is in the Court file.
In the circumstances I urge this Court to invoke the provision of Order 37 Rule 3 of the Rules of this Hon Court and close the Plaintiffs case for persistent failure to appear and diligently prosecute this matter (being Plaintiffs). We seek leave to prove our counter claim. We rely on case of Stanley and Anor Vs. Benstowe and 1 Or (2004) Vol. SC. Rules at page 184.
Also in the case of News watch Company Ltd Vs. Atta (2006) 3 JNSC page 238 vol.13.
Court: Order as prayed, case adjourned to 24/11/2014 for hearing of the counter claim. Hearing Notice to issue to them.
SGD.
Hon. Judge
Underlining Mine

On the subsequent fixture, when the Respondents sought to open their defence and prove their Counter Claim, information was given to the Court of applications filed by the Appellants for Stay of Proceedings and to Re-Open the Appellants’ case.

The following

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transpired in Court:
???27-11-2014
Dahiru Mustapha Isa appearing for the plaintiff/Applicants
Rilwanu Umar appearing for the 1st and 2nd Defendants Umar: This matter is slated for today for us to open our defence. Subject to the convenience of the Court, we are ready. We have 2 witnesses in Court.
However, the plaintiff filed a motion for stay of proceedings and we responded by filing our counter affidavit.
Isa: We are not ready because we filed an application for stay of proceedings and have served the 1st and 2nd Defendants/Respondents. The Respondents filed and served us with their counter affidavit today in Court. We humbly apply for an adjournment to enable us file our further and better affidavit.
Umar: The learned counsel is misconceiving the two issues because the application is with regard to case that was closed on the 13/11/2014.
Today, it is for the Defendants to open their counter claim. We are ready to go through only a motion to file to reopen this matter before they can file for stay of proceedings (sic).
Court: I quite agree with Defendants counsel, the two motions dated 19/10/2014 and 27/11/2014 are

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hereby considered as abandoned.
Consequently, they are hereby struck out.
SGD.
Hon Judge
27/11???
Underlining Mine

The Respondents were thence allowed to open their defence and call their witnesses.

The general principle of law is that all applications properly brought before a Court must be heard.
The Supreme Court, in the case of Odedo v Oguebego (2015) 13 NWLR Part 1476 Page 229 at 254 Para B-E per Ogunbiyi JSC encapsulated this principle, thus:
“The general principle of law is trite and well established that all applications properly brought before a Court must be heard. The reasoning behind this principle is well founded because it is only equitable that a party to a cause or matter should be entitled and ought to be given the opportunity to be heard on his application before a decision can be given either in his favour or against him. This re-iterates and affirms the principle of fair hearing as enshrined in our Constitution which demands and establishes that all parties must be heard for proper determination of their case. Any breach of the principle will naturally nullify the proceedings, as it has been

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held in the case of Enebeli v. C.B.N (2006) 9 NWLR (Pt.984) 69 at 78. In other words, an application may not necessarily have merit, it may be bogusly and inelegantly framed or may even be frivolous; be that as it may, once it is shown that there is some legal basis for the application, the Court is bound to hear it. It is not optional or discretional.”
It was held in the case of Mobil Producing (Nig) Unltd v Monokpo (2003) 18 NWLR Part 852 Page 346 at 412-413 Para D-H per Uwaifo JSC as follows:
It is the duty of a Court to entertain and decide on the merit of any application brought before it by any party notwithstanding the perceived strength or weakness of such an application ….
“A refusal of a Court to hear a motion is a breach of the right to fair hearing guaranteed under the Constitution and an essence of the audi alteram partem rule of natural justice. It is perhaps important to add that if a judge or Court were at liberty to decide to ignore any motion filed in Court it would raise a fundamental issue. There will be a danger that instead of allowing the administration of justice to be done upon a compulsory even keel, it may be left

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to the tyranny of the arbitrary or selective decision of a particular judge or Court as to if and when any motion will be considered at all. The consequences of this to the normal run of Court proceedings are disturbing to contemplate.”
See also General Electronic Co. Ltd v Harry Ayoade Akande (2012) 3 SC Part 10 Page 74; NALSA & Team Associates v NNPC (1991) 8 NWLR Part 212 Page 652.

It is clear from the proceedings above, that the application of the Appellants to re-open their case was not entertained, in spite of knowledge of the lower Court of their existence, but summarily struck out. This cannot, I hold, be said to constitute fair hearing.

Indeed, it was held in the case above cited of Military Governor Lagos State v Adeyiga Supra per Adekeye JSC, at Page 379 Pars F-H
???”The bottom line to the doctrine of fair hearing envisaged by virtue of Section 33 (1) of the 1979 Constitution now in parimateria with Section 36 (7) of the 1999 Constitution as applicable in the determination of civil rights and obligation of citizens, is a trial conducted according to all the Legal rules formulated to ensure that justice is done to all the parties. It requires theÂ

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observance of the twin pillars of the rules of natural justice namely audi alteram partem and nemo judex in causa sua.
A hearing cannot be said to be fair if any of the parties is refused a hearing or denied the opportunity to be heard, present his case or call evidence. The right to fair hearing is a question of opportunity of being heard. The right lies in the procedure followed in the determination of a case and not in the correctness of the decision arrived at in a case.”

In the instant case, it cannot be said that the Appellants were given a level playing ground to ventilate their grievances.

Resolving the first issue for determination in favour of the Appellants, I hold that the trial Court was in error, not only to have closed the case of the Appellants on a date fixed for Ruling, it was also in error to have struck out the application filed by the Appellants without giving the Appellants the opportunity to move the same, thereby denying them a fair hearing in the conduct of their case.

The 2nd issue for determination is:
Whether the Respondents have proved their case before the trial Court to warrant the grant of their

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reliefs.

Learned Counsel to the Appellants submits that the Respondents did not in any way lead credible evidence before the trial Court to establish ownership of the subject matter of this appeal, to warrant the grant of judgment in their favour. He contends that the Respondents at the trial Court tendered a plan alleged to be that of the disputed land, but failed to call any officer from the Ministry of Lands and Physical Planning to confirm that the purported plan actually relates to the land in question.
The Respondents, he said, also failed to produce the Certificate of Occupancy No. 8181 which allegedly covered the disputed land. He cited the case of Otanma v Youdubagita (2006) 2 NWLR Part 964 Page 337. Counsel contended that the letter for temporary use of space issued by KNUPDA tendered and relied upon by the Respondents did not help their case as it is not shown to relate the disputed land.
???
Learned Counsel to the 1st and 2nd Respondents submits, in response, that the 1st and 2nd Respondents have proved their case and that is why the trial Court entered judgment as per their Counter Claim. He added that the evidence of the witnesses

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was not challenged during cross examination or controverted, making it acceptable by the trial Court and in line with the 1st Respondent’s pleading. Where evidence is not contravened, challenged and discredited during cross-examination it must be accepted as true and correct by the trial Court. He cited Mobil Producing Unlimited v Udo (2009) All FWLR Part 482 Pg 1180.

Counsel contended further that the space in dispute needed no further proof of identity and size because the Appellants admitted the description, location feature and dimension in their pleadings. The space is thus not in contention. He referred to the case of Nwokidu & Ors V Okanu & Ors (2010) 1 SCM Page 147. He urged the Court to dismiss the appeal for lacking in merit.

As submitted by learned Counsel to the 1st and 2nd Respondents, the burden of proof in civil matters clearly rests on the person who asserts the existence of any facts. See Sections 131 (1), 132, 133, 136 of Evidence Act 2011 CAP E-14 LFN 2004. See also the case of NSEFIK v Muna (2014) 2 NWLR Part 1390 Page 151 at 184 Para E-F per Ariwoola JSC.

The 1st and 2nd Respondents, in this case, have sought, in

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their Counter Claim, a declaration that the “land space” occupied by the Appellants is part of C of O No 8181 and that the Appellants are their Tenants at Will.
Also that the Temporary Permit given to them (Respondents) is legal and subsisting.

It is trite law, as rightly held by the trial Judge, that the 5 ways of proving title to land are the following:
1. Traditional evidence;
2. By production of documents of title, duly authenticated;
3. By acts of ownership extending over a sufficient length of time and numerous and positive enough to warrant the inference that the person is the true owner;
4. Acts of long possession and enjoyment of land;
5. 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.
Each of the five ways stated above suffices to establish title to a disputed piece of land. See Addah v Ubandawaki (2015) 7 NWLR Part 1458 Page 325 at 343-344 Para C-A per Fabiyi JSC; Idundun v Okumagba (1976) 9-10 SC Page 140.
???
In the instant case, the closest by the Respondents

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to any of the conditions, was the production of Exhibit 3 and Exhibit CCO1 in apparent satisfaction of the 2nd mode, viz production of documents of title.

Exhibit 3 is set out hereunder.
Exhibit 3
“Kano State Urban Planning & Development Authority
2, Durbin Katsina Road, Bompai, P.M.B. 3046, KANO-NIGERIA
Tel: (064) 630338 Cable Telegrams: KNUPDA, KANO
ALL CORRESPONDENCE TO BE ADDRESSED TO THE MANAGING DIRECTORÂ
IN CASE OF REPLY PLEASE QUOTE REF NO.
Mallam. Ibrahim Labaran/Bashir Lararan,
Sudawa Quarters,
Kano- City
RE: APPLICATION FOR TEMPORARY USE OF SPACE TEMPORARY SHEDS AT GIDAN LABARAN KANTIN KWARI MARKET KANO.
With reference to your letter dated 27/07/2010 the Authority has approved your application under the following conditions:-
1. All sheds must be on temporary basis.
2. All access between the sheds must be maintained.
3. The sizes of the shed stated in the approval must be maintained.
4. The neighborhood of the site must be kept clean and tidy.
5. Failure to comply with the above conditions shall render the approval null and void.
Above is for your information and guidance please.<br< p=””>

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ABBA MOHD FAGGE
Deputy Director Urban Planning
For; Managing Director.”

Also relied upon by them is Exhibit CC01, which is an approved Site Plan over the land in dispute.

The Certificate of Occupancy No 8181 relied upon by the Respondents as conferring ownership of the land on them was, however, not tendered in evidence.

The trial Judge, having dismissed the Appellants claim, held as follows (referring to the Appellants as Respondents (to Counter Claim) and the Respondents, as the Appellants), at Page 478 of the Record:
“Similarly it was held by the Supreme Court in the case of Adelusoba Vs. Akinde (2004) 12 NWLR (part 887) at 295 that,
“A plaintiff seeking a declaration of title to land, has a duty to show clearly the area of land to which his claim relates, it exact boundaries and its extent as no Court will be obliged to grant declaration to an unidentified land”
In the light of these clear and unambiguous criteria of the law in such matters, I wish to adumbrate the case of the defendants. Three out of the six defendants witnesses on the list of witnesses attached to the writ testified and tendered payment receipts of

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Fagge Local Government Council for temporary permit or squatters permit as proof of ownership over that space in front of Alhaji LABARAN Na Kyauta House No. 4 Fagge Ta Kudu. Defendants admitted that, they have never paid any rent whatsoever to the plaintiffs. The only conclusion to be drawn in the circumstances, is that the Defendants are Tenants at will of the plaintiff.
The Defendants have failed to meet the criteria for a declaratory order as held in these two decisions (supra).
On the other hand, plaintiff led evidence that the Defendants were let into possession of the appurtenance of House No. Fagge Ta Kudu, Kantin Kwari Market covered by Certificate of Occupancy No. 8181 by their predecessor in title. The late Alhaji Labaran Na Kyauta allowed Defendants into occupation at will the law is that, a tenancy at will may be created by exposes (sic) agreement or the tenant may be allowed to occupy a place rent (sic) free for an indefinite period. There only two classes of tenant namely. Contractual Tenants and Statutory Tenants (sic). The defendants are statutory tenant (tenants at will).
The Plaintiff/Counter claimants are entitle (sic) to the

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reversion of that space in front of House No. 4 Fagge Ta Kudu. They also have the right to serve the defendants with seven days notice of owners intention to recovery (sic) possession of that space (appurtenance) following distribution of the estate of Late Alhaji Labaran Na Kyauta with the devolution of Certificate of Occupancy No. 8181 as contained in the two writs of possessions granted them in case No. KAC/CV6/93. This Court is under no obligation to enquire into their root of title either. The counter claims succeeds. No damage is awarded. The Plaintiff/Counter Claimants are entitle (sic) to the frontage of appurtenance of their House, having obtained the requisite permission from the planning Authorities. Defendants are hereby ordered to deliver vacant possession, seven days from today 4th/5/2015. This is a straight matter of legal right and equitable rights.
SGD.
Hon Judge
4/5???
???
From the Judgment above, it has not been shown, I hold, how the Respondents proved their entitlement to the space in contention. It is not the case of the Appellants that the 1st and 2nd Respondents do not have any claim to the land covered by the

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Certificate of Occupancy.

What they do dispute is that this Certificate extends to the land in dispute.

It is important to keep in view the fact that one of the claims sought by the Respondents in their Counter Claim and granted by the lower Court is for:
“A declaration that the land space where the plaintiffs are occupying lying and situated at Fagge Takudu Kano is part and parcel of Gidan Labaran Nakyauta covered by Certificate of Occupancy No 8181???
No Certificate of Occupancy was produced before the Court with survey plan, to show the dimensions covered by the C of O and also to show whether the Certificate extends to the land in dispute. In the absence of this, it is impossible for the lower Court to have held that the Respondents were entitled to the land in dispute.
???
As submitted by the Appellants’ Counsel, where a Plaintiff fails to establish the identity of the land to which his claim of ownership or title relates, whatever evidence, whether oral or documentary, he produces at the trial cannot, in law, ground a declaration in his favour. See Otanma v Youdubagha (2006) 2 NWLR Part 964 Page 337 at 365 Para A-B per Onnoghen

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JSC

Exhibit CCO1, tendered by the Respondents is not a Survey Plan, but an approved “Site Plan” by the 3rd Respondent. While in the left hand corner, the plan is described as “House for Alhaji Labaran Kiyauta at Plot No C of O 8181 Fagge Takudu”, drawn on the plan are two “proposed buildings” adjoined to which is a “Parking Area”. Also adjoined is what is referred to as “Adjacent Plot No. C of O 6681”.

As pointed out by the Appellants’ Counsel, there is no nexus between this plan and the Respondents’ Certificate of Occupancy, as the C of O depicted in the body of the site plan (Exhibit CC01) is C of O No 6681 while that relied upon by the Respondents is C of O No. 8181.

Without ownership conferred on the Respondents on the land in dispute, that is the “land space”, the trial Judge was in obvious error to rely on this site plan to confer ownership on the Respondents.

The other document relied upon by them as conferring title on them, Exhibit 3, which I have set out above, for “Temporary Use of Space Temporary Sheds at Gidan Labaran Kantin Kwari Market Kano”.

Not only has it not been shown that this document is in respect of the land in

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dispute, Exhibit 3 is not a document of title but a mere permit to erect temporary stalls.

Even if this permit were to be said to be in respect of the land in dispute, the question arises as to whether this approval for “temporary use of space” for “temporary sheds” given by the 3rd Respondent to the 1st and 2nd Respondents in 2010 takes precedence over the Temporary Permits issued to the Appellants by the Fagge Local Government dating from 2002 to 2012 (Exhibits KK7 to KK8).

A Counter Claim, I hold, is a distinct cause of action and has all the attributes of an action. It is a weapon of offence which enables a Defendant to enforce a claim against the Plaintiff as effectively as an independent action. It has to be proved just like a substantive claim.  See Nselik v Muna (2014) 2 NWLR Part 1390 Page 151 at 184 Para C-D per Ariwoola JSC. The Counter Claimant cannot rely on the weakness of the opponents claim but must succeed on the strength of his.

The Respondents’ Counsel contends that the Appellants did not cross examine the Respondents. This, however does not discharge the Respondents from proving their claims.

The burden of proof on

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the Plaintiff in establishing declaratory reliefs to the satisfaction of the Court is quite heavy, I hold, and is not granted even on admission by the Defendant. See the case of Addah v Ubandawaki (2015) 7 NWLR Part 1458 Page 325 at 344 Para G per Fabiyi JSC where it was held:
“..the weakness of the Defendant’s case in a land suit touching on declarations ??? does not assist the Plaintiffs case, He swims or sinks with his own case.”
As further held by I.T. Muhammad JSC, at 348 Para C-E in that case:
” … … in an action which seeks for declaration of title to land, the burden of proof of the identity and boundaries of the land in dispute is squarely on the claimant which can be discharged either by oral evidence or by survey plan showing clearly the area to which his claim relates. It is thus, necessary for a plaintiff who claims declaration and injunction to properly and unmistakably identify the land in dispute in view of the order for injunction which cannot certainly be granted in respect of an undefined Area, where he fails to prove the boundaries of the land he asserts to be in dispute or did not satisfactorily describe the

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dimension and locality, or the description contradicts the plan, the proper order to make is one of dismissal of the claim.”

It is undoubtedly true that the evaluation of evidence and ascription of probative value are the primary function of the trial Court which heard and watched the witnesses testify. An appellate Court will however intervene where the finding of the trial Court is not supported by the evidence or is otherwise perverse. It will intervene where on the face of the record, it is clear that justice had not been done in the case. See Gbemisola v Bolarinwa (2014) 9 NWLR Part 1411 Page 1 at 41-42 Para G-C per Ogunbiyi JSC; Civil Design Construction (Nig) Ltd v SCOA (Nig.) Ltd. (2007) 6 NWLR Part 1030 Page 300 at 339-340 Para H-B per Onnoghen JSC.

The finding of the lower Court, I hold, is not supported by the evidence in this case and the Respondents, I hold, failed to prove their case before the Court to warrant the grant of the reliefs in their favour. I again resolve the 2nd issue for determination against the Respondents.

Having resolved both issues in favour of the Appellants, this appeal succeeds.

In conclusion, the judgment

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of the lower Court in suit No K/154/2011 delivered on the 4th May 2015 by HON Justice Kabiru M. Auta of the Kano State High Court is set aside.

In its stead, it is hereby ordered as follows:
1. The Appellants’ claim is remitted to the HON. Chief Judge of Kano State for retrial before another Judge of the High Court.
2. The Counter Claim of the Respondents fails in its entirety and is hereby dismissed.

Parties shall bear their respective costs.

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Other Citations: (2016)LCN/8720(CA)