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Alhaji Goni Kyari v. Alhaji Ciroma Alkali & Ors. (2001) – SC

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➥ CASE SUMMARY OF:
Alhaji Goni Kyari v. Alhaji Ciroma Alkali & Ors. (2001) – SC

by “PipAr” Branham-Paul C. Chima.

➥ COURT:
Supreme Court – SC.224/1993

➥ JUDGEMENT DELIVERED ON:
Friday, May 25, 2001

➥ AREA(S) OF LAW
Right/certificate of occupancy;
Revocation.

➥ PRINCIPLES OF LAW
⦿ COURT NOT TO MAKE COMMENT ON ISSUE NOT RAISED
The question whether the 2nd and 3rd respondents were properly joined as “third parties” in the suit has not been raised as an issue in this appeal by any of the parties. I do not, therefore, propose to make any comment on the subject. — Iguh, JSC.

⦿ WHERE IDENTITY OF LAND NOT IN DISPUTE, DECLARATION OF TITLE MAY BE MADE WITHOUT SURVEY PLAN
The first point that must be made is the basic principle of law that in a counter-claim, just like in any other claim for declaration of title to land, the onus lies on the claimant to prove with precision and certainty and without inconsistency the identity of the land to which his claim or counter-claim relates. See Onwuka v.Ediala (1989) 1 NWLR (Pt. 96) 182; Ezeokeke v. Umunocha Uga (1962) 1 All NLR 477. (1962) 2 SCNLR 199; Olusanmi v. Oshasona (1992) 6 NWLR (Pt. 245) 22 at 36, Udeze v. Chidebe (1990) 1 NWLR (Pt. 125) 141 etc. There can be no doubt that the most common and, perhaps, the easiest way of establishing the precise area of land in dispute is by the production of a survey plan of such land. It is, however, equally clear that it is not in all cases for declaration of title to land that it is necessary to survey and/or tender the survey plan of the land in dispute. There are many cases in which no survey plans are essential for a proper determination of the issue. What the court must consider is whether, in a particular case, it is necessary for the proper trial of the action for a survey plan to be produced. Where there is no difficulty in identifying the land in dispute, a declaration of title may be made without the necessity of tying it to a survey plan. — Iguh, JSC.

⦿ ONE ALLEGING TRESPASS IS TO PROVE TRESPASS
Accordingly, where one in possession of land is said to be a trespasser, the onus is on the person asserting such an allegation to establish that he has a better title to the land than the person in possession. See Pius Amakor v. Benedict Obiefuna (1974) 3 S.C. 67. (1974) 1 All NLR 119 OR (1974) NMLR 331. It will now be necessary to ascertain whether the appellant was able to prove a better title to the land in dispute than the 1st respondent. — Iguh, JSC.

⦿ FIVE METHODS BY WHICH TITLE TO LAND MAY BE PROVED
In this regard, it is long settled that there are five methods by which ownership of land may be proved by a claimant. These are as follows: (i) By traditional evidence; (ii) By production of document of title which must be duly authenticated; (iii) By the exercise of numerous and positive acts of ownership over a sufficient length of time to warrant the inference that the person is the true owner of the land; (iv) By acts of long possession and enjoyment of the land; and (v) By 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. See Idundun & Ors v. Okumagba and Others (1976) N.S.C.C. 445, (1976) 9-10 SC 227 AT 249 or (1976) 1 NMLR 200. — Iguh, JSC.

⦿ CERTIFICATE OF OCCUPANCY IS ONLY PRIMA FACIE EVIDENCE OF TITLE
It must however be stressed that this does not and cannot, mean that once instrument of title to land, such as a Deed of Conveyance or a Certificate of Statutory or Customary right of occupancy is tendered in court, this automatically proves that the land therein purportedly conveyed, granted or transferred by that instrument becomes the property of the grantee. See Prince Ngene v. Chike Igbo and Another (2000) 4 NWLR (Pt. 651) 131. The existence of a certificate of occupancy is merely a prima facie evidence of title to the land it covers and no more. Nor does mere registration validate spurious or fraudulent instrument of title or a transfer or grant which in law is patently invalid or ineffective. See Lababedi and Another v. Lagos Metal Industries Ltd. and Another (1973) 8 N.S.C.C. 1. (1973) 1 SC. 1. — Iguh, JSC.

⦿ TYPES OF RIGHTS OF OCCUPANCY IN THE LAND USE ACT – ACTUAL VS DEEMED GRANT
For a better appreciation of the issue, it is necessary to observe that under the Land Use Act, 1978, two types of rights of occupancy were thereby created. These comprise of Statutory right of occupancy and Customary right of occupancy. Both Statutory right of occupancy and Customary right of occupancy are of two classifications. The first is the Statutory right of occupancy granted by the State Governor pursuant to Section 5(1)(a) of the Act and the Customary right of occupancy granted by the Local Government under Section 6 (1) (a) of the Act. The second classification is the Statutory right of occupancy deemed to have been granted by the State Governor pursuant to Section 34(2) of the Act and the Customary right of occupancy deemed to have been granted by the Local Government under Section 36(2) of the Act. In both cases of Statutory and Customary rights of occupancy. Therefore, there exist an actual grant as well as a deemed, grant. An actual grant is naturally a grant made by the Governor of a State or a Local Government whilst a deemed grant comes into existence automatically by the operation of law. See Savannah Bank (Nig.) Ltd. v. Ajilo (1989) 1 NWLR (Pt. 97) 305 and Alhaji Adisa v. Emmanuel Oyinwola and Others (2000) 10 NWLR (Pt. 674) 116. It is in the light of these categories of grant that the validity of Exhibits A and B must now be examined. — Iguh, JSC.

⦿ REVOCATION BY GOVERNOR MUST BE FOR OVERRIDING PUBLIC PURPOSE
By the provisions of Section 28(1) of the Land Use Act, 1978, it shall be lawful for the Governor to revoke a right of occupancy for overriding public interest. At no time was the appellant’s validly subsisting right of occupancy over the land in dispute revoked by the Borno State Governor nor even was notice of such revocation served on the appellant or on his predecessors in title. It is also not in dispute that no compensation in respect of the land was ever paid to the appellant. It ought also to be borne in mind that the purported grant made by the State Government to the 1st respondent was not for any overriding public interest but for his personal use for farming purposes. In these circumstances, it seems to me that Exhibit B is equally tainted with illegality and is as incurably defective as Exhibit A. — Iguh, JSC.

⦿ FAILURE TO INDICATE SUIT IS BROUGHT IN REPRESENTATIVE CAPACITY WILL NOT NULLIFY PROCEEDINGS
It is long settled that once the pleadings and the evidence of a party conclusively disclose a representative capacity and it is clear that the case was fought throughout in that capacity, the trial court can properly and justifiably enter judgment for and or against the party concerned in such representative capacity, even if an amendment to reflect that capacity had not been applied for and obtained. See Afolabi and others v. Adekunle and Another (1983) 2 SCNLR 141 or (1983) 14 NSCC 398 or (1983) 8 SC 98; Ayeni v. Sowemimo (1982) 5 S.C. 60, Dokubo v. Bob Manuel (1967) 1 All NLR 113 at 121, Mba Nta and Others v. Ede Anigbo and Another (1972) 5 S.C. 156 at 174 – 176. It would be otherwise if the case is not made out in a representative capacity. See Onwunalu Ndidi and Another v. Osademe (1971) 1 All NLR 14 at 16. This is because the law in such circumstance is that the court should do substantial justice and save multiplicity of suits by amending the capacity in which the suit is brought or defended so as to bring it in line with the pleadings and the evidence. Where, therefore, an action is brought in a representative capacity, failure to express that fact on the writ of summons does not ipso facto invalidate the proceedings and an appellate court may on its own motion amend the title to the proceedings in order to show clearly the capacity in which a party has sued or is sued provided the pleadings and the evidence conclusively show that the action is prosecuted or defended in a representative capacity. See too Iro Elera v. Inyima Ndukwe (1961) All NLR 564. Where no evidence of representation has been given, such a case cannot be one where an amendment can be made by the court to the writ of summons and the Statement of Claim or Defence for that by itself would not cure the lack of evidence. — Iguh, JSC.

Available:  Sunmonu Olohunde V. Professor S.K. Adeyoju (2000) - SC

➥ LEAD JUDGEMENT DELIVERED BY:
Iguh, J.S.C.

➥ APPEARANCES
⦿ FOR THE APPELLANT
A. Kayode.

⦿ FOR THE RESPONDENT
L.O. Sanyaolu Esq.

➥ CASE FACT/HISTORY
The case for the plaintiff, briefly put, is that some time in 1978 he applied to the Konduga Local Government Council for a piece of land for the purpose of farming. His application was granted. On the 4th October, 1979, the Council issued him with a Certificate of Customary Right of Occupancy No. 00080 covering a piece or parcel of land at Lamboa/Jakana Village in the Auno District of Konduga Local Government Area of Borno State. This Certificate was tendered in evidence as Exhibit A. Thereafter the plaintiff in 1980 again applied for a Statutory Right of Occupancy in respect of the same piece of land from the Borno State Governor. After the necessary surveys, the Governor of Borno State through the relevant Commissioner issued the plaintiff with the Statutory Right of Occupancy No. BO/3508 dated the 7th day of April, 1981 in respect of the land. This Certificate is Exhibit B. The plaintiff claimed that he had since been in possession of the land for farming purposes until in 1984 when the 1st defendant came to him and asserted that the land covered by the Right of Occupancy belonged to him. The plaintiff claimed title to the land by virtue of the issuance to him of the Customary Right of Occupancy, Exhibit A, which later was converted to the Statutory Right of Occupancy, Exhibit B.

The 1st defendant, on the other hand, claimed that the said piece or parcel of land in dispute purportedly granted to the plaintiff per Exhibits A and B belonged to him and his family, the descendants of one Bulama Sheriff Bukar, their ancestor from time immemorial. He asserted that members of his said family belong to Jakana village in the Konduga Local Government Area and had been the owners under customary law in possession of the land from time beyond human memory. He claimed title to the land in dispute by virtue of devolution and/or inheritance under customary law in that the same from time immemorial had been in the exclusive ownership and possession of successive generations of his said family. He contended that the said piece of land over which Exhibits A and B were issued remained his family land and that his interest over the same had, neither been revoked nor was any compensation paid to his family in respect thereof before Exhibits A and B were issued. It was his case that the land in dispute was unlawfully and illegally granted to the plaintiff and that the Certificates of Occupancy, Exhibits A and B, were therefore null and void and of no effect. He further alleged that the certificates were obtained through active concealment of the material fact, to wit, that the 1st defendant and members of his family and before them, their ancestors, were at all material times the actual owners in possession of the land. He stated that they remained the title owners under customary law and in possession of the land and the occupiers thereof prior to the B purported issuance of Exhibits A and B to the plaintiff. He claimed that the Borno State Government had at no time given notice to him, his people or their predecessors in title of Government’s intention to acquire the land.

By a writ of summons issued on the 28th day of June, 1986. The plaintiff, who is the 1st respondent herein, instituted an action against the 1st defendant, who is now the appellant, at the Maiduguri Judicial Division of the High Court of Justice, Borno State, claiming as follows: “(a) A declaration that the defendant is not entitled to enter or use the said farmland. (b) An injunction to restrain the defendant either by himself, his servants or agents or otherwise whosoever from entering or using the said farmland. (c) Damages. (d) Further or other relief.”

Pleadings were ordered in the suit and were duly settled, filed and exchanged.

The 1st defendant in his Statement of Defence vigorously denied that the plaintiff was entitled as claimed or at all and counter-claimed against the said plaintiff.

The plaintiff filed a reply to the 1st defendant’s counter-claim wherein he denied the 1st defendant’s entitlement to any of the reliefs counter-claimed.

At the conclusion of hearing, the learned trial Judge, Ogunbiyi, J., after a careful review of the evidence on the 29th day of March, 1990 held that title to the land in dispute and actual possession thereof were in the 1st defendant and his family from the time of his ancestors from time beyond human memory. She found that the said land at the time it was purportedly granted to the plaintiff per Exhibit A was not unencumbered but that it was in the ownership and possession of the 1st defendant and his family. She ruled that Exhibits A and B were issued in contravention of the provisions of the Land Use Act, 1978 and that they were therefore void and had no legal validity.

The Court of Appeal, however, in a unanimous decision on the 17th day of May, 1993 allowed the plaintiff’s appeal.

Aggrieved by this decision of the Court of Appeal, the 1st defendant has appealed to this court. I shall hereinafter refer to the 1st defendant as the appellant, and the plaintiff and the third parties as the 1st, 2nd and 3rd respondents respectively.

➥ ISSUE(S) & RESOLUTION(S)
[APPEAL ALLOWED]

I. Whether the learned Justices of the Court of Appeal were right when they held that the appellant did not prove the identity of the land in dispute?

RULING: IN APPELLANT’S FAVOUR.
A. THAT THE IDENTITY OF THE LAND WAS NEVER IN DISPUTE, THERE WAS NO NEED FOR PROOF
“It seems to me crystal clear from the pleadings of the parties that the land in dispute is that piece or parcel of farm land covered by the 1st respondent’s Certificates of Occupancy No. 00080 of the 4th October, 1979 and No. BO/3508 of the 7th April, 1981, Exhibits A and B respectively. The appellant joined no issue, whether directly or indirectly, with the 1st respondent with regard to the identity of the said land. This farm land, as pleaded in paragraph 7 of the Statement of Claim, is more particularly described and delineated both in the Certificate of Occupancy No. BO/3508, Exhibit B and the survey plan attached thereto. The appellant neither denied this material averment, whether specifically or by necessary implication, nor did he state that it was not being admitted. It is trite law that every allegation of fact in a Statement of Claim if not denied specifically or by necessary implication or stated not to be admitted in the Statement of Defence shall be taken to be admitted. It is plain from the pleadings of the parties that it is the same very piece or parcel of land covered by the Certificates of Occupancy therein pleaded which is the subject matter of the 1st respondent action against the appellant that is the campus bellum with regard to the appellant’s counter-claim against the 1st respondent in the same suit. I can find no reason whatever to fault the trial court when, upon a close examination of the pleadings, it concluded thus: ‘On the question of the identity of the land claimed by the defendant which Mr. Ba’ aba, learned counsel for the plaintiff argued has not been identified, it is my view that since the said matter had not been raised on the pleadings of the parties, I hold that it is a none issue and that which is not for consideration.’”

Available:  Onuoha Kalu v The State (1998) - SC

“I think the court below, with respect, was in error when it held in effect that there was a duty on the appellant to prove the identity of the land he counter-claimed against the 1st respondent when that fact, on the pleadings was not in dispute between the parties in the suit. In this regard, it cannot be over-emphasised that evidence must be directed and confined in courts of trial to the proof or disproof of the issues as settled by the parties in their pleadings. See Esso Petroleum Ca. Ltd. V. Southport Corporation (1956) A.C. 218.”
.
.
II. Whether having regard to the pleadings and evidence led, the judgment of the Court of Appeal is not against the weight of evidence i.e. who, between the Appellant and the 1st respondent proved a better title? &, Whether the Konduga Local Government and Borno State Certificates of Occupancy (i.e. Exhibits “A” and “B” respectively) were unlawfully and illegally issued to the 1st respondent?

RULING: IN APPELLANT’S FAVOUR.
A. THAT THE APPELLANT WAS ALREADY IN POSSESSION AS AT WHEN THE 1ST RESPONDENT ENTERED THE LAND
“The Court of Appeal, for its own part, reversed the above findings of the trial court, and held that the respondent was in possession of the land for a period of 11 – 12 years prior to the institution of this action and that on the finding of the trial court, the land was vacant when it was granted to the 1st respondent in 1979. With the greatest respect to the court below, it is patently incorrect that the trial court found the land in dispute to be vacant at the time it was granted to the 1st respondent in 1979. The finding of the trial court on the issue is, in my opinion, the very opposite of what the court below would appear to suggest. The plain finding of the trial court is that the land in dispute was not vacant in 1979 but that it was in the occupation and ownership of the appellant and his family from time immemorial until the purported allocations to the 1st respondent per Exhibits A and B.”

B. THAT NO INVESTIGATION WAS CARRIED OUT BEFORE THE ISSUANCE OF THE STATUTORY RIGHT OF OCCUPANCY TO THE 1ST RESPONDENT
“As I have already indicated the Certificates of Occupancy, Exhibits A and B, are merely prima facie evidence of title and no more. The 1st respondent’s root of title is the Certificate of Customary right of Occupancy, Exhibit A. The Certificate of Statutory right of Occupancy, Exhibit B, was issued by the Borno State Government solely on the basis of Exhibit A. Indeed Exhibit B was not only issued on the basis of Exhibit A, it was described as the conversion of the 1st respondent’s Certificate of Customary right of Occupancy, Exhibit A, to a Certificate of Statutory right of Occupancy, Exhibit B. It does not appear from the evidence that any further or serious investigations were carried out by the Borno State Government before Exhibit B was routinely issued.
On the evidence of the 3rd Party witness No.2, Mallam Ibrahim Magaji Wala, the Deputy Chief Land Officer, Barno State, the 1st respondent applied for the “conversion” of his Customary right of Occupancy No. 00080 to Statutory right of occupancy. Said he: – “The application (i.e. of the 1st respondent) was based on a conversion of his Customary Certificate of Occupancy No. 00080 which he obtained from Konduga Local Government dated 4th October, 1979” (Words in brackets supplied for clarity)
Under cross-examination by the 1st respondent, he stated: “Although we (i.e. Borno State Government) did not contact the Konduga Local Government, we believed that the Konduga Customary Certificate of Occupancy was genuine” (Words in brackets and italics supplied for clarity and emphasis)
He added: “I have nothing to do or know whether or not the Konduga Local Government did inquire before issuing the Customary Right of Occupancy. The application for the certificate on the land was for mixed farming for the use of the plaintiff’ (Italics supplied for emphasis)
The above witness was the star witness who testified for the Borno State Government in respect of Exhibit B. It is clear from his testimony that the State Government in issuing Exhibit B relied entirely on the issuance of Exhibit A by the Konduga Local Government, irrespective of whether or not the said Exhibit A was regularly issued and whether or not it was valid. Exhibit B, it was stated, was issued by the State Government in the belief that Exhibit A was valid, or, in the word of the witness, genuine. If Exhibit A is defective and invalid, it will stand to reason that Exhibit B which is dependent on and finds its roots from the said Exhibit A can hardly be any different.”

C. THAT THE COURT OF APPEAL OUGHT NOT TO INTERFERE IN THE TRIAL COURT’S FINDINGS IN FAVOUR OF THE APPELLANT/DEFENDANT
“Now, the learned trial Judge after a thorough review of the evidence found in the clearest possible terms that the appellant proved a better title to the land in dispute than the 1st respondent. She found that the appellant and his family members and before them, their predecessors-in-title, had from time immemorial been the owners in possession and occupation of the land in dispute up till the 4th October, 1979 when Exhibit A was issued. These findings are amply supported by evidence on record and, with profound respect, the court below ought not to have interfered with them in the absence of cogent reasons for so doing. See Woluchem v. Gudi (1981) 5 S.C. 291 at 295 – 6, 326 – 9; Balogun v. Agboola (1974) 10 S.C. 111, (1974) 1 All NLR (Pt.2) 66; Ike v. Ugboaja (1993) 6 NWLR (Pt. 301) 539 at 555.”

D. THAT THE APPELLANT ALREADY HAD A DEEMED GRANT OF CUSTOMARY RIGHT OF OCCUPANCY
“The Land Use Act, 1978 came into operation on the 29th March, 1978. It is not in dispute that the land is not in an urban area. There is also a finding by the learned trial Judge that the appellant’s people have been in occupation and used the land from time beyond human memory for agricultural purposes. In these circumstances, it cannot be disputed that title to the possession of the land in dispute for agricultural purposes was as at the 29th March, 1978 vested in the appellant and members of his family as if a customary right of occupancy had been granted to them by the Konduga Local Government as the occupiers, holders and customary law title owners thereof. This is by virtue of the deemed gram in their favour by the operation of law pursuant to the provisions of Section 36(2) of the Land Use Act, 1978. This grant, to all intents and purposes is no different from an actual grant to the appellant and members of his said family under the provisions of Section 6(1)(a) of the Act. It is my view that the one grant is in all respects as good as the other and that the appellant and members of his family from the 29th day of March, 1978 became the lawful beneficiaries and/or grantees of the aforesaid customary right of occupancy over the land in dispute with the Konduga Local Government as their grantors. It is my further view that the land in dispute having been deemed granted to the appellant by the operation of law by the Konduga Local Government as from the 29th March, 1978 could not thereafter be lawfully or validly granted a second time by the same Local Government during the subsistence of the first grant as the land would then not be free for allocation under the well known maxim, nemo dat quod non habet. The purported grant under Exhibit A is therefore patently unjustifiable, unlawful and, clearly invalid and of no effect.”

Available:  ABDULLAHI v. FEDERAL REPUBLIC OF NIGERIA (FRN) [2016]

E. THAT MERE ISSUANCE OF THE CERTIFICATES OF OCCUPANCY TO THE 1ST RESPONDENT CANNOT GRANT TITLE AS THEY ARE DEFECTIVE
“By the provisions of Section 28(1) of the Land Use Act, 1978, it shall be lawful for the Governor to revoke a right of occupancy for overriding public interest. At no time was the appellant’s validly subsisting right of occupancy over the land in dispute revoked by the Borno State Governor nor even was notice of such revocation served on the appellant or on his predecessors in title. It is also not in dispute that no compensation in respect of the land was ever paid to the appellant. It ought also to be borne in mind that the purported grant made by the State Government to the 1st respondent was not for any overriding public interest but for his personal use for farming purposes. In these circumstances, it seems to me that Exhibit B is equally tainted with illegality and is as incurably defective as Exhibit A.”

“I repeat that the mere issuance of the Certificates of Occupancy, Exhibits A and B does not and cannot confer title in respect of the land in dispute on the 1st respondent where no such title either existed or was available to be transferred to anyone. It is my view that Exhibits A and B were both issued at the time the customary title of the appellant and members of his family over the piece of land in dispute was subsisting and vesting properly in them and had not been revoked. Both Certificates of Occupancy were rooted on no foundation whatsoever and they are, in my view, totally ineffective and void ab initio. It is also clear to me that having regard to the findings of the learned trial Judge which are in no way perverse and were not faulted by the court below, the appellant proved a better title to the land in dispute than the 1st respondent.”
.
.
.
✓ DECISION:
“The conclusion I therefore reach is that there is merit in this appeal and the same is hereby allowed. The decision of the Court of Appeal dated the 17th day of May, 1993 including the order as to costs is set aside and the judgment of the trial court delivered on the 29th day of March, 1990 is hereby restored. However, having regard to the fact that the 1st respondent’s action was defended and the appellant’s counter-claim prosecuted before the trial court in a representative capacity for and on behalf of the appellant and members of his family, judgment is hereby entered for the said appellant in the counterclaim for himself and on behalf of all the members of his family, that is to say, the descendants of Bulama Sheriff Bukar of Jakana Village in the Konduga Local Government Area of Borno State and the heading of the appellant’s counter-claim is hereby amended accordingly. There will be costs to the appellant against each set of respondents, namely, the 1st respondent, of the one part, and the 2nd and 3rd respondents, of the other part, which I assess and fix at – N1,000.00 in the court below and N10,000.00 in this court respectively.”

➥ MISCELLANEOUS POINTS

➥ REFERENCED (STATUTE)
S. 28(1), 36(2) Land Use Act.

➥ REFERENCED (CASE)
⦿ THE FUNCTION OF PLEADING IS TO DEFINE & DELIMIT REAL MATTERS IN CONTROVERSY
Atolagbe v. Shorun (1985) 1 NWLR (Pt. 2) 360 at 365 where Coker, J.S.C. in dealing with the main function of pleadings in the trial of an action had this to say: – “The primary function of pleadings is to define and delimit with clarity and precision the real matters in controversy between the parties upon which they can prepare and present their respective cases and upon which the court will be called to adjudicate between them. It is designed to bring the parties to an issue on which alone the court will adjudicate between them party is bound by his pleading and cannot go outside it to lead evidence or rely on facts which are extraneous to those pleaded.”

⦿ WHEN AN INSTRUMENT OF GRANT IS PRODUCED, THE COURT WILL ENQUIRE
As the position was explained by this court in Romaine v. Romaine (1992) 4 NWLR (Pt.238) 650 per Nnaemeka-Agu, J.S.C.: “But it does not mean that once a claimant produces what he claims to be an instrument of grant he is automatically entitled to a declaration that the property which such an instrument purports to grant is his own. Rather production and reliance upon such an instrument inevitably carries with it the need for the court to enquire into some or all of a number of questions, including. – ‘(i) whether the document is genuine and valid; (ii) whether it has been duly executed, stamped and registered; (iii) whether the grantor had the capacity and authority to make the grant; (iv) whether the grantor had in fact what he purported to grant and (v) whether it had the effect claimed by the holders of the instrument.’ ”

⦿ APPEAL COURT HAS THE POWER TO AMEND PARTIES CAPACITY
See too Lawrence Elendu and others v. Felix Ekwoaba (1998) 12 NWLR (pt. 578) 320 at 331 – 332 where this court, per Onu J.S.C., succinctly put the proposition of law under consideration as follows: – “Once the pleadings and evidence show conclusively a representative capacity and the case was fought throughout in that capacity, the trial court can justifiably properly enter judgment for and/or against the party in that capacity even if an amendment to reflect that capacity had not been applied for and obtained. Moreover, an appeal court has the power in the interest of justice to amend the parties’ capacity in the writ of summons and to enter judgment for them accordingly.”

➥ REFERENCED (OTHERS)

End

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