ADAMAWA STATE MINISTRY OF LAND & SURVEY & ORS v. SALISU & ORS (2020)

ADAMAWA STATE MINISTRY OF LAND & SURVEY & ORS v. SALISU & ORS

(2020)LCN/14390(CA)

In The Court Of Appeal

(YOLA JUDICIAL DIVISION)

On Thursday, June 11, 2020

CA/YL/94/18

Before Our Lordships:

Chidi Nwaoma Uwa Justice of the Court of Appeal

James Shehu Abiriyi Justice of the Court of Appeal

Abdullahi Mahmud Bayero Justice of the Court of Appeal

Between

1. ADAMAWA STATE MINISTRY OF LAND & SURVEY 2. HON. COMMISSIONER, ADAMAWA STATE MINISTRY OF LAND & SURVEY 3. ATTORNEY GENERAL AND COMMISSIONER FOR JUSTICE, ADAMAWA STATE APPELANT(S)

And

1. ALHAJI ADAMU SALISU 2. I.A.D. NIGERIA LIMITED 3. MR. ILIYA ADAMU RESPONDENT(S)

RATIO

WHETHER OR NOT THE TRIAL COURT IS BOUND TO ACCEPT THE EVIDENCE OF A PLAINTIFF WHERE IT IS NEITHER CHALLENGED NOR CONTRADICTED IN HIS CLAIM FOR DECLARATION OF TITLE TO LAND

Where the plaintiff pleads and gives evidence in support of his claim for declaration of title and his evidence is neither challenged nor contradicted, the trial Court is bound to accept the evidence unless there is something inherent in the evidence which disproves it. See. IJEBU – ODE L.G. VS. ADEDEJI BALOGUN & CO. LTD. (1991) 1 NWLR (PT. 166) P. 136 at 159, A – B; 165, C – D; INCAR NIG. LTD VS. ADEGBOYE (1985) 2 NWLR (PT. 8) 453 at 461 – 462, B – C and MTN VS.CORPORATE COMMUNICATION INVESTMENT LTD (2019) LPELR – 47042 (SC) PP. 53 – 54, PARAS. B – C. In OMEREGBE VS. LAWANI (1980) LPELR – 2655 (SC) P. 16, PARAS. A – D, his Lordship Idigbe, JSC in respect of unchallenged evidence held thus:
“…where evidence given by a party to any proceedings was not challenged by the opposite party who had the opportunity to do so, it is always open to the Court seised of the proceedings to act on the unchallenged evidence before it (seeODULAJA VS. HADDAD (1973) 11 S.C. P. 35; NIGERIAN MARITIME SERVICES LTD. VS. ALHAJI BELLO AFOLABI (1978) 2 S.C. 79 at 81 – 82; See also the Privy Council on the Nigerian case of ADEL BOSHALI VS. ALLIED COMMERCIAL EXPORTERS LTD (1961) ALL NLR 917 per Lord Guest).” PER UWA, J.C.A.

WHETHER OR NOT AN OMNIBUS GROUND OF APPEAL CAN BE DIRECTED AT THE SUMMARY AND EVALUATION OF EVIDENCE BY THE TRIAL JUDGE

Ground one above is the omnibus ground which is usually directed at the summary and evaluation or appraisal of evidence by the trial judge as well as his ascription of probative value to the evidence adduced before him. It makes out that there was no evidence which if accepted, would support the findings of the trial judge or the inference which he had drawn thereon. This ground of appeal cannot be extended to cover the issue of whether the Governor’s consent was obtained or not which is purely an issue of law which cannot be covered by an omnibus ground which cannot sustain or give rise to a specific point of law. See CALABAR EAST CO-OP. VS. IKOT (1999) 14 NWLR (PT. 638) 225 and HENKEL CHEMICALS (NIG) LTD VS. A – G FERRERO & CO. LTD. (2002) LPELR – 7107 (CA) PP. 3 – 5, PARAS. F – B. Further, an omnibus ground of appeal questions the evaluation of evidence led before the trial Court, it does not cover issues of law, it is regarded as a ground of fact. See NKWOCHA VS. MTN (NIG) COMM. LTD (2008) 11 NWLR (PT. 1099) PAGE 439, OPUIYO VS. OMONIWARI (2007) 16 NWLR (PT. 1060) PAGE 415; LAGGA VS. SARHUNA (2008) 16 NWLR (PT. 1114) PAGE 427, F.M.H. VS. C.S.A. LTD (2009) 9 NWLR (PT. 1145) PAGE 193 and ADERIBIGBE VS. ABIDOYE (2009) 10 NWLR (PT. 1150) PAGE 592 and OKONKWO VS. OKECHUKWU (2012) LPELR – 15354 (CA) PP. 63 – 64, PARA. B. PER UWA, J.C.A.

WHETHER OR NOT PARTIES ARE BOUND BY THEIR RELIEFS SOUGHT FROM THE PLEADINGS

The position of the law is that the parties and the Court are bound by the reliefs sought by the parties from the pleadings and the evidence in support. See VEEPEE INDUSTRIES LTD VS. COCOA INDUSTRIES LTD (2008) NWLR (PT. 1105) 486 SC; UGO VS. OBIEKWE (1989) 2 SC (PT. 11) 41 and IPCO (NIG) LTD VS. NNPC (2013) LPELR – 22083 (CA) P. 21, PARAS. A – B where his Lordship Oseji, JCA held that:
“A Court’s power is circumscribed by the reliefs sought by an applicant and will not unnecessarily embark on a voyage of discovery except in situations where there is need for ancillary reliefs to be granted but which must flow from the main relief sought.” PER UWA, J.C.A.

CHIDI NWAOMA UWA, J.C.A. (Delivering the Leading Judgment): The 1st Respondent was the plaintiff before the Adamawa State High Court (hereafter referred to as the trial Court) presided over by A.D. Mammadi, J., where he sought against the Appellants, 2nd and 3rd Respondents the following reliefs:
(i) “A declaration of title to the piece of land in dispute measuring 23281.30m2 (2.16 hectares) situate along Yola to Numan Federal High Way near Federal Government grains reserve Silos at Kwanan Waya village in Yola South Local Government Area of Adamawa State formerly covered by Yola South Local Government Customary Certificate of Occupancy No YSLG/WKS/LAN/NAM/VOL./II/0018 and now covered by right of Occupancy No. ADS/24071 in favour of the plaintiff.
(ii) A declaration that the entry of the 1st defendant (on the authority of the 2nd – 5th defendants) into the land in dispute by dumping building materials, planting molding machine, demolishing the L. shape boarder walls, clearing the land and building on it amounted to various acts of trespass by the defendant against the plaintiff.

(iii) An order of the Court directing the defendants to

remove all their illegal structures, equipment and materials from the plaintiff’s land subject of this suit and vacate the property or the plaintiff to remove same at the cost to be borne by the defendants.
(iv) An order of the Court declaring as illegal null and void any allocation of the land in dispute to the 1st and/or 2nd defendants by 3rd to 5th Defendants and setting aside any allocation letter granted to 1st defendant or anybody in respect thereof.
(v) An order of the Court declaring as null and void any purported acquisition of the plaintiff’s land in dispute from the plaintiff to 1st and 2nd defendants by 3rd to 5th defendants or anybody.
(vi) An order of perpetual injunction restraining the defendants or their agents, privies or anybody or persons claiming for them or under them from further entering or using the land in dispute, or doing any acts of further trespass on the land in dispute, or tempering in anyway with the peaceful possession, ownership and enjoyment of the land in dispute by the plaintiff.
(vii) An order directing the defendants to pay the sum of N20,000.000.00 (Twenty Million Naira) only as general

damages for trespass.
(viii) Cost of the suit.
ALTERNATIVELY
(1) An order of the Court directing the defendants to pay the plaintiff the sum of N50,000.000.00 (Fifty Million Naira) only as compensation for
(2) his land if at all the Defendants wants to take over the land on overriding public interest.
(3) An order for payment of N20,000,000.00 (Twenty Million Naira) only as damages for trespass in favour of the plaintiff and against the defendants.
(4) Allocation of alternative suitable plot commensurate to the plot in dispute in terms of size and location by the 3rd – 5th defendants in favour of the plaintiff.
(5) Cost of the suit.”

At the close of the trial, the trial Court gave judgment in favour of the 1st Respondent and granted all the reliefs sought. The Appellants being dissatisfied with the decision appealed to this Court.

On the part of the Appellants as defendants, they contended that the land the subject matter of the suit was lawfully acquired by the Adamawa State Government after proper procedure was followed. The Appellants distilled the following issues for the determination of the appeal

thus:
1. “Whether there was sufficient evidence put forward by the 1st Respondent to warrant the Hon. Trial Court arrived (sic) at its decision. (Grounds 1 & 2 of the grounds of appeal)
2. Whether Exhibit 4 (the Grant of Right of Occupancy) was procured in anticipation of suit and or proceedings by the 1st Respondent. (Ground 3 of the grounds of appeal).
3. Whether the land in dispute was properly acquired by the appellants. (Ground 4 of the grounds of appeal)
4. Whether the Court can grant a relief not sought for by a party. (Ground 5 of the grounds of appeal).
5. Whether the trial Court had accorded fair hearing to the appellants. (Grounds 6 & 7 of the grounds of appeal).

In response, the 1st Respondent formulated the following issues:
1. “Whether based on the preponderance of evidence before the trial Court, the learned trial Judge was right in declaring title to the land in dispute to the plaintiff/1st Respondent? (Distilled from grounds 1, 2 and 3).
2. Whether the learned trial Judge was right in holding that the land in dispute was not properly revoked and lawfully acquired by the Appellants?

(Distilled from ground 4)
3. Whether the learned trial Judge has not accorded appellants the right to fair hearing.” (Distilled from grounds 6 and 7)

The learned counsel to the 2nd and 3rd Respondents E.N. Imande Esq., did not file any brief of argument.

In arguing the appeal, U. J. Konleganyiga Esq., Senior State Counsel I Adamawa State Ministry of Justice for the appellants adopted his brief of argument filed on 23/5/18, as his argument in this appeal in urging us to allow the appeal, set aside the judgment of the trial Court or in the alternative order a retrial before another judge. In arguing his issue one, it was submitted that there was no sufficient evidence put forward by the 1st Respondent to warrant the decision in his favour. In proof of his case, the 1st respondent testified as the PW1 and called one other witness the PW2 (Kabiru A. Bobboi), the vendor of the land to the 1st Respondent. The learned State Counsel gave the five ways in which a declaration of title could be proved as stated in ARIYO VS. ADEWUSI (2010) NWLR (PT. 1215), PAGE 78, PARAS. B – D. these are:
(a) by traditional evidence
(b) By production of

title document
(c) By proving acts of ownership numerous and positive enough to warrant an inference that the person is the true owner,
(d) By proving acts of long possession and enjoyment under Section 45 of the Evidence Act; and
(e) By proof of possession of connected or adjacent land.

It was submitted that the 1st Respondent claimed his title through traditional history which he failed to prove. It was argued that a party that relies on traditional history must trace his root of title to the founder of the land in dispute. See ODUNUKWE VS. OFOMATA (2010) 11 NWLR (PT. 1225) PAGE 404 at 430, PARAS. C – D. It was the contention of the Appellant that the 1st Respondent did not trace his root of title to the original founder in his pleadings and evidence before the trial Court. It was submitted that the 1st Respondent was therefore not entitled to the declaration granted by the trial Court. Further, that the plaintiff succeeds on the strength of his case and not on the weakness of the defence. It was argued that the 1st Respondent merely tendered the sale agreement and right of occupancy which will not avail him of title to the

disputed land. See ARIYO VS. ADEWUSI (2010) 15 NWLR (PT. 1215) 78 at 91, PARAS. B – E. It was the contention of the Appellants that the customary title holder, Lamido, his heir and executors did not obtain the consent of the Governor before alienating their right and offended Section 21 of the Land Use Act which made the sale or transfer from Lamido or his executors void.

On their issue two, it was submitted that by the 1st Respondent issuing a pre-action notice to the 2nd and 3rd Respondents dated 23rd May, 2012 shows that the 1st Respondent anticipated legal proceedings based on which the 1st Respondent procured Exhibit 4 (Grant of right of occupancy) which is inadmissible in evidence and which ought not to have been admitted and probative value given to it; see, SECTION 83 (3) OF THE EVIDENCE ACT, 2011, NIGERIA BOTTLING COMPANY PC VS. CHIEF UZODINMA UBANI (2014) 4 NWLR (PT. 1398) PAGE 421 PP. 460 – 461, PARAS. C – G and U.T.C. (NIG) LTD VS. LAWAL (2014) 5 NWLR (PT. 1400) PAGE 221at 421 – 242, PARAS. H – B. It was argued that the right of occupancy procured by the 1st Respondent ought to have been voided by the trial Court.

In arguing issue three, it was submitted that the land in dispute was properly acquired by the appellants and that the DW3, the appellants’ witness testified to this effect, paragraph 4 (a),(b),(c) and (d) of the witness’ statement on oath. It was argued that the documents in respect of the acquisition were pleaded and tendered in evidence even though marked rejected by the Court, pages 138 – 140 and 324 – 325 of the printed records of appeal. It was submitted that the evidence of the DW3 was neither challenged nor contradicted by the respondents. See, N.A.B. LTD VS. SHUAIBU (1991) 4 NWLR (PT. 186) PAGE 450 at 468, PARA.H and N.B.C. PLC VS. UBANI (2014) 4 NWLR (PT. 1398) PAGE 421 at 475, PARAS. B – C. It was submitted that the name of the 1st Respondent appeared in Exhibit 6, the list of those who were paid compensation for the acquisition of the land in dispute, page 141 and 143 of the printed records. It was concluded on this issue that the appellants established that the 1st Respondent’s land was lawfully acquired.

On issue four, it was submitted that the trial Court ought not to have granted the 1st

Respondent a relief not sought. See AYOADE VS. SPRING BANK PLC (2014) 4 NWLR (PT. 1396) PAGE 95 at 132, PARAS. D – E. It was submitted that the 1st Respondent’s reliefs are in paragraph 35 of the Amended Statement of Claim which were granted but, the trial Court erroneously proceeded to grant an additional sum of N10,000,000.00 (Ten Million Naira) as general damages thus awarding damages twice. See AYOADE VS. SPRING BANK PLC (supra)at PAGE 128, PARAS. A – B and PAGE 135, PARAS. D – F. We were urged to set aside the order awarding the N10,000,000.00 (Ten Million Naira). Also, to hold that the decision of the trial Court is perverse.

In arguing the fifth issue, the appellants alleged that at the trial Court when the PW1 (Kabiru Bobboi) and the PW2 (the plaintiff) testified, the appellants’ learned counsel D.B. Dangra Esq., State Counsel I while in the process of cross examination was shut down by the trial Court, which amounted to a denial of fair hearing, page 304, lines 14 – 16 and page 307, lines 22 and 308 lines 1 – 3 of the printed records of proceedings. See MBANEFO VS. MOLOKWU (2014) 6 NWLR (PT. 1403) at

419 PARAS. A – C. It was argued that the denial of the appellants’ counsel to cross examine the PW1 and PW2 occasioned a miscarriage of justice and that the judgment of the trial Court should be set aside.

Further, that the trial Court ought not to have discountenanced the appellants’ written address pursuant to Order 9 Rules 4 and 5 of the Adamawa State High Court (Civil Procedure) Rules, 2013. It was argued that failure to comply with the rules should have been treated as an irregularity in line with Order 3 Rule 2 of the Adamawa State High Court (Civil Procedure) Rules, 2013.

It was argued that the Rule relied upon made the appellants’ written address filed out of time voidable and not void. We were urged to set aside the judgment of the trial Court.

In response, the learned counsel to the 1st Respondent A.B. Buwa Esq., adopted and relied on his brief of argument filed on 19/3/19 but, deemed properly filed on 4/4/19 as his argument in this appeal in urging us to dismiss the appeal with costs and affirm the decision of the trial Court. In arguing his first issue, it was conceded that in an action for declaration of

title, the plaintiff succeeds on the strength of his case and not on the weakness of the defence but, where the evidence of the defence supports the case of the plaintiff, the plaintiff can rely on such evidence to add value to his case, also that the burden of proof is on preponderance of evidence. Reliance was placed on Section 134 of the Evidence Act, 2011. It was submitted that the 1st Respondent’s claim as pleaded is that the land in dispute was sold to him by the head of Namtari (PW1) on the instruction of the traditional owner Late Lamido Aliyu Mustapha, which averments in paragraphs 8, 9 and 10 of the Amended Statement of claim and the evidence in chief of the PW1, paragraphs 4, 5, 6 and 7 were not challenged. It was submitted that the 1st Respondent’s mode of acquisition is purchase, in which he tendered the relevant documents in proof of same. It was argued that the 1st Respondent’s ownership of the land was not disputed or challenged by the Appellants or the 2nd and 3rd Respondents. It was submitted that the evidence of the PW1, PW2, Exhibits 1, 2, 3, 4 and 4A tendered by the 1st Respondent were not challenged and that the 1st

Respondent established good title. It was contended by the 1st Respondent that the only defence put forward by the Appellants is that the land was compulsorily acquired from the 1st Respondent on overriding public interest and same given to the 2nd and 3rd Respondents, reference was made to paragraphs 7 and 8 of the Appellants’ statement of defence, pages 129 – 130 of the printed records of appeal and paragraph 4 (a) – (f) of the evidence in chief of the DW3 (Muhammad Lawal Gidado), pages 136 – 137 of the records.

Further, that neither the Appellants nor 2nd and 3rd Respondents tendered any document of title to the land in dispute and none called evidence to prove their root of title to outweigh the documents tendered by the 1st Respondent, Exhibits 1 – 4 and the evidence of the PW1 and PW2. We were urged to discountenance the argument of the learned counsel to the Appellants to the effect that Exhibit 4 (Grant of Right of Occupancy) was wrongly admitted in evidence by the trial judge on the ground that it was prepared in anticipation of proceedings. On the other hand, without conceding the Appellants’ argument, if

Exhibit 4 is rejected, it would not change the 1st Respondent’s claim as unproved.

Further, that the argument of lack of the Governor’s consent under Section 21 of the Land Use Act, was not covered by any ground of appeal, therefore it should be discountenanced. See VICTOR E. VICTOR VS. THE STATE (2014) ALL FWLR (PT. 719) PAGE 1092 at 1103, PARAS. G – H (SC), PATRICK D. MAGIT VS. UNIVERSITY OF AGRICULTURE MAKURDI & ORS (2006) ALL FWLR (PT. 298) PG. 1313 at 1329 – 1330, PARAS. D – C and SILVERBIRD GALLERIA LTD VS. NIYOD CONSRUCTION NIG. LTD. (2016) ALL FWLR (PT. 846) PAGE 241 at 244. Without conceding that the lack of the Governor’s consent could be entertained under issue one, in the alternative, it was submitted that Section 21 of the Land Use Act is not applicable to the 1st Respondent’s transaction as the property is a freehold (not covered by any Right of Occupancy) at the time of transaction, as Section 21 applies to properties covered by Statutory or Customary Rights of Occupancy at the time of transaction. We were urged to discountenance the argument on the applicability of Section 21 of the Land Use Act.

On the 1st Respondent’s issue two, it was submitted that there are conditions for a person’s land to be lawfully acquired by the Government and be allocated to another and that the burden of proof that the 1st Respondent’s land was acquired lawfully and on overriding public interest was on the appellants which they failed to prove. Reliance was placed on GOLDMARK NIGERIA LTD VS. IBAFON CO. LTD. (2013) ALL FWLR (PT. 663) PAGE 1830, PARAS. F – G at 1873, ISIYAKU YAKUBU VS. IMPRESIT BAKALORE PLC (2011) ALL FWLR (PT. 598) PAGE 827 at 838 – 839 and PROVOST LAGOS STATE COLLEGE OF EDUCATION VS. EDUN (2011) ALL FWLR PT. 201 PAGE 1628 at 1633. It was submitted that the land was not acquired for public purpose, no Notice of acquisition of his land was served on the 1st Respondent and no compensation was paid to him contrary to Section 44 (1) (a) of the 1999 Constitution of the Federal Republic of Nigeria (hereafter referred to as the Constitution). The evidence of the appellants’ witness, the DW3 was referred to. It was argued that Exhibit 6 which the learned counsel to the appellants relied on to show that compensation had

been paid is a proposal for allocation of alternative plots to be allocated to the affected persons which was forwarded to the Director of Land Services for his recommendation.

In arguing his third issue, it was submitted that the Appellants were accorded fair hearing and that the allegation of lack of fair hearing of the trial Court is an unpardonable accusation not based on the printed records of the proceedings of the trial Court. It was argued that after the PW1 and PW2 testified, the learned counsel to the Appellants was given the opportunity to cross examine the witnesses but, he said he had no questions to ask, page 304 of the printed records of appeal, also pages 307 – 308 of the printed records and the judgment of the trial Court at pages 337, lines 5 – 6 and pages 338 line 9. Reliance was placed on ORUGBO VS. UNA (2002) 16 NWLR (PT. 792) PAGE 175 at PAGES 211 – 212.

On the allegation that the trial Court failed to consider the appellants’ written address filed out of time and to treat same as an irregularity, it was submitted that the Appellants failed to file their written address within the twenty one (21) days sought by

the appellants’ learned counsel which was granted by the trial Court, which was a violation of Order 37 Rule 16(2) and (3) of the Adamawa State High Court Civil Procedure Rules, 2013, also Order 37 Rule 16 (2) of the same Rules. Without an application and grant of an extension of time, reference was also made to Order 9 Rule 5 of the same rules and Order 9 Rule 4 which prohibits parties from enlarging time by themselves. Also, Order 3 Rule 1 (1) which nullifies any process filed not incompliance with the Rules. See H.R.H. SAMUEL ADEBAYO & OTHERS VS. JAMES OLATUNDE IDOWU (2018) ALL FWLR (PT. 944) PAGE 777 PARAS. F – G, PAGE 808, ALHAJI RAUFU GBADAMOSI VS. OLAITAN DAIRO (2007) ALL FWLR (PT. 357) PAGE 812 at PAGE 830, PARAS.B –D, INOGHA MFA VS.MFA INOGHA (2014) ALL FWLR (PT. 727) PAGE 628 at 631, AUGUSTINE MAIKYO VS. W.E. ITODO & OTHERS (2007) ALL FWLR (PT. 363) PAGE 66 at 69 – 70. Without conceding that the trial Court erred by not considering the appellants’ written address, in the alternative, we were urged to exercise our power under Section 15 of the Court of Appeal Act to assume the position of the trial Court and

consider the written address of the Appellants along with the evidence adduced at the trial Court and arrive at a decision on the merit of the case. See MOBIL PRODUCING (NIG) UNLIMITED VS. FEDERAL INLAND REVENUE SERVICE (2017) ALL FWLR (PT. 911) PAGE 543, PARAS. F – B at PAGES 571 – 572. It was concluded on this issue that the appellants did not show how they suffered a miscarriage of justice and how the trial Court violated their right to fair hearing.

The learned counsel to the 2nd and 3rd Respondents E.N. Imande Esq., informed the Court that he did not file any brief of argument but conceded the appeal.

The appeal would therefore be determined on the briefs of argument filed by the Appellants and the 1st Respondent. The Appellants’ first and second issues are covered by the 1st Respondent’s first issue, the Appellants’ third issue is covered by the 1st Respondent’s second issue, the Appellants’ fourth issue was formulated from ground five of the grounds of appeal from which the 1st Respondent did not formulate any issue which implies that the 1st Respondent either did not consider it important enough to

have responded to it or he had no answer to it. The Appellants’ fifth issue was covered by the 1st Respondent’s third issue.

I would resolve the issues as argued by the Appellants but, would determine issues one and two together on evaluation of evidence. Both parties agreed that in an action for declaration of title to land, the plaintiff succeeds on the strength of his case and not on the weakness of the defence whose only duty is to defend, the exception being where the defendant’s case supports that of the plaintiff’s where it contains evidence on which the plaintiff is entitled to rely on. See PIARO VS. TENALO (1976) 12 SC 31, EGONU VS. EGONU (1978) 11 – 12 S.C. 111, NKANU VS.ONUN (1977) 5 S.C. 13, AKINOLA VS. OLUWO (1962) 1 ALL NLR 224, 225; (1962) 1 SC NLR 352 and IDUNDUN VS.OKUMAGBA (1976) 9 – 10 SC. 227. For the plaintiff to succeed, he must by the evidence he puts forward satisfy the Court that he is entitled to the declaration of title sought. See ADESANYA VS. ADERONMU (2000) FWLR (PT. 15) 2493, OKONKWO VS.OKOLO (1988) 1 NSCC 909 and IGIRIGIRI ADO CO-OPERATIVE PRODUCE MARKETING SOCIETY LIMITED VS. PASTOR ABIMBOLA & ORS

(2015) LPELR – 25628 (CA).

The 1st Respondent as plaintiff at the trial Court claimed to have derived his title by purchase of the land in dispute from the village head of Namtari, Kabiru A. Bobboi who testified as the PW1 on the instruction of the traditional owner, late Lamido Aliyu Mustapha, who also sold the 2nd Respondent’s portion, bordering the 1st Respondent’s land. In paragraphs 8, 9 and 10 of his Amended Statement of claim, he pleaded at page 76 of the records as follows:
8. “The plaintiff shall contend that he derived his title to the land in dispute from late Lamido Aliyu Mustapha through his representative the village head of Namtari Kabiru A. Bobboi by way of sale, the sale agreement between the parties and the sale agreement form of District Head of Namtari duly executed both dated 14/01/2008 are hereby pleaded and shall be relied upon at the trial of the suit.
9. The plaintiff avers that himself, Sabo Bamanga, the 1st defendant and other owners of the neighbouring plots got their respective titles through the same person i.e. Kabiru A. Bobboi on the authority of the late Lamido Aliyu

Mustapha and the plaintiff has been enjoying the peaceful occupation of the land until when the defendants trespassed into it.
10. The plaintiff avers that the said Lamido Aliyu Mustapha derived his title over the lands from his grandfather through his father.”

The village head of Namtari and the 1st Respondent’s vendor who testified as the PW1 in support of the 1st Respondent’s pleadings as to the means of the 1st Respondent’s title testified in paragraphs 4, 5, 6 and 7 of his statement on oath at page 115 of the printed records of appeal as follows:
4. “That I am the person who sold the land in dispute to the plaintiff.
5. That the entere (sic) land belonged to late Lamido Aliyu Mustapha who authorized me to sell same to prospective buyers.
6. That Lamido Aliyu Mustapha inherited the land from his father late Lamido Mustapha.
7. That I sold the land in dispute to the plaintiff and sold other plots neighbouring the land in dispute to other people including the 1st and 2nd defendants, Sabo Bamanga and many other people.”

The Appellants rightly gave the five ways in which a claim for

declaration of title could be proved but, wrongly made out that the 1st Respondent claimed through traditional history through Lamido Mustapha, he did not. It is a misconception or misunderstanding of the 1st Respondent’s claim. The 1st Respondent pleaded with evidence in support that he acquired the land in dispute through purchase of same. In proof of his case, he relied on and produced documents of title which is one of the ways of proving title as enunciated in the popular case of IDUNDUN VS. OKUMAGBA (1976) 9 – 10 SC 337, which was followed in AYOOLA VS.ODOFIN (1984) 11 SC 120 and NKADO VS. OBIANO (1997) 5 NWLR (PT. 503) 31 amongst a plethora of other cases. It is required that the document must be duly authenticated in that they must be executed, unless they are produced from proper custody. The 1st Respondent’s sale agreement between the vendor and the 1st Respondent dated 14/1/2008 was tendered by the vendor the PW1 (Kabiru Bobboi) as Exhibit 1 without any objection, the sale agreement form issued to the 1st Respondent was admitted in evidence through the 1st Respondent who testified as the PW2 as Exhibit 2 without any objection.

Exhibit 3 was also admitted in evidence without objection through the 1st Respondent, that is Yola South Local Government Customary Certificate of Occupancy No. 0018 in favour of the 1st Respondent. Similarly, Exhibit 4 and 4A (Application/Grant of Right of Occupancy No. ADS/MSL/LAN/50758) dated 4/10/12 and its site plan were tendered and admitted in evidence through the 1st Respondent without any objection. The 1st Respondent’s averments and the evidence of the vendor as the PW1 as to how the 1st Respondent acquired the land in dispute were not challenged by the Appellants.

Further, the Appellants and the 2nd and 3rd Respondents did not dispute or challenge the 1st Respondent’s ownership of the land in dispute as rightly submitted by the learned counsel to the 1st Respondent. The DW2 (Iliya Adamu Usman) the 3rd Respondent as the 1st Respondent’s neighbour on the land testified that he also acquired his portion of land from the PW1, the 1st Respondent’s vendor. On the other hand, the 2nd and 3rd Respondents (who were 1st and 2nd defendants at the trial Court) conceded the appeal. Where the plaintiff pleads and gives evidence in

support of his claim for declaration of title and his evidence is neither challenged nor contradicted, the trial Court is bound to accept the evidence unless there is something inherent in the evidence which disproves it. See. IJEBU – ODE L.G. VS. ADEDEJI BALOGUN & CO. LTD. (1991) 1 NWLR (PT. 166) P. 136 at 159, A – B; 165, C – D; INCAR NIG. LTD VS. ADEGBOYE (1985) 2 NWLR (PT. 8) 453 at 461 – 462, B – C and MTN VS.CORPORATE COMMUNICATION INVESTMENT LTD (2019) LPELR – 47042 (SC) PP. 53 – 54, PARAS. B – C. In OMEREGBE VS. LAWANI (1980) LPELR – 2655 (SC) P. 16, PARAS. A – D, his Lordship Idigbe, JSC in respect of unchallenged evidence held thus:
“…where evidence given by a party to any proceedings was not challenged by the opposite party who had the opportunity to do so, it is always open to the Court seised of the proceedings to act on the unchallenged evidence before it (seeODULAJA VS. HADDAD (1973) 11 S.C. P. 35; NIGERIAN MARITIME SERVICES LTD. VS. ALHAJI BELLO AFOLABI (1978) 2 S.C. 79 at 81 – 82; See also the Privy Council on the Nigerian case of

ADEL BOSHALI VS. ALLIED COMMERCIAL EXPORTERS LTD (1961) ALL NLR 917 per Lord Guest).”
It is trite that any unchallenged evidence in a deposition is deemed admitted. It is true that the unchallenged evidence of the PW1 and PW2 with Exhibits 1, 2, 3, 4 and 4A as rightly argued by the learned counsel to the 1st Respondent established the 1st Respondent’s title to the land in dispute. The learned trial judge at page 362 of the printed records of appeal rightly held that:
“… plaintiff to prove his case called PW1 and PW2 and tendered Exhibits 1, 2, 3, 4A and 4B respectively. I believe the evidence of PW1 and PW2 and they are truthful witnesses. I have also considered the Exhibits tendered by the plaintiff i.e. Exhibits 1 – 4. I have read Exhibit 3 – Customary Certificate of Occupancy issued to the plaintiff by the Yola South Local Government. Exhibit 3 was duly certified by one Frama Gidado the Principal Estate Officer of the 4th defendant on 5/4/2016.”

The Appellants acknowledged the fact that the land in dispute belongs to the 1st Respondent by their pleadings in paragraphs 7 and 8 of their joint statement of defence, pages 129

– 130 of the printed records of appeal and paragraphs 4 (a) – (f) of the evidence in Chief of the DW3 (Muhammad Lawal Gidado) a Staff of the Adamawa State Ministry of Land and Survey at pages 136 – 137 of the printed records. The Appellants’ contention is that the 1st Respondent’s land had been lawfully acquired by the Appellants. It was therefore the duty of the Appellants to plead and lead evidence to prove their assertion. See Section 131 (1) of the Evidence Act, 2011; also Section 132, DASUKI VS.FRN & ORS (2018) LPELR – 43897 (SC) P. 13, PARAS. D – F, EGHAREVBA VS. OSAGIE (2009) 18 NWLR (PT. 1173) 299 (SC) and UBA VS. JARGABA (2007) 5 SC 1. In the present case, it is the appellants, who made out that the 1st Respondent’s land had been lawfully acquired and compensation paid, that had the onus to prove same. On the other hand, apart from the fact that the 2nd and 3rd Respondents conceded the 1st Respondent’s claim of title, the Appellants neither pleaded nor called evidence to establish their root of title over the land in dispute. I hold that the 1st Respondent proved his title to the land in

dispute by the production of documents of title which is one of the ways of proving title to land.

Under their second issue, the Appellants alleged that Exhibit 4 (Grant of Right of Occupancy) was procured in anticipation of a suit and or proceedings by the 1st Respondent therefore wrongly admitted as an Exhibit by the trial Court. As I stated earlier in this judgment, Exhibit 4 was tendered at the trial Court without any objection. It is noteworthy that Exhibit 4 was prepared by the 1st Appellant (Adamawa State Ministry of Land and Survey) therefore, the same 1st Appellant that issued Exhibit 4 dated 4/10/12 cannot turn around to accuse the 1st Respondent of having procured same for the purpose of these proceedings. On the other hand, for the sake of argument, since the Appellants have not faulted the 1st Respondent’s other documents of title, Exhibits 1 – 3, exclusion of Exhibit 4 would not make a difference to the Appellants’ defence and the 1st Respondent’s case. I will add that every and any document of title could be challenged by anyone anytime, not envisaged by the beneficiary even on the day of issuance or execution.

Therefore, it cannot be rightly argued that Exhibit 4 was prepared in anticipation of the current proceedings. This suit was not pending as at the date Exhibit 4 was issued by the 1st Appellant, therefore Section 83 (3) of the Evidence Act, 2011 and the line of cases cited and relied on by the learned counsel to the Appellants, NIGERIA BOTTLING COMPANY PLC VS. CHIEF UZODINMA UBANI (supra) and U.T.C. (NIG) LTD. VS. LAWAL (supra) are not applicable.

The learned counsel to the Appellants had argued under his issue one that the 1st Respondent did not obtain the consent of the Governor in respect of the transaction between him and the PW1, and therefore that the transaction is void by virtue of Section 21 (a) of the Land Use Act. As rightly observed by the learned counsel to the 1st Respondent, the argument is not covered by any ground of appeal, particularly grounds one and two from which issue one was formulated. For ease of reference, I will reproduce grounds one and two of the grounds of appeal.
“GROUND ONE: The judgment of the Trial High Court of Justice, Yola delivered by Hon. Justice A.D. Mammadi on the 19th of June, 2017 in suit No.

ADSY/121/2012 between ALHAJI ADAMU SALISU VS. I.A.D. NIGERIA LIMITED & 4 ORS., is against the weight of evidence.
GROUND TWO: The learned Trial High Court Judge erred in law when he proceeded to entered (sic) judgment in this suit in favour of the 1st Plaintiff/Respondent without sufficient proofs.
PARTICULARS OF ERROR: The Plaintiff/Respondent did not properly adduced (sic) sufficient evidence in prove of title to the land in dispute as required by law.”

and HENKEL CHEMICALS (NIG) LTD VS. A – G FERRERO & CO. LTD. (2002) LPELR – 7107 (CA) PP. 3 – 5, PARAS. F – B. Further, an omnibus ground of appeal questions the evaluation of evidence led before the trial Court, it does not cover issues of law, it is regarded as a ground of fact. See NKWOCHA VS. MTN (NIG) COMM. LTD (2008) 11 NWLR (PT. 1099) PAGE 439, OPUIYO VS. OMONIWARI (2007) 16 NWLR (PT. 1060) PAGE 415; LAGGA VS. SARHUNA (2008) 16 NWLR (PT. 1114) PAGE 427, F.M.H. VS. C.S.A. LTD (2009) 9 NWLR (PT. 1145) PAGE 193 and ADERIBIGBE VS. ABIDOYE (2009) 10 NWLR (PT. 1150) PAGE 592 and OKONKWO VS. OKECHUKWU (2012) LPELR – 15354 (CA) PP. 63 – 64, PARA. B.

Ground two is a ground of fact alleging lack of proof, as I stated earlier in this judgment, the complaint about not obtaining the Governor’s consent is an issue of law which cannot be covered by a ground of pure fact. Therefore, no ground of appeal was formulated in respect of lack of consent of the Governor pursuant to Section 21 of the Land Use Act and it ought not to have been argued under issue one or any other issue, the argument in this respect is incompetent

and it is hereby discountenanced. Issues one and two are resolved against the appellants.

The Appellant’s issue three is whether the land in dispute was properly acquired by the Appellants? In paragraph 2 of the 1st Respondent’s Amended Statement of Claim, he pleaded thus:
2. “The 1st Defendant is a Limited Liability Company and a Private Property Developer with its registered place of business at No. 36 Numan Road, Jimeta/Yola within the jurisdiction of the Court, while the 2nd Defendant is its Managing Director and Chief Executive.”

The 2nd and 3rd Respondents admitted the averment of the 1st Respondent above in their paragraph 1 of their joint Amended Statement of Defence thus:
1. “The 1st and 2nd Defendants admit paragraphs 1, 2, 3, 4 and 5 of the Plaintiff Amended Statement of Claim.”

No doubt, the Appellants purportedly acquired the 1st Respondent’s land and allocated same to the 2nd and 3rd Respondents who are Private Property Developers and the Managing Director respectively. Before a person’s property could be acquired compulsorily it must be for overriding public interest. The

test is that the purpose must be of benefit to the public and not to assist the commercial transaction of a company or group of people for their personal financial purposes. The burden of proof is on the Appellants to prove that the 1st Respondent’s land was acquired for overriding public interest or public purpose which must be specified as to the way it benefits the public at large and must be capable of being proved. See ALHAJI BELLO VS. THE DIOCESAN SYNOD OF LAGOS and ORS. (1960) WNWL PAGE 166.

By the averments in paragraph 7 (a), (b), (d) and (e) of the Appellants’ statement of defence and paragraph 4 (a), (b), (d) and (e) of the evidence in chief of the DW3 (Muhammadu Lawal Gidado), it was clear that the appellants acquired the 1st Respondent’s land in dispute from the 1st Respondent and others. The 2nd and 3rd Respondents were part of the beneficiaries. It is on record that the 2nd Respondent is a private developer/private company while the 3rd Respondent is the Managing Director of the 2nd Respondent. The Appellants did not in any way prove that the compulsory acquisition of the land in dispute was for overriding public

interest. The 2nd and 3rd Respondents having seen the fallacy of the acquisition rightly conceded the appeal.

Secondly, Section 20 of the Public Land Acquisition Act prescribed the procedure for a lawful acquisition, the Appellants ought to have issued and served a notice of acquisition of the land on the 1st Respondent, no notice was tendered. The Appellants did not make out that any Notice was issued, where a Notice is issued, it should thereafter be published in the state gazette and in at least two National Daily Newspapers. See ONONUJU & ANOR VS. ATTORNEY – GENERAL, ANAMBRA STATE & 2 ORS (2009) 4 – 5 SC (PT. 1) PAGE 163; ATTORNEY GENERAL, BENDEL STATE VS. AIDEYAN (1989) 4 NWLR (PT. 118) PAGE 646, PROVOST LAGOS STATE COLLEGE OF EDUCATION & ORS. VS. DR. KOLAWOLE EDUN & ORS (2004) 6 NWLR (PT. 870) PAGE 476; (2004) LPELR – 2929 (SC) PP. 32 – 33, PARAS. E – B and OKEOWO VS. ATTORNEY GENERAL, OGUN STATE (2010) 16 NWLR (PT. 1219), PAGE 327. First and foremost, on the part of the acquiring authority, the notice of intention to acquire the land compulsorily for public purpose must have been served on the occupier

or a person interested or upon such persons as were entitled to sell or convey the land, it must be affixed conspicuously on the property, the Notice must be served personally or by being left at his last known place of abode or business.
Secondly, no notice of acquisition was issued by the Appellants and served on the 1st Respondent thus, making the purported acquisition a nullity.

Thirdly, Section 44 (1) (a) of the 1999 Constitution has made provision that no one can be deprived of his right to property without adequate payment of compensation. No doubt the government at all levels has the Constitutional right to compulsorily acquire property but, on payment of compensation. The Appellants did not plead or give evidence to prove payment of compensation to the 1st Respondent; the burden is on the appellants to have done so as rightly argued by the learned counsel to 1st Respondent. The DW3 in his evidence in chief alleged that alternative plots were given to the 1st Respondent rather than monetary compensation but, he did not tender any allocation letter issued to the 1st Respondent. The DW3 under Cross Examination at page 327 of the records stated

clearly that one of the conditions for acquisition of land is payment of compensation and that he did not know if the plaintiff was compensated or not, he also stated that alternative plots must be given to the victim whose land has been acquired, with a letter of allocation made in triplicates, one copy to the beneficiary and two retained by the Ministry, no letter of allocation was tendered by the appellants who ought to have two copies of the allocation letter if any such letter was issued to the 1st Respondent. By the provisions of Section 44 (1) (a) and (b) of the 1999 Constitution, it is deductible that where property including land as in this case is acquired compulsorily by government, the payment of compensation is imperative. It is illogical that the Appellants should make out that the 1st Respondent’s land had been acquired without evidence to show that compensation had been paid to him. See KUKOYI & ORS VS. AINA (1999) 10 NWLR (PT. 624) P. 233 at 645 and ELF PETROLEUM NIGERIA LIMITED VS. DANIEL C. UMAH & ORS (2018) LPELR – 43600 (SC) PP. 13 – 16, PARA. F. Section 44 (1) of the Constitution is mandatory, it provides as

follows:
44(1) “No movable property or any interest in an immovable property shall be taken possession of compulsorily and no right over or interest in any such property shall be acquired compulsorily in any part of Nigeria except in the manner and for the purposes prescribed by a law that, among other things:-
(a) requires the prompt payment of compensation therefore: and
(b) gives, to any person claiming such compensation a right of access for the determination of his interest in the property and the amount of compensation to a Court of law or Tribunal or body having jurisdiction in that part of Nigeria.”
The above Constitutional provision is mandatory and not directory and was not waived by the 1st Respondent; otherwise he would not have taken action. See MENAKAYA VS. MENAKAYA (2001) 91 LRCN PAGE 2958 at 2996, H – I. It is also clear from the above provision that no movable property or interest in immovable property shall be taken possession of compulsorily without payment of compensation.

The learned counsel to the appellants had argued that the land in dispute was properly acquired by the Appellants in accordance

with the laid down procedure and also relied on the evidence of the DW3, specifically paragraphs 4 (a), (b), (c) and (d) of his witness’ statement on oath and his evidence under cross examination by the learned counsel to the 1st Respondent. Reliance was placed on the document which was said to have been evidence of the acquisition that was tendered and rejected by the trial Court as well as Exhibit 6.

At pages 136 – 137 of the printed records of appeal, in paragraphs 4 (a), (b), (c) and (d) of the witness’ statement on oath, the DW3 stated thus:
4. “That I know the land in dispute.
a. It was His Excellency, the Executive Governor of Adamawa State that acquired and allocated the said vacant land during his speech at the foundation laying ceremony of Admiral Murtala Nyako Housing Estate on 19th October, 2011 for extension as School, Market, Police Station, Park and Green Area those services will be provided by the private developer which form part of the state government objective, which ultimate result will brings (sic) development and boost productivity and wealth creation in the state.
b. In compliance with the

directives of His Excellency, it was discovered that 28 persons will be affected by the said expansion and therefore, direct the Honourable Commissioner Ministry of Land and Survey to immediately form a committee which I happen serve as secretary of the member of the said committee with view of allocating an alternative plots to the affected persons.
c. That alternative plots of land was allocated to all the affected persons equal to their plots affected by the said expansion.
d. That all the required procedure for acquisition was complied with by the 3rd, 4th and 5th defendants.”

Under cross-examination at page 326 of the printed records relied on by the learned counsel to the Appellants the DW3 gave the requirement for a valid revocation and acquisition by government as follows:
“If there is an existing right, the right must be revoked or withdrawn. The withdrawal or revocation must be in writing. There is also payment of compensation to the owner of revoked land. The victim must be given alternative plot. The person taking over the land must be given allocation letter and Right of Occupancy.”

Further, at pages 327

– 328 also referred to by the learned counsel to the Appellants, the DW3 under cross-examination testified thus:
“There is no revocation letter either from Yola South Local Government or from the Ministry of Land and Survey for Exhibit 3. Witness shown Exhibit 4, I agree Exhibit 4 is a grant of Right of Occupancy granted to the plaintiff by the Ministry of Land and Survey. … I don’t know if the plaintiff was compensated. I said the alternative plots must be given to the victim. They are to be given a letter of allocation. The letter of allocation is made in three copies; one copy goes to the beneficiary and two copies are retained by the Ministry. I did not come with copy of the allocation letter. … I worked with the Public Land Acquisition Unit of the Ministry. I am the allocation officer. Apart from the plaintiff other people were affected by the acquisition of the land in the area. … Compensation is restricted to monetary benefit. … Other people have been issue (sic) allocation letter. Plaintiff have (sic) been given alternative land.”

From the evidence of the DW3 relied on by the learned counsel to the appellants

alleging payment of compensation to the 1st Respondent, the witness clearly stated the conditions for acquisition of land from an individual by government, revocation, alternative plot allocated or compensation paid. The witness stated clearly that he did not know if compensation was paid to the 1st Respondent and he did not have the purported allocation of alternative plots to the 1st Respondent and none was produced or tendered by any of the appellants’ witnesses. Even though the DW3 made a U – TURN and concluded that the 1st Respondent was given an alternative land, there was nothing on record to show or prove the alternative allocation of land to the 1st Respondent.

Further, Exhibit 6 relied upon by the learned counsel to the Appellants to prove that the 1st Respondent had been given alternative allocation or compensated, a look at Exhibit 6, it clearly shows that the list is a proposal of those listed to be compensated and not those already compensated contrary to the argument of the learned counsel to the Appellants. I will hereunder reproduce paragraphs 3 – 6 of Exhibit 6:
3.“The affected individuals have their square

metres calculated and the proposed number of plots stated against each name.
4. The re-location is proposed at any available lay-out along the proposed Ring Road Jimeta.
5.The allocation of equivalent plots within the proposed layout is nearer and would be more acceptable to the affected persons instead of monetary compensation.
6.The affected individuals and the number of plots proposed for each individual is summarized as follows:” (Underlined mine for emphasis)

The learned counsel to the Appellants also relied on the rejected document that was sought to be tendered at the trial Court, there was no appeal or decision against the Ruling of the trial Court reversing the rejection, therefore the document remains rejected and cannot be utilized in determining any issue in the case. It has no propative value. See AKEEM AGBOOLA VS. THE STATE (2013) LPELR – (20652) (SC) P. 39, PARAS.A – B; NIGERIAN PORTS PLC VS. BEECHAM PHARMACEUTICAL PTE LTD & ANOR (2012) LPELR – 15538 (SC) P. 30, PARAS. B – C and ADDISON UNITED (NIG) LTD VS. LION OF AFRICA INSURANCE LTD (2010) LPELR – 3596 (CA) PP. 11 – 12, PARAS. C

– B. In NIGERIAN PORTS PLC. (supra) P. 30 PARAS. B – C, Ngwuta, JSC in respect of the status of a rejected document held thus:
“A document that is rejected when it is offered in evidence cannot be of any relevance in the matter. Also, contents of a rejected document cannot fare better than the document itself.”
Once a document is rejected, it cannot form part of the evidence upon which the Court can base its decision.

There is no evidence on record from the trial Court to show that the 1st Respondent’s land was properly acquired by the Appellants.
The trial Court at page 365 of the printed records of appeal rightly held thus:
“I have considered the evidence led by the 1st and 2nd Defendants. 1st and 2nd Defendants have not shown before this Court any document revoking or reallocating the plaintiff’s land to them.”

The 1st and 2nd Defendants at the trial Court are the 2nd and 3rd Respondents herein who rightly conceded the appeal. In respect of the Appellants, the trial Court also rightly held that:
“Considering the evidence that Exhibits 1 – 4 tendered by the

plaintiff were in any way revoked by the 3rd – 5th Defendants, I believe the evidence of the plaintiff that 3rd – 5th defendants have not lawfully acquired the land in dispute and allocated same to the 1st and 2nd defendants.”

I cannot fault the above view. I resolve issue three against the Appellants.

The Appellants’ issue four is whether the Court can grant a relief not sought by a party? The position of the law is that the parties and the Court are bound by the reliefs sought by the parties from the pleadings and the evidence in support. See VEEPEE INDUSTRIES LTD VS. COCOA INDUSTRIES LTD (2008) NWLR (PT. 1105) 486 SC; UGO VS. OBIEKWE (1989) 2 SC (PT. 11) 41 and IPCO (NIG) LTD VS. NNPC (2013) LPELR – 22083 (CA) P. 21, PARAS. A – B where his Lordship Oseji, JCA held that:
“A Court’s power is circumscribed by the reliefs sought by an applicant and will not unnecessarily embark on a voyage of discovery except in situations where there is need for ancillary reliefs to be granted but which must flow from the main relief sought.”

The 1st Respondent’s reliefs were set out in paragraph

35 of his amended statement of claim, earlier reproduced in this judgment. Relief (vii) read thus:
Vii. “An order directing the defendants to pay the sum of N20,000,000.00 (Twenty Million Naira) only as general damages for trespass.”

In the Alternative relief paragraph (ii) also was for the same amount as Damages for trespass was as follows:
(ii) “Damages of N20,000,000.00 (Twenty Million Naira) for trespass.”

The trial Court on resolving all the issues in favour of the 1st Respondent at page held thus:
“I enter judgment in favour of the plaintiff and against the defendants jointly and severally as per paragraphs 35 (i), (ii), (iii), (iv), (v), (vi) and (vii) of the plaintiff’s amended statement of claim.” (Underlined mine for emphasis)

From the above, the learned trial judge granted all the reliefs sought in the main reliefs including paragraph (vii) which covered the relief for general damages of N20,000,000.00 (Twenty Million Naira). The learned trial judge further made the following order:
“I make an order directing the defendants jointly and severally to pay the plaintiff the sum

of N10,000.000.00 (Ten Million Naira only) as general damages.”

The second award of general damages by the learned trial judge is erroneous; there was no basis for the second award. A Court of law has no jurisdiction to award to a party double general damages which were not prayed for. The Court can only grant what has been prayed for but, not in excess of what is sought, a party is only entitled to the relief sought and nothing more. See UNIJOS VS. IKEGWUOHA (2013) LPELR – 20233 (SC) PP. 22 – 23, PARAS. E – F, LUFTHANSA AIRLINES VS. ODIESE (2006) 7 NWLR (PT. 978) PG. 34 and EMERAH & ANOR VS. OLADOSUN & ORS (2011) LPELR – 8982 (CA) PP. 12 – 14, PARAS. E – A. I am of the humble but, firm view that the trial Court ought not to have granted the second award of general damages for trespass, it is not supported by a specified request and the Court is not a charitable organization that will dole out an extra relief not sought and not merited. The Appellants would by the order of the trial Court pay general damages twice for trespass into the 1st Respondent’s land. The second award of N10,000,000.00

(Twenty Million Naira) for trespass is hereby set aside. It is noteworthy that the 1st Respondent did not formulate any issue from the appellants’ ground five from which issue four (4) was formulated. Perhaps, the 1st Respondent knows that the award of the second general damages for trespass is erroneous and undeserved, decided not to answer to it in terms of response to the submissions of the Appellants in respect of their issue four. Not having responded to the appellants’ issue four, it is deemed conceded by the 1st Respondent. Order 19 Rule 4 (2) of the Rules of this Court, 2016 provides that:
“The Respondent’s brief shall answer all material points of substance contained in the Appellant’s brief …”
The 1st Respondent failed to do so. The fourth issue is resolved in favour of the Appellants.

The Appellants alleged lack of fair hearing at the trial Court in that the learned counsel to the Appellants D.B. Dangra Esq., State Counsel I was shut down by the trial Court when he was about to cross examine the PW1 and PW2. Fair hearing means giving equal opportunity to the parties to be heard in the litigation

before the Court where parties are given opportunity to be heard, they cannot complain of breach of the fair hearing principles. See INEC VS. MUSA (2003) LPELR – 24927 (SC) P. 94, PARAS. A – B; ARIORI & ORS VS.ELEMO & ORS (1983) LPELR – 552 (SC) P. 44, PARA.A and DANGOTE GEN.TEXTILE PRODUCTS LTD and ORS VS. HASCON ASSOCIATES (NIG) LTD & ANOR (2013) LPELR – 20665 (SC) P. 21, PARAS. A – B. The allegation of being shut down is not reflected in the printed records of appeal compiled and transmitted to this Court and there is no complaint that the records did not reflect what transpired in the Court on the day the PW1 and PW2 testified. The parties and the Court are bound by the records before the Court.
See GOVERNMENT OF GONGOLA STATE VS. TUKUR (1989) 4 NWLR (PT. 117) 592; STANBIC IBTC BANK PLC VS. LONGTERM GLOBAL CAPITAL LTD & ANOR (2013) LPELR – 20723 (CA) PP. 21 – 22, PARAS. G – B and COMMISSIONER FOR WORKS BENUE STATE VS. DEVCON LTD (1988) 3 NWLR (PT. 83) 407. At page 304 of the records, D.B. Dangra Esq. State Counsel I appeared for the 3rd – 5th Defendants now Appellants. After the

learned counsel to the 1st and 2nd Respondents cross examined the PW1 (Kabiru Bobboi) the records read thus:
“Cross Examination by D.B. Dangra:
No Cross Examination.
Zangina: No re-examination.”
At page 308 of the printed records, after the PW2 (Adamu Salisu) the 1st Respondent adopted his written statement on oath, he was cross examined by the learned counsel to the 1st and 2nd Defendants the proceedings of the trial Court read thus:
“CROSS EXAMINATION BY DANGRA:
DANGARA: No cross examination. That is the case for the plaintiff.”
There is nothing on record to show that the trial judge shut down the learned State Counsel D.B. Dangra Esq. The learned trial judge gave equal opportunity to the respective learned counsel to cross examine the PW1 and PW2, while counsel to the 1st and 2nd defendants utilized the opportunity the learned State Counsel failed to do so and cannot turn around to allege denial by the trial Court, the allegation was not substantiated by the printed records of appeal, it is also unfair. At page 337 of the printed records, the trial Court in its judgment noted thus in respect of the

PW1:
“D.B. Dangra Esq., did not cross examined (sic) the witness.”
Further, in the same vein in respect of the PW2 at page 338 of the printed records noted thus:
“The witness was not cross examined by D.B. Dangra Esq.”
The above observation is unassailable. The learned counsel to the Appellants at the trial Court chose not to cross examine the PW1 and PW2 and cannot turn around to allege that he was shut down. The trial Court gave equal opportunity to the Appellants to cross examine the 1st Respondent’s witnesses. A successful plea of lack of fair hearing must be based on facts of the case and the Court’s proceedings; it is of no use without facts to support it. It cannot be used to repair a bad case so as to say. Where the Court gave equal opportunity to the parties to ventilate their grievances, either in the prosecution or defence of their case, (defence in the present case) the failure of a party to take advantage of such conducive environment cannot be the basis for a complaint of lack of fair hearing as has happened in the present case. See MFA & ANOR VS. INONGHA (2014) 1 – 2 SC (PT. 1) 43

and INAKOJU VS. ADELEKE (2007) LPELR – 1510 (SC). The records of Court show that the learned counsel to the Appellants was not shut down and was not prevented from cross examining the PW1 and PW2.

On the trial Court discountenancing the Appellants’ written address filed outside the twenty one (21) days agreed upon both parties within which to file their written addresses, the learned counsel to the appellants argued that the trial Court ought to have treated same as an irregularity. As rightly argued by the learned counsel to the 1st Respondent, Order 37 Rule 16 (2) and (3) of the Adamawa State High Court Civil Procedure Rules, 2013 provides that each party has twenty one (21) days within which to file their addresses, starting with the defence where the defendant called evidence. Further, in the present case, the learned counsel also applied for twenty one (21) days within which to file his written address, he failed to comply and failed to apply for extension of time within which to file his written address, under Order 9 Rule 5 while Order 9 Rule 4 prohibits the parties from enlarging time by themselves in mandatory terms. While by

Order 3 Rule 1 (1) any process filed without compliance with the Rules of the Court would nullify the proceedings. I will reproduce the relevant Rules below:
37 Rule 16 (2) and (3):
(2) “Where the other party calls evidence, he shall within 21 days after the close of evidence file a written address.
(3) Upon being served with the other party’s written address the party beginning shall within 21 days file his own written address.”
Order 9 Rules (4) and (5):
4. “The parties shall not by consent enlarge or abridge any of the times fixed by the provisions of these Rules for taking any step, filing any document, or giving any notice.
5. The Court may, on such terms as it thinks just, by order extend or abridge the period within which a person is required or authorized by these provisions, or by any judgment, order or direction to do any act in any proceedings:
Provided that any party who defaults in performing an act within the time authorized by the Court or under these Rules, shall pay to the Court an additional fee of N200.00 for each day of such default at the time of filing his application for extension of time.”

Order 3 Rule 1 (1):
“Where in the beginning or purporting to begin any proceeding there has by reason of anything done or left undone, been failure to comply with the requirement of these rules the failure shall nullify the proceedings.”
It is clear that the appellant failed to comply with the 21 days provided by the Rules of the lower Court and also applied for by the learned counsel to the appellants, Page 328 of the printed records of appeal. The learned counsel to the appellants has not argued that he did not file his written address outside the twenty one (21) days, also that he failed to regularize his position by applying for extension of time within which to do so. His lordship Kekere – Ekun JSC, in ABIODUN ADENIYI & ANOR VS. TINA GEORGE INDUSTRIES LIMITED & ORS (2019) LPELR – 48891 (SC) PP. 14 – 15, PARAS. E – C summarized the position of the law thus:
“The rules of Court are enacted to assist the Court in dispensing justice with ease, certainty and dispatch. They are also to ensure fairness and a level playing for all the parties. It is therefore, imperative that

rules of Court should be complied with. Strict compliance ensures speedy and efficient dispensation of justice. See UNILAG VS. AIGORO (1985) 1 NWLR (PT. 1) 143; FBN LTD VS. ABRAHAM (2008) 18 NWLR (PT. 1118) 172; STOWE& ANOR VS. BEN STOWE& ANOR (2012) 9 NWLR (PT. 1306) 450 at 469 C – D. Failure to comply with the Rules may attract the sanction of incompetence, which may ultimately lead to the striking out or dismissal of a process or, indeed the entire suit. See FBN PLC VS. T.S.A. IND. LTD (2010) 15 NWLR (PT. 1216) 247; SOLANKE VS. SOMEFUN (1974) ALL NLR (PT. 1) 141; UNIVERSITY OF LAGOS VS. AIGORO (supra).”
The Rules of Court are meant to be obeyed. The rules of Court provide a time frame within which to do certain things concerning litigation, where a party fails to comply with set down rules it defeats the purpose for which the Rules were made, it guides and abridges time within which matters are determined. The trial Court was right to have discountenanced the appellants’ address filed out of time. I cannot fault the stand of the trial Court in discountenancing the address of the learned counsel to the appellants. The

fifth issue is resolved against the appellants.

Having resolved the appellants’ issue four (4) in favour of the appellants and issues 1, 2, 3 and 5 against the appellants, the appeal is allowed in part. The order directing the defendants jointly and severally to pay the plaintiff the sum of N10,000,000.00 (Ten Million Naira only) as general damages is hereby set aside.

In sum, the decision of the trial Court in suit No. ADSY/121/2012 delivered on 19th June, 2017 except the grant of N10,000,000.00 (Ten Million Naira) for general damages is hereby affirmed.
The parties to bear their respective costs.

JAMES SHEHU ABIRIYI, J.C.A.: I read in advance the draft of the judgment just delivered by my learned brother Chidi Nwaoma Uwa JCA.
He has in detail dealt with the issues for determination in the appeal. I adopt the reasoning and conclusions in the said judgment as mine.
I abide by all other orders in the lead judgment including the order as to costs.

ABDULLAHI MAHMUD BAYERO, J.C.A.: I agree.

Appearances:

J. Konleganyiga Esq. Senior State Counsel I, with him, I. E. Tsamdu Esq. State Counsel II, Adamawa State Ministry of Justice For Appellant(s)

A.B. Buwa Esq. – for 1st Respondent.
E.N. Imande Esq. – for 2nd and 3rd Respondent For Respondent(s)