HASSAN v. BUHARI & ORS (2022)

HASSAN v. BUHARI & ORS

(2022)LCN/16791(CA)

In The Court Of Appeal

(KANO JUDICIAL DIVISION)

On Friday, January 14, 2022

CA/KN/155/2015

Before Our Lordships:

Habeeb Adewale Olumuyiwa Abiru Justice of the Court of Appeal

Abubakar Muazu Lamido Justice of the Court of Appeal

Usman Alhaji Musale Justice of the Court of Appeal

Between

SALE HASSAN (LAWFUL ATTORNEY TO ALHAJI SAMINU MIDALA AND ABDULMAJID USMAN) APPELANT(S)

And

1. HAJIA LAILA BUHARI 2. KANO STATE MINISTRY OF LAND & PHYSICAL PLANNING 3. ATTORNEY GENERAL OF KANO STATE RESPONDENT(S)

RATIO

WHETHER OR NOT A PARTY CLAIMING DECLARATION OF TITLE OF OWNERSHIP TO LAND MUST RELY ON THE STRENGHT OF HIS CASE AND NOT ON THE WEAKNESS OF THE OTHER PARTY’S CASE

The principal claim of the first Respondent before the lower Court was for declaration of ownership of land. It is settled law that in an action for declaration of ownership to land, a party claiming ownership of the land must succeed on the strength of his case and not on the weakness of the other party’s case. Where this onus is not discharged, the weakness of the other party’s case will not help him and the proper judgment is for the other party – Ifediora Vs Okafor (2019) 16 NWLR (Pt 1698) 322, Umeadi Vs Chibunze (2020) 10 NWLR (Pt 1733) 405, Adamawa State Ministry, Land & Survey Vs Salisu (2021) 2 NWLR (Pt 1759) 1, The Registered Trustees of the Apostolic Church of Christ Vs The Registered Trustees of Grace Church of Christ (2021) 16 NWLR (Pt 1801) 105. The lower Court evaluated the respective cases of the parties and the evidence led and found that the first Respondent made out a credible case, on the pleadings and evidence, to sustain her claim of ownership of the land in dispute. PER ABIRU, J.C.A.

THE DUTY OF THE TRIAL COURT IN RESPECT OF EVIDENCE LED BY PARTIES

The complaints of the Appellant under this issue for determination invite this Court to examine the evaluation of the evidence of the parties carried out by the lower Court. It is settled that a trial Court has two duties in respect of the evidence led by parties in a trial. The first is to receive into its records all the relevant evidence, and this is called perception. The second is to thereafter weigh the evidence in the context of the surrounding circumstances, and this is evaluation. A finding of fact by a trial Court involves both perception and evaluation – Wachukwu Vs Owunwanne (2011) 14 NWLR (Pt 1266) 1, Ogundalu Vs Macjob (2015) LPELR 24458(SC), Eze Vs State (2018) 11 NWLR (Pt 1630) 353, Otigbah Vs Uwanaka (2020) 16 NWLR (Pt 1749) 1, Yankey Vs Austin (2021) 1 NWLR (Pt 1757) 227.

It is the primary responsibility of a trial Court to evaluate the evidence presented by parties before it, ascribe probative value to the evidence and then come up with a decision. The law is that where the records of proceedings show that a trial Court assessed the evidence produced before it and accorded probative value to them and placed them side by side on an imaginary weighing scale before coming to a conclusion and making a finding of fact on side of the evidence that tilts the scale, such a finding must be accorded due weight so long as it is not unreasonable and not perverse. In other words, an appellate Court will not interfere with the evaluation of evidence carried out by a trial Court and will not substitute its own views for that of the trial Court unless the conclusion reached from the facts is perverse – Faleye Vs Dada (2016) LPELR-40297(SC), Enukora Vs Federal Republic of Nigeria (2018) 6 NWLR (Pt 1615) 355, TSKJ (Nig) Ltd Vs Otochem (Nig) Ltd (2018) 11 NWLR (Pt 1630) 330, Edwin Vs State (2019) 7 NWLR (Pt 1672) 551, Mohammed Vs State (2020) LPELR-52451(SC). PER ABIRU, J.C.A.

WHETHER OR NOT AN APPELLATE COURT CAN INTERFERE WITH THE EVALUATION OF EVIDENCE DONE BY THE TRIAL COURT

WHETHER OR NOT FACTS IN THE PLEADINGS ADMITTED BY THE OTHER PARTY CEASES TO BE IN CONTROVERSY BETWEEN THE PARTIES

Dovetailing from this, is the principle that where a fact in the pleadings of a party is admitted by the other party, either because it is expressly admitted or because it is impliedly admitted by the omission to traverse it expressly, it ceases to be in controversy between the parties and no evidence is required or admitted to prove such fact, and accordingly, only those facts which are expressly traversed on the pleadings will remain in issue between them. In other words, when parties have in their pleadings agreed on some facts, there is no issue in dispute between them on such agreed matters. There is no dispute on a fact which is admitted – Onobruchere & Anor Vs Esegine & Anor (1986) 2 SC 385, Bunge Vs Governor, Rivers State (2006) 12 NWLR (Pt 995) 573 at 599-600 B-A, and Akande Vs Adisa (2012) 15 NWLR (Pt 1324) 538. PER ABIRU, J.C.A.

HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of Kano State delivered in Suit No K/607/2008 by Honorable Justice Abdullahi Mahmoud Bayero on the 11th of June, 2014. The first Respondent was the claimant before the lower Court and the second and third Respondents and the Appellant were the first to third defendants respectively. The claims of the first Respondent were:
i. A declaration that the first Respondent is the rightful owner of the piece of land located at Unguwar Tishama Hotoro, Nassarawa District of Kano State of Nigeria, more particularly, described by Kano Survey Plan No MS/2000.
ii. A mandatory order directing the second Respondent to issue the first Respondent with the statutory right of occupancy covering the said piece of land.
iii. An order of the Court invalidating the Certificates of Occupancy issued to the Appellant by the second Respondent in respect of the plots of land.
iv. An order of perpetual injunction restraining the second and third Respondents and the Appellant either by themselves, privies, assigns or successors in title from further committing trespass or trespassing on the said piece of land.
v. An order of perpetual injunction restraining the Appellant from carrying on further construction works on the plots.
vi. An order directing the second and third Respondents and the Appellant to pay the sum of N5 Million as damages for committing trespass on the land.

The case of the first Respondent on the pleadings was that she purchased the piece of land in dispute in the year 2000 from on Sa’adu Adamu for the sum of N120,000.00, which purchase was evidenced in writing, and that the land, located at Unguwar Tinshama, Hotoro Arewa, shared boundaries to the east with one Nasir, to the south with one Sa’adu Shehu, to the north with Gona Rakiya and to the west with Ring Road. It was her case that she applied for and was issued with a Customary Right of Occupancy dated the 6th of June, 2000 over the parcel of land by the Nassarawa Local Government Authority. It was her case that in the same year 2000, she applied to the second Respondent for the conversion of the Customary Right of Occupancy to a Statutory Right of Occupancy and she paid all necessary fees for the conversion and File No LKN/CON/COM/2001/09 was opened in her name by the second Respondent.

It was the case of the first Respondent that in furtherance of her application for conversion, the second Respondent addressed a letter to the Chairman of the Nassarawa Local Government Authority to confirm the genuineness of her Customary Right of Occupancy and that the Chairman of the Nassarawa Local Government Authority responded confirming same and the bonafide of her ownership of the land. It was her case that she continued pursuing the issuance of the Statutory Right of Occupancy but that to her surprise she met the Appellant on the land in dispute carrying out construction works claiming that he had been issued with certificates of occupancy by the second Respondent over the plots of land in dispute.

The case of the second and third Respondents, as first and second defendants, on the pleadings was that in the course of processing the application of the first Respondent for conversion of her Customary Right of Occupancy over the land in dispute to a Statutory Right of Occupancy, it was discovered that the parcel of land fell within portions of land that the Kano State Government had earlier acquired and designed as commercial layouts. It was their case that they brought this fact to the knowledge of the first Respondent and made offers to compensate her for the land by allocating 50% of the plots carved out of the parcel of land to her and she was allocated Plots Nos. C2 to C7.

It was the case of the second and third Respondents that the first Respondent accepted the allocated plots but demanded for more and that as at this time the additional plots of land she demanded, Plots Nos. C8 and C10, had been granted to other persons in 2001 via Certificates of Occupancy Nos. LKN/COM/2001/166 and LKN/COM/2001/168. It was their case that after series of meetings held to resolve the issue of additional plots of land demanded by the first Respondent, no progress was made and that they believed that the first Respondent had been more than adequately compensated for the parcel of land.

In his case on the pleadings, the Appellant reiterated that in the course of processing the application of the first Respondent for conversion of her Customary Right of Occupancy over the land in dispute to a Statutory Right of Occupancy, it was discovered that the parcel of land fell within Plan No TP/KAS/243A containing a vast portion of land that the Kano State Government had acquired from several individuals for designation into residential and commercial layouts. The Appellant reiterated that following negotiations, the second and third Respondents approved six of the commercial plots carved out of the parcel of land, Plots Nos. C2 to C7, in favour of the first Respondent as compensation and this fact was conveyed to the first Respondent in writing. It was his case that the first Respondent acknowledged receipt of the letter of allocation of the six plots of land but made a special request that she be granted ten, instead of six, of the commercial plots carved out of the land, Plots Nos. C1 to C10 and which request the second and third Respondents declined.

It was the case of the Appellant that plots of land in dispute, Plots Nos. C8 and C10, were not part of the Plots Nos. C2 to C7 granted to the first Respondent as compensation and were not, at all times material to this suit, vacant plots of land as they had been allocated to Alhaji Saminu Mai Dala and AbdulMajid Usman in 2001 as evidenced by Certificates of Occupancy Nos. LKN/COM/2001/166 and LKN/COM/2001/168. It was his case that by a registered irrevocable power of attorney dated 13th of July, 2005, both Alhaji Saminu Mai Dala and AbdulMajid Usman transferred their interests in the two plots of land to him and consequent on which he applied for and obtained a fencing permit from KNUPDA. It was his case that he was not a trespasser on the two plots of land and that upon obtaining the fencing permit, he mobilized men, materials and resources unto the plots of land to carry out the fencing and that the disruption of works on the plots of land effected by the first Respondent caused him great loss of materials and financial resources. The Appellant counterclaimed thus:
i. A declaration of Court that the Appellant is the lawful and title holder over the plots of land Nos. C8 covered by Certificate of Occupancy No LKN/COM/2001/166 and C10 covered by Certificate of Occupancy No LKN/COM/2001/168.
ii. An order of perpetual injunction restraining the first Respondent by herself or agents, privies or servants from further trespassing or howsoever claiming any part of the Appellant’s land, the subject matter of this suit.
iii. Damages for trespass.
iv. Cost of the action inclusive of the sum of N1.5 Million paid as Solicitor’s fees.

The first Respondent filed a Reply to the statement of defence of the Appellant and wherein she denied accepting the offer of compensation of six plots of land, Plots Nos. C2 to C7, and it was her case that she consistently insisted on being given her parcel of land comprising Plots Nos. C1 to C10 on the layout and that she was never informed that any portion of the ten plots of land had been occupied by anyone.

The matter proceeded to trial and in the course of which the first Respondent, the second and third Respondents and the Appellant called one witness each and tendered documents in proof of their respective cases. At the conclusion of trial and after the adoption of the respective written addresses filed by Counsel to the parties, the lower Court entered judgment granting the claims of the first Respondent and dismissing the counter-claim of the Appellant. In the judgment, the lower Court recanted the respective cases of the parties on their pleadings and in the evidence of their witnesses and it thereafter reproduced the letter written by the second and third Respondents to the first Respondent offering her six plots of land as compensation for her parcel of land which had been acquired by the Kano State Government.

The lower Court thereafter deliberated on whether the Kano State Government followed the proper procedure in revoking the right of occupancy of the first Respondent over the parcel of land in dispute. The lower Court considered the provisions of Section 28 of the Land Use Act and Section 44 of the Constitution of the Federal Republic of Nigeria, 1999 and held that the Kano State Government did not follow the laid down procedure and it declared the acquisition of the land in dispute invalid.

The lower Court further deliberated on whether the acquisition was done for a public purpose and it referred to the case of the Appellant and the second and third Respondents that portion of the acquired land, Plots C8 and C10, were allocated to private individuals, the Appellant, and it concluded therefrom that the acquisition was not for public purpose and it declared the allocation of the two plots of land to the Appellant invalid. It was on the basis of these findings that the lower Court granted the claims of the first Respondent and dismissed the counterclaim of the Appellant.

The Appellant was aggrieved by the judgment and he caused his Counsel to file a notice of appeal dated the 11th of June, 2014 and containing six grounds of appeal against it. In arguing the appeal, Counsel to the Appellant filed a brief of arguments on the 9th of March, 2016 and the brief of arguments was deemed properly filed by this Court on the 14th of March, 2016. In response, Counsel to the first Respondent filed a notice of preliminary objection dated the 3rd of March, 2016 on the 14th of March, 2016 challenging the competence of all the grounds of appeal, as well as a brief of arguments also dated the 3rd of March, 2016 on the 14th of March, 2016. Counsel to the Appellant filed a Reply brief of arguments dated the 31st of October, 2016 on the same date. Counsel to the second and third Respondents did not file any process in the appeal. Counsel to the first Respondent further filed a list of additional authorities dated the 17th of March, 2021.

At the hearing of the appeal, Counsel to the Appellant and Counsel to the first Respondent relied on and adopted their respective processes in arguing the preliminary objection and the substantive appeal.

The contention of the first Respondent on the notice of preliminary objection is that the grounds of appeal of the Appellant were defective, vague and invalid. Counsel referred to the case of Aderibigbe Vs Abidoye (2009) 4 SCNJ 259 in asserting that a notice of appeal is the spinal cord upon which an appeal is predicated and that where the notice of appeal is defective, the appeal will certainly collapse. Counsel referred to the provisions of Order 6 of the Court of Appeal Rules, 2011 on the form and content of a competent notice of appeal and he reproduced the six grounds of appeal of the Appellant, with their particulars, and stated that they contravened the provisions of Order 6 of the Court of Appeal Rules.

Counsel stated that ground two on the notice of appeal alleged an error in law with regard to wrongful evaluation of evidence and wrong conclusion, meanwhile the law is that a wrong evaluation of evidence and conclusion is a misdirection in law, not an error in law, and that this renders the ground incompetent and he referred to the case of Abisi Vs Ekwealor (1993) 7 SCNJ 193. Counsel stated that the particulars of ground two on the notice of appeal are not clear and do not in any way state the nature of the ground of appeal and this makes the ground of appeal vague and not expressive of the complaints of the Appellant against the judgment. Counsel stated that grounds four and Five of the notice of appeal are also vague, invalid and not expressive of the complaints of the Appellant against the judgment and are thus incompetent and he referred to the case of Ogbonna Vs Ezewuzie (2014) All FWLR (Pt 775) 336.

Counsel stated that ground six of the notice of appeal is defective and contains blatant falsehood as the records of appeal do not bear out the complaint embedded therein – that the lower Court refused to consider the written address of the Counsel to the Appellant – and that the ground of appeal is thus speculative and is premised on a false notion and perception of the Appellant. Counsel stated that the particulars of the ground of appeal were also at cross purposes with the complaint therein and that the ground of appeal is thus incompetent and he again referred to the case of Ogbonna Vs Ezewuzie supra.

Counsel stated that ground three of the notice of appeal is a fresh issue on a point of law that was not raised or canvassed in the lower Court by the parties and that the Appellant required leave to be able to raise and canvass it in this appeal and he referred to the cases of Afribank (Nig) Ltd Vs Emori (2014) All FWLR (Pt 760) 1246 and Moses Vs State (2006) All FWLR (Pt 322) 1437, amongst others. Counsel stated that the Appellant did not seek the leave of Court to raise and argue the fresh issue contained in the ground of appeal and that as such the ground of appeal, as well as the issue for determination distilled from it, is incompetent and he referred to the case of Iroegbu Vs Mpama (2010) All FWLR (Pt 549) 1116.

Counsel stated that ground one of the notice of appeal, which is the only valid ground of appeal, is a general ground of appeal and that the Appellant abandoned the ground of appeal as none of the issues for determination and arguments thereon were linked to the ground of appeal, or to any of the grounds of appeal for that matter, in the brief of arguments. Counsel stated further that while the notice of appeal was directed at the judgment of the lower Court delivered on the 28th of March, 2014, the opening paragraph of the brief of arguments said that the arguments were in respect of the judgment of the lower Court delivered on 11th of June, 2014. Counsel stated that the Appellant thus effectively abandoned his notice of appeal in the brief of arguments and that there are no arguments in support of the grounds of appeal.

Counsel concluded his contentions by urging the Court to uphold the notice of preliminary objection and strike out the grounds of appeal as incompetent and to consequentially dismiss this appeal.

Counsel to the Appellant filed a reply brief of arguments wherein he stated that he canvassed arguments in response to the preliminary objection of the first Respondent to the competence of the appeal. Counsel noted in the reply brief of arguments that a preliminary objection is filed only when a respondent canvasses that there is a fundamental defect that affects the competence of the entire appeal and not when he seeks to attack the competence of only some of the grounds of appeal, while there are other grounds of appeal that can sustain the appeal, and that a motion on notice was the proper process to file in such a situation and he referred to the case Willbros West Africa Inc Vs McDonnel Contract Mining Ltd (2015) All FWLR (Pt 806) 312.

Counsel further noted that the Court will not place undue reliance or emphasis on the form and manner the ground of appeal is couched in determining whether the ground of appeal is a ground of law or mixed law and facts or facts alone and the determination of the question goes beyond the mere words used in covering or preferring the ground of appeal and he referred to the case of Ekunola Vs CBN (2013) All FWLR (Pt 703) 1863.

This was all that was contained in the reply brief of arguments in response to the arguments of Counsel to the first Respondent on the preliminary objection. Now, it is either that Counsel to the Appellant did not read the notice of preliminary objection and the arguments canvassed thereon by Counsel to the first Respondent and was responding to something else or that he read them and was unable to mentally process and understand was he read and thought they meant something else. Whichever way, the arguments of Counsel to the Appellant do not constitute a plausible, reasonable, conceivable, sensible, logical and/or rational response to the preliminary objection argued by Counsel to the first Respondent. This Court will thus treat the notice of preliminary objection as undefended, as if the Appellant canvassed nothing in response.
This however does not translate to automatic victory for the first Respondent on the notice of preliminary objection. It does not mean that this Court must accept the arguments of the Counsel to the Respondent as gospel truth. This is because the address of Counsel is not binding on the Court. The Court must still assess the arguments – Odunze Vs Nwosu (2007) 13 NWLR (Pt 1050) 1, Eya Vs Olopade (2011) 11 NWLR (Pt 1259) 505, Independent National Electoral Commission Vs Nyako (2011) 12 NWLR (Pt 1262) 439, Kakih Vs Peoples Democratic Party (2014) 15 NWLR (Pt 1430) 374, First Bank of Nigeria Plc Vs Amanyi (2020) 14 NWLR (Pt 1743) 158. In Edonkumoh Vs Mutu (1999) 9 NWLR (Pt 620) 633, Ibiyeye, JCA stated at 652 E-F thus:
“It is pertinent to point out that the learned counsel for the first respondent did not proffer any response to this issue in his brief of argument. It follows therefore that he has little to urge on it. The fact that there is want of response by the first respondent is no licence to accede to the arguments and submissions of learned Counsel for both the appellant and the second to fourth respondents. Those submissions will still be meticulously considered and opined upon accordingly.”
This Court shall consider the merits of the notice of preliminary objection.
The notice of appeal of the Appellant contains six grounds of appeal. These are:
Ground One
The judgment is against the weight of evidence.
Ground Two
The learned trial Judge erred in law when he wrongly evaluated the evidence and thereby reached a wrong conclusion in holding that the plaintiff is the rightful owner of the piece of land located at Ungunwar Tinshama Nassarawa District of Kano State of Nigeria more particularly described by Kano State Survey Plan No MS/2010.
Particulars
a. The learned trial Judge rejected the evidence of DW3.
b. The learned trial Judge should not have believed the evidence of PW1.
c. No evidence was led that the plaintiff was in possession of the land which marked even though pleaded.
Ground Three
The learned trial Judge erred in law when he relied on the Customary Right of Occupancy issued by the Nassarawa Local Government Kano to arrive at a wrong conclusion.
Particulars
a. The Nassarawa Local Government Kano State is amongst the Local Governments designated by the Kano State Government as urban area.
b. The Nassarawa Local Government has no power to issue customary title to land.
Ground Four
The learned trial Judge erred in law when he failed to evaluate the issue of revocation of the land in dispute.
Particulars
a. The Kano State Government duly informed the plaintiff of its intention to acquire the land in dispute.
b. The land in dispute does not fall within the categories of the land which has Certificate of Occupancy.
Ground Five
The learned trial Judge erred in law when he wrongly evaluated the issue of compensation in respect of the land in dispute.
Particulars
a. The plaintiff’s complaint was of inadequacy of the compensation for the land in dispute.
Ground Six
The learned trial Judge erred in law when he refused to consider the written address of the third defendant’s Counsel thereof came to a wrong conclusion which led to a miscarriage of justice.
Particulars
a. The trial Judge did not consider the written address of third defendant’s Counsel at all.
b. The failure of the trial Judge to consider the written address of the third defendant’s Counsel led the trial Judge to a wrong conclusion and serious miscarriage of justice.
c. If the learned trial Judge had properly considered the written address of the third defendant’s Counsel he would have come to a different conclusion.

The first grouse of Counsel to the first Respondent with these grounds of appeal was that grounds two, four and five are vague and that ground two was inelegantly drafted and that the three grounds did not comply with the provisions of Order 6 of the Court of Appeal Rules 2011 on the content and form of a ground of appeal. By the provisions of Order 6 Rule 2 of the Court of Appeal Rules 2011 (Order 7 Rule 2(3) of the Court of Appeal Rules 2016). Grounds of appeal are expected to be concise, precise and distinct and must not contain legal arguments, be unnecessarily lengthy, elaborate or contain narratives and must deal with the real complaint upon which the ground is predicated. These provisions were interpreted by the Courts in the cases ofGuda Vs Kitta (1999) 12 NWLR (Pt 629) 21, Coker Vs United Bank for Africa Plc (1997) 2 NWR (Pt 490) 641, Okudo Vs Inspector General of Police (1998) 1 NWLR (Pt 533) 335, Nwabueze Vs Nwora (2005) 8 NWLR (Pt 926) 1, Adekanye Vs Grand Services Ltd (2007) All FWLR (Pt 387) 855.

Now, a ground of appeal is said to be vague and imprecise when it is couched in a manner which does not provide any explicit standard for its being understood or when what is stated is so uncertain that it is not susceptible of being understood. It may also be considered vague when the complaint is not defined in relation to the subject or it is not particularized or the particulars are clearly irrelevant – Central Bank of Nigeria Vs Okojie (2002) 8 NWLR (Pt 768) 48, Governor, Ekiti State Vs Osayomi (2005) 2 NWLR (Pt 909) 67, Imam Vs Sheriff (2005) 4 NWLR (Pt 914) 80 and Nwabueze Vs Nwora (2005) 8 NWLR (Pt 926) 1. In other words, where the complaint in a ground of appeal is discernible vis-à-vis the judgment of a lower Court, the ground of appeal cannot be said to be vague or imprecise.

A read through grounds two, four and five reproduced above, in the light of the findings made by the lower Court, shows clearly that they complain about the evaluation of evidence carried out by the lower Court and its findings on the issue of the acquisition of the land in dispute by the Kano State Government against the fact that the complaint of the first Respondent was in respect of inadequacy of the compensation given to her, and not otherwise. This Court agrees that the three grounds of appeal could have been better crafted and better sequenced and that they were inelegantly drafted. However, the law is that where the complaint in a ground of appeal is not beclouded as to leave a respondent in the dark as to what he is expected to defend in the appeal, it will not be declared incompetent and struck out, notwithstanding that it is badly or inelegantly drafted – Garuba Vs Kwara Investment Co. Ltd (2005) 1 SCNJ 290, Awusa Vs Nigerian Army (2018) 12 NWLR (Pt 163) 421, Chukwu Vs State (2019) 12 NWLR(Pt 1687) 508, First City Monument Bank Ltd Vs Ogbuefi (2021) 10 NWLR (Pt 1783) 1. The three grounds of appeal are not vague and imprecise. They are competent.

The contention of Counsel to the first Respondent against ground six of the notice of appeal, that it contains blatant falsehood as the records of appeal do not bear out the complaint embedded therein and it is thus speculative and is premised on a false notion and perception of the Appellant, does not go to the competence of the ground of appeal. Rather it constitutes arguments against the viability of the complaint in the ground of appeal in this appeal. The complaint of the Appellant in ground six of the grounds of appeal is clear and the ground of appeal is competent.

With regards to Ground Three of the grounds appeal, the contention of the Counsel to the Appellant that it is fresh issue that requires leave to be raised is not borne out by the records of appeal. A fresh issue or fresh point on appeal is an issue that was not canvassed at or pronounced upon by the lower Court – Olalomi Vs NIDB Ltd (2009) 16 NWLR (Pt. 1167) 266, Global Fleet Oil & Gas (Nig) Ltd Vs Orok (2021) 1 NWLR (Pt. 1758) 451, Kwara State Teaching Service Commission Vs G. T. B Plc (2021) 9 NWLR (Pt1782) 530. The ground of appeal questioned the reliance placed by the lower Court on the Customary Right of Occupancy issued by the Nassarawa Local Government Council in finding for the first Respondent. The first Respondent pleaded and relied on the said Customary Right of Occupancy as one of the pivots upon which her claims were predicated and she tendered it as part of the documents supporting her claim of ownership of the land in dispute. The Appellant challenged the claim of the first Respondent on the ownership of the land. The lower Court referred to and relied on Customary Right of Occupancy in finding for the first Respondent. The Appellant is entitled to question the reliance on the lower Court on the document in this appeal. The ground of appeal did not raise a fresh issue and it is competent.

Counsel to the first Respondent contended that ground one of the grounds of appeal was incompetent because Counsel to the Appellant did not the expressly link any of issues for determination formulated in the brief of arguments to the ground of appeal. A read through the brief of arguments shows that the Counsel to the Appellant did not link any of his issues for determination to the grounds of appeal from which they were distilled. The law is that while it is desirable that this be done, failure to do so is not fatal either to the grounds of appeal or to the brief of arguments –Alamieyeseigha Vs Igoniwari (2007) 7 NWLR (Pt 1034) 524, Nigerian Ports Plc Vs B. P. Pte Ltd (2012) 18 NWLR (Pt 1333) 454, Hein Nebelung KG Vs United Bank for Africa Plc (2012) 16 NWLR (Pt 1326) 357, Seabulk Offshore Operators Nig Ltd Vs Augusta Offshore S.P.A (2019) LPELR-50510(CA). Ground one on the notice of appeal is thus not incompetent simply because no issue for determination was linked to it by the Counsel to the Appellant in the brief of arguments.

Counsel to the Appellant further agitated that the date of the judgment being appealed against was wrongly stated in the preamble of the brief of arguments of the Appellant and that this meant that the brief of arguments was not in respect of the notice of appeal and that the notice of appeal should thus be treated as abandoned. With respect to Counsel, this is a very mundane thinking. The law is settled that it is not every error, mistake or omission either on a notice of appeal or in the brief of arguments that affects the validity of an appeal. Rudimentary errors, such as omission of or the stating of a wrong date of the judgment appealed against, are of no consequence – Lagos State Development & Property Corporation Vs Adeyemi-Bero (2002) 1 NWLR (Pt 748) 268, Ashco (Nig) Ltd Vs Ward and Green (2010) 3 NWLR (Pt 1181) 302, Setraco (Nig) Ltd Vs Kpaji (2017) 1 SCNJ 169. Thus, the fact of wrongly stating of date of judgment appealed against in the Appellant’s brief of argument was of no moment.

This Court notes that it has become rampant for Counsel to file a preliminary objection in every appeal, even where simple common sense dictates that there is no ground for it. It is true that a Court has a duty to hear and determine all applications filed by parties, but Counsel must understand that this is not a licence to file spurious, frivolous and vexatious applications that achieve no other goal except wasting the scarce judicial time of the Court, time that could have been better utilized to deal with more serious matters. It is a sign of desperation and bad advocacy and it does not help the cause of a party because it gives the Court the impression, very early on, that the Counsel does not know what he is doing and it might compromise the perspective of the Court of an otherwise meritorious and good response to the substantive appeal. The notice of preliminary objection of the first Respondent is an epitome of improper use of the process of preliminary objection. It is a waste of the time of this Court. It fails in its entirety and it is hereby dismissed. This takes us to the substantive suit.

Counsel to the Appellant distilled three issues for determination in the appeal and these were:
i. Whether, from the facts of the case and evidence adduced, the first Respondent proved her case.
ii. Whether the Local Government in Urban Area of Kano State has power to issue the customary right of occupancy.
iii. Whether the failure of the lower Court to consider the Appellant’s Counsel address occasioned miscarriage of justice. In arguing the first issue for determination, Counsel to the Appellant answered the question posed in the issue for determination in the negative and stated that the issue before the lower Court and the grievance of the first Respondent was not with the acquisition of the land in dispute, but about the adequacy of the compensation given. Counsel stated that the second and third Respondents approved six plots of land as compensation for the portion of land of the first Respondent that fell within the land acquired, but the first Respondent demanded for more plots of land. Counsel stated that having willingly accepted the six plots of land approved, and was only demanding for more plots, the first Respondent cannot go back on the agreement to receive compensation which she has already benefitted from.

Counsel stated that the law does not allow a party to approbate and reprobate and that a person who consents to a particular procedure cannot be allowed to walk out of or challenge it and he referred to the cases of Adetoro Vs UBN Plc (2007) All FWLR (Pt 396) 590 and Ibator Vs Barakuro (2007) All FWLR (Pt 371) 1669. Counsel stated that the first Respondent was estopped from challenging the validity of the acquisition and asserting to the contrary and he referred to the case of Duru Vs Onwumelu (2001) 18 NWLR 699. Counsel urged the Court to resolve the first issue for determination in favour of the Appellant.

On the second issue for determination, Counsel stated that by the provisions of Section 6(1) of the Land Use Act, a Local Government Council in an urban area of Kano State, like the Nassarawa Local Government Council, has no power to issue a customary right of occupancy over land located in its Council Area. Counsel urged the Court to thus resolve the second issue for determination in favour of the Appellant.

With regards to the third issue for determination, Counsel stated that the Appellant filed a final written address before the lower Court and same was adopted by its Counsel and that the failure of the lower Court to consider the arguments in the final address amounted to a denial of fair hearing and occasioned a miscarriage of justice. Counsel stated that there was nowhere in the judgment that the lower Court made any reference to the written address of the Appellant and that the trial Judge would have come to a different conclusion because the arguments therein had the potential to affect the reasoning and the conclusion of the lower Court. Counsel urged the Court to resolve the third issue for determination in favour of the Appellant.

Counsel concluded his arguments by praying the Court to find merit in the appeal and to allow same, set aside the judgment of the lower Court and dismiss the claims of the first Respondent.

On his part, Counsel to the first Respondent formulated one issue for determination in the appeal and this was:
Whether the lower Court was right in entering judgment for and in granting the first Respondent’s reliefs in respect of her claims before that Court?

Counsel to the first Respondent answered the question posed in the issue for determination in the positive and he reproduced the claims of the first Respondent and referred to the provision of Section 134 of the Evidence Act and the case of Wachukwu Vs Owunwanne (2011) 5 SCNJ 197 in reiterating that the standard of proof required of the first Respondent in establishing her claims was balance of probabilities. Counsel stated that the lower Court properly evaluated and assessed the evidence led the parties in finding that the first Respondent proved her case by a preponderance of evidence and he thereafter reproduced the deliberations made by the lower Court on the claims of the first Respondent.

Counsel stated that the Appellant did not challenge the ratio of the judgment of the lower Court under the first issue for determination and he merely requested this Court to reevaluate the evidence led before the lower Court, without more. Counsel referred to and quoted from the case of Anyegwu Vs Onuche (2009) 1 SCNJ 91 in asserting that the lower Court had the primary duty of evaluating the evidence led and that this Court would only interfere where the lower Court carried out its duty of evaluation improperly. Counsel stated that the lower Court duly evaluated the evidence led by the parties, using the appropriate parameters, in making its findings and that this Court thus has no business in reevaluating the evidence, particularly more so as the Appellant has not given this Court any reason to do so. Counsel stated that the lower Court needed not to have written the judgment according to a particular format and that what was necessary was for the judgment to meet the requirements of fair hearing, and which the judgment delivered met and he referred to the cases ofIsezuo Vs Sanni (2014) All FWLR (Pt 756) 522, Alimi Vs Obawole (1998) 6 NWLR (Pt 555) 600 and University of Calabar Vs Esiaga (1997) 4 NWLR (Pt 502) 727.

Counsel stated that the submissions of Counsel to the Appellant under the third issue for determination was premised on a misconception that the lower Court was bound to make reference to the final written address of Counsel in the judgment and that failure to do so amounted to denial of fair hearing. Counsel stated that the lower Court was bound by the evidence led by the parties, and not by the written address of the parties, and that a written address, no matter how fanciful cannot take the place of evidence and that the lower Court was thus not under any duty to make any reference to the written address in the judgment and he referred to the case of Goodwill & Trust Ltd Vs Witt & Bush Ltd (2011) 3 SCNJ 241.

Counsel stated that the submissions of Counsel to the Appellant under the second issue for determination were irrelevant and of no consequence in the appeal because the Appellant did not produce anything before the lower Court showing the designation of the different parts of Kano State into urban and non-urban areas. Counsel stated that the case of the first Respondent that she possessed a customary right of occupancy over the land in dispute and had applied for the conversion of same to a statutory right of occupancy was not unchallenged and was uncontested. Counsel stated that there was evidence led that the first Respondent had a prior beneficial interest in the land which was unlawfully revoked and that this was sufficient to sustain the claim of the first Respondent. Counsel urged the Court to resolve the sole issue for determination in favour of the first Respondent.

Counsel concluded his submissions by praying the Court to find no merit in the appeal and to dismiss same and affirm the judgment of the lower Court.

Now, in the judgment appealed against, the lower Court found in favour of the first Respondent and granted her claims and he found against the Appellant and dismissed his counterclaim. It is obvious from the above reproduced grounds of appeal and summary of the arguments of his Counsel that the Appellant did not appeal or contest against the dismissal of his counterclaim by the lower Court. The entire appeal is only against the grant of the claims of the first Respondent. The finding of the lower Court on the counterclaim of the Appellant is thus conclusive and binding on the parties and on this Court and cannot be tampered with by this Court – Anyanwu Vs Ogunewe (2014) 8 NWLR (Pt 1410) 437, Robert Vs Inspector General of Police (2021) 7 NWLR (Pt 1775) 268, Pillars (Nig) Ltd Vs Desbordes (2021) 12 NWLR (Pt 1789) 122, Okeremute Vs State (2021) 16 NWLR (Pt 1803) 587.

Going to the substantive appeal, after reading through the records of appeal, particularly the case of the parties on the pleadings and the evidence led before the lower Court, the judgment of the lower Court and the notice of appeal, as well as the arguments of Counsel in their respective briefs of arguments, this Court is of the view that there are two issues for determination in the appeal. These are:
i. Whether, on the pleadings and evidence led by the parties, the lower Court was correct when it found that the first Respondent made out a credible case to be entitled to the judgment on her claims.
ii. Whether the lower Court failed to make any reference to the final written address of Counsel to the Appellant in the judgment and thus breached his right to fair hearing.

This appeal will be resolved under the two issues for determination and the two issues for determination will be considered seriatim.

Issue One
Whether, on the pleadings and evidence led by the parties, the lower Court was correct when it found that the first Respondent made out a credible case to be entitled to the judgment on her claims.

The principal claim of the first Respondent before the lower Court was for declaration of ownership of land. It is settled law that in an action for declaration of ownership to land, a party claiming ownership of the land must succeed on the strength of his case and not on the weakness of the other party’s case. Where this onus is not discharged, the weakness of the other party’s case will not help him and the proper judgment is for the other party – Ifediora Vs Okafor (2019) 16 NWLR (Pt 1698) 322, Umeadi Vs Chibunze (2020) 10 NWLR (Pt 1733) 405, Adamawa State Ministry, Land & Survey Vs Salisu (2021) 2 NWLR (Pt 1759) 1, The Registered Trustees of the Apostolic Church of Christ Vs The Registered Trustees of Grace Church of Christ (2021) 16 NWLR (Pt 1801) 105. The lower Court evaluated the respective cases of the parties and the evidence led and found that the first Respondent made out a credible case, on the pleadings and evidence, to sustain her claim of ownership of the land in dispute.

The complaints of the Appellant under this issue for determination invite this Court to examine the evaluation of the evidence of the parties carried out by the lower Court. It is settled that a trial Court has two duties in respect of the evidence led by parties in a trial. The first is to receive into its records all the relevant evidence, and this is called perception. The second is to thereafter weigh the evidence in the context of the surrounding circumstances, and this is evaluation. A finding of fact by a trial Court involves both perception and evaluation – Wachukwu Vs Owunwanne (2011) 14 NWLR (Pt 1266) 1, Ogundalu Vs Macjob (2015) LPELR 24458(SC), Eze Vs State (2018) 11 NWLR (Pt 1630) 353, Otigbah Vs Uwanaka (2020) 16 NWLR (Pt 1749) 1, Yankey Vs Austin (2021) 1 NWLR (Pt 1757) 227.

In other words, an appellate Court will only interfere with the evaluation of evidence carried out by a lower Court and embark of a re-evaluation of the evidence led by the parties where an appellant visibly demonstrates the perversity of the findings made by the lower Court by showing that the lower Court (i) made improper use of the opportunity it had of seeing and hearing the witnesses; or (ii) did not appraise the evidence and ascribe probative value to it; or (iii) drew wrong conclusions from proved or accepted facts leading to a miscarriage of justice. Where an appellant fails to do so, an appellate Court has no business re-evaluating the evidence and interfering with the findings of the lower Court – Kale Vs Coker (1982) 12 SC 252 at 371, Oke Vs Mimiko (No 2) (2014) 1 NWLR (Pt 1388) 332 at 397-398, Busari Vs State (2015) 5 NWLR (Pt 1452) 343 at 373, Amadi Vs Attorney General of Imo State (2017) 11 NWLR (Pt 1575) 92, ABC (Transport Co) Ltd Vs Omotoye (2019) LPELR-47829(SC), Adamu Vs Federal Republic of Nigeria (2021) 12 NWLR (Pt 1790) 377.
In Hanatu Vs Amadi (2020) 9 NWLR (Pt 1728) 115, the Supreme Court at page 132D-G explained the position of the law thus:
“An appeal is an invitation to the superior Court to review the decision of the lower Court and enter a decision that the Court below ought to have reached. The appellate procedure is a grievance procedure. The appeal Court does not substitute its discretion or opinion for that of the Court below from which the appeal emanates. In the appeal procedure, it is incumbent on the appellant to show how the Court below erred or was wrong in the decision appealed against. By virtue of Section 168(1) of Evidence Act, 2011, there is a presumption in favour of the correctness of the decision appeal against and the burden of showing the contrary is on the appellant. This presumption enjoins the appellant to demonstrate how wrong in terms of evidence as well as both procedural and substantive laws the decision appeal against was.”

The contention of the Appellant was that the first Respondent did not make out a case either on the pleadings or on the evidence led challenging the acquisition of the parcel of land in dispute by the Kano State Government, and that her case was on the adequacy of the compensation given to her and that as such the lower Court was in error in declaring the acquisition of the land invalid and in proceeding therefrom to grant the claims of the first Respondent.

The starting point for the consideration of the complaint of the Appellant must be the pleadings of the parties. The Courts have stated over and over that in an action fought on pleadings, the very foundation of the action is the pleadings of the parties. Pleadings are the written statements of the parties setting forth in a summary form the material facts on which each relies in support of his claim or defence, as the case may be. They are the means by which the parties are enabled to state and frame the issues which are in dispute between them and it operates 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 – Aminu Vs Hassan (2014) 5 NWLR (Pt 1400) 287, Corporate Ideal Insurance Ltd Vs Ajaokuta Steel Co. Ltd (2014) 7 NWLR (Pt 1405) 165 at 188A-B, Anyafulu Vs Meka (2014) 7 NWLR (Pt 1406) 396 at 424G, Amakeze Vs Nze Petroleum Co (Nig) Ltd (2021) 1 NWLR (Pt 1756) 107.

Dovetailing from this, is the principle that where a fact in the pleadings of a party is admitted by the other party, either because it is expressly admitted or because it is impliedly admitted by the omission to traverse it expressly, it ceases to be in controversy between the parties and no evidence is required or admitted to prove such fact, and accordingly, only those facts which are expressly traversed on the pleadings will remain in issue between them. In other words, when parties have in their pleadings agreed on some facts, there is no issue in dispute between them on such agreed matters. There is no dispute on a fact which is admitted – Onobruchere & Anor Vs Esegine & Anor (1986) 2 SC 385, Bunge Vs Governor, Rivers State (2006) 12 NWLR (Pt 995) 573 at 599-600 B-A, and Akande Vs Adisa (2012) 15 NWLR (Pt 1324) 538.

On the pleadings, the first Respondent narrated how she purchased the land in dispute in the year 2000 for N120,000.00 and applied for and was issued with a Customary Right of Occupancy dated the 6th of June, 2000 over the parcel of land by the Nassarawa Local Government Authority. She pleaded that she thereafter applied to the second Respondent for the conversion of the Customary Right of Occupancy to a Statutory Right of Occupancy and she made all necessary payments and a file was opened in her name by the second Respondent. She averred that second Respondent communicated with the Chairman of the Nassarawa Local Government Authority in furtherance of her application and that she continued to pursue the issuance of the Statutory Right of Occupancy only to discover that the Appellant had been issued with Certificates of Occupancy by the second Respondent over some of the plots of land in dispute.

The case of the second and third Respondents was that in the course of processing the application of the first Respondent for conversion of her Customary Right of Occupancy over the land in dispute to a Statutory Right of Occupancy, it was discovered that the parcel of land fell within portions of land that the Kano State Government had earlier acquired and designed as commercial layouts. They pleaded that they brought this fact to the knowledge of the first Respondent and made offers to compensate her for the land by allocating 50% of the plots carved out of the parcel of land to her and that she was allocated Plots Nos. C2 to C7, but that the first Respondent demanded for more plots of land. They averred that they were unable to accede to the request because the additional plots of land she demanded had been granted to other persons in 2001 and a series of meetings held was unable to resolve the differences.

The Appellant reaffirmed that in the course of processing the application of the first Respondent for conversion of her Customary Right of Occupancy over the land in dispute to a Statutory Right of Occupancy, it was discovered that the parcel of land fell within Plan No TP/KAS/243A contain a vast portion of land that the Kano State Government had acquired from several individuals for designation into residential and commercial layouts and he reiterated the case of the second and third Respondents was on the compensation approved for the first Respondent.

The first Respondent did not file a reply to the statement of defence of the second and third Respondents but she did file one to the statement of defence of the Appellant and wherein she denied accepting the offer of compensation of six plots of land and she averred that she consistently insisted on being given her parcel of land comprising Plots Nos. C1 to C10 on the layout and that she was never informed that any portion of the ten plots of land had been occupied by anyone.

This was the state of the pleadings upon which the matter proceeded to trial. What is obvious from these facts is that the first Respondent was aware of the fact of the acquisition of the land in dispute by the Kano State Government before she commenced the present action and nowhere in her statement of claim or in her reply pleadings did she aver facts challenging the fact of the acquisition and neither did she pray the lower Court for an order setting aside the said acquisition of the land. It is settled that the fact of a challenge to the acquisition of land cannot be deduced or inferred. It must be expressly pleaded. It is presumed that compulsory acquisition of land by government is regular because non-compliance with the laws of the State will not be presumed, but if it exists, it is for the party complaining to plead and prove such non-compliance, this is embodied in the Latin maxim omnia presumuntur, rite esse acta and it is apparent from Section 168 of the Evidence Act – Integrated Rubber Products Ltd Vs Oviawe (1992) 5 NWLR (Pt 243) 572, Ononuju Vs Attorney General, Anambra State (1998) 11 NWLR (Pt 573) 304.
The law is that where an appropriate authority improperly exercises a power given to it under a statute and creates a state of affairs which a proper exercise of that statutory power would ordinarily create, that state of affairs cannot be ignored and treated as if it did not exist because it came about by an improper exercise of power. A party contending against the state of affairs created by the improper exercise of the statutory power must advance the facts of the improper exercise of that power in support of an action to nullify the state of affairs so created and to set aside the exercise of the power by the authority. In Teniola Vs Olohunkun (1999) 5 NWLR (Pt 602) 280, Ayoola, JSC at 298 explained the point thus:
“Where in the exercise of statutory power, grants of statutory rights of occupancy have been made, without want of authority or capacity, the Court will not treat the grants as if they have not been made and proceed to determine the rights of the parties as if those grants have ceased to be in existence. There may be circumstances in which there are facts which, if established by evidence, may justify the exercise of the Court’s discretion to set aside a grant of right of occupancy… The facts which may justify the setting aside of a grant of right of occupancy cannot be used as defence in an action in trespass when the grant which vested exclusive possession in the holder had not itself been set aside. The proper thing to do is to advance those facts in an action to set aside the grant.
In my judgment, the plaintiff’s counsel was right in his submissions that the judgment of the Court of Appeal should be affirmed since the rights of occupancy granted to the plaintiff have not been revoked and there has been no action to have them set aside. The requirement that a party who challenges the validity of a grant of statutory right of occupancy should take steps to set such aside, rather than ignore it and behave as if it does not exist, is by no means a mere technicality… To treat the grant as annulled when no such remedy has been sought in the action and to hold that the party challenging the grant has a right to enter the land as if the holder of a right of occupancy had at no time been granted to the plaintiff, cannot at all be right.”
This statement of the law was reiterated and applied by the Supreme Court in the case of Dabo Vs Abdullahi (2005) 7 NWLR (Pt 923) 181 at 204-205. The Land Use Act empowers the Governor of Kano State to acquire land and a proper exercise of the power of acquisition extinguishes all rights and interests in the land acquired. Therefore, where a party claims ownership of a parcel of land which is said to have been acquired, it is incumbent on the party to seek for an order setting aside the alleged acquisition and to plead and prove facts justifying the setting aside of the acquisition. The party cannot just plead his case of ownership the land and ignore the said acquisition simply because he believes that the acquisition was improperly done. Where a party fails to do so, he will be treated as having not joined issues on the issue of acquisition of the land.

This is in furtherance of the principle that where a claimant fails to file a reply to answer or contest material averments in a statement of defence which have not been taken care of by the averments in the statement of claim, he would be deemed not to have joined issues on the averments in the statement of defence –Adeleke Vs Aserifa (1986) 3 NWLR (Pt 30) 575, Mba Vs Agu (1999) 12 NWLR (Pt 629) 1, Iwuoha Vs NIPOST Ltd (2003) 8 NWLR (Pt 822) 308, Attorney General, Abia State Vs Attorney General, Federation (2005) 12 NWLR (Pt 940) 452.

The failure of the first Respondent to aver facts challenging the fact of the acquisition of the land in dispute pleaded by the second and third Respondents and to pray the lower Court for an order setting aside the said acquisition of the land meant that she did not contest the acquisition of the land in dispute. The state of the pleading thus supports the assertion of Counsel to the Appellant that the grievance of the first Respondent was not with the acquisition of the land in dispute, but with the adequacy of the compensation given.

It is correct that the first Respondent stated in her evidence that she was not served with a revocation notice and the records of appeal show that her Counsel vigorously canvassed the issue of the impropriety of the acquisition of the land in dispute in his final written address. It is an established principle of adjudication that parties are bound by their pleadings and any fact that emerges from matters that are not pleaded go no issue and should be discountenanced – Phillips Vs Eba Odan Commercial & Industrial Company Ltd (2013) 1 NWLR (Pt 1336) 618, Idachaba Vs University of Agriculture, Makurdi (2021) 11 NWLR (Pt 1787) 209, Haruna Vs Abuja Investment & Property Development Co., Ltd (2021) 15 NWLR (Pt 1798) 133, Bayero Vs Agundi (2021) 16 NWLR (Pt 1802) 347.

Thus, parties are not allowed to raise issues of facts in the address of their Counsel which were not raised or agitated on the pleadings as address of Counsel does substitute for pleadings – Buraimoh Vs Bamgbose (1989) All NLR 669, Okwejiminor Vs Gbakeji (2008) 5 NWLR (Pt 1079) 172, Ayanwale Vs Odusami (2011) LPELR-8143(SC).

Similarly, the Courts are bound by the pleadings of the parties and should not consider an issue not raised by the parties on the pleadings – First Bank of Nigeria Plc Vs Songonuga (2007) 3 NWLR (Pt 1021) 230, Akpan Vs Udoh (2008) 3 NWLR (Pt 1075) 590, Afolabi Vs Western Steel Works Ltd (2012) 17 NWLR (Pt 1329) 286, Julius Berger (Nig) Plc Vs Ogundehin (2014) 2 NWLR (Pt 1391) 388. The law is that the Court is bound to limit and confine itself to the case presented and issues raised by both parties and it has no duty to formulate cases for the parties – Eweje Vs O. M. Oil Industry Ltd (2021) 4 NWLR (PT 1765) 117, Offodile Vs Onejeme (2021) 7 NWLR (Pt 1775) 389, Wulangs Vs Central Bank of Nigeria (2021) 16 NWLR (Pt 1802) 195. The lower Court had no business in this case voyaging, as it did in the judgment, on the question of whether or not the acquisition of the land in dispute followed the procedure laid down in Section 28 of the Land Use Act and Section 44 of the 1999 Constitution.

But perhaps more erroneous was the order made by the lower Court declaring the acquisition of the land by the Kano State Government invalid. No such relief was sought or prayed for by the first Respondent. It is settled that the parties and the Court are bound by the reliefs claimed in the action. A case is fought on the reliefs sought and the reliefs put the cause of action of a party in specific demanding language. An action stands or falls on the reliefs sought – Otun Vs Otun (2004) 14 NWLR (Pt 893) 381, Africa Prudential Registrars Plc Vs Macaulay (2020) 18 NWLR (Pt 1755) 1 and Ehinle Vs Ikorodu Local Government (2021) 1 NWLR (Pt 1757) 279. Therefore, a Court cannot grant a relief not claimed by the parties on the pleadings – Think Ventures Ltd Vs Spice & Regler Ltd (2020) 2 NWLR (Pt 1759) 114, Offodile Vs Onejeme (2021) 7 NWLR (Pt 1775) 389, Cappa and Dalberto (Nig) Plc Vs NDIC (2021) 9 NWLR (Pt 1780) 1, Uyo Local Government Vs Akwa Ibom State Government (2021) 11 NWLR (Pt 1786) 1.

Further, apart from the pleadings, the documentary evidence before the lower Court also support the contention of Appellant that the grievance of the first Respondent was not with the acquisition of the land in dispute, but with the adequacy of the compensation given. The parties were agreed that in response to the application of the first Respondent for a statutory right of occupancy over the land in dispute, the second Respondent addressed a letter dated 1st September, 2005 to the first Respondent and that the first Respondent responded thereto by a dated 11th September, 2005. Both letters were tendered in evidence by the parties. The second Respondent’s letter read, in part, thus:
RE: APPLICATION FOR STATUTORY RIGHT OF OCCUPANCY NO. KN/CON/COM/2001/09
I am directed to refer to the above subject matter and inform you that a total of six (6) commercial plots (C2 to C7) at Hotoron Arewa Layout covered by Plan No. TP/KAS/243 have been earmarked for your resettlement.
You are therefore requested to acknowledge the above to enable further appropriate action.

The response letter of the first Respondent read, in part, thus:
RE: APPLICATION FOR STATUTORY RIGHT OF OCCUPANCY NO. KN/CON/COM/2001/09
I write to acknowledge receipt of the attached letter on the above matter which I was privileged to collect from the Ministry of Land and Physical Planning, Kano on the 7th of September, 2005.
I wish to express my profound gratitude to the Hon. Commissioner for the effort he is putting in to resolve this issue.
I was informed in the said letter that I have been earmarked a total of six (6) commercial plots (C2 to C7) at Hotoron Arewa Layout covered by Plan No. TP/KAS/243 for resettlement.
With due respect, I however wish to make a special request to Your Excellency. Taking into consideration the size of the original land in question for which I initially applied for the Statutory Right of Occupancy, I would request Your Excellency to approve as resettlement for me Commercial Plots Nos. C1 – C10, all of which are contained within the original land in question. The rest of the land unfortunately would be forfeited. Please see attached plan.
I pray my request be considered and approved so as to put to rest the issue of the resettlement on this land. (underlining for emphasis)

Now, it is trite law that in the construction of documents the primary rule is that effect should be given to the literal contents in their ordinary way as they appear on the documents and that anything which does not appear ex facie on such documents should not be imported into them – The Northern Assurance Co. Ltd Vs Wuraola (1969) LPELR 25562(SC), Ogbunyiya Vs Okudo (1979) 6-9 SC 32, Union Bank of Nigeria Plc Vs Ozigi (1994) 3 NWLR (Pt 333) 385, Lewis Vs United Bank for Africa Plc (2016) 6 NWLR (Pt 1508) 329. Applying these principles to the above documents, it is evident that prior to the commencement of this action, the engagements between the first Respondent and the second and third Respondents were focused not on the validity of the acquisition of the land in dispute, but on the adequacy of the plots of land being offered for resettlement. This, perhaps, was what guided the first Respondent into not challenging the acquisition of the land in dispute in the action in the lower Court.

The findings made by the lower Court on the impropriety of the acquisition of the land in dispute by the Kano State Government and the order made declaring the acquisition invalid are hereby set aside. It is settled law that once there is a compulsory acquisition of land, the title of the former owner becomes extinguished by reason of the acquisition – Yusuf Vs Oyetunde (1998) 12 NWLR (Pt 574) 483, Akinboye Vs Adeko (2011) 6 NWLR (Pt 1244) 415. Therefore, in Adegbite Vs Amosu (2016) 15 NWLR (Pt 1536) 405, the Supreme Court held that a person can only maintain an action in respect of land acquired by government if he can show that he successfully challenged the acquisition which was later revoked.

The failure of the first Respondent to seek for and plead facts supporting the nullification and setting aside of the acquisition of the land in dispute by the Kano State Government removed the ‘wind from the sail’ of her claim for declaration of ownership of the land in dispute. The finding of the lower Court that the first Respondent made out a credible case to sustain her claims was not supported by the pleadings and evidence led by the parties. It is perverse and it is hereby set aside. The first issue for determination is resolved in favour of the Appellant.

This resolution of the first issue for determination should ordinarily conclude deliberations of this Court on this appeal. However, in view of the fact that this Court is not the final Court in the judicial hierarchy, it is wise that it goes further to look at the second issue raised by the parties, in case it turns on a further challenge that its finding on the first issue for determination is wrong – Ovunwo Vs Woko (2011) 17 NWLR (Pt 1277) 522, National Union of Road Transport Workers Vs Road Transport Employers Association of Nigeria (2012) 10 NWLR (Pt 1307) 170, Iwunze Vs Federal Republic of Nigeria (2013) 1 NWLR (Pt 1334) 119.

Issue Two
Whether the lower Court failed to make any reference to the final written address of Counsel to the Appellant in the judgment and thus breached his right to fair hearing.

It was not in dispute between the parties that Counsel to the Appellant was given the opportunity to file his final written address containing his legal arguments on the matter and to adopt same. The grouse of the Appellant under this issue for determination is that the lower Court made no reference to the arguments contained in the written address in its deliberations in the judgment. The law is that where a party is not denied his right to address the trial Court and he presents his address and his Counsel adopts same in Court, the simple fact that a trial Court did not demonstrably consider the arguments proffered in the final written address in the judgment is not sufficient ground, without more, to nullify the trial and the judgment. In Nigeria Engineering Works Ltd Vs Denap Ltd (1997) 10 NWLR (Pt 525) 481 at 519A-C, this Court made the point thus:
“Addresses are designed to assist the Court and although the right of Counsel to address is recognized by Section 258(1) of the 1979 Constitution, where the facts of the case are straight forward and not in dispute a trial Judge would be at liberty to dispense with it. An order by a trial Court that written addresses be submitted will not vitiate a trial so long as no party is denied the right to address the Court and the use of addresses of Counsel by a trial Court is discretionary as cases are decided not on addresses of Counsel but on credible evidence and no amount of brilliance in a final address can make up for lack of evidence to prove and establish or to disprove and demolish points in issue.”
These same views were expressed by this Court in Eseigbe Vs Agholor (1990) 7 NWLR (Pt 161) 234, Royal Exchange Assurance of Nigeria Vs Aswani Textile Ltd (1991) 2 NWLR (Pt 176) 639, Registered Trustees of the Nigerian Baptist Convention Vs The Registered Trustees of the African Church Organization (1992) 7 NWLR (Pt 251) 105, Igwe Vs Alvan Ikoku College of Education, Owerri (1994) 4 NWLR (Pt 363) 459, Nwaubani Vs Golden Guinea Breweries Plc (1995) 6 NWLR (Pt 400) 184, Costain (WA) Ltd Vs Kotun (1998) 10 NWLR (Pt 568) 84, Michika Local Government Vs National Population Commission (1998) 11 NWLR (Pt 573) 201, Sanyaolu Vs INEC (1999) 7 NWLR (Pt 612) 600, Dalyop Vs Oradiegwu (2000) 8 NWLR (Pt 669) 421, Tapshang Vs Lekret (2000) 13 NWLR (Pt 684) 381, Mfa Vs Inongha (2005) 7 NWLR (Pt 923) 1, Ezeama Vs State (2014) LPELR 22504(CA), Adedeji Vs Bello (2015) 6 NWLR (Pt 1454) 104.
The rationale for this position is that the main purpose of an address is to assist the Court, and is never a substitute for compelling evidence. Failure of address will not be fatal or cause miscarriage of justice because whether Counsel addresses a Court or not, the Court must do its own research with the sole aim of seeking the truth and determining which side is entitled to judgment. The address of Counsel is not binding on the Court – Dosunmu Vs Dada (2002) 13 NWLR (Pt 983) 1. This position of the law received the imprimatur of the Supreme Court in the cases of Niger Construction Ltd Vs Okugbeni (1987) 4 NWLR (Pt 67) 787, Ogunsanya Vs State (2011) 12 NWLR (Pt 1261) 401, Mohammed Vs State (2015) 13 NWLR (Pt 1476) 276 and Ndukwe Vs Union Bank of Nigeria Plc (2021) 4 NWLR (Pt 1765) 165.
Therefore, an appellant seeking to nullify a trial and the judgment of a trial Court for failure of the trial Court to demonstrably consider the arguments proffered in the final written address in the judgment must go further to show the miscarriage of justice he suffered by reason of such failure. In other words, on the authorities, the failure by a trial Court to take Counsel’s address into consideration before giving judgment where such failure does not lead to miscarriage of justice would not have the effect of vitiating the trial – Ugorji Vs Onwuka (1994) 4 NWLR (Pt 337) 226, Tapshang Vs Lekret supra, Ukpong Vs ESOPNDEM (2013) LPELR 21948(CA). In the case of Sanyaolu Vs INEC supra, Olagunju, JCA, commented thus:
“But I do not share the view that failure to refer to counsel’s address in the judgment even though a technical infraction of the appellant’s right of fair hearing is a breach of audi alteram partem rule and occasioned a miscarriage of justice. A miscarriage of justice would occur if on the reading of the judgment some material points in the argument of the learned counsel which are bound to operate in favour of the learned counsel’s client have been left out of consideration.”

Counsel to the Appellant did not point out the specific arguments in the final address of Counsel to the Appellant that the lower Court failed to consider and neither did he show that the said arguments were so material that a consideration of them would have led to or influenced a different decision. Thus, apart from making a bare statement to that effect, Counsel did not show or attempt to show that the Appellant suffered a miscarriage of justice by reason of the failure of the lower Court to demonstrably consider his written address in the judgment. The complaint of the Appellant under this issue for determination is baseless. The second issue for determination is resolved in favour of the first Respondent.

This Court must confess that Counsel to the Appellant did not do enough to put across the case of the Appellant in this appeal. The grounds of appeal were badly and inelegantly drafted and the submissions in the brief of arguments were lazy, lacking in energy, scanty, sketchy and lacking in depth and in the essentials for this appeal. The law, however, is that no matter how inelegant the processes of a party is, its paucity notwithstanding, a case will stand or fall on the admitted and established facts, and on the primary obligation of our Courts to do substantial justice. In Bello Vs Attorney General, Oyo State (1986) 5 NWLR (Pt 45), Karibi-Whyte, JSC put the point thus:
“The respondent has contended that Counsel did not in fact advert his mind to the Torts law because his reliance on the maxim of ibi jus ibi remedium (meaning where there is a right there is a remedy) suggested that he knew there was a right but that there was no remedy, and is asking the Court to provide one. That may well be the case. Even in such a situation the Court cannot in the discharge of its sacred duty to do justice be inhibited by the ignorance or carelessness of Counsel. The injustice resulting to the cause of the litigant from such demonstration of ignorance or carelessness of Counsel does not adversely affect Counsel whose fees remain undiminished. I think I am speaking the mind of all engaged in the administration of justice, not only in this Court but in all Courts in this country, that the day the Courts allow the inarticulacy or ignorance of Counsel determine the result of an action before it, that day will herald the unobstrusive genesis of the unwitting enthronement of injustice aided by the Court itself by default.”
This Court has focused on the doing of justice in this matter based on the facts as admitted on the pleadings and admitted in the evidence of the parties, notwithstanding the inarticulacy of the Counsel to the Appellant.

In conclusion, this Court finds some merit in the appeal and it is hereby allowed. The portion of the judgment of the High Court of Kano State delivered in Suit No K/607/2008 by Honorable Justice Abdullahi Mahmoud Bayero on the 11th of June, 2014 granting the claims of the first Respondent is set aside, and in its stead is entered judgment dismissing the claims of the first Respondent before the lower Court. The parties shall bear their respective costs of this appeal. These shall be the orders of the Court.

ABUBAKAR MU’AZU LAMIDO, J.C.A.: I have had the privilege of reading in draft the judgment delivered by my learned brother

HABEEB ADEWALE OLUMUYIWA ABIRU, JCA, and I am in complete agreement with the reasoning and conclusion reached therein that the appeal is meritorious. I too allow the appeal and abide by all other consequential orders as contained in the lead judgment.

USMAN ALHAJI MUSALE, J.C.A.: I have had the privilege of reading in draft the lead judgment delivered by my learned brother, HABEEB ADEWALE. O. ABIRU, JCA. I am in agreement with the reasoning and conclusion reached by him and adopt same as mine.

I abide by the consequential orders made. Appeal allowed.

Appearances:

No appearance. For Appellant(s)

Sir Steve Adehi, SAN, with him, P. O. Osariemen and G. A. Ochai – for 1st Respondent
Dalhatu Yusuf Dada, Director, MoJ, Kano State – for 2nd & 3rd Respondents. For Respondent(s)

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