ALHAJI AHMED MUKTAR YUSUF v. ALHAJI MAMUDA MAIKANANZIR (2013)

ALHAJI AHMED MUKTAR YUSUF v. ALHAJI MAMUDA MAIKANANZIR

(2013)LCN/6477(CA)

In The Court of Appeal of Nigeria

On Thursday, the 31st day of October, 2013

CA/K/56/2010

JUSTICES

DALHATU ADAMU Justice of The Court of Appeal of Nigeria

ABDU ABOKI Justice of The Court of Appeal of Nigeria

HABEEB ADEWALE OLUMUYIWA ABIRU Justice of The Court of Appeal of Nigeria

Between

ALHAJI AHMED MUKTAR YUSUF (For and behalf of the Heirs to the Estate of Late Mukhtari Yusuf) – Appellant(s)

AND

ALHAJI MAMUDA MAIKANANZIR – Respondent(s)

RATIO

WHETHER OR NOT FAILURE TO FORMULATE ISSUES IN A BRIEF OF ARGUMENT RENDERS THE BRIEF INCOMPETENT

Thus, it has been held that failure to formulate issues in a brief of arguments is sufficient by itself to render the brief incompetent, and arguments canvassed therein would therefore be of no consequence as the brief becomes irredeemably bad if the arguments are not based on any issue or semblance of them – Orji Vs Zaria Industries Ltd (1992) 1 NWLR (Pt.216) 124, Adehi Vs. Atega (1995) 5 NWLR (Pt. 398) 656, Nigerian Air Force Vs Shekete (2002) 18 NWLR (Pt 798) 129, Abayomi Vs Attorney General, Ondo State (2006) 8 NWLR (Pt 982) 211. And this is not an issue of technicality but an established principle and settled law – Oyegun Vs Nzeribe (2010) 16 NWLR Pt.1220) 568. PER ABIRU, J.C.A.

WHETHER OR NOT ISSUES FOR DETERMINATION ARE SYNONYMOUS WITH THE GROUNDS OF APPEAL

It is elementary that issues for determination in an appeal are not synonymous with the grounds of appeal and should not be formulated to coincide with the number of grounds of appeal. Grounds of appeal allege the complaints of errors of law and fact or mixed law and fact against the judgment on appeal while issues for determination are short questions raised from one or more grounds of appeal and are meant to guide the arguments or submissions to be advanced in support of the said grounds of appeal. An issue for determination is simply a combination of facts and circumstances including the law applicable thereto which when decided one way or the other by the court affects the fate of the appeal – Ali Vs Osakwe (2011) 7 NWLR (Pt 1245) 68, Nadabo Vs Dabai (2011) 7 NWLR (Pt 1245) 155, Daniel Tayar Transport Enterprises Nigeria Company Ltd Vs Busari supra. PER ABIRU, J.C.A.

WHETHER OR NOT THE STARTING POINT FOR CONSIDERATION OF THE OWNERSHIP OF A LAND IN DISPUTE MUST BE THE PLEADINGS OF THE PARTIES

The starting point for the consideration of the issue of ownership of the farmland in dispute must be the pleadings of the parties. Pleadings are the written statements of the parties in an action begun by writ, setting forth in a summary form the material facts on which each party relies in support of his claim or defence, as the case may be. They are the means by which parties are enabled to frame the issues which are in dispute between them, without embarking at that stage on the evidence which each party may adduce at trial. The system of pleadings 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 upon to adjudicate between them. It serves the two-fold purpose of informing each party what is the case of the opposite party which he will have to meet before and at the trial, and at the same time informing the court what are the issues between the parties which will govern the interlocutory proceedings before the trial and which the court will have to determine at the trial. Thus, one of the most firmly established principle of litigation is that the parties, and the court, are bound by the pleadings. Neither party can make out a case at the trial different from that contained on the pleadings – Zenith Bank Plc Vs Ekereuwem (2012) 4 NWLR (Pt 1290) 207 and Afolabi Vs Western Steel Works Ltd (2012) 17 NWLR (Pt.1329) 286. A court too cannot set up for parties a case different from the one set up by the parties in the pleadings – Skye Bank Plc Vs Akinpelu (2010) 9 NWLR (Pt 1198) 179 and Baliol (Nig) Ltd Vs Navcon (Nig) Ltd (2010) 16 NWLR (Pt.1220) 619. PER ABIRU, J.C.A.

HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Kano State in Suit No K/447/06 delivered by Honourable Justice B. S. Adamu on the 11th of March, 2009. The action before the lower Court was commenced by one the late Alhaji Mukhtari Yusuf, the heirs of who are the Appellants in this appeal, as plaintiff, against the Respondent, as defendant. The said late Alhaji Mukhtari Yusuf died in the course of the trial before the lower Court and was substituted with the Appellants. The claims as contained in the statement of claim dated the 28th of November, 2006 were for:

i. A declaration that the plaintiff is the rightful owner of all that piece of land described herein.

ii. An order declaring that the action of the defendant of building a structure on the land was wrongful and amounts to trespass.

iii. An order of perpetual injunction restraining the defendant, their agents or privies from further trespassing on the said piece of land.

iv. An order of N1,000,000.00 (One Million Naira) as special and general damages.

v. Cost of this suit.

The Respondent filed a statement of defence dated the 19th of January, 2007 in response.

The case of the Appellants on the pleadings was that their late father was the rightful owner of the farm land in dispute which is situate at Rijiyar Zaki Kano measuring approximately 78 feet wide on its east to west side and 328 and a half feet wide on the north to south side and that the farm land shared boundary with the farm of Sa’idu Mai Lalle on the east, overlooked the earth pathway (Labi) on the west, shared boundary with the farm of late Ya’u, Magaji and Kurma, now in the possession of Alhaji Hamisu, on the south and shared boundary with the farm of Mallam Ibrahim Na Ado on the north. It was their case that the farm land in dispute formed part of a larger parcel of farmland purchased by their late father around sixty years ago from one late Alin Karwai and that their late father went into immediate possession of the portion of farmland and had full utilization of the land. It was their case that part of the farmland purchased by their late father was acquired by the Kano State Government to design the residential layout, GRA Tudun Yola, and their late father was paid compensation for the portion of the farmland acquired. It was their case that it is the portion of the farmland not acquired by the State Government that is in dispute in this matter and that their late father had been in full possession of this portion of land.

It was the case of the Appellants that sometime in 2005, the Respondent commenced erecting a fence on the farmland in dispute and purported to create plots including Plots 57, 58, 60 and 61 thereon under a TP/UDB/166 layout plan and that their late father called the attention of the Respondent to the act of trespass by a letter of warning but that the Respondent defied the letter and continued to parade himself as the owner of the land claiming that Ungogo Local Government sold the land to him. It was their case that their late father did not at any time transfer the said farmland in dispute to Ungogo Local Government nor did he permit the Unogogo Local Government to sell or transfer same to anybody and neither was the farmland acquired by the Ungogo Local Government at any time and that when their late father confronted the Ungogo Local Government over the claim of the Respondent, it denied allocating the plots of land making up the farmland in dispute. It was their case that their late father also contacted the Kano State Ministry of Lands that acquired the portion of the original farmland of their late father and that the Ministry confirmed that the farmland in dispute was not part of the land acquired and that the State Government had no claim whatsoever over the farmland in dispute.

In response, the case of the Respondent was that the farmland in dispute formed portion of the land acquired by the Government and for which compensation was paid to the original land owners and that he is the present rightful owner of the land in dispute by reason of purchase and that he would rely on his title documents and transfer documents at the trial. The Respondent denied that the late father of the Appellants had been in possession of the land in dispute and he further denied the other averments of the Appellants.

At the trial, the Appellants called three witnesses and tendered two documents marked as Exhibits 1 and 2 while the Respondent called three witnesses and tendered no exhibit. The records of the lower Court showed that the Court visited the locus in quo in the presence of the Counsel to both parties, the late father of the Appellants and the second and third plaintiff witnesses. At the conclusion of trial and after written addresses of Counsel, the lower Court entered judgment dismissing the claims of the Appellants. The Appellants were not satisfied with the judgment of the lower Court and they caused a notice of appeal dated the 12th of March, 2009 to be filed against it and it contained six grounds of appeal.

In arguing the appeal before this Court, Counsel to the Appellants relied on a brief of arguments dated the 10th of March 2010 but filed on the 12th of March, 2010 and it consisted of eleven pages. The Respondent did not file any brief of arguments and he neither attended Court nor was he represented by Counsel despite service of hearing notice on him. On the 18th of March, 2013 this Court, on the application of the Appellants, set down the appeal for hearing only on the brief of the Appellants. At the hearing of the appeal on the 10th of October, 2013, Counsel to the Appellants adopted the arguments in his brief of arguments and he urged this Court to allow the appeal.

It must be stated that the failure of the Respondent to file a brief of arguments in this appeal does not automatically mean that judgment must be entered for the Appellants. The Appellants still have the duty of convincing this Court that they are entitled to judgment – Stabilini Visioni (Nig) Ltd Vs Sanderton Ventures Ltd (2011) 8 NWLR (Pt.1249) 258. Reading through the Appellants’ brief of arguments, the Counsel to the Appellants adopted a strange and unconventional method in preparing same. Counsel did not frame or formulate the issues for determination in the appeal separately from the arguments under the said issues, rather he framed the issues as heading or subtitles to the arguments under them. Thus, at a first glance it appears as if there were no issues framed or formulated in the Appellants’ brief and that the arguments therein were canvassed under the grounds of appeal. It must be understood that issues for determination are an essential, important and integral part of every brief of arguments filed in the appellate Court and this is because appeals in the Supreme Court and in this Court are argued on the issues formulated by Counsel as arising from the grounds of appeal – Daniel Tayar Transport Enterprises Nigeria Company Ltd Vs Busari (2011) 8 NWLR (Pt.1249) 387.

It is to underscore this importance of issues for determination that the rules of brief writing requires that they should be separately set out and numbered at the onset of a brief of arguments before the arguments on them are canvassed. The method adopted by the Appellants’ in their brief of arguments, in the instant case, to make the issues for determination as subheads to the arguments was wrong and unconventional. Further, the Counsel to the Appellants failed to relate or marry the said issues for determination so raised as subheads to the grounds of the notice of appeal from which they were distilled.

These defects rendered the Appellants’ brief inelegant and contrary to the laid down rules on brief writing – Obim Vs Achuk (2005) 6 NWLR (Pt.922) 594. Be these as they may, however, this Court will treat the non-compliance with the rules on brief writing as mere irregularities and will try and make the best it can of the brief; this is in fulfillment of its primary duty of ensuring the doing of justice on the merits of the case put forward by the Appellants – Owners of MV Arabella Vs Nigeria Agricultural Insurance Corporation (2008) 11 NWLR (Pt.1097) 182, Ekpemupolo Vs Edremoda (2009) 8 NWLR (Pt.1142) 166, Ogbe Vs Asade (2009) 18 NWLR (Pt 1172) 106 and Dakolo Vs Rewane-Dakolo (2011) 16 NWLR (Pt.1272) 22.

The Appellants argued six issues in their brief of arguments and these were:

i. Whether the learned trial Judge was not in error by hinging his judgment in non-joinder of certain persons although the Respondent did not raise the point either in his statement of defence or in his address and without calling on the parties to address the Court on the issue raised suo motu.

ii. Whether the learned trial Judge was not in error when he conferred title to the land in question on the Respondent who did not counterclaim in the action and did not pray for title.

iii. Whether the learned trial Judge was right in basing his finding on a purported claim for compensation by the Appellant as against the traditional title claimed by the Appellant in his proceedings and evidence before the trial Court.

iv. Whether the learned trial Judge was right in finding that the Appellant had surrendered the entire farm in question including the remnant piece of land in dispute to Kano State Government and can thus not claim same save through establishing re-allocation.

v. Whether the learned trial Judge was right to have found that the land in question was not properly identified, same issue not raised by the Respondent and also despite the visit to the locus.

vi. Whether the entire judgment is supported by evidence and not perverse.

These issues were distilled from the six grounds of appeal contained in the notice of appeal of the Appellant. In actual fact, what the Counsel to the Appellant did was to couch each ground of appeal into an issue for determination. It is elementary that issues for determination in an appeal are not synonymous with the grounds of appeal and should not be formulated to coincide with the number of grounds of appeal. Grounds of appeal allege the complaints of errors of law and fact or mixed law and fact against the judgment on appeal while issues for determination are short questions raised from one or more grounds of appeal and are meant to guide the arguments or submissions to be advanced in support of the said grounds of appeal. An issue for determination is simply a combination of facts and circumstances including the law applicable thereto which when decided one way or the other by the court affects the fate of the appeal – Ali Vs Osakwe (2011) 7 NWLR (Pt 1245) 68, Nadabo Vs Dabai (2011) 7 NWLR (Pt 1245) 155, Daniel Tayar Transport Enterprises Nigeria Company Ltd Vs Busari supra.

Counsel to the Appellants displayed a less than adequate skill in the preparation of his brief of arguments in this appeal. One of the invaluable assets that a Counsel must always possess is drafting skills. The Court of Appeal, speaking on the necessary drafting skills a Counsel must possess, said in SCOA (Nig) Plc Vs Danbatta (2002) 13 NWLR (Pt 785) 461 at 472 C-F thus:

“Drafting is an important tool in advocacy. A solicitor who could not present his client’s case clearly in the brief, if it is a case in the appellate courts, or in the pleadings, if it is a case before the High Court or Federal High Court, could not adequately represent the interest of his clients. An otherwise good case is destroyed and lost by bad pleadings, … Counsel should pay more attention to drafting as no counsel could be good and make marks in advocacy if he is poor in drafting mechanism.”

It is hoped that Counsel to the Appellants will take time out to study and learn how to prepare and draft an appellate Court brief of arguments and better his services to his clients in future.

It the view of this Court that reading the record of proceedings, the judgment of the lower Court and the arguments contained in the Appellants’ brief of arguments, three issues arise for determination in this appeal. These are:

i. Whether the lower Court was right when it held that the Appellants failed to prove the identity of the specific area of land claimed.

ii. Whether the lower Court was correct when it found that the Appellants did not lead credible evidence to establish their claims before the Court.

iii. Whether the lower Court was right in making orders of entitlement to the land in dispute and injunction in favour of the Respondent who did not counterclaim.

On the first issue determination, Counsel to the Appellants stated that the Respondent did not raise the issue of identity of the land claimed either in his pleadings or in the address of his Counsel and both parties were agreed on the identity of the land and that the lower Court visited the locus in the presence of the parties and of their Counsel and both of them agreed the extent and demarcation of the land. Counsel stated that the Appellants described the boundaries of the land in their pleadings and led evidence in proof thereof. Counsel submitted that the burden to prove identity of land only arises where a defendant makes it an issue in its defence and he referred to the case of Ogun Vs Akinyelu (2004) 12 SCNJ 196.

It is correct that in the judgment, the lower Court held that the Appellants failed to prove the specific area of the parcel of land being claimed and that as such the burden of proof cannot shift to the Respondent and that the claim must be dismissed. It is however not clear from the judgment how the lower Court arrived at this conclusion. The deliberations of the lower Court on the issue were vague, confused and opaque.

It is an established principle of land litigation that any person claiming an interest in land must prove the exact location of the land and the precise are to which his claim relates. This is the foremost and a fundamental duty on a plaintiff in a land dispute – Ukaegbu Vs Nwololo (2009) 3 NWLR (Pt 1127) 194, Adu Vs Gbadamosi (2009) 6 NWLR (Pt 1136) 110, Usung Vs Nyong (2010) 2 NWLR (Pt.1177) 83, Achor Vs Adejoh (2010) 6 NWLR (Pt 1191) 537. Even where the identity and location of the land is not in dispute, the plaintiff must in his pleadings and evidence show an identifiable area of land to which his claim relates – Iyaji Vs Eyigebe (1987) 3 NWLR (Pt 61) 523 at 529, Ofume Vs Ngbeke (1994) 4 NWLR (Pt 341) 746 and Kankia Vs Maigemu (2003) 6 NWLR (Pt 817) 496. Such proof of identity of land is a condition precedent sine qua non to the success of the plaintiffs claim – Alimi Vs Obawole (1998) 6 NWLR (Pt 555) 591, Dada Vs Dosunmu (2006) 18 NWLR (Pt 1010) 134, Dauda Vs Iba (2007) 2 NWLR (Pt 1018) 321.

Where a plaintiff fails to plead and establish the precise area of the land to which his claim relates, whatever evidence, whether oral or documentary, he produces at the trial and however cogent and credible the evidence might appear, it cannot, in law, ground a claim of an interest in land in his favour – Jinadu Vs. Esurombi-Aro (2005) 14 NWLR (Pt.944) 142, Otanma Vs. Youdubagha (2006) 2 NWLR (Pt.964) 337 and Aigbabahi Vs. Aifuwa (2006) 6 NWLR (Pt.976) 270.

In discharging the onus to prove the identity of land claimed, a plaintiff is only required to show by minimal evidence an identifiable area of land to which his claim relates. It is only where the defendant specifically puts the identity of the land in dispute in issue that a plaintiff is required to lead a comprehensive, cogent and credible evidence in proof of the identity of the land – Fatunde Vs Onwoamanam (1990) 2 NWLR (Pt 132) 322, Adelusola Vs Akinde (2004) 12 NWLR (Pt 887) 295, Nwokidu Vs Okanu (2010) 3 NWLR (Pt 1181) 362, Maigari Vs Mailafiya (2011) 1 NWLR (Pt.1228) 379.

The question of the identity of land in dispute will be said to be in issue only where the defendant raises it in his statement of defence – Gbadamosi Vs Dairo (2007) 3 NWLR (Pt 1021) 282, Ogunyanwo Vs Oluwole (2009) 16 NWLR (Pt 1167) 391, Abdullahi Vs Hedima (2011) 2 NWLR (Pt 1230) 44. The point was succinctly made by the Supreme Court in Adenle Vs Olude (2002) 18 NWLR (Pt.799) 413 at 433 thus:

‘The identity of land in dispute will be an issue only if the defendant in his statement of defence makes it so by specifically disputing either the area or size covered or the location as shown in the claimant’s plan (if there is a plan) or as described in the statement of claim. Where there is a dispute as to area and boundaries of the land, in other words if these are put in issue, the claimant who relies on a plan must show that his plan corresponds with the area claimed or in dispute. He may do this by showing that the description of the land in his pleading and as given in evidence in support is in complete accord with the plan filed along with the statement of claim and relied upon by him. This is to ensure that the land is certain both in size or boundary and location. In the instant case, the appellant obviously had no case based on the identity of the land in dispute. It was not raised anywhere in his statement of defence or even in the evidence.’

The identity of land would be said to constitute an issue where there are averments in the statement of defence which are clear and specific on the points in controversy as to the area and boundaries of the land in dispute; a mere general traverse is not sufficient – Omorogie Vs Idugiemwanye (1985) 2 NWLR (Pt 5) 41, Nteogwuija Vs Ikuru (1998) 10 NWLR (Pt 569) 267, Adesanya Vs Aderonmu (2000) 9 NWLR (Pt 672) 370. In other words, the pleadings of the defendant must challenge the description, location, features or dimensions of the land as pleaded by the claimant for the identity of the land to be an issue – Ogbu Vs Wokoma (2005) 14 NWLR (Pt 944) 118, Otanma Vs Youdubagha (2006) 2 NWLR (Pt.964) 337.

In the instant case the Appellants pleaded that the farm land in dispute which is situate at Rijiyar Zaki Kano measured approximately 78 feet wide on its east to west side and 328 and a half feet wide on the north to south side and that the farm land shared boundary with the farm of Sa’idu Mai Lalle on the east, overlooked the earth pathway (Labi) on the west, shared boundary with the farm of late Ya’u, Magaji and Kurma, now in the possession of Alhaji Hamisu, on the south and shared boundary with the farm of Mallam Ibrahim Na Ado on the north. The Respondent did not contend in his statement of defence either the dimensions or boundaries of the land as pleaded by the Appellants. The Appellants led evidence through the first plaintiff witness in the terms of the dimensions and boundaries as pleaded.

Further, it is on record that the lower Court visited the locus in quo at the behest of the Counsel to the Appellants for the sole purpose of ascertaining the identity of the land in dispute. The visit was conducted in the presence of the Counsel to the parties and of the late father of the Appellants and of some of the witnesses. There is nothing on the records to show that the Respondent or his Counsel protested the boundaries of the land in dispute during to the Court during the visit. It is settled law that in a land litigation where a visit to the locus in quo is conducted in the presence of both parties without any of them objecting as to the identity, size or boundaries of the land in dispute which was physically seen by all, it effectively absolves the claimant from his duty under the law to prove identity of the land in dispute as the parties in such circumstance will be said to be familiar with or to know the land in dispute – Osanyinbi Vs Sokenu (2001) 3 NWLR (Pt 699) 170, Odofin Vs Oni (2001) 3 NWLR (Pt 701) 488, Atanda Vs Iliasu (2013) 6 NWLR (Pt 1351) 529.

There was no basis for the lower Court to have found as it did that the Appellants failed to prove the specific area of the parcel of land claimed. The first issue for determination is thus resolved in favour of the Appellants.

On the second issue for determination, part of the findings made by the lower Court and on the basis of which it dismissed the claims of the Appellants were (i) that the failure of the Appellants to join the Kano State Ministry of Lands as well as the Ungogo Local Government prevented the Court from determining any issue of compensation for the land acquired from the Appellants; (ii) that the late father of the Appellants had surrendered his farmland to the Kano State Ministry of Lands for layout of plots and cannot unilaterally claim for the remainder left over or residue of the land; (iii) that in order to prove good title on the area laid out by the local government the Appellants must establish that the remaining piece of land had been re-allocated to him and that the local government wrongfully laid out another’s plots of land; and (iv) that the Appellants must establish a prima facie title on the land before the defendant is called upon to rebut, disprove or controvert a better earlier title.

Counsel to the Appellants stated that the issue of non-joinder of certain persons as parties was never raised as a defence by the Respondent and the lower Court raised the issue suo motu and he did not invite the parties to address on it before basing its judgment on the issue. Counsel submitted that this was wrong and he referred to the cases of Attorney General of the Federation Vs A I C Ltd (2000) 12 SC (Pt.1) 173 and Afrotec Technical Services Ltd Vs Mai & Sons Ltd (2000) 12 SC (Pt II) 1. Counsel stated that the Appellants did not join either the Kano State Ministry of Lands or the Ungogo Local Government because they had no cause of action against these parties and that the parties had issued letters in support of the case of the Appellants at the trial.

Counsel stated further that the claims of the Appellants before the lower Court was not for compensation and that the Respondent did not lead any credible evidence to support the finding of the lower Court that the late father of the Appellants surrendered his entire farm land, including the land in dispute, to the Kano State Ministry of Lands to warrant the finding that the Appellants must show a re-allocation of the land in dispute to them in order to succeed in their claim of ownership of the land. Counsel stated that the Appellants predicated their claim of ownership on the purchase of the larger parcel of land by their late father over fifty years ago, part of which was acquired by the Kano State Government, leaving the portion of land in dispute and he submitted that the from evidence adduced by the parties before the lower Court, as contained in the record of proceedings, it is glaring and manifest that the Appellants proved their title to the land in dispute on a balance of probabilities. Counsel stated that the Respondent did not tender any documentary evidence in proof of his claim to be the owner of the land in dispute. Counsel submitted that the findings of the lower Court were perverse and were not supported by the evidence.

As stated earlier, the case of the Appellants on the pleadings was that the farm land in dispute formed part of a larger parcel of farmland purchased by their late father around sixty years ago from one late Alin Karwai and that their late father went into immediate possession of the portion of farmland and had full utilization of the land. It was their case that part of the farmland purchased by their late father was acquired by the Kano State Government to design the residential layout, GRA Tudun Yola, and their late father was paid compensation for the portion of the farmland acquired and that it is the portion of the farmland not acquired by the State Government that is in dispute in this matter and that their late father had been in full possession of this portion of land. It was their case that when the Respondent went unto the land in 2005 claiming that Ungogo Local Government sold the land to him, their late father confronted the Local Government which denied allocating the plots of land making up the farmland in dispute to the Respondent. It was their case that their late father also contacted the Kano State Ministry of Lands that acquired the portion of the original farmland of their late father and that the Ministry confirmed that the farmland in dispute was not part of the land acquired and that the State Government had no claim whatsoever over the farmland in dispute. It was their case that their late father did not at any time transfer the said farmland in dispute to Ungogo Local Government nor did he permit it to sell or transfer same to anybody and neither was the farmland acquired by the Ungogo Local Government at any time.

It is clear that the case of the Appellants was not about payment of compensation and neither did they make any allegation or claim any relief against either the Ungogo Local Government or the Kano State Ministry of Lands. It was not also the case of the Appellants that the entire farmland of their late father was acquired by the Kano State Government before the portion of land in dispute was re-allocated to them by the State Government. Thus, the findings of the lower Court that the failure of the Appellants to join the Kano State Ministry of Lands as well as the Ungogo Local Government prevented the Court from determining any issue of compensation for the land acquired from the Appellants and that the late father of the Appellants had surrendered his farmland to the Kano State Ministry of Lands for layout of plots and cannot therefore unilaterally claim for the remainder left over or residue of the land without establishing that the remaining piece of land had be re-allocated to them, have no leg to stand on. They do not arise from the case made out by the Appellants on the pleadings and were conjectures and the lower Court was in error when it based its decision on the ownership of the land on these findings. The issues of acquisition of the land in dispute by the Kano State Government and re-allocation of same by the Ungogo Local Government were raised by the Respondent in his pleadings. It was thus the responsibility of the Respondent to apply to join the Ungogo Local Government and the Kano State Ministry of Lands as parties to the suit and to prove the acquisition of the land in dispute. It was not the responsibility of the Appellants.

The task of the Appellants in the lower Court was to plead and prove the ownership by their late father of the land in dispute by purchase. The law recognizes that there are two clear and distinct ways in which land can be properly and rightly sold, valid acquired and legally transferred in Nigeria and these are either under customary law; or under the received English law – Folarin Vs Durojaiye (1988) 1 NWLR (Pt 70) 351, Commissioner for Lands & Housing Kwara State Vs Atanda (2007) 2 NWLR (Pt 1018) 360.

A sale of land held under customary law is not necessarily a sale under customary law. Land held under such customary law can just as easily be sold under the received English law by a deed of conveyance. What determines under which system of law the sale has been conducted depends on the nature of the transaction and the procedure followed in making it; for example sale by an agreement in writing is one of the absolutely necessary features of a valid sale under the received English law – Alade Vs Aborishade (1960) SCNLR 398, Omidiran Vs Owolabi (1994) 6 NWLR (Pt 350) 361, Commissioner for Lands & Housing Kwara State Vs Atanda (2007) 2 NWLR (Pt 1018) 360, Agboola Vs United Bank for Africa Plc (2011) 11 NWLR (Pt 1258) 375.

Where a party neglects to state the nature of the sale transaction and the parties do not join issues on it in the pleadings and the trial court proceeds on the assumption that it was a sale under customary law, the party cannot contest that assumption – Aminu Vs Ogunyebi (2004) 10 NWLR (Pt 882) 457.

In the instant case, the Appellants did not plead the nature of the sale transaction by which their late father purchased the land in dispute. However, since they did not plead any document of purchase or tender any such document at the trial, it is safe to assume that they relied on sale under customary law.

It is settled law that for there to be a valid sale and transfer of property under native law and custom, there must be payment of money and delivery of the land which must be done in the presence of witnesses. In other words, before there can be a valid sale under native law and custom, the three elements or requirements are – (a) payment of purchase price; (b) the purchaser is put in possession by the vendor; and (c) in the presence of witnesses – Orunengimo Vs Egebe (2007) 15 NWLR (Pt 1058) 630, Etajata Vs Ologbo (2007) 16 NWLR (Pt 1061) 554, Lawal Vs Akande (2009) 2 NWLR (Pt 1126) 425, Obi Vs Onyemelukwe (2011) 1 NWLR (Pt 1228) 400, Agboola Vs United Bank for Africa Plc (2011) 11 NWLR (Pt 1258) 375. This custom is of universal application throughout Nigeria – Egonu Vs Egonu (1978) 11-12 SC 111, Abdullahi Vs Bataganawa (1997) 5 NWLR (Pt 506) 650, Akinterinwa Vs Oladunjoye (2000) 6 NWLR (Pt 659) 92.

Where there is sufficient evidence of payment of purchase price coupled with the delivery of possession of the land to the purchaser in the presence of witnesses, a solid and valid sale under customary law is established – Ogunyanwo Vs Oluwole (2009) 16 NWLR (Pt 1167) 391. But for this to happen, the party must plead and prove that the sale was concluded in the presence of witnesses and the names of these witnesses should also be pleaded as well as the fact that they witnessed the actual delivery or handing over of the land to the purchaser – Olowoake Vs Salawu (2000) 11 NWLR (Pt 677) 127, Lawson Vs Afani Construction Co. Ltd (2002) 2 NWLR (Pt 752) 585, Odibendi Vs Okolie (2010) 13 NWLR (Pt 1210) 45, Nwofor Vs Obiefuna (2011) 1 NWLR (Pt 1227) 205. Failure to plead and prove any of the ingredients is fatal to the case of the party – Yashe Vs Umar (2003) 13 NWLR (Pt 838) 465.

The late father of the Appellants testified as the first plaintiff witness. In his examination in chief, he stated that he had been in possession of the farm for over fifty years and he occupied a part and loaned out a part but he did not say how he came to own the farmland in dispute. It was under cross examination that he stated that he purchased the land from one Abdu Mai Alawa and that the land originally belonged to Alhaji Alim Karwai. The second plaintiff witness, Abdullahi Aminu, gave evidence that he was present when the late father of the Appellants purchased the land in dispute from Alhaji Ali about forty years ago but that he had forgotten the price paid for the purchase. The witness reaffirmed under cross examination that he was present at the purchase of the property and that he knew the buyer and seller but could not say if the agreement was reduced into writing and that the third plaintiff witness was also present at the purchase of the farmland by the late father of the Appellants.

This was the totality of the evidence led by the Appellants before the lower Court on the purchase the land in dispute by their late father. The Appellants neither pleaded nor led evidence of the price paid for the land by their late father and they did not plead the names of the witnesses present at the time of sale. Again, while the late father of the Appellants stated in evidence that he purchased the land from one Abdu Mai Alawa, though the land originally belonged to Alhaji Alim Karwai, the second plaintiff witness said that he was present when the late father of the Appellants purchased the land from Alhaji Ali Karwai. The Appellants obviously did not lead credible evidence to support the purchase of the land in dispute by their late father under native law and custom and they were very careless in their approach to this very important aspect of their case.

It is trite that in an action for declaration of title to land, a, party claiming title to land must succeed on the strength of his case and not on the weakness of the other party’s case and 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 – Ukaegbu Vs Nwololo (2009) 3 NWLR (Pt.1127) 194, Adu Vs Gbadamosi (2009) 6 NWLR (Pt 1136) 110, Oyeneyin Vs Akinkugbe (2010) 4 NWLR (Pt 1184) 265, Iseogbekun Vs Adelakun (2013) 2 NWLR (Pt 1337) 140. Where a defendant does not counterclaim in an action for declaration of title, the onus is on the claimant to first establish a pima facie case before a consideration of the case of the defendant can arise – Dim Vs Enemuo (2009) 10 NWLR (Pt.1149) 353, Iroagbara Vs Ufomadu (2009) 11 NWLR (Pt 1153) 587, Nwokidu Vs Okanu (2010) 3 NWLR (Pt 1181) 362, Luke Vs Rivers State Housing and Property Development Authority (2010) 5 NWLR (Pt 1188) 604. The Appellant did not make out a credible case to sustain their claim of ownership of the land in dispute. This Court cannot thus fault the finding of the lower Court that the Appellants did not make out a prima facie case of title to the land in dispute to warrant the Respondent being called upon to rebut, disprove or controvert the title of the Appellants.

The Appellants also claimed in trespass and they sought for damages and an injunction to restrain further trespass. Ordinarily, a claim for trespass does not always depend on a claim for declaration of title. The failure of a claim for declaration of title to land does not therefore necessarily defeat a claim for damages for trespass. This is because the issue to be determined on the claim for trespass is whether the claimant established actual possession of the land and the defendant’s trespass on it, and these are quite separate and distinct issues to that on a claim for declaration of title – Balogun Vs Akanji (2005) 10 NWLR (Pt 933) 394, Echere Vs Ezirike (2006) 12 NWLR (Pt 994) 386, Salami Vs Lawal (2008) 14 NWLR (Pt 1108) 546, Usung Vs Nyong (2010) 2 NWLR (Pt.1177) 83, Monkom Vs Odili (2010) 2 NWLR (Pt 1179) 419, Kopek Construction Ltd Vs Ekisola (2010) 3 NWLR (Pt 1182) 61. Thus, a claim for damages for trespass coupled with a claim for an injunction against trespass does not automatically put the title to land in dispute in issue – Runsewe Vs Odutola (1996) 4 NWLR (Pt 441) 143, Ufomba Vs Ahuchaogu (2003) 8 NWLR (Pt 821) 130. A claim for trespass and injunction postulates that the claimant is in possession of the land in dispute – Ladipo Vs Ajani (1997) 8 NWLR (Pt 517) 356. However, where a defendant to a claim in trespass avers in his pleadings that he is the owner of the land or that he is on the land by the authority of the owner, the plaintiff, to succeed, must show a better title to the land than that of the defendant – Ugoji Vs. Onukogu (2005) 16 NWLR (Pt 950) 97, Ojoh vs Kamalu (2005) 18 NWLR (Pt 958) 523, Nwakofor Vs Agumadu (2009) 3 NWLR (Pt 1129) 638, Osadim Vs Tawo (2010) 6 NWLR (Pt 1189) 155. In the instant case, the Respondent claimed ownership of the land in dispute and as such the success of Appellants’ claim in trespass was tied to success of the claim for title. The failu.re of the claim for title thus collapsed the claim in trespass. The second issue for determination is resolved against the Appellants.

On the third issue for determination, Counsel to the Appellants stated that the Respondent only filed a statement of defence to the claims of the Appellant’s and did not make a counterclaim, but that notwithstanding this, the lower Court awarded title to the land in dispute to the Respondent. Counsel submitted that the Respondent was not entitled to such an award as the Court is not a Father Christmas and does not thus give what has not been asked for by a party. Counsel urged this Court to set aside the orders made in favour of the Respondent.

The lower Court in its judgment declared that the Respondent was entitled to the use and ownership of the land in dispute and it made an order of injunction restraining the Appellants from trespassing, entering, encroaching, disturbing or interfering with the peaceful enjoyment of Respondent of the land in dispute. The Respondent did not counterclaim and the lower Court did not state or demonstrate in the judgment the basis upon which it made the declaration and the order of injunction. It is a very elementary principle of land litigation that the dismissal of the claims of a plaintiff does not decree title in the defendant, he not having sought the declaration by a counterclaim – Amuda Vs. Oshoboja (1984) 7 SC 68, Obi of Ogwashi-Ukwu Vs. Onwordi (1986) 4 NWLR (Pt.33) 27, Abisi Vs. Ekwealor (1993) 6 NWLR (Pt.302) 643, Ogboni Vs. Ojah (1996) 6 NWLR (Pt.454) 272, Oshoboja Vs. Dada (1999) 12 NWLR (Pt.629) 102, Barje Vs. Gunduma (2001) 13 NWLR (Pt.731) 673, Darma Vs. Batagarawa (2002) 17 NWLR (Pt.796) 243, Anwoyi Vs. Shodeke (2006) 13 NWLR (Pt.996) 34, Olubodun Vs. Lawal (2008) 17 NWLR (Pt.1115) 1; A court does not possess the power to grant a relief not claimed by a party. The only exception is in respect of consequential orders and the nature of the orders that can be granted under this exception are very limited in scope, and does not include a declaration of title to land, and the basis for the grant of a consequential order must be demonstrated in the judgment or ruling granting it. The lower Court had no jurisdiction to make the orders it pronounced in favour of the Respondent in the instant case and the orders will be set aside. The third issue for determination is resolved in favour of the Appellants.

In conclusion, this appeal is allowed in part and refused in part. The portion of the judgment of the High Court of Kano State in Suit No K/447/06 delivered by Honourable Justice B. S. Adamu on the 11th of March, 2009 in which the lower Court held (i) that the Appellants failed to prove the specific are of the parcel of land claimed; and (ii) that the failure of the Appellants to join the Kano State Ministry of Lands and the Ungogo Local Government and failure to prove a re-allocation of the land in dispute to them by the Kano State Government after the acquisition was fatal to their case; as well as the declaration of ownership of the land in dispute and the order of injunction made in favour of Respondent are hereby set aside. The portion of the judgment dismissing the claims of the Appellants for failure to make out a credible case of ownership of the land in dispute is hereby affirmed. These shall be the orders of this Court. There shall be no order as to costs.

DALHATU ADAMU, J.C.A.: I have gone through the lead judgment of my learned brother Abiru JCA and I agree with his reasons and conclusion. I allow the appeal in part and dismiss it in part. I make no order as to costs.

ABDU ABOKI, J.C.A.: The judgment prepared by my learned brother HABEEB ADEWALE OLUMUYIWA ABIRU, JCA, was made available to me earlier than now. Having perused same, I agree with his conclusions and reasoning. I too set aside the declaration of ownership of the land in dispute and the order of injunction made in favour of Respondent and affirm the decision of the trial Court dismissing the claim of the Appellants for failure to make out a credible case of ownership of the land in dispute. I make no order as to costs.

Appearances

Ali Y BinaliFor Appellant

AND

No appearanceFor Respondent