ABDULSALAM v. THE GOV OF KANO STATE & ORS (2020)

ABDULSALAM v. THE GOV OF KANO STATE & ORS

(2020)LCN/14119(CA)

In The Court Of Appeal

(KADUNA JUDICIAL DIVISION)

On Wednesday, March 25, 2020

CA/K/564/2017

Before Our Lordships:

Obietonbara O. Daniel-Kalio Justice of the Court of Appeal

Oludotun Adebola Adefope-Okojie Justice of the Court of Appeal

James Gambo Abundaga Justice of the Court of Appeal

Between

ALHAJI ABDULLAHI ABDULSALAM APPELANT(S)

And

THE GOVERNOR OF KANO STATE 2. THE HONOURABLE ATTORNEY-GENERAL, KANO STATE 3. THE COMMISSIONER OF LAND AND PHYSICAL PLANNING, KANO STATE 4. KANO STATE URBAN PLANNING AND PHYSICAL DEVELOPMENT AUTHORITY RESPONDENT(S)

RATIO

WHETHER OR NOT PARTIES ARE BOUND BY THEIR PLEADINGS

It is trite law that parties are bound by their pleadings and are therefore not permitted to set up a case different from the one contained in their pleadings. If the parties wander away from their pleadings and indulge in building a different case, it will amount to a total misadventure. A case different from that contained in the pleadings and evidence led which is different from the case in the pleadings go to no issue and must be disregarded or discountenanced by the Court. See SPASCO VEHICLE & PLANT HIRE CO. LTD V. ALRAINE (NIG) LTD (1995) 9 SCNJ p. 288 at p. 299. PER DANIEL-KALIO, J.C.A.

WHETHER OR NOT THE JUDGEMENT OF THE COURT MUST CONFINE ITSELF TO THE ISSUES RAISED BY PARTIES

It is also trite and elementary that a judgment of Court must confine itself to the issues raised by the parties in their pleadings. The trial Court therefore cannot veer off the pleadings and suo motu make a case for a party and then proceed to give judgment pursuant to the case it has made for that party. See SPASCO VEHICLE & PLANT HIRE CO LTD (supra) COMMISSIONER FOR WORKS BENUE STATE & ANOR V. DEVCOM DEVELOPMENT CONSULTANT LTD & ANOR (1988) 3 NWLR Part 83 p. 407; NIGERIA HOUSING DEVELOPMENT SOCIETY LTD & ANOR V. YAYA MUMUNI (1977) 2 SC 57; ADENIJI & ORS V. ADENIJI & ORS (1972) 1 ALL NLR Part 1 p. 278; EBEVUHE V. UKPAKARA (1996) 7 NWLR PART 460 p.254 at p. 267-268; DORTMUND COMPANY (NIG) LTD & ANOR V. ELIAS (2013) LPELR-2117 (CA). PER DANIEL-KALIO, J.C.A.

WHETHER OR NOT A DECISION MAY BE PERVERSE WHERE THE TRIAL JUDGE TAKES INTO ACCOUNT MATTERS WHCIH HE OUGHT NOT TO TAKE

It is settled that a decision may be perverse where the trial judge took into account matters which he ought not to have taken into account or where the judge shuts his eyes to the obvious. See ATOLAGBE V. SHORUN (1985) LPELR-592(SC). PER DANIEL-KALIO, J.C.A.

WHETHER OR NOT THE COURT CAN AWARD RELIEFS NOT CLAIMED BY PARTIES

It is also trite law that the Court is not Father Christmas and therefore will not give to a party a relief that the party did not claim. The respondents made no counter-claim. Deciding that the building approval issued to the appellant by the 4th respondent was done in error and therefore null and void ab initio is a classic example of granting to a party a relief that the party did not claim. A Court has no jurisdiction to consider a relief not claimed by either parties and therefore cannot make a valid order in respect of such relief. Any order so made will infringe the basic and fundamental principle of the administration of justice; namely, notice to the other party and hearing the party to be affected. See AKAPO V. HAKEEM-HABEEB & ORS (1992) 7 SCMLR Part 1 p.120 at p. 151. PER DANIEL-KALIO, J.C.A.

OBIETONBARA DANIEL-KALIO, J.C.A. (Delivering the Leading Judgment): The appeal here is against the judgment of the Kano State High Court of 3rd May, 2017 delivered by Hon. Justice Hadiza Sulaiman. The case before the learned judge was a land matter. The facts of the case in summary are these: the Appellant, Alhaji Abdullahi Abdulsalam in 2002, applied to the 1st respondent, that is to say the Governor of Kano State, for the allocation of a piece of land. He paid the required and necessary fees and was allocated Plot No. 74 Suleiman Crescent Layout. He was issued with a Certificate of Occupancy. He proceeded to apply to the 4th respondent, the Kano State Urban Planning and Development Authority, for a building permit to enable construction work on the land. Eventually, he was on 12th November, 2011 issued with a building approval by the 4th respondent. He proceeded to develop the land and was in that process when at about 3.30 pm on 26/9/2014 the 4th respondent served him with a “STOP DEVELOPMENT ORDER” of the same date. The order directed him to stop further development of the land and to also forward to the 4th respondent his valid building permission

within three days. He complied with the order and while doing so, instructed his solicitors, A. S. YUSUF & ASSOCIATES to write a letter to the 4th respondent attaching a copy of his building approval. His Solicitors complied with his instruction by a letter dated 29/9/2014. To the appellant’s surprise, the 4th respondent in its response letter also dated 29/9/2014, withdraw the building approval it had approved for the appellant. The next day, that is to say, on 30/9/2014, about 30 people acting on the instruction of the 4th respondent, invaded the appellant’s land and destroyed the structures on it. The appellant responded by instructing his said solicitors to demand compensation for the destruction carried out by the 4th respondent. He also took out an action against the respondents at the Kano State High Court (the lower Court). He prayed the Court as follows-
a. A declaration of Court that the plaintiff is the rightful holder of the interest in the property No. 74 Sulaiman Crescent covered by statutory right of occupancy number RES/2002/3253.
b. An order of this Court that the building permission of 12th November, 2013 that the 4th defendant

issued to the plaintiff over the subject matter of this suit, is valid and subsisting.
c. Declaration of Court that the 4th defendant’s entry into the plaintiff’s property situate at No. 74 Sulaiman Crescent covered by statutory right of occupancy number RES/2002/3253 after having been granted building permission by the 4th defendant and the destruction of the structure put in place by the plaintiff without justified reason, is malicious, illegal and unconstitutional and the plaintiff is therefore entitled to general, specific and exemplary damages.
d. An order of the Court awarding the sum of N1,031,000.00 as specific damages against the defendants jointly and severally for cost of the structure of the plaintiff destroyed by the defendant.
e. An order of the Court awarding the sum of N10, 000,000.00 as exemplary damages against the defendants jointly and severally.
f. An order of the Court awarding the sum of N50,000,000.00 as general damages against the defendants jointly and severally.
g. An order of the Court directing the defendants to tender a written public apology to the plaintiff.
h. Any other order or orders as the

Court may deem fit to make in the interest of justice.

The respondents in their Statement of Defence at the lower Court, admitted paragraphs 1-9, 14, 16, 22, 23 and 25 of the appellants statement of claim; denied paragraphs 15, 17-21, 24, 26, and 28 of the said Statement of Claim and pleaded that they were not in a position to either admit or deny paragraphs 10-13 and 27 of the statement of Claim.

In the judgment of the lower Court, the Court considered and believed the evidence of the respondents’ DW1 that the appellant was aware that there was a peculiar problem involving the plots of land in the layout where the appellant’s land is located and that other owners of plots in the layout did not develop their plots of land because of the peculiar problem. The Court held that from what it had read at p. 24-25 of Exhibit 6 before it, the suspension of the building approval by the 4th respondent was as a result of complaints by some owners of plots at the layout to the effect that the creation of plots, that of the appellant included, will affect a place of leisure and outdoors activities in the layout. The Court also relied on the evidence of the

respondents’ DW1 that a STOP DEVELOPMENT ORDER was issued to the appellant on 26/9/14 and that in spite of the order, the appellant continued with the development of the land. The Court further considered the evidence of the said DW1 that the 4th respondent wrote to the appellant withdrawing the building approval issued to him. It held that the evidence of DW1 was not shaken under cross-examination and was therefore accepted. The Court further held that the 1st respondent through the 3rd and 4th respondents have the right to remove or demolish any building as provided under the provisions of Section 12 (2) (3) and Section 13(1) (a) and (b) and Section 13 (2) of the Kano State Urban Planning and Development Authority KNUPDA Law 2011. The Court concluded by holding thus-
“I have also considered the series of correspondence between the plaintiff and the 4th defendant in Exhibit 6 and I observe that the plaintiff is aware of a suit instituted in a Court of law on these plots and the suit was only struck out and not determined to its logical conclusion. Despite all the above facts to which the plaintiff is aware, yet the plaintiff bulldozed the 4th defendant

in granting him building approval. It is my view that the building approval issued to the plaintiff by the 4th defendant was done in error and therefore null and void ab initio. Consequently in my final analysis, I hold that the plaintiff’s case failed and it is hereby dismissed”

Dissatisfied with the judgment, the appellant filed this appeal. He challenged the judgment on 7 grounds. The grounds without the particulars thereof are as follows:
GROUND ONE
The learned trial judge erred in law when he held that “I observe that the plaintiff is aware of a suit instituted in a Court of law on these plots and the suit was only struck out and not determined to its logical conclusion. Despite all the above facts to which the plaintiff is aware yet the plaintiff bulldozed the 4th defendant in granting him building approval. It is my view that the building approval issued to the plaintiff by the 4th defendant was done in error and therefore null and void”
GROUND TWO
The learned trial judge misdirected himself when he solely relied on the testimony of the respondents sole witness without considering the testimony of the appellant or evaluating same

at all.
GROUND THREE
The learned trial judge erred in law when he relied on the evidence of the respondents’ witness.
GROUND FOUR
The learned trial judge erred in law when he embarked on an investigation instead of normal justice adjudication and thereby occasioned a miscarriage of justice to the appellant.
GROUND FIVE
The learned trial judge misdirected himself when he found that “the plaintiff’s building approval was withdrawn as a result of non-clearance by the 3rd defendant over plots of land No. 60-75 along Sulaiman Crescent…that the 4th defendant withdrew building approval dated the 12th November 2014 issued to the plaintiff pending clearance from the 4th defendant.”
GROUND SIX
The learned trial judge erred in law when he held that “Now having made this important finding of facts it is my opinion that the 1st defendant (Kano State Government) through the 3rd and 4th defendants have the right to remove or demolish any building as provided under the provisions of Section 12(2)(3) and Section 13(1)(a) and (b) and Section 13(2) of KNUPDA LAW 2011”
GROUND SEVEN
The judgment is against the weight of evidence.

The appellant through his Counsel Usman Umar Fari, Esq. who settled the appellant’s Brief of Argument filed on 19/3/18, raised the following four issues for determination, viz-
1. Whether the honorable learned trial judge was wrong in law when in his judgment he relied on and used the written statement of DW1 and Exhibit 6 tendered by him (distilled from grounds 3 and 4 of the grounds of appeal)
2. Whether the learned trial judge properly evaluated the evidence of the parties before dismissing the appellant’s case (distilled from ground 2 of the grounds of appeal).
3. Whether the finding of the trial Court that the appellant’s building approval was withdrawn by the respondents for non-clearance over plots of land No. 60-75 along Sulaiman Crescent can be supported by the evidence before the Court and whether the demolition of the appellant’s structures can be justified under the provision of Section 36 of the Constitution of the Federal Republic of Nigeria (1999) as amended as well as Sections 12(2)(3); 13(1)(a)and (b) and 13(2) of the Kano State Urban Planning Development Authority Law. (distilled from grounds 5 and 6 of the

grounds of appeal)
4. Whether the evidence adduced before the trial Court can justify the Court’s finding thus:
“I observe that the plaintiff is aware of a suit instituted in a Court of law on these plots and the suit was only struck out and not determined to its logical conclusion. Despite all the above facts to which the plaintiff is aware, yet the plaintiff bulldozed the 4th defendant in granting him building approval (sic) issued to the plaintiff by the 4th defendant was done in error and therefore null and void.”
The respondent did not file any Brief of Argument.

Looking through the above issues for determination raised by the appellant, they no doubt arise from the grounds of appeal. The grounds of appeal in turn are raised from the judgment of the lower Court. However, after carefully examining the grounds, not all of them attack the ratio decidendi of the judgment of the lower Court appealed against. A ground of appeal must relate to the ratio decidendi of the judgment appealed against. See KRK HOLDINGS (NIG) LTD V FBN & ANOR (2016) LPELR-41463 (SC). It will therefore amount to backing the wrong horse for an appellant to appeal

against an obiter dictum i.e. an incidental and collateral opinion made by judge. In the judgment appealed against here, what constitutes the ratio decidendi i.e. the reason or the rationale for the decision is that the building approval issued to the appellant by the 4th respondent was issued in error and therefore null and void ab initio. See at p, 239 of the Record of Appeal. That decision is the basis of ground one of the grounds of appeal from which issue four for determination in this appeal was distilled.

I will therefore decide this appeal by considering the said issue 4 which I consider to be the sole issue for the determination in this appeal.

Arguing the issue, Usman Umar Fari Esq. referred to the following finding of the lower Court-
“I observe that the plaintiff is aware of a suit instituted in a Court of law on these plots and the suit was only struck out and not determined to its logical conclusion. Despite all the above facts to which the plaintiff is aware, yet the plaintiff bulldozed the 4th defendant in granting him building approval issued to the plaintiff by the 4th defendant was done in error and therefore null and void”.

He submitted that the finding was not justified by the evidence before the lower Court and that there was no evidence before that Court that a case was instituted, talk less that the appellant had knowledge of such a case. It was submitted that none of the parties before the lower Court pleaded that the appellant’s building approval was done in error and no evidence on such was led before the Court. Equally, no evidence was led, he submitted, that there was any peculiar problem at the location of the appellant’s land. Furthermore, learned counsel submitted, the respondents did not make a counter claim that the building approval of the appellant be declared null and void ab initio. He contended that the lower Court assumed the role of Father Christmas by granting to a party what that party did not ask for. We were urged to resolve the issue in the appellant’s favour.

It is trite law that parties are bound by their pleadings and are therefore not permitted to set up a case different from the one contained in their pleadings. If the parties wander away from their pleadings and indulge in building a different case, it will amount to a total misadventure. A case

different from that contained in the pleadings and evidence led which is different from the case in the pleadings go to no issue and must be disregarded or discountenanced by the Court. See SPASCO VEHICLE & PLANT HIRE CO. LTD V. ALRAINE (NIG) LTD (1995) 9 SCNJ p. 288 at p. 299. It is also trite and elementary that a judgment of Court must confine itself to the issues raised by the parties in their pleadings. The trial Court therefore cannot veer off the pleadings and suo motu make a case for a party and then proceed to give judgment pursuant to the case it has made for that party. See SPASCO VEHICLE & PLANT HIRE CO LTD (supra) COMMISSIONER FOR WORKS BENUE STATE & ANOR V. DEVCOM DEVELOPMENT CONSULTANT LTD & ANOR (1988) 3 NWLR Part 83 p. 407; NIGERIA HOUSING DEVELOPMENT SOCIETY LTD & ANOR V. YAYA MUMUNI (1977) 2 SC 57; ADENIJI & ORS V. ADENIJI & ORS (1972) 1 ALL NLR Part 1 p. 278; EBEVUHE V. UKPAKARA (1996) 7 NWLR PART 460 p.254 at p. 267-268; DORTMUND COMPANY (NIG) LTD & ANOR V. ELIAS (2013) LPELR-2117 (CA). The appellant in paragraph 15 of his statement of claim expressly pleaded that on the 12th of November, 2013 the 4th respondent issued him with a

building approval. In paragraph 19 of his statement of claim, he also expressly stated that in the letter his solicitors wrote on his behalf, his solicitors attached a copy of the building permission issued to him by the 4th respondent. The respondents in their statement of defence (see p.55-p.57 of the printed record) in paragraph 5 thereof, admitted the existence of a building approval for the appellant by the 4th respondent.
Further, the respondents stated in paragraph 13 of their statement of defence that the said building approval was withdrawn. Nowhere is it pleaded by the respondents that the building approval issued to the appellant was issued in error. If that was their case, they should have pleaded it as that would be a material fact. From the state of the pleadings therefore, there was no dispute that there was a valid building approval issued to the appellant by the 4th respondent which the 4th respondent later withdrew. There was therefore no basis whatsoever for the decision of the lower Court that the building approval issued to the appellant by the 4th respondent was done in error and therefore null and void ab initio. The decision is

perverse. As earlier stated, the parties are bound by their pleadings just as the Court itself is bound by the pleadings. It is settled that a decision may be perverse where the trial judge took into account matters which he ought not to have taken into account or where the judge shuts his eyes to the obvious. See ATOLAGBE V. SHORUN (1985) LPELR-592(SC).
The trial judge in this case, took into account a fact that is not pleaded by either of the parties.

See AKAPO V. HAKEEM-HABEEB & ORS (1992) 7 SCMLR Part 1 p.120 at p. 151.

The result is that the appeal has merit and is allowed. The judgment of the lower Court is set aside.

OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.: I have had a preview of the judgment of my learned brother OBIETONBARA O. DANIEL-KALIO JCA where the issues in contention have been set out and determined.

I agree that the appeal is meritorious. I allow it and set aside the judgment of the lower Court.

JAMES GAMBO AGUNDAGA, J.C.A.: I have read the draft of the Judgment delivered by my Learned brother Obietonbara O. Daniel-Kalio, JCA. The Judgment is a concise articulation of the real issue for determination in this appeal. It is flawless, and I am therefore in complete agreement with it. Accordingly, the appeal is allowed. In consequence the judgment of the lower Court is set aside.

Appearances:

M.A. Oduwole, Esq. For Appellant(s)

Biola Oyebanji, Esq. For Respondent(s)