ALH BELLO MAIGARI & ORS. V. ALH SANI MAILAFIYA (2010)

ALH BELLO MAIGARI & ORS. V. ALH SANI MAILAFIYA

(2010)LCN/3650(CA)

In The Court of Appeal of Nigeria

On Thursday, the 25th day of March, 2010

CA/K/176/08

RATIO

LAND LAW: DUTY OF A PARTY CLAIMING A DECLARATION OF TITLE TO LAND

As a restatement of established principle of law, a party claiming for a declaration of title to land has the legal duty to establish that he is in law entitled to such a declaration when the title of the land is in dispute. In other words, a party or plaintiff who brings an action for a declaration of title to a piece of land must prove his ownership of the land claimed and in dispute EDOSOMWAN V. OGBEYFUN (1996) 8 NWLR (442) 266, TEMILE V. AWANI (2001) 12 NWLR (728) 726, ADEWUYI .V. ODUKWE (2005) 114 NWLR (945) 473. PER MOHAMMED LAWAL GARBA, J.C.A.

LAND LAW: WAYS OF PROVING OWNERSHIP OF LAND

(a) By traditional evidence. See EZEAKABEKWE V EMENIKE (1998) 62 LRCN 855, EZENWA V. AGU (2004) 3 NWLR (861) 431 @ 456.

(b) Documents of title- See NNABUIFE V. NWIGWU (2001) 9 NWLR (719) 710 @ 723-4.

(C) By various acts of ownership numerous and positive, and extending over a length of time as to warrant the inference of ownership. See MOGASI V. JADRURY (1985) 2 NWLR (7) 393 @ 431, OLADIPUPO V OLANIYAN (2000) 1 NWLR (624) 556.

(d) By acts of long enjoyment and possession of the land under Sections 46 and 146 of the Evidence Act. See ABBARA V. AMARA (1995) 7 NWLR (410) 712, 734.

(e) By proof of possession of adjacent land in circumstance which renders it probable that the owner of such adjacent land would in addition, be the owner of the disputed land… See Section 46 of the Evidence Act

The above principle of law was settled many years ago and only requires a party or plaintiff, to prove in any one of ways set out ATANTA V. AJANI (1989) 3 NWLR (111) 511, OKAFOR V. IDIGO (1884) 1 SCNLR 481, IDUNDUN V OKUMAGBA (1976) 9 – 10 SC, 227. PER MOHAMMED LAWAL GARBA, J.C.A.

LAND LAW: METHOD OF ESTABLISHING THE IDENTITY OF THE LAND CLAIMED BY A PARTY

A party can establish the identity of the land he claims either by pleading and producing evidence of specific boundaries or by pleading and producing a survey plan in which the land is clearly identified as to its location, boundaries and size. Where he fails to establish the identity of the land in dispute his claim for declaration of title thereto is bound to fail TUKURU .V SABT (2005) 3 NWLR (913) 544. OLUMOLU V. ISLAMIC TRUST OF NIGERIA (1996) 2 NWLR (430) 253, SANNI V. OGUNBODE (2001) 8 NWLR (714) 74, OFUME V. NBEKE (1994) 4 NWLR (341) 746. PER MOHAMMED LAWAL GARBA, J.C.A.

LAND LAW: WHETHER REQUIREMENT OF PROOF WILL ARISE WHERE IDENTITY OF LAND IS NOT IN DISPUTE

JUSTICES

MOHAMMED LAWAL GARBA Justice of The Court of Appeal of Nigeria

JOHN INYANG OKORO Justice of The Court of Appeal of Nigeria

THERESA NGOLIKA ORJI – ABADUA Justice of The Court of Appeal of Nigeria

Between

1 ALH BELLO MAIGARI
2 ALH HASHIMU MAIGARI
3 ALH YAHAYA MAIGARI Appellant(s)

AND

ALH SANI MAILAFIYA Respondent(s)

MOHAMMED LAWAL GARBA, J.C.A. (Delivering the Leading Judgment): By the endorsement on the writ of summons dated 17th January, 2005 taken out of the Registry of the Kaduna State High Court, sitting at Zaria repeated in paragraph 16 of the statement of claim dated the 14th January, 2006, the Appellant made claims against the Respondent as follows –
“1 A declaration that the land in dispute belongs to them having inherited their father.
2. A perpetual order restraining the defendant, his agents, assigns, privies or anyone whosoever
from trespassing or further trespassing on the land in dispute.
3. N50,000 00 general damages
4. Cost of this action.”
Thereafter in a motion dated the 17th of January, 2006, the Appellants also prayed the High Court for orders as follows –
1 An order of INTERLOCUTORY restraining the defendant either by himself, his agents, assigns or privies from trespassing or further trespassing and or doing anything prejudicial to the interest of the plaintiffs on the disputed land which is situate at Anguwan Liman Zaria and bounded by the house of the plaintiffs late grand father in the North by the house of Alkalin Rigachikun in the East by Bala and Mamman’s land in the south and by Sarkin Ruma’s in the West pending the hearing and determination of this suit.
2 Such further order(s) as this Honourable Court may deem fit to make in the circumstances.
The first prayer was granted in part after which the Respondent was granted enlargement of time to file his statement of defence to the action. The matter then proceeded to trial after which the High Court dismissed the claims in the judgment delivered on 6th of May, 2008 on the ground that the boundaries of the land in dispute were not pleaded by the parties.
Being dissatisfied with that decision, the Appellants’ caused a Notice of Appeal dated the 12/6/2008 to be filed against it, containing four (4) grounds of appeal. In the Appellants’ brief filed on the 16/9/2008, two (2) issues were distilled from the grounds of appeal and submitted for determination in the appeal. They are thus –
“a. whether the lower court ought to have taken judicial notice of the proceedings before it in arriving at its decision?
b Whether the Learned Lower Court Judge was right to dismiss the Plaintiffs (now appellants) suit before him as he did.”
The issue a was said to have been formulated from grounds of appeal 2 and 3 while issue b, from grounds, 1 and 4
The above issues were argued in the Respondent’s brief of argument filed on the 26/2/2009 in reaction to which an Appellant’s Reply brief was filed on 30/3/2009 B M BUHARI, Esq, learned counsel, who settled the Appellants’ brief had submitted on issues a that though the Appellants’ did not plead the boundaries of the land in dispute, the Respondent and the High Court were not left in any doubt as to which land is in dispute in the case He said from the contents of the motion papers, the affidavits filed in respect there of and the proceedings of the High Court at pages 7, 14-16 and 22 of the record of appeal, none of the parties was put in doubt as to the area claimed by the Appellants It was his contention that since the essence of pleadings is to make clear the case put forward by the parties to enable them prepare adequately for their evidence, the afore mentioned processes have achieved that purpose The case of ODEYEMI V. AGBEDE (2008) ALL FWLR (412) 1163 @ 1180 was cited and it was submitted that since the High Court had taken proceedings wherein boundaries of the land in dispute were amply stated and had decided thereon, it ought to have taken judicial notice of the boundaries because evidence, was led to prove the boundaries of the land described According to learned counsel, the law is that facts which from part of the proceedings of a Court need no more proof, relying on section 74(1)(m) of the Evidence Act and N.N.P.C V. TIJANI (2007) ALL FWLR (344) 129 @ 138 – 9.
Further that what is judicially noticed needs no further proof and so since the boundaries of the land in dispute have been adequately described, it ought to have been taken as established. The decision of the High Court in respect thereof was said to be erroneous and we were urged to set it aside
Because the submissions by the learned Counsel on issue b are short, I would review them here. It was submitted on the issue b by the Learned Counsel for the Appellant that the High Court erred fundamentally in law when it failed to take into consideration the evidence of the Appellants’ witnesses which occasioned a miscarriage of justice That the evidence of the Appellant’s witnesses outweighs that of the Respondent witness because it had traced the disputed land from their progenitor while the Respondent’s mother through whom he claims was shown to have predeceased the person she was said to have inherited the land in dispute from Pages 39 – 40 of the record of appeal were referred to by learned counsel who argued finally that the Appellant’s evidence by preponderance, outweighs that of the Respondent and we were urged once again to set aside the decision of the High Court
For the Respondent M T MOHAMMED, Esq who settled the Respondent’s brief had submitted on issue a since the Appellants have conceded that they did not plead the boundaries of the land in dispute, the High court had no duty to comb the whole record of proceedings in order to fix the boundaries of the land being claimed. It was his further submission that though, the Appellant’s motion papers carried some boundaries of a land, it is not contained in the affidavit and different, from the ones given by the witnesses of the Appellants. He referred to the evidence of the witnesses at pages 30, 32 35 and 36 of the record of appeal and said that the boundaries given by the Respondents’ witnesses also differ from all the others. Relying on OSIEGBU V. OKOH (2006) ALL FWLR (303) 205 @ 280, ODUNZE .V. NWOSU (2007) ALL FWLR (379) 1295 @ 1317 AND DADA V DOSUNMU (2006) ALL FWLR (343) 1605, learned counsel argued that the High court was right to have disregarded the boundaries stated in the Appellants motion.
On issue b it was the submission of learned counsel that it is not the number of witnesses that matter but the quality of evidence in a case According to him the Appellant’s case was erected around a gift of land by Madakin Rini, to Abdullahi from whom they claim, (as per paragraphs 5 and 6 of the statement of claim) but there was no evidence on how or when the gift was made He said none of the witnesses knew Madakin Rini and so did not witness the gift and that appellants did not appeal against the finding by the High court that none of the parties pleaded the boundaries of the land in dispute We were urged by him to uphold the judgment of the High court and resolve the two issues against the Appellants.
In his Reply brief learned counsel for the Appellant had submitted that since the Respondent did not dispute the boundaries of the land stated in the motion dated the 17th January, 2006, the adverse description given by his witness is not material and has no adverse effect on the claim. He also said the case of OSIEGBU V. OKOH vis not applicable because the issue of judicial notice did not arise in the case
We were urged to hold that the refusal of the High Court to take judicial notice of the boundaries stated in the process before it had occasioned the Appellant’s miscarriage of justice.

Another principle of law that is now common knowledge is that a plaintiff or party claiming declaration of title to a piece of land may prove such title or ownership by or through any of the following –
(a) By traditional evidence. See EZEAKABEKWE V EMENIKE (1998) 62 LRCN 855, EZENWA V. AGU (2004) 3 NWLR (861) 431 @ 456.
(b) Documents of title- See NNABUIFE V. NWIGWU (2001) 9 NWLR (719) 710 @ 723-4.
(C) By various acts of ownership numerous and positive, and extending over a length of time as to warrant the inference of ownership. See MOGASI V. JADRURY (1985) 2 NWLR (7) 393 @ 431, OLADIPUPO V OLANIYAN (2000) 1 NWLR (624) 556.
(d) By acts of long enjoyment and possession of the land under Sections 46 and 146 of the Evidence Act. See ABBARA V. AMARA (1995) 7 NWLR (410) 712, 734.
(e) By proof of possession of adjacent land in circumstance which renders it probable that the owner of such adjacent land would in addition, be the owner of the disputed land… See Section 46 of the Evidence Act
The above principle of law was settled many years ago and only requires a party or plaintiff, to prove in any one of ways set out ATANTA V. AJANI (1989) 3 NWLR (111) 511, OKAFOR V. IDIGO (1884) 1 SCNLR 481, IDUNDUN V OKUMAGBA (1976) 9 – 10 SC, 227.

From the claims of the Appellants set out easier, it is clear that the claims are based on traditional evidence since they claim the land in dispute by inheritance from then father. In other words, the claim by the Appellants is premised on the custom and tradition of inheritance which is one of the ways of establishing ownership of a piece of land as recognized in the authorities cited above.
Relevant in this appeal is yet another principle of law that if issues were joined on the identity of the land claimed in an action for declaration of title thereby properly disputed, to succeed, a party or plaintiff must establish the identity of the land claimed See IGBOKWE .V. NLEMCH (1997) 2 NWLR (429) 185, JINADU V. ESUROMBI-ARO (2005) 14 NWLR (944) 142 MAISHANU V. ANCHAU (2008) 6 NWLR (1084) 565.
A party can establish the identity of the land he claims either by pleading and producing evidence of specific boundaries or by pleading and producing a survey plan in which the land is clearly identified as to its location, boundaries and size. Where he fails to establish the identity of the land in dispute his claim for declaration of title thereto is bound to fail TUKURU .V SABT (2005) 3 NWLR (913) 544. OLUMOLU V. ISLAMIC TRUST OF NIGERIA (1996) 2 NWLR (430) 253, SANNI V. OGUNBODE (2001) 8 NWLR (714) 74, OFUME V. NBEKE (1994) 4 NWLR (341) 746.

The law is also settled that where the identity of the land claimed is not in dispute and doubt, the requirement for its proof would not arise and therefore becomes unnecessary FALOMO V. ONAKANI (2005) 11 NWLR (935) 126, MANI .V. SHANONO (2006) 4 NWLR (969) 132, TSEMUDIARA .V. MESSERS E.G.S. AND CO. LTD. (2008) 7 NWLR (1085) 84.
As stated above, the High court dismissed the Appellants’ case on the ground that the boundaries of the land they claimed were not pleaded and that the parties witnesses gave evidence of different boundaries. The question that arises from the reason for the decision of the High Court is whether the identity and particularly the boundaries of the land claimed by the Appellants in dispute? Put another way, was the identity or boundaries of the land made an issue by the parties in the case which they put forward before the High Court, for determination? Was there any dispute between the Appellants and the Respondent as to the location and boundaries of the land claimed by the Appellants which was submitted for the decision of the High Court in the case before it?

It is well known that the case of each party in a matter would be defined and deducible from the averments of facts filed in support of the claims made or positions they adopted. In other words, the case put forward by the parties in matter are to be determined from the pleadings they filed in support of their respective positions and by which they and the court are bound in the determination thereof GAMBURUMA V. BORNO (1997) 3 NWLR (1495) 530 OYEKANMI V. NEPA (2000) 15 NWLR (690) 414, OLORUNFEMI V. OSHO (1999) 1 NWLR (585) 1.
The relevant pleadings of the Appellants on the issue of the identity of the law they claimed against the Respondent are paragraphs 3, 13 and 14 of the statement of claim dated the 14th January, 2006 They are as follows –
“3. The land in dispute is situate at Anguwan Liman Zaria city within the jurisdiction of this honourable court.
13. The plaintiff avers that the land in dispute is still situate adjacent and or next to those of late Abdullahi’s brother as well as the main house occupied in her to the Madakin Rini.
14. The plaintiffs aver that of recent, the defendant has laid claim over the land in dispute alleging that it belonged to his late father sequel to which he even sued the plaintiffs before sharia court 11
Zaria city.”
On his part, the Respondent did not deny, dispute or traverse the averments in paragraphs 3 and 13 above in the statement of defence dated 11/9/2006 which is at page 11 – 12 of the record of the appeal However in response or reaction to paragraph 14 of the statement of claim, the Respondent denies it in paragraph 3 of the statement of defence and further averred in paragraph 4, b, thus:-
“4.b. The defendant sued the plaintiffs only when they began to interfere with his possession of the farm which he and his coheirs have been enjoying since the death of their father, in 1991.”
It is quite plain and clear that the parties are ad idem about the identity of the land in dispute between them from the above averments in their pleadings. They know with definite certainty, the land over which their respective claims before the High Court were based and premised. They are therefore in no doubt and so did not make its identity an issue for determination in the case because from their pleadings both know precisely the location, nature and extent of the land in dispute before the High Court. By their pleadings, the parties had litigated, over the same piece of land at the Sharia court, Zaria city before the same dispute was later taken to the High Court as was pleaded in paragraph 14 of the statement of claim and admitted in paragraph 4, (b) of the statement of defence.
The parties are therefore one on the identity of the land and dispute and did not join issues on it in their pleadings. In fact even the High had made an order of injunction in respect of the land in dispute in the motion dated the 17th of January, 2006 where in its ruling thereon, which appears at pages 22 – 29 of record of appeal, at page 29, it stated thus –
1 The Defendant is hereby restrained either by himself his agents, assigns or privies from doing anything prejudicial to the interest of the plaintiffs on the disputed land which is situate at Anguwan Liman Zaria city and bounded by the house of the plaintiffs Grand father in the North; by the house of Alkalin Bigachikwun in the East by Bala and Mamman’s land in the south and by Sarkin Rimi’s in the west pending the hearing and determination of this suit.
From the above state of the pleadings and ruling by the High court is it beyond reasonable argument that both the parties as well as the High court knew and were in no doubt about the identity of the land in dispute between the Appellants and the Respondent in the case before that Court.
Because the High Court is bound by both the pleadings of the parties and its decision in the ruling delivered in the mentioned motion, it cannot in the determination of the case before it, consider and decide on an issue which was not joined by the parties and about which they are not in dispute. The law requires that Court to confine itself to the issues joined and canvassed by the parties in the case MOGHALU V. WOBO (2004) 17 NWLR (903) 465, IROM .V. OKIMBA (1998) 3 NWLR (540) 19, YUSUF V. ADEGOKE (2007) 11 NWLR (1045) 332. In the case of OYEKANMI V NEPA (Supra) at page 439 of the report, it was held by the Supreme Court that-
“where a court does not limit a case to the issues joined by the parties in their pleadings and takes a course outside those pleadings even if it thinks it is in per suit of the justice of a case, such course is seen to lead to a miscarriage of justice.”
See also MBIONWU V. OBI (1997) 2 NWLR (487) 298, ARHURHU .V. DELTA STEEL CO. LTD. (1997) 3 NWLR 491) 82, A.G. LEVENTIS (NIG) PLC V AKPU (2007) 17 NWLR (1063) 416.
Because the issue of the identity of the land claimed by the Appellants in the case before the High court as not joined by the parties and not disputed by them, the issue of the boundaries of the said land was in the circumstances not part of the issues or one of the issues that arose out of the pleadings of the parties for determination by the High court. The issue of the boundaries did not arise and the Appellants had no duty, because it was unnecessary, to prove same at the trial of their claims.
In the above premises, the High court was clearly in error of law when it decided the Appellant’s case on the sole issue of boundaries at pages 58 – 59 of the record of appeal as follows-
“Boundaries having constituted an essential in the identification of any parcel of land, a plaintiffs failure to plead the identify of the disputed land is fatal to the case of the plaintiffs.
The plaintiffs have failed to discharge the “burden placed on them to establish the identity of the land in dispute. Their case failed and is accordingly dismissed.”

Undoubtedly what the High Court did by the above decision was to decide the case of the Appellants on an issue not joined in the pleadings by the parties and about which there was no dispute thereby occasioning them miscarriage of justice which was defined by the Supreme Court in the case of AMADI V. N.N.P.C. (2000) 10 NWALR (674) 76 @ 112 to mean-
“Miscarriage of justice has been defined as such a departure from the rules which permeate all judicial procedure as to make what happened not in the proper sense of the word, judicial procedure at all. A miscarriage of justice should be declared only when the court, after an examination of the entire case, including the evidence, is of the opinion that it is reasonably probable that a result more favourable to the appealing party would have been reached in the absence of the error.”
See also AJUWON V. AKANNI (1995) 9 NWLR (316) 186, KRAUS THOMPSON ORG. LTD. V. UNICAL (2004) 9 NWLR (879) 631 @ 654.
What the High Court did in the Appellant’s case is a departure from the principles of law as established in the judicial authorities cited before now and a calm look at the pleadings and evidence adduced at the trial as contained in the record of appeal would reveal that but for that error of law by that court, a result more favourable to the Appellants was reasonably probable. Once again, miscarriage of justice have been occasioned to the Appellants as a result of that error on the part of the High Court and its decision in the circumstances cannot or indeed should not be allowed to stand. The decision is therefore set aside.
I am mindful of the primary constraint of the court that it is not its function to re-try a case on the notes of the evidence recorded at the trial and set aside the decision of the High court because the court would reach a different conclusion on the pleadings and evidence recorded. Even though there was a trial of the case, yet there was no determination of the issues joined by the parties on the evidence adduced and submitted to the High Court for decision.
In effect what happened at the High court was not a procedure known to any judicial authority and no judicial procedure at all.
I would resist the temptation to re-try the case on the notes of the record of the appeal even with the vast powers vested in the court under section 16 of the Court of Appeal Act because I am of the firm view that the trial court would be in a proper, better and vintage position to see, hear, take note and assess the witnesses and evidence to be given in support of the respective positions of the parties. In the circumstance, it is expedient for an order of re-trial to be made in order for the dispute between the parties to be determined on the issues joined by the parties, in the case. In the final result, I find merit in the appeal and allow it for the reasons set out earlier The decision of the High Court delivered on 6/5/2008 is once again, set aside and consequently an order for re-trial before another judge of the High Court of Kaduna State is hereby made in respect of the Appellants’ case The case shall be sent to the Chief Judge of the High Court of Kaduna State for assignment of the case accordingly.
I make no order as on costs.

THERESA NGOLIKA ORJI-ABADUA, J.C.A: I agree with the decision reached in the lead judgment by my Learned brother, M L Garba, J C A, and I abide by all the orders made therein –

JOHN INYANG OKORO, J.C.A: I read before now the judgment of my learned brother, Garba JCA just delivered and I agree with him that this appeal has merit and ought to be allowed My learned brother has quite admirably set out the facts and resolved all the salient issues submitted for the determination of this appeal in accordance with the law For the reasons and conclusion in the lead judgment which I hereby adopt as mine, I also allow the appeal.
Let me however add that in a claim for declaration of title to land, the identity and boundaries of the land in dispute are very important at least so that both the court and the parties are not misled as to which land is being fought for. In order to establish the identity of the land, a party can plead and prove the specific boundaries by way of evidence or he can tender a survey plan showing the location, boundaries and the size of the land. Where the identity of the land in dispute is not certain, the court will not be able to make an order on an uncertain piece of land See Sanni Vs Ogunbode (2001) 8 NWLR (pt 714) 74.
However, where the identity of the land in dispute is known by all the parties and there is no doubt or dispute as to its boundaries or size, the requirement for its proof would not be compulsory See Falomo V. Onakani (2005) 11 NWLR (pt 935) 126.
In the instant appeal, the parties did not join issues on the identity of the land. Their pleadings are ad idem on the identity of the land which they had litigated before at the sharia court, Zaria before going to the High Court It was therefore, wrong for the lower court to base its decision on the issue of identity of the land which the parties did not join issues Accordingly, as I had already stated above, I do agree with my learned brother Garba, JCA that this appeal is meritorious and is hereby allowed by me. The decision of the High court delivered on 6/5/08 is hereby set aside I abide by all other consequential orders made in the lead judgment I also make no order as to costs.

Appearances

A. MANUFor Appellant

AND

M T. MOHAMMEDFor Respondent