ALHAJI ABDULLAHI ABUBAKAR GARBA & ORS v. THE DIRECTOR GENERAL, BUREAU OF LANDS, KWARA STATE & ANOR (2019)

ALHAJI ABDULLAHI ABUBAKAR GARBA & ORS v. THE DIRECTOR GENERAL, BUREAU OF LANDS, KWARA STATE & ANOR

(2019)LCN/13375(CA)

In The Court of Appeal of Nigeria

On Thursday, the 30th day of May, 2019

CA/IL/133/2018

RATIO

EVIDENCE: 3 RULES THAT GOVERN THE ADMISSIBILITY OF EVIDENCE

The law is trite, admissibility of evidence in general and documents in particular, are governed by three (3) elements or conditionalities, which are (i) there must be pleaded facts, in the pleadings in respect of the document sought to be admitted in evidence (ii) It must be relevant to the issue in controversy or dispute between the parties before the Court, and (iii) It must be admissible regard had to other basic requirements on admissibility of evidence in general. In Oluyemi vs. Asaolu (2010) All FWLR Pt. 522 P. 1682 @ 1725, the Court clearly stated what must be satisfied before a document can be admitted in evidence thus:
The three criteria which govern the admissibility of a document in evidence are;
a. Is the document pleaded;
b. Is it relevant to the inquiry being tried by the Court; and
c. Is it admissible in law.”
See also, Iyagba v. Sekibo (2009) All FWLR (Pt. 466) 1975 at 1964 – 1965; PAC V INEC (2009) All FWLR (Pt. 478) 260 at 334; Abubakar v. Chuks (2008) All FWLR (Pt. 408) 207 at 221 –222 Ali v. Ugwu (2012) All FWLR (Pt. 619) 1079 at 1109.PER IBRAHIM SHATA BDLIYA, J.C.A.

EVIDENCE: THE POSITION OF DOCUMENTS BEING IDENTIFIED IN PLEADINGS

The law is settled, where there are facts pleaded in the statement of claim or statement of defence sufficiently identifying the document sought to be admitted in evidence, it is a ground to admit such document as espoused in the case of Arabambi vs. Advance Beverage Industry Ltd (2006) All FWLR Pt. 295 P. 581 @ 607, wherein the Apex Court had this to say:
A party is not expected to plead evidence but facts. To hold that because a document was not specifically pleaded it becomes inadmissible is a misconception.
See also Abuul v. BENSU (2003) 16 NWLR Pt. 845 P. 59 @ 80.PER IBRAHIM SHATA BDLIYA, J.C.A.

JUSTICES

IBRAHIM SHATA BDLIYA Justice of The Court of Appeal of Nigeria

HAMMA AKAWU BARKA Justice of The Court of Appeal of Nigeria

BALKISU BELLO ALIYU Justice of The Court of Appeal of Nigeria

Between

1. ALHAJI ABDULLAHI ABUBAKAR GARBA (LANKY)
2. HAJIA MARIAM AKANKE ABUBAKAR
3. MALLAM SULAIMAN IDRIS
4. MR. SHUAIB SAADU FOLAKE
5. MALLAM USMAN SALIU
6. MR. SHERIFF ABDUL-YEEKIN
7. MR. HASSAN ISSA ALIYU
(For themselves and on behalf of the owners and occupiers of lands, houses and buildings situate at Budo Isale/Temiodara village via Aliara village in Ilorin West Local Government Area) Appellant(s)

AND

1. THE DIRECTOR GENERAL, BUREAU OF LANDS, KWARA STATE
2. ATTORNEY GENERAL AND COMMISSIONER FOR JUSTICE, KWARA STATE. Respondent(s)

IBRAHIM SHATA BDLIYA, J.C.A. (Delivering the Leading Judgment): This appeal emanated from the judgment of the Kwara State High Court of Justice, Ilorin Division, (herein after refers to as the lower Court) in suit No. KWS/223/2016 delivered on the 28th day of March, 2018, presided over by S. A. OYINLOYE, J. A summation of the historical background of the suit before the lower Court is apt at this juncture. The Oyedeyin family of the 1st to 5th appellants (who were the claimants before the lower Court) claimed to be the original owners (title holders) of parcel of land known as Budo-Isale/Temiodara village, Aliara, Ilorin West Local Government Area of Kwara State. They traced the ownership of the land to the founders who first settled, deforested and farmed on the land by their ancestors called Oyedeyin. The 6th and 7th appellants and those they represented derived title to the respective portions of the land in dispute by virtue of grants and or purchases for money consideration from the 1st to 5th appellants. The appellants have been on the land until 2nd of July, 2016, when the respondents attempted to clear the land without their consent.

The respondents claimed that the said parcel of land was acquired by the Kwara State Government for over-riding public interest and public purpose. That one Magistrate Olanikewu represented the appellants at the acquisition processes. The appellants did not agree to the acquisition of the land by the respondents, hence the institution of suit No. KWS/223/2016, before the lower Court.

Both the appellants and the respondents called witnesses who testified and tendered documents to prove their respective claims. Written addresses were filed by learned counsel and adopted accordingly. The learned judge of the lower Court, in a considered judgment, delivered on the 26th day of March, 2018, dismissed the appellants? claims for being unmeritorious. Peeved and piqued by the judgment, the appellants filed Notice of appeal contained 19 grounds of appeal challenging the judgment of the lower Court. The Notice of appeal was amended and filed on the 6th of March, 2019, which was deemed properly filed on the 13th of March, 2019.

On the 21st of March, 2019, the respondents filed a Notice of Preliminary Objection pursuant to Order 10 Rule (1) of the Court of Appeal, Rules, 2016

and the inherent jurisdiction of the Court, challenging the competency of grounds 1, 2, 7, 8, 11, 12, 14, 15, 16 and 17 of the grounds of appeal, contained in the Amended Notice of appeal. On the 1st day of April, 2019, at the hearing of the appeal, learned counsel to the appellants, Ayinla Jawondo Salman Esq., adopted the appellant?s amended brief of argument filed on the 6th of March, 2019, out of time, and deemed properly filed on the 13th of March, 2019. The respondents? brief of argument was filed on the 28th of February, 2018, which was amended and filed on the 21st of March, 2019. A Reply brief was filed by the appellants on the 20th of March, 2019.
?
Arguments on the Notice of Preliminary Objection are contained on pages 5 to 10 of the respondents? Amended brief of argument. The law is settled, where a Notice of Preliminary Objection to the competence of an appeal, is filed same is to be taken and disposed before delving into the appeal proper. It is also apt, to point out, at this juncture, that where the competence of a ground(s) of appeal is raised, same must be by motion on Notice, not by Notice of

Preliminary Objection as the respondents have done in this appeal. However, having argued same in the brief of argument and not opposed by the learned counsel to the appellants, I am of the view that, in the interest of justice, the Court can still deal with the same and take a decision on the competency of the grounds of appeal specified in the Notice of Preliminary Objection filed by the respondents.

The Notice of Preliminary Objection filed on the 21st of March, 2019 and the grounds therefore, are contained on pages 1 ? 2 thereof, which are thus:
?TAKE NOTICE that at the hearing of this Appeal, the Respondents shall raise the following preliminary objection, to wit:
That Grounds 1, 2, 7, 8, 11, 12, 14, 15, 16 and 17 by implication, issues 2, 3, 4 and 5 formulated from the said grounds 1, 2, 7, 8, 11, 12, 14, 15, 16 and 17 argued in the Appellants? Brief are incompetent and should be struck out or discountenanced by this Honourable Court.
AND TAKE FURTHER NOTICE that, the ground upon which this objection is premised are as follows:
(1) The said Grounds 1, 2, 7, 8, 11, 12, 14, 15, 16 and 17 of Appeal were not

distilled from a ratio decidendi of the judgment appealed against, but an obiter dictum of the trial Court.
(2) Appeals are based on the ratios of a judgment and not an observation or reasons adduced or passing remarks of the trial judge in the judgment.
(3) This Honourable Court deals with the ratio decidendi in the judgment appealed against and not with observation or reasons adduced or passing remarks made by the trial Court in the course of writing its judgment.?

It is learned counsel?s contention that a ground of appeal must be predicated or based on the decision of the Court which is referred to as the ?ratio decidendi? not on the side comments or observations made by the Court in the judgment, which is referred to ?obiter dictum?. As to the applicability of the principle of law on when a decision is ?ratio decidendi ? or an ?obiter dicta? the cases of Mainstreet Bank Registrars Ltd v. Etim (2017) All FWLR Pt. 907 P. 1620 @ 1643; K.R.K.H (Nig) Ltd vs. FBN Ltd (2017) All FWLR Pt. 878 P. 539 @ 557; Nwankwo vs. All EDCS (2007) All FWLR Pt. 360 P. 1462; were cited to buttress

that, for a ground of appeal to be valid or competent, it must attack the decision of the Court, not merely what the Court said on the matter which has no bearing on the issues in the matter being adjudicated. The principles of law enunciated in the cases of Ademetan vs. IIRCCC (2016) All FWLR Pt. 821 P. 1502 @ 1518; Larmie vs. Data Processing Maintenance & Services Ltd (2006) All FWLR Pt. 296 P. 77 @ 94 and Consortium Lot 4 Nigeria vs. NEPA (1992) 7 SCNJ Pt. 1 P. 1, were cited and relied on to reinforce the submissions supra.

Learned counsel referred to grounds 1, 2, 7, 8, 11, 12, 14, 15, 16 and 17 of the Amended Notice of appeal, and submitted that the listed grounds of appeal only questioned the ?obiter dictum? and not the ?ratio decidendi? of the judgment of the lower Court; therefore, same are incompetent or invalid. Similarly, learned counsel submitted, Issues 2, 3, 4 and 5 which have been culled or distilled from the invalid or incompetent grounds of appeal, are also incompetent, for a valid issue for determination in an appeal cannot be formulated out of an incompetent ground of appeal. The case of AP Ltd vs. Owodunni

(2004) All FWLR Pt. 208 P. 771 and the principles of law espoused therein, have been relied on to reinforce the submissions supra. So also the case of Gwandu vs. Gwandu (2004) All FWLR Pt. 229 P. 841 @ 862. In conclusion, learned counsel did urge that grounds 1, 2, 7, 8, 11, 12, 14, 15, 16 and 17 of the Amended Notice of appeal, having not been predicated on the ?ratio decidendi ? of the judgment of the lower Court, same are incompetent, liable to be struck out or discountenanced in the determination of the appeal.

A. J. Salman, Esq, of learned counsel to the appellants, in his response to the arguments canvassed on the preliminary objection to the competency of the aforementioned grounds of appeal, submitted that, the objection is totally misconceived and baseless in law. That the grounds of appeal Nos. 2, 3, 7, 8, 9, 10, 11, 12, 14, 15, 16 and 17 contained in the Amended Notice of appeal were based on the ratio decidendi; not on mere comments or observations (obiter dicta), therefore same are valid and competent to be considered in the determination of the appeal. Learned counsel cited and relied on the principles of law espoused in the

cases of Capt Oleksandr vs. LoneStar Drilling Co. Ltd (2015) 4 ? 5 S.C. Pt. II P. 1 @ 52, and submitted that all the grounds of appeal contained in the Amended Notice of appeal have been based or predicated on the ?ratio decidendi? of the judgment of the lower Court as could be seen from line 19 of page 190 to line 2 of page 191 of the record of appeal. In conclusion, learned counsel urged that the Notice of Preliminary Objection, be dismissed accordingly.

The nineteen (19) grounds of appeal are contained in the Amended Notice of appeal filed on the 6th day of March, 2019, which was deemed properly filed on the 13th of same month. Are the grounds of appeal based on the ?ratio decidendi? of the decision of the lower Court which can be found on page 121 @ 191 of the record of appeal? What is a ?ratio decidendi? and ?obiter dicta? (dictum) in the decision or judgment of a Court of law. In Capt Oleksandr vs LoneStar Drilling Co. Ltd (2015) 4 – 5 S.C. (Pt. 11) P. 1 @ 52, the Apex Court, restated the principles of ?ratio decidendi? and ?obiter dicta? (dictum) of a judgment or

decision of a Court as follows:
?The ratio decidendi of a case is the principle or rule of law upon which a court?s decision is founded. See, Black?s Law Dictionary, (8th edition), also A. I. C. Ltd v. N. N. P. C. (2005) 5 SC (PT. 11) 60, Ajibola v. Ajadi (2004) 14 NWLR (Pt. 892) 14. On the other hand, obiter dicta or obiter dictum means something said in passing. It is a judicial comment made while delivering a judicial opinion, but one that does not embody the decision of the Court. See Black?s Law Dictionary, (supra) and A. I. C. Ltd. v. N. N. P. C (supra), Akibu v. Oduntan (1999) 2 SC 77, Odessa v. F. R. N (No.2) (2005) 10 NWLR (Pt. 934) 528 at 555?.?
In the earlier case of A. I. C. V. N. N. P. C. (2005) 5 SC (Pt. 11) 61 at 73, the Supreme Court said;
In considering whether the Court of Appeal in its later decision, reviewed or reversed its earlier decision, a distinction has to be drawn between a ratio decidendi and obiter dictum of a case. The ratio decidendi of a case represents the reasoning or principle or ground upon which a case is decided, Obiter simply means in passing, incidental, cursory.

Obiter dicta reflect, inter alia, the opinion of the judge which do not embody the resolution of the Court. The expression of a judge in a judgment must be taken with reference to the facts of the case which he is deciding, the issues calling for decision and answers to those issues. The manner in which the judge choses to argue the case is not all important thing. Rather, it is the principle he is deciding. See U. T. C. (Nig.) Ltd. v. Pamotei (1989) 2 NWLR (Pt. 1) 79, (1989) 2 NWLR (Pt. 343) 244.
In the case of Afro-Continental Nigeria Ltd. v. Joseph Ayantuyi & Ors (1995) 9 NWLR (Pt. 420) 411 at 439, this Court per Iguh JSC decided thus;
It is indisputable that in the judgment of a Court the legal principle formulated by that Court which is necessary in the determination of the issue raised in the case that is the binding part of the decision is its ratio decidendi as against the remaining part of the judgment which merely constitutes obiter dicta, that is to say, what is not necessary for the decision. See, American International Insurance Co. v. Ceekay Traders Ltd. (1981) ANLR 62 at 80.?

?10

The distinction between ?ratio decidendi? and ?obiter dictum,? has been clearly stated in the case of Mainstreet Bank Registrars Ltd v. Etim (2017) All FWLR Pt. 907 P. 1620 @ 1643, thus:
?The ratio decidendi is the principle upon which the Court based its decision on the point in issue, but obiter is a passing remark
The law is trite, it is only a ratio decidendi of the decision contained in a judgment of a Court of law, and not in obiter dictum made in passing which are not the basis of the decision, that can be the basis of a ground of appeal. For as espoused in the case of Nwankwo vs. All EDCS (2007) All FWLR Pt. 360 P. 1462, that:
?Grounds of Appeal are meant to attack findings of a Court that have bearing on the case put up by a litigant. In other words, it should be related to a decision of the Court and contain complaints an appellant relies on to succeed in setting aside a decision, the ratio decidendi of a judgment and not just observation and passing remarks of a judge in the course of writing a judgment.
In my considered view grounds 1, 2, 7, 8, 11, 12, 14, 15, 16 and 17, do not attack or question any

decision arrived at in the judgment of the lower Court delivered on the 28th day of March, 2018, which are located on pages 121 to 191 of the printed record of appeal. As enunciated in the case of Ademetan vs. I. I. R.C.C. (2016) All FWLR Pt. 821 p. 1502 @ 1518:
?For a Ground of Appeal to be valid, it must attack the judgment or order contained in the judgment. If it is against the reasons advanced or adduced by the trial Court to arrive at its conclusion, then it is incompetent.?
It is not any comment or observation made by the learned judge in a judgment that can be a basis for a ground of appeal against such judgment, but only decision which are relevant to the issue in dispute before the Court that can be the basis of a ground of appeal against that judgment. See Larmie vs. Data Processing Maintenance and Services Ltd (2006) All FWLR Pt. 296 p. 77 @ 94. Therefore, any ground of appeal not based on the ratio decidendi of a decision in the judgment of the Court, cannot be valid or competent in the determination of an appeal.
The pronouncement of the Apex Court in the case of Consortium Lot 4 Nigeria vs. NEPA (1992) 2 SCNJ P. 1,

reinforces the view expressed supra, wherein, it was adumbrated that:
On a point of principle, this Court deals with the ratio decidendi in the judgment, i.e points upon which the unanimous judgment of Court depended, not on obiter dictum
In the end result, having considered the nineteen (19) grounds, of appeal contained in the Amended Notice of appeal filed on the 17th day of March, 2019, located on pages 1 to 11 thereof, and the principles of law on what is ratio decidendi and obiter dictum of a decision in a judgment of a Court of law, grounds 1, 2, 7, 8, 11, 12, 14, 15, 16 and 17 of the Amended Notice of appeal, having not been predicated or based on the ratio decidendi of the judgment of the lower Court, are incompetent, therefore liable to be struck out. I so order.
?Having struck out the fore listed grounds of appeal in the Amended Notice of appeal, any Issue(s) for determination culled or distilled therefrom, is/are also incompetent, for an Issue for determination in an appeal cannot be distilled from an incompetent ground of appeal. The law is trite, one cannot put something on

nothing, it will not stand, but it will collapse or fall.

The preliminary objection to the competence of grounds 1, 2, 7, 8, 11, 12, 14, 15, 16 and 17 of the Amended Notice of appeal having been upheld, the appeal is to be determined on the surviving grounds, of appeal which are these, 3, 4, 5, 6, 9, 10, 13, 18 and 19. For avoidance of doubt, the said grounds of appeal are reproduced hereunder, without the particulars:
GROUND 3
The trial Court erred in law when it held that by the evidence on record, a valid notice of acquisition was served on the appellants when from the totality of evidence before the Court the respondents did not plead issuance and service on the appellants of any Notice of Acquisition.”
GROUND 4
The trial Court erred in law by admitting and placing reliance on Exhibit D7, (Public Acquisition Notice) when the document is not covered by the pleadings of the parties and the same is not front loaded by the respondents.
GROUND 5
The trial Court erred in law by placing reliance on Exhibit D7, (Public Acquisition Notice) to impute service of Notice of Acquisition on the

appellants when the document was not shown/proved to relate to the appellants Budo-Isale/Temioda village land and the respondents did not give evidence that the same was served on the appellants.
GROUND 6
The trial Court erred in law by admitting and placing reliance on Exhibit D2, (Purported Minutes of Meeting of 8th July, 2016) when the document is inadmissible being a document prepared and or made by a party interested when litigations are being contemplated or anticipated by the parties.
GROUND 9

The trial Court misdirected itself in law by holding that by Paragraph 23 of the Statement of Claim, Paragraph 14 of the Reply to the Statement of Defence, Paragraph 13 of the Statement on Oath of CW.1 and Paragraph 8 of the Additional Statement on Oath of CW.1, the appellants ?demonstrated clearly that they had knowledge of the Acquisition and that even if the appellants ?were not serve with Notice of Acquisition, they are estopped from denying the knowledge of the acquisition.?
GROUND 10
The trial Court erred in law by holding that since Exhibit D7 covered

8 family lands, the appellants cannot claim not to be aware of the acquisition of their land.?
GROUND 13
The trial Court erred in law when it held that the issue of the land not having been acquired for overriding public interest did not arise from pleading and is therefore incompetent when the issue was rooted in the pleadings and the case as fought by the parties.
GROUND 18
The trial Court erred in law when it raised suo motu and resolved against the appellants the issue of locus standi of the 1st – 5th appellants to maintain this suit without affording the parties ad in particular the appellants any hearing on the issue.?
GROUND 19
The decision is against the weight of evidence.?

The appellants? amended brief of argument filed on the 6th day of March, 2019 was deemed properly filed on the 13th of the same month. Of the five (5) Issues distilled from the 19 grounds, of appeal, only Issue one (1) is valid having been culled from grounds 4 and 5 of the Amended Notice of appeal. The respondents filed brief of argument on the 21st day of March,

2019, five (5) Issues for determination were distilled from the 19 grounds of appeal, only Issue 3 thereof is competent.

In resolving the Issues for determination formulated in the briefs of argument of the parties, an appellate Court can either adopt or reframe or even formulate new issues, in the determination of the appeal. This is the law as enunciated in the case of FRN v. Obegolu (2006) 18 NWLR (Pt. 1010) P. 188 @ 225 wherein it was held that, after examining the Issues for determination, it is the duty of an appellate Court to either adopt those in the briefs of argument or formulate new ones which he believes would determine the real complaint or grievances of the appellant. See also Aduku v. Adejoh (1994) 5 NWLR (Pt. 346) P. 582 and Ikegwuoha v. Ohawuchi (1996) 3 NWLR (Pt. 435) P. 146.
It is not a rule that in every appeal the Court must inevitably accept Issues framed by the appellant as immutable. In appropriate case, the Court may reframe the issue to reflect the substance of the issues formulated by the parties themselves from the grounds of appeal. Accordingly, where an Issue formulated by either the appellant or respondent does not

reflect the complaint in the grounds of appeal, the appellate Court can reframe such an Issue from the grounds of appeal and determine the appeal on them. See Neka BBB Co. Ltd. V. A.C.B. Ltd. (2004) 2 NWLR (Pt. 858) 521; Joel Okunrinboye Export Co. Ltd. V. Skye Bank Plc (2009) 6 NWLR (Pt. 1138) 518, wherein it was held that:
?An appellate Court possess the inherent power, in the interest of justice and for the purpose of narrowing down the issues and making them clearer, accurate and apt in order to be properly addressed to reject, modify or reframe any or all the issues formulated by the parties so long as it does not lead to injustice to any party. African International Bank Ltd. V. Integrated Dimensional System Ltd. (2012) 17 NWLR (Pt. 1328) P. 1.?

Consequently, for clarity, brevity and comprehensibility Issue one (1) contained in the appellants? amended brief of argument and Issue 3 in the respondents? amended brief of argument are hereunder amalgamated and compressed into a sole Issue, which if resolved, would determine the appeal justly, fairly and in the over-all interest of the parties. The sole Issue for

determination in the appeal is therefore thus:
WHETHER THE PARCEL OF LAND SITUATED AT AND KNOWN AS BUDO-ISALE ALIARA VILLAGE IN ILORIN WEST LOCAL GOVERNMENT OF KWARA STATE WAS ACQUIRED FROM THE 1ST TO 5TH APPELLANTS FAMILY IN ACCORDANCE WITH THE PROVISIONS OF SECTIONS 28 (6) (7) AND 44 OF THE LAND USE ACT

RESOLUTION OF SOLE ISSUE
The import and or purport of the sole Issue for determination in the appeal is, whether Exhibit ?D7? the Notice of the acquisition of the land in dispute from the 1st – 5th respondent was admissible in evidence, having not been pleaded, if so was it served on them as provided for by Section 44 of the land use Act? A. J. Salman Esq. of learned counsel, who settled the appellants? brief of argument, did contend that the learned judge of the lower Court, erred in law when he admitted the Notice of acquisition of the land, same having not been pleaded by the respondents. That for a document to be admissible in evidence before a Court of law, it must be pleaded, it must be relevant and must fulfil all other conditions for admissibility of evidence. It is learned counsels? contention that

all the three (3) conditions supra, must be satisfied before a document can be admitted in evidence as enunciated in the case of Oluyemi vs. Asaolu (2010) All FWLR Pt. 522 P. 1682 @ 1725. Submitting further, learned counsel referred to the amended statement of defence, and pointed out that no facts have been pleaded therein to warrant the admission of the said document. Where a document has been erroneously admitted in evidence learned counsel contended same can be expunged by the Court when considering its judgment as espoused in the case of Talba vs. Talba (2010) All FWLR Pt. 522 P. 1780 @ 1803.

On the averments contained in paragraphs 7 and 8 of the Amended Statement of defence, learned counsel submitted same cannot be the basis of admitting the document in evidence, since the appellants denied the acquisition of the land by the respondents. Regarding the reliance on Exhibit ?D7? by the lower Court in arriving at the decision that the appellant knew of the acquisition of the land, therefore they were served with same, learned counsel contended that same cannot be correct, in view of earlier contention that no ?Notice? was served

on them. It has been further submitted that if no ?Notice? of acquisition was served on the appellant, there could not have a valid and lawful acquisition of the land in dispute by the respondents. That any purported acquisition is liable to be set aside as enunciated in the case of Afolalu v. State (2007) LPELR-8292(CA) 1 @ 30 – 31. In conclusion, learned counsel did submit that, having erroneously admitted Exhibit D7, in evidence, the lower Court ought not relied on same in arriving at its decision that there was valid and lawful acquisition of the land in dispute by the respondents. That the judgment of the lower Court is perverse having be predicated on an inadmissible evidence. Learned counsel urged that the issue in contention be resolved in favour of the appellants.

H. A. Gegele Esq., of learned counsel who settled the respondents? brief of argument, did concede that the ?Notice of acquisition? was not specifically pleaded, but the averments contained in paragraphs 7 and 8 of the Amended Statement of defence, warranted its admission in evidence as held in the case of Arabambi vs. Advance Beverages Industry Ltd. (2006)

All FWLR Pt. 295 Page 581 @ 607. This Court has been urged to resolve the issue in question against the appellants.

The law is trite, admissibility of evidence in general and documents in particular, are governed by three (3) elements or conditionalities, which are (i) there must be pleaded facts, in the pleadings in respect of the document sought to be admitted in evidence (ii) It must be relevant to the issue in controversy or dispute between the parties before the Court, and (iii) It must be admissible regard had to other basic requirements on admissibility of evidence in general. In Oluyemi vs. Asaolu (2010) All FWLR Pt. 522 P. 1682 @ 1725, the Court clearly stated what must be satisfied before a document can be admitted in evidence thus:
?The three criteria which govern the admissibility of a document in evidence are;
a. Is the document pleaded;
b. Is it relevant to the inquiry being tried by the Court; and
c. Is it admissible in law.”
See also, Iyagba v. Sekibo (2009) All FWLR (Pt. 466) 1975 at 1964 – 1965; PAC V INEC (2009) All FWLR (Pt. 478) 260 at 334; Abubakar v. Chuks (2008) All FWLR (Pt. 408) 207 at 221 –

222 Ali v. Ugwu (2012) All FWLR (Pt. 619) 1079 at 1109.

The law is settled, where there are facts pleaded in the statement of claim or statement of defence sufficiently identifying the document sought to be admitted in evidence, it is a ground to admit such document as espoused in the case of Arabambi vs. Advance Beverage Industry Ltd (2006) All FWLR Pt. 295 P. 581 @ 607, wherein the Apex Court had this to say:
?A party is not expected to plead evidence but facts. To hold that because a document was not specifically pleaded it becomes inadmissible is a misconception.?
See also Abuul v. BENSU (2003) 16 NWLR Pt. 845 P. 59 @ 80.

The respondents did not specifically plead the document ?Notice of acquisition? of the parcels of land in dispute. But in paragraphs, 7 and 8 of the Amended Statement of defence, these facts were pleaded. The averments contained in the said paragraph reads:
?7. In response to paragraph 18 of the claimants? statement of claim, the defendants aver that sometimes in 2015, an expanse of land area of approximately 81 hectares, situate around Osin Aremu Ilorin West Local Government

Area, including the land in dispute was duly acquired by Kwara State Government through the 1st defendant and compensation was paid to other land owners except the claimants who failed to show up for the collection of their compensation, after several notice were served on them.
8. The defendants aver that the land in question was legally acquired by the Kwara State Government under the enabling law for overriding public interest.?

In view of the pleadings contained in paragraphs 7 and 8 of the Amended statement of defence, the learned judge of the lower Court was perfectly right when he held on page 113 of the printed record of appeal thus:
?I think the learned state counsel is on a firm ground in her contention subject only to the conclusion of this able Court at the end whether or not paragraphs 7 and 8 of the statement of defence presented enough facts to the Court relevant to the objectionable document sufficient enough to serve as its subtraction upon which its admissibility can be predicated without having the need to plead it expressly.
In the circumstances of this case, I shall begin by stating the obvious which is that

the document sought to be tendered was not pleaded by the parties expressly and no doubt one of the principles dealing with admissibility of document is that such document must be pleaded.
I must be quick however that despite the requirement of pleading, the law sort of created a leeway or a soft-landing position to neutralize or relax the harsh effect that may attend a party who facts to plead a particular documents expressly. In essence, it is settled in law that once enough or sufficient facts document is not required to be pleaded expressly before same can be admitted in a judicial procedure.?

I am of the same view, the document, ?Notice of Acquisition? of the land in dispute was rightly admitted in evidence having pleaded facts in paragraphs 7 and 8 of the Amended statement of defence which warranted its admission in evidence as Exhibit D7.

The next question for consideration in this appeal is this, was Exhibit D7 served on the appellants as provided for by the provisions of Sections 28(6) (7) and 44 of the Land Use Act? Sections 28 (6) and 7 SECTION 28(6) OF THE LAND USE ACTprovides as follows:
?28(6) The revocation of a

right of occupancy shall be signified under the hand of a public officer duly authorized in that behalf by the Governor and notice thereof shall be given to the holder.?
(7) ?The titles of the holder of a right of occupancy shall be extinguished on receipt by him of a notice given under Subsection (6) or on such later date as may be stated in the notice.”
Section 44 of the aforesaid Act provides thus:
44. ?Any notice required to be served on any person shall be effectively served on him.
(a) by delivering to the person on whom it is to be served; or
(b) by leaving it at usual or last known place of abode of that person;
(c) by sending it is a prepaid registered letter addressed to that person at his usual or last known place of abode; or
(d) in the case of an incorporated company or body, by delivering it to the secretary or clerk of the company or body at its registered or principal office or sending it in a prepaid registered letter to the secretary or clerk of the company or body at that office;
(e) if it is not practicable after inquiry to ascertain the name or address of a holder or occupier

of land on whom it should be served, by addressing it to him by description of ?holder? of the premises (naming them) to which it relates, and by delivering it to some person on the premises or, if there is no person on the premises to whom it can be delivered, by affixing it or a copy of it, to some conspicuous part of the premises.? (Underlined for emphasis)

The provisions of Sections 28 and 44 of the Land Use Act, are statutory, that is an act of the legislature which are called statutes. I think, it is apt, at this juncture to be reminded of the general rules of interpreting statutes. In Barbedos Ventures Ltd vs. FBN Plc (2018) 4 NWLR Pt. 1609 NWLR P. 241 @ 295, the Apex Court stated how the provisions of a statute are to be interpreted and applied by Court. Peter-Odili J.S.C. had this to say:
?In line with the guidelines as stated by this Court when interpreting statutes which word are clear and unambiguous, the said words must be given their ordinary meaning so long as it would not lead to absurdity or in conflict with other provisions of the Constitution and effect must be given to those provisions without recourse to

any other considerations. Also to be said is that in the ruling of consideration of Acts of Parliament the statutes should be construed according to the intent of the legislature, which enacted the law. So long as the statutes are on their own precise and lacking in ambiguity, no more is necessary that to expound those words in their natural and ordinary sense. As has been consistently said, the words themselves alone and a given case declare the intention of the lawmaker. See Chief Dominic Onuorah Ifezue v. Limus Mbadugha (supra) P. 100; Oviawe v. Integrated Rubber Products Nig. Ltd (supra) page 126.?
In Ehindero vs. FRN (2018) 5 NWLR Pt. 1612 P. 301 @ 302, the general principles guiding interpretation of statutes, are that, the words of a statute are to be given their ordinary meaning. This is because the cardinal principal of law on interpretation is that a Court, when interpreting a provision of a statute, must give the words and the language used their simple and ordinary meaning. It is not permissible to go outside the words of the provision to introduce extraneous matters that may lead to circumventing or giving the provision an entirely

different meaning from what the lawmaker intended it to be. In other words, nothing must be added to, and nothing must be taken from the statute.

The appellants pleaded in paragraphs 18 and 20 of the Amended statement of claim which is at page 6 of the record of appeal thus:
?18. The claimants aver that the 1st – 5th claimants? Budo-Isale/Temioda village lands including but not limited to the areas sold and transferred to and being occupied by all other claimants in this case, were never acquired by the Kwara State Government and or any authority as required by law as no notice(s) of acquisition was/were served on and no compensation was paid to the family of the 1st – 5th claimants as the customary owners of Budo-Isale/Temioda village lands.
20. The claimants aver that on 02/07/2016, the defendants, without any prior notice and or discussion and or valid acquisition of the claimants said Budo-Isale/Temioda village lands and or any part thereof from the claimants, mobilized and deployed caterpillar/bulldozer and laborers and workmen to clear the claimants? land including the farms/crops and the economic trees thereon and

embarked on pegging the lands in preparation for laying out the lands into plots when in actual fact the lands were never acquired from the claimants and or their predecessors by the defendants and or their predecessor and or any person(s) or authority/authorities of Kwara State.?

The 1st appellant, in paragraph 11 of the statement on oath, which can be found on page 14 of the record of appeal deposed thus:
?The 1st – 5th claimants? Budo-Isale/Temioda village lands including but not limited to the areas sold and transferred to and being occupied by all other claimants in the case, were never acquired by the Kwara State Government and or any authority as required by law as no notice(s) of acquisition was/were served on and no compensation was paid to the family of the 1st – 5th claimants as the customary owners of Budo-Isale/Temioda village lands.?

The respondents, in paragraph 7 of the Amended Statement of defence, located on page 54 of the record of appeal, averred as follows, in their response to the averments contained in paragraph 18 of the appellants? statement of claim.
?In response to paragraph 18

of the claimants? statement of claim, the Defendants aver that sometimes in 2015, an expanse of land area of approximately 81 Hectares, situate around Osin Aremu Ilorin West Local Government, Area, including the land in dispute was duly acquired by Kwara State Government through the 1st defendant and compensation was paid to other land owners except the claimants who failed to show up for the collection of their compensation, after several notice were served on them.?

Alhaji Rahman Wahab, head of Acquisition and Regularization Department in the office of the Director-General of the Bureau of Lands, Kwara State, deposed in paragraph 36 of his Statement of Oath, located on page 68 of the record of appeal thus:
?I must restate here that the land in dispute was validly acquired by the Kwara State government through the 1st defendant, with the full knowledge of the claimants and other customary owners, whose lands fall within the hectares acquired by the Government, have been duly compensated, the claimants family refused to come forward for their compensation despite given them adequate notices.?

Learned Counsel to the

appellants while conceding that the provision of Sections 28 and 44 of the Land Use Act should be given literal interpretation, he further contended that it should not lead to making oral notice as envisaged by such interpretation. That any interpretation of the said provisions that would lead to absurdity, should not be permitted nor where the intendment of the lawmakers would not be achieved, should not be resorted to. The cases of VF Wordwide Holdings Ltd vs. Dana Service Ltd (2014) LPEL-24087 (CA) 1 @ 16 – 17 and Abubakar v. A. G. F. (2007) 3 NWLR Pt. 1022 P. 363 were cited in aid. It is learned counsel?s further submission that the learned judge of the lower Court erred in law when he adumbrated that Oral Notice of acquisition has not been excluded under the Provisions of Sections 28(6) (7) and 24 of the Land Use Act.
Learned Counsel went on to contended that the lower Court erred when it held that the combined effect of Exhibit ?D7? and the oral notification of the acquisition of the land in dispute to the appellant sufficiently constituted Notice of acquisition under Sections 28 and 44 of the Land Use Act. That service of valid

notice of acquisition of land under Sections 28 and 44 is absolutely necessary as held in the cases of Provost Lagos State College of Education vs. Edun (2004) All FWLR Pt. 201 P. 1628 and Yakubu vs. Imresit Bakolori Plc (2011) All FWLR Pt. 598 P. 827 @ 838 – 839.

It has been adumbrated that though a Notice of acquisition may be issued, it is a different matter for it to have been served, more so who DWI in his evidence testified that the notice admitted in evidence as D7 was in the office at that material time. That in view of the foregoing, it is very clear that no notice of acquisition of the land by the respondents was served on the appellants. That the non-service of the Notice of acquisition on the appellants rendered the acquisition null and void, and of no effect as held in the case of Olatunji vs. Mil Governor Oyo State (1994) LPELR- 14116 (CA) 1 @ 25. This Court has been urged to hold so, and resolve the Issue for determination in the appeal in favour of the appellants; and against the respondents.

H.A. Gegele Esq., of learned counsel did submit that on the pleadings and evidence adduced before the lower Court, it cannot be disputed that the

Kwara State Government acquired the parcel of land in dispute, and issued notice of acquisition therefor which had been admitted in evidence as Exhibit D7. Learned Counsel did refer to Exhibits D2, D3 and D4, and submitted that, the contents of these documents, clearly established that the appellants knew or ought to have known of the acquisition of the land by the Government, they cannot therefore claim not to have been notified of the acquisition of the land.

Learned Counsel cited and relied on the case of Olateju v. Commissioner of Land & Housing, Kwara State (2010) 14 NWLR Pt. 1213 P. 297 @ 324 to buttress the point that where a holder of title to land accepted compensation, he cannot deny notice of the same having been acquired by the Authorities. That having not cross-examined the witness for the respondents when giving evidence on the ?Notice of Acquisition? of the land in dispute, the appellants cannot, thereafter, assert that they were not served with the Notice of Acquisition before the land was acquired from the by the respondent. The principle, of law enunciated in the case ofGaji v. Paye (2003) 8 NWLR Pt. 823 P. 583 @ 605

cited to reinforce the submission supra. This Court has been urged to resolve the issue in contention against the appellants.

On page 172 of the printed record of appeal, the learned judge of the lower Court held thus:
?The Learned State Counsel argued, and rightly in my view, that in the circumstances of this Case, assuming the claimants were not so served with a Notice of Acquisition; they are stopped from denying the knowledge of the acquisition. I cannot agree the more especially in view of the decision of the Supreme Court that the essence of Notice of Acquisition is to make holder of such a land that is a subject of acquisition to be informed of such Acquisition. I hold that on the showing of the Claimants themselves, they had knowledge of the Acquisition even though a written Notice may not have been served on them.?
In the case of Stodic Ventures Ltd. Vs. Alamieyseisha & Ors (2016) 4 NWLR Pt. 1502 P. 271 @ 292 this Court per Orji- Abadua J.C.A., when dealing with acquisition of land by Government or other Authorities under the Land Use Act, held that:
?Therefore, it is trite that a party in land dispute who

asserts that land was acquired by the Government as the respondents in the instant appeal, must not only prove that the land was acquired pursuant to Sections 28(1) and (2) of the Land Use Act but also that Sub-sections (6) and (7) of the section and; Section 44 were duly complied with.?
In Olatunji vs. Military Governor, Oyo State, (1995) 5 NWLR Pt. 397 P. 286, the facts of which briefly are that the Oyo State Governor Acquired the parcel of land title of which was vested in Olatunji, the appellant. The Notice of acquisition was published in Government Gazette. The appellant?s grouse with the acquisition of the land was that no ?notice? was served on him before the acquisition was effected. The High Court of Justice, Oyo State, did not agree with him. Judgment was given in favour of the government who acquired the land. On appeal to this Court, Ibadan Division Per SALAMI JCA (as he was then), after considering the totality of the evidence, including submissions of learned counsel, held that:
?It is therefore crystal clear that respondents, particularly first, second and third, made practically no effort to serve the

appellant with the notice to revoke his right or interest on the land. The failure to effect personal service of the Land Use Act (supra) is a gross violation of or serious departure from the set out procedure. Service personally on the appellant is sine qua non of revocation of his interest in the land in dispute and cannot be dispense with. It cannot be dispensed with because it is after the service in the manner laid down by reading those two sections together that the right of the appellant is revoke. The oblique proposition by counsel for the two sets of respondents that publication in the Gazette was sufficient notice to appellant does not avail them nor hold water. That is not the intendment of the maker of the law, if it were it would have expressly said so. The publication in the Gazette is a constructive notice to the whole world and not a substitute for personal service enjoined by the enabling legislation. A very careful reading of Sections 28 and 44 of the Land Use Act would disclose that publication in Gazette and local newspapers are not mode or manner of effecting service under Land Use Act. It does appear to me that omission of publication in

the Gazette and newspaper is to further emphasise to acquiring authorities that the legislature has mind personal service only as it left the acquiring authority with no option. Publication in the Gazette or newspaper is a mere grafting of a manner or serving notice prescribed under Section 9(3) of Public Land Acquisition Law on the provisions of Section 44 of the Land Use Act. For a notice to be valid, it has to be served in accordance with the provisions of the Land Use Act. A failure to serve notice in the manner prescribed in the two sections would be tantamount to a substantial non-compliance which renders the acquisition bad.
From the foregoing adumbration it is clear the ?Notice? must be served on the person whose land is being acquired. Though Exhibit “D7? was admitted in evidence by the lower Court there is no evidence adduced by the respondents that same was served on the appellants. I do not agree with the learned judge of the lower Court that by the combined effects of Exhibits. D1, D2, D3 and D7, the notice of acquisition was served on the appellant or they ought to have been aware of the acquisition of the land.

In Olatunji vs. Military Governor, Oyo State supra, notice of acquisition of the land was even gazetted by the Government but yet it was held that such was not the type of notice envisaged by the provisions of Sections 28 (6) (7) and 44 of the Land use Act. The provisions of Sections 28 (6) (7) and 44 of the Act are clear and unambiguous. A literal interpretation of the words contained in the said provisions, do not permit the kind of decision reached by the lower Court, that, though not served any Notice of acquisition, the appellants were deemed to have been aware of the acquisition, more so, having due regard to Exhibit D1, D2, D3 and D7. I think, the decision in the case of Stodic Ventures Ltd vs. Alamieyseisha (2016) 4 NWLR Pt. 502 P. 271 @ 252 and Olatunji vs. Military Governor Oyo State (1995) 5 NWLR (Pt. 39) p. 586 @ 519, clearly settled that, other than the kind of ?Notice? contemplated by Sections 28(6) (7) and 44 of the Land Use Act, no other type of Notice of acquisition, would suffice for the acquisition of land under the Land Use Act. Therefore, in view of the foregoing adumbration, I resolve the sole issue in the appeal, in favour of

the appellants. The appeal succeeds, same is allowed. The judgment of the lower Court delivered in suit No. KWS/223/2016 on the 28th day of March, 2016, is hereby set aside. Acting under Section 15 of the Court of Appeal Act, I make an order setting aside the acquisition of the parcel of land acquired by the respondents in violation of the provisions of Sections 28 (6) (7) and 44 of the Land Use Act. I make no order as to costs.

HAMMA AKAWU BARKA, J.C.A.: The judgment of my learned brother Ibrahim Shata Bdliya JCA was availed to me in draft. I agree with the reasoning and conclusion arrived therein. I also allow the appeal, and thereby set aside the judgment of S. A. Oyinloye J., in suit No. KWS/223/2016 delivered on the 28th day of March, 2016. I also abide on all consequential orders made in the lead judgment including that as to costs

BALKISU BELLO ALIYU, J.C.A.: My learned brother Ibrahim Shata Bdiliya JCA availed me before today with the draft of the judgment just delivered. His Lordship has adequately dealt with the lone issue for determination in this appeal and I agree with His Lordship’s

reasoning and conclusion reached in finding merit in this appeal, and I adopt same as mine in also allowing the appeal. Consequently, I set aside the judgment of the Kwara State High Court in respect of SUIT NO: KWS/223/26 that was delivered on the 28th March, 2016.

Appearances:

Salman Jawondo, Esq. with him, Isiaka Abdulrasheed, Esq.For Appellant(s)

Mrs. Medinat Jimoh (ACSC) with her, O.T. David (Mrs.) (SSC) Kwara State Ministry of JusticeFor Respondent(s)

Appearances

Salman Jawondo, Esq. with him, Isiaka Abdulrasheed, Esq.For Appellant

AND

Mrs. Medinat Jimoh (ACSC) with her, O.T. David (Mrs.) (SSC) Kwara State Ministry of JusticeFor Respondent