ALHAJI BUKAR BOLORI v. ALHAJI BUKAR GONIMI & ANOR (2014)

ALHAJI BUKAR BOLORI v. ALHAJI BUKAR GONIMI & ANOR

(2014)LCN/7375(CA)

In The Court of Appeal of Nigeria

On Thursday, the 10th day of July, 2014

CA/J/339/2010

RATIO

EVIDENCE: BURDEN/ONUS OF PROOF; WHETHER IT IS HE WHO ALLEGES THAT HAS THE ONUS OF PROOF

APPEAL: ARGUMENT ON APPEAL; ON WHAT SHOULD THE ARGUMENT ON APPEAL BE BASED

The argument on appeal should be based not only on the grounds of appeal and the issues formulated for determination by learned Counsel, but on the pleaded facts. See Idahosa vs. Oronsaye (1959) 4 FSC 166 at 170-171; Atanda & Ors. vs. Ajani & Ors. (1987) 6 SCNJ (Pt.2) 193 at 205-206; Balogun vs. Obisanya (1956) 1 FSC 22 at 23 and IBWA vs. Imano Ltd. (2001) 3 SCNJ 160 at 184. per. JOSEPH TINE TUR, J.C.A.

PRACTICE AND PROCEDURE; PLEADINGS; WHETHER PARTIES ARE BOUND BY THE PLEADINGS AND WHETHER THE RELIEF GRANTED MUST BE CLAIMED IN THE PLEADINGS AND PROVED AT THE TRIAL

EVIDENCE:A DEFENCE OR EVIDENCE OBTAINED FROM A PARTY BY HIS ADVERSARY DURING EVIDENCE-IN CHIEF OR UNDER CROSS EXAMINATION; WHETHER A DEFENCE OR EVIDENCE OBTAINED FROM A PARTY BY HIS ADVERSARY DURING EVIDENCE-IN-CHIEF OR UNDER CROSS-EXAMINATION CANNOT BE USED AGAINST THAT PARTY IF THE MATERIAL FACTS RELATING TO THE EVIDENCE OR DEFENCE WAS NOT PLEADED BY THE PARTY SEEKING TO USE IT

LAND LAW: DECLARATION FOR TITLE OF LAND; WHETHER ONCE THE LINE OF SUCCESSION TO DISPUTED LAND IS NOT SATISFACTORILY PLEADED AND ESTABLISHED , THE CLAIM FOR DECLARATION FOR TITLE OF LAND OUGHT TO FAIL
It has been held that once the line of succession to disputed land is not satisfactorily pleaded and established, but there are gaps or nexus not established by the pleadings, oral and documentary exhibits, the claim ought to fail. See Yusuf vs. Adegoke (2007) 11 NWLR (Pt.1045) 332 at 379; Mogaji vs. Cadbury (Nig.) Ltd. (1985) 2 NWLR (Pt.7) 393; Onibudo vs. Akibu (1982) 7 SC 60 at 84-85. per. JOSEPH TINE TUR, J.C.A.

JUSTICES

TIJJANI ABDULLAHI Justice of The Court of Appeal of Nigeria

JOSEPH TINE TUR Justice of The Court of Appeal of Nigeria

ELFRIEDA O. WILLIAMS-DAWODU Justice of The Court of Appeal of Nigeria

Between

ALHAJI BUKAR BOLORI Appellant(s)

AND

1. ALHAJI BUKAR GONIMI
2. BULAMA MITTI Respondent(s)

JOSEPH TINE TUR, J.C.A. (Delivering the Leading Judgment): The decision of Hon. Justice I.S. Bdliya, J., (as he then was) now a Justice of the Court of Appeal, delivered on 5th October, 2009 is under challenge in this Court. The Notice of Appeal was filed on 7th October, 2009. Appellant’s brief of argument was field on 11th July, 2012. The respondents filed their Joint brief on 6th June, 2013. The claim before the lower Court was in respect of ownership to fourty-five (45) plots of land each measuring 100ftx50ft along Baga Road, Maiduguri, Borno State. Pleadings were filed and exchanged. The 1st respondent pleaded he derived title to the disputed plots by purchase from the 2nd respondent – Bulama Mitti, in the year 1991 at the total cost of N250,000.00 (Two hundred and fifty thousand Naira) only.

The appellant pleaded on the other hand that the Borno State Government acquired title to the land from the original owners in 1977 and paid compensation since 1978. When the appellant obtained title from the Borno State Government the original owners still demanded compensation which the appellant paid in 1978. The plots of land are covered by a Statutory Right of Occupancy No.BO/86 dated 25th December, 1977. The appellant built a factory on part of the land. The portion in dispute is that which is yet to be developed by the appellant.

The respondent sought the following remedies in the Court below against the appellants:

“14. WHEREOF the plaintiff claims from the defendants jointly and severally as follows:

(a) A declaration that the plaintiff has the right of possession and occupation of the forty five (45) plots of land measuring 100 by 50ft each being, lying and situate along Baga Road, Maiduguri.

(b) An order of injunction restraining the defendants whether by themselves, agents, servants, privies or howsoever from further trespassing into the plots of land, alienating the plots of land in anyway so ever or erecting any structure temporary or permanent on the plots of land.

(c) A declaration that the trespass by the defendants unto the 45 plots of land and claim of adverse title to same is wrongful, illegal and unconstitutional.

(d) The cost of the suit.”

Alhaji Bukar Gonimi (Pw1), Bulama Sale (Pw2) and Bulama Isa Adam (Pw3) testified on behalf of the 1st respondent. Hassan Lawan (Dw1); Bulama Danhat Idris (Dw2); Alhaji Mala Maidugu (Dw3); Paul D. Ngadda (Dw4) testified in support of the appellant.

Exhibits “A”, “B” and “C” were put in at the trial. Learned Counsel submitted written addresses which the learned trial Judge considered before holding at page 92-93 of the printed record as follows:

“In sum, judgment is entered in favour of the plaintiff as follows:

(a) A declaration that the plaintiff has the right of possession and occupancy of the forty-five (45) plots of land measuring 100’x50′ each, being lying and situate along Baga Road, Maiduguri is hereby granted.

(b) An order of injunction restraining the defendants, their agents, servants, privies or howsoever from further trespassing into the plots of land, alienating the plots in any way so ever or erecting any structure, temporary or permanent on the land is hereby granted.

(c) A declaration that the trespass by the defendants onto the forty-five (45) plots and claim of title is wrongful, illegal is hereby granted.

(d) Cost to the suit is hereby assessed at N250,000.00 against each of the defendants same is hereby granted to the plaintiff.”

The learned Counsel to the appellant formulated the following issues for determination:

“1. Did the 1st respondent plead and prove by credible evidence, his root of title to the land in dispute through traditional history and/or inheritance in accordance with the requirement of the law as found by the trial Court?

2. Having regard to the facts pleaded by the parties and the issues thereby joined, whether the learned trial Judge was correct in law when he proceeded to consider and decide on non-service of notice of revocation of the land in dispute on the 2nd respondent by the Government of Borno State in accordance with the provisions of the Land Use Act, 1978, as a vitiating factor leading to the nullification of the Certificates of Occupancy granted to the Appellant?

3. Whether the learned trial Judge had the power to pronounce on the validity of the issuance of Exhibits “A” and “B” by the Government of Borno State when the holder (Pioneer Enamel Ware Industries Ltd.) was not made a party to the proceedings.

4. Whether the learned trial Judge was right in holding that the plaintiff had proved exclusive possession of the land in dispute to be entitled to his claim in trespass.

5. Whether from the facts pleaded and the evidence led thereon the judgment of the trial Court could be sustained.”

The 1st and 2nd respondents’ issues for determination read as follows:

“1. By the state of pleadings and evidence, whether it can be said that the 1st respondent did not prove his root of title to the land in dispute.

2. Considering the pleadings of the contending parties and evidence adduced in support of same, whether it can be said that compulsory acquisition of the land in dispute was not an issue before the trial Court.

3. Whether the learned trial Judge was right in pronouncing on the validity of Exhibits “A” and “B” being documents of right of Occupancy over the disputed land in the name of Pioneer Enamel Ware Industries Limited on behalf of which the matter was defended by the Appellant.

4. Whether from the pleadings and evidence on record, it can be said that the plaintiff/1st respondent had proved his claim in trespass before same was granted by the trial Court.

5. Based on the pleadings and evidence adduced therein, whether it can be said that the judgment of the Court below cannot be sustained.”

My humble view is that there is no need to proliferate issues for determination upon a reading of the pleadings coupled with the oral and documentary exhibits tendered in the lower Court. It can be seen that the 1st respondent founded the action on trespass, coupled with injunction and cost of the suit. Paragraph 14(a) of the Statement of Claim further sought a declaration that the 1st respondent was entitled to the right of possession and occupation of the forty five (45) plots of land in dispute. The appellant also pleaded he is entitled to the plots of the land by virtue of the Statutory Right of Occupancy No.BO/86 of 25th December, 1977. The appellant supports his title with acts of occupation since 1977. Title is thus put in issue. See Kponuglo vs. Kodadja 2 WACA 24; Amakor vs. Obiefuna (1974) 4 UILR 476 at 481; Bamishebi vs. Faleye (1987) 4 SCNJ 1 at 4-5; Agboola vs. UBN & 2 Ors. (2011) 2 & 3 MJSC (Pt.2) 150 at 186 paragraphs “B”-“C”. What the learned trial Judge (as he then was) was to do in the circumstance was to consider the respective titles of the parties to the land in dispute. See Okorie vs. Udom (1960) 5 FSC 162 at 165 and Borno Holding Co. vs. Bogoco (1971) 1 All NLR 324 at 329. In view of what I have said the issues raised by the appellant for determination can be compressed into one, namely, did the 1st respondent prove title to the disputed plots to be entitled to the judgment of the lower Court? That is the crux of the matter.

The appellant who is aggrieved with the judgment of the trial Court is to formulate what he considers to be the issues for determination. The respondents are to answer the points raised in the appellants’ brief, and to show why the appeal should be dismissed. See Order 18 rule 3(1) and 4(2) of the Court of Appeal Rules, 2011 and Atanda & Ors. vs. Akanji & Ors. (1989) 2 NSCC (Pt.2) 511 at 537. For the sake of convenience I shall consider the five issues together.

ISSUES ONE, TWO, THREE, FOUR AND FIVE:

Learned Counsel to the appellant took this Court through the pleadings, oral and documentary exhibits in order to show that nowhere did the respondents plead who founded the land, in what manner, when, and the names of the successive ancestors on whom the lands devolved through unbroken chain or in such way that there is no gap which cannot be explained, citing Eze vs. Atasie (2000) FWLR (Pt.13) 2180 at 2193; Akinloye vs. Eyiyola (1968) NMLR 92 at 95; Okoko vs. Dakole (2006) 14 NWLR (Pt.1000) 401 at 422; Bulor vs. Oboro (2000) 8 NWLR (Pt.714) 25; Ireagbara vs. Ufomadu (2009) 6 SCNJ 183 at 193; Arum vs. Nwobodo (2004) 9 NWLR (Pt.878) 458 and Yusuf vs. Adegoke (2007) All FWLR (Pt.385) 384 at 408-410. Learned Counsel argued that the onus of proving title was on the 1st and 2nd respondents. Counsel referred to Mini Lodge vs. Ngei (2009) 12 SCNJ 93 at 114; Fagunwa vs. Adibi (2004) 7 SCNJ 322 at 340-341.

It was further argued that the 1st respondent must prove exclusive possession: Ngene vs. Igbo (2000) 4 NWLR (Pt.651) 131 at 143 and Obijuru vs. Ozims (1985) 4 SC (Pt.1) 142 at 2000. Counsel submitted that the learned trial Judge should not have proceeded to determine the issue of whether there was service or non-service of a notice of revocation of the customary rights of the 2nd respondent by the Borno State Government in accordance with the provisions of the Land Use Act, 1978 vitiate the appellant’s Statutory Right of Occupancy. It was contended that the applicable law at 1977 when the customary rights of the villagers was revoked was not the Land Use Act of 1978 yet to come into effect: Oba J.A. Aremu 11 vs. S.F. Adekanye (2004) 7 SCNJ 218 at 231; Ada vs. National Youth Service Corps (2004) 7 SCNJ 374 at 379 and Utih vs. Onoyiuwe (1991) 1 NWLR (Pt.166) 166 at 220 and 225. Besides, the issue of service of revocation notice of the customary right of occupancy of the 2nd respondent’s land did not arise on the pleadings: Marine & General Assurance Company Plc vs. Overseas Union Insurance Ltd. (2006) All FWLR (Pt.307) 984 at 1006; Order 25 rule 6(1) and (2) of the High Court (Civil Procedure) Rules, 2004 and Nsirim vs. Onuma Ltd. (2001) 3 SCNJ 142 at 154-155. Thus the learned trial Judge had no business in the circumstances to have pronounced on the validity of Exhibits “A” and “B” particularly when the holder, Pioneer Enamel Ware Industries Ltd. was not a party to the suit: Babatola vs. Alaworoko (2001) 6 SCNJ 146 at 159 and Amadi vs. Chinda (2009) 4 SCNJ 131 at 141.

Learned Counsel contended that by 1991 when the 1st respondent purchased the plots from the 2nd respondent, there was already a valid title to the plots in favour of the appellant. The party with a valid title to the plots is deemed to be in exclusive possession, and is the only person that can maintain an action in trespass, argued learned Counsel, citing Dr. E.A. Adebo vs. Saki Estates Ltd. (1999) 5 SCNJ 156 at 164-165. Long possession without proof of a valid title would not, in this circumstance, defeat the valid title and possession of the appellant: Oseni vs. Bajulu (2009) 12 SCNJ 74 at 90. Learned Counsel urged that the judgment of the lower Court should be set aside because the 2nd respondent was not the owner of the land compulsorily acquired by the Borno State Government. If he was, he would have challenged the Government in Court for non payment of compensation. Moreover, he would have appeared in the lower Court to testify in this case, but that was not the situation. Learned Counsel referred to Audu vs. Guta (2004) 4 NWLR (Pt.864) 482 at 485 and Ezemba vs. Ibeneme (2004) 7 SCNJ 136 at 153 and urged that this appeal should be allowed.

The respondents’ learned Counsel referred to the pleadings, oral and documentary exhibits tendered in the Court below to show how the 1st respondent derived title from the 2nd respondent by purchase. That the 2nd respondent had derived title by inheritance from his forefathers who had settled on the land about hundred years ago. Reference was made to paragraph 8 of the 1st respondent’s pleadings in support of Counsel’s argument and to the evidence of Pw3. Counsel submitted that though the 2nd respondent’s father’s name was not specifically pleaded nor mentioned by Pw3, that was immaterial because the witness was categorical that the land was founded by Kellu Alirom who first cleared and settled on it during the time of Rabeh. After his death the land was inherited by the 2nd respondent. Counsel drew attention to paragraphs 2-4 of the Statement of Defence filed by the 2nd respondent. Counsel contended that the 2nd respondent had by paragraphs 2-4 of his defence admitted the fact of selling the plots to the 1st respondent. A crucial fact which is admitted, argued Counsel, needs no further proof. It was also contended that the testimonies of Pw1 and Pw3 shows that indeed, it was the 2nd respondent’s ancestors who first founded the land in dispute. Any contradiction in their oral evidence was immaterial, argued learned Counsel, citing Wachukwu vs. Onwunwanne (2011) 14 NWLR (Pt.1266) 1 at 27. The learned trial Judge could believe in whole or in part the evidence of a witness: Amadi vs. Amadi (2011) 15 NWLR (Pt.1271) 437 at 462 and Koiki vs. State (1976) 4 SC 107. Learned Counsel argued that trespass was proved: New-breed Organization Ltd. vs. Erhomosele (2008) All FWLR (Pt.307) 1078 at 1188. It was further argued that compulsory acquisition of the plots was an issue in dispute by paragraphs 10-12 of the appellant’s pleadings. Counsel referred to paragraph 11 of the 1st respondent’s statement of claim to show that the alleged acts of trespass occurred in the month of February, 2008 hence the Land Use Act, 1978 was applicable to the facts of this case. That by 1976 no cause of action had arisen for the 1st respondent to seek redress in a Court of law. A cause of action would not exist when nothing had happened to entitle the 1st respondent to claim relief or to sue the appellant. Reference was made to Adesina vs. Ojo (2012) 10 NWLR (Pt.1309) 552 at 569-570. Learned Counsel argued that it is the law in force or existing at the time a cause of action arose that is applicable: P.D.P. vs. INEC (2012) 7 NWLR (Pt.1300) 538 at 559-560; Popoola vs. Babatunde (2012) 7 NWLR (Pt.1299) 302 at 329; Goldmark (Nig.) Ltd. vs. Ibafon Co. Ltd. (2012) 10 NWLR (Pt.1308) 291 at 358 and Adesina vs. Ojo (2012) 10 NWLR (Pt.1309) 552 at 570. The contention by learned Counsel is that having introduced the issue of acquisition and compensation being paid to the owners of the land by the Borno State Government, it must be proved that this was in accordance with Section 28(1), (2)(b) and Section 44 of the Land Use Act, 1978. Counsel submitted that there was no need to file a reply in respect of the Statement of Defence by virtue of Order 25 rule 10 of the High Court (Civil Procedure) Rules, 2004; Egesimba vs. Onuzurike (2002) 9-10 SC 1 at 8; Suntai & Anor. vs. Tukur (2003) FWLR (Pt.157) 1128 at 1160; Abubakar vs. B.O. and A.P. Ltd. (2007) 18 NWLR (Pt.1066) 319 at 382. Since the appellant introduced the issue of revocation and acquisition of the plots in dispute, he who asserts must prove, argued learned Counsel to the respondents: Udemba vs. Morecab Fin (Nig.) Ltd. (2003) 1 NWLR (Pt.800) 96 at 112; Mulima vs. Gorinam (2004) All FWLR (Pt.228) 751 and Dankula vs. Shagamu (2008) All FWLR (Pt.413) 1280 at 1385 and Nwaru vs. Okoye (2009) All FWLR (Pt.45) 815 at 840; Adedeji vs. Oloso (2007) 5 NWLR (Pt.1026) 133 at 155.

It was contended by Counsel that where it is proved that the original owner or a title holder of property is a party, the burden of proving that that party has been divested of the land rests upon that person asserting, in this case, the appellant: Obuwale vs. Williams (1996) 10 NWLR (Pt.477) 46 and Adole vs. Gwar (2008) All FWLR (Pt.423) 1213 at 1238. That the notice of revocation was never tendered and admitted at the trial hence the learned trial Judge was right in pronouncing on the validity of Exhibits “A” and “B”. Though the appellant was sued in his personal capacity he had defended the suit for and on behalf of his company, namely, Pioneer Enamel Ware Industries Ltd. Learned Counsel referred to the pleadings and evidence adduced at the trial and submitted that the appellant being the Chairman and Director, represented the mind of the company, argued learned Counsel. Reference was made to UTC (Nig.) Plc vs. Philips (2012) 6 NWLR (Pt.1295) 126 at 170-171; Delta Steel (Nig.) Ltd. vs. A.C.T. Incorporation (1999) 4 NWLR (Pt.597) 53. The appellant put in Exhibits “A” and “B” as evidence of ownership of the plots in dispute. Statutory Right of Occupancy does not drop from heaven hence the need to pronounce on its validity, citing Okunnowo vs. Molaju (2011) All FWLR (Pt.590) 1386 at 1400 and Registered Trustees of Apostolic Church vs. Olowoseni (1990) 6 NWLR (Pt.158) 511. It was also contended that if the company chose not to be a party in the proceedings, she would be bound by the result of the judgment: Chief of Army Staff vs. Lawal (2012) 10 NWLR (Pt.1307) 62 at 74. The order setting aside Exhibits “A” and “B” was a consequential relief: Akapo vs. Hakeem-Habeeb & Ors. (1992) 6 NWLR (Pt.247) 266 at 304; IBB Ind. Ltd. vs. Mutunchi Co. (Nig.) Ltd. (2012) 6 NWLR (Pt.1297) 487.

Learned Counsel contended that a person who has title to the land, though not in physical occupation, is deemed to be in constructive possession: Carrena vs. Akinlase (2008) All FWLR (Pt.444) 1403 at 1422; Adewole vs. Dada (2003) 4 NWLR (Pt.810) 368; Asiniola vs. Fatodu (2009) 4 NWLR (Pt.1136) 184 at 198 and Ezenwa vs. Atta (2004) All FWLR (Pt.202) 1858. Having not proved that the rights of the customary owners were revoked and paid compensation, the learned trial Judge was right to have pronounced on the validity of the Certificates of Occupancy tendered by the appellant. Exhibit “C” was only an assessment of compensation to be paid by the owners of the land. There was no evidence that the 2nd respondent was paid compensation when his customary title to the land was revoked by the Government of Borno State, argued learned Counsel, citing Adedeji vs. Oloso (2007) 5 NWLR (Pt.1026) 133 at 165.

On the whole, the learned Counsel urged that this appeal should be dismissed and the judgment of the learned trial Judge should be affirmed.

I shall proceed by stating that this case was fought in the lower Court on pleadings. The documentary exhibits should have been used as acid test by the learned trial Judge to evaluate the oral evidence adduced by the parties. See Fashanu vs. Adekoya (1974) 6 SC 83; Olujinle vs. Adeagbo (1988) 2 NWLR (Pt.75) 238 at 253; Oscar Reynard vs. Williams Allan (1934) 2 WACA 52 at 53 and Kimdey vs. Military Governor of Gongola State (1988) 2 NWLR (Pt.77) 445 at 473. Secondly, the facts and circumstances of a case determine the plethora of authorities to be cited by Counsel, either in the lower Court or in the Court of Appeal. See Adegoke Motors Nig. Ltd. vs. Adesanya (1989) 3 NWLR (Pt.109) 250 at 265.

It is settled law that he who alleges or makes an allegation has the onus of proof: Peter Obiaku vs. Ignatus Ekesiobi (2003) FWLR (Pt.166) 661; Akinfosile vs. Ijose (1960) 5 FSC 192 at 198 and Tsokwa vs. UBN (1996) 12 SCNJ 445 at 481.The onus of proving title to the disputed plots rested squarely on the 1st respondent in the lower Court and in this Court. Since the 1st respondent traced his root of title to the disputed plots to the 2nd respondent by purchase at the cost of N250,000.00 (Two hundred and fifty thousand Naira) only, the 2nd respondent has to prove his title to the disputed plots.

No where did the 2nd respondent plead how he derived title to these plots by inheritance from his forefathers.

To “inherit” is to receive (property) from an ancestor under the laws of intestate succession upon the ancestor’s death. See Black’s Law Dictionary, 9th edition, page 853. In Chinweze vs. Masi (1989) All NLR 1 the Supreme Court held per Oputa, JSC at page 13 that a claimant must first acquire the title of an heir before the issue of inheritance arises. The 2nd respondent pleaded as follows:

“1. Paragraphs 1-10 of the Statement of Claim are admitted.

2. The 2nd defendant is not in a position to admit or deny the allegation of fact that the 1st defendant claimed title to the land which is adverse to that of the plaintiff and therefore puts the plaintiff to the strictest proof.
He however, deny being adamant and nonchalant as he had at all the times material to this action cooperated in defending the plaintiff’s title and interest in the land since he was the person who sold it to the plaintiff.

3. Paragraphs 12 and 13 are denied. In answer to the said paragraphs the 2nd defendant avers that being the person who sold the land to the plaintiff he never contemplated entering it for the purposes stated therein and as such he did not and could not have caused damages or injuries to the plaintiff.

4. WHEREOF the 2nd defendant shall contend at the hearing of the suit that the plaintiff is entitled to all the reliefs claimed in paragraph 14 of his statement of claim against the 1st defendant only and to the exclusion of himself the 2nd defendant.”

Section 51(1) of the Land Use Act No.6 of 1978 defines a “customary right of occupancy” to mean, “the right of a person or community lawfully using or occupying land in accordance with customary law and includes a customary right of occupancy granted by a Local Government under this Act.” The 2nd respondent did not plead and prove the fact that he was a person lawfully using or occupying land in accordance with customary law which includes a customary right of occupancy issued by a Local Government “under this Act” from the coming into effect of the Land Use Act on 29th March, 1978 or prior to this date. In Sunday Piaro vs. Chief Wopun Tenalo & Anor. (1976) 1 FNLR 229, Obaseki, Ag. JSC held at page 234 that where the plaintiff claimed that the land in dispute was the communal lands of Bomu people he must plead and prove the following:

“We also observed that the pleadings and the evidence have distinguished themselves more by the material facts they have omitted than by the facts pleaded or led in evidence before the Court.
It is now settled law that there are 5 ways in which ownership of land may be proved and only two of the 5 methods were adopted by the respondents in this case. They are:

(1) Proof by traditional evidence, (Abinabina vs. Chief Enyimadu (1953) A.C. 207 at 215-216); and

(2) Proof by acts of ownership. This is normally provided by acts of person or persons claiming the land such as selling, leasing, renting out all or part of the land or farming on it or a portion of it or otherwise utilizing the land beneficially; all evidence of ownership provided they extended over a sufficient length of time and are numerous and positive enough to warrant the interference that he is the true owner, Ekpo vs. Ita, 11 NLR 68 at 69.
We find however in the pleadings and the evidence a total absence of facts about (1) the founding of Bomu village in general and Kporo, the land in dispute, in particular; (2) the persons who founded the land and exercised original acts of ownership, and (3) the persons who have held title or on whom title has developed in respect of the land since the founding before the 1st plaintiff/respondent acquired control of the land on behalf of the community.
All these facts which are necessary for proper determination of the issue raised are not provided by the sweeping assertion that “the land is communal land of Bomu people.” This leaves the traditional evidence in the air and it is fatal to plaintiffs’ claim. See F.M. Alade vs. Lawrence Awo (1975) 4 SC 215 at 229. The demeanour of witnesses giving traditional evidence is no test of the truth or falsity of the evidence.
That statement that the land is the communal land of Bomu people can only be a conclusion or finding by the Court after proper assessment and evaluation or appraisal of the evidence adduced before it. The proper approach is to consider the activities of the parties in the exercise of their rights and decide whether it accords with the evidence of traditional history (Adenle vs. Oyegbade (1967) NMLR 136 at 138).”

Furthermore, where an individual claims that his ancestor first founded the land, example, by deforestation, he has to plead, and prove these facts at the trial.

In Onadehin & Ors. vs. Sonuga & Ors. (1974) 1 All NLR (Pt.2) 452 the Supreme Court held at 461-462 that:

“From the above findings, it is clear that the issue of settlement, which is nothing more than actual physical occupation of the land by the plaintiffs, was thoroughly dealt with by the learned trial Judge. We are not in any doubt that his finding in this respect covers both the case for settlement and for the possession on which the claim for trespass was predicated. Therefore, it would not be correct for the Western State Court of Appeal to say that the evidence in support of the settlement was not considered at all. It is manifest that the dual function of this crucial testimony has also made the learned trial Judge fall into the error of stating that he need not consider the issue of settlement when he has, in fact, considered it adequately and thoroughly.
After all, the traditional history given in support of the title of a family to its land usually traces the title to an individual founder who first acquired the land. This acquisition might be by settlement which, in that con, is no more than a permanent occupation of the land by the founder and the clearing of part of it for his own use and, if he has a family, for the use of his family as well. Consequently, when the plaintiffs averred in their statement of claim that their ancestor, Ogbodo “had settled on and farmed the land for many years before his death” and that “the family have been in possession of the whole land since it was settled upon by the said ancestor”, all they meant was that the Ogbodo family had been in continuous possession of the land since it was occupied by their ancestor, Ogbodo. Therefore, any finding as to the plaintiffs’ possession of the land in dispute would, in these circumstances obviously include a finding as to the settlement.”
See also Ohiaeri vs. Akabeze (1992) 2 SCNJ (Pt.1) 76; Igbojimadu vs. Ibeabuchi (1988) 1 NWLR (Pt.533) 179 at 190-191.

The authorities of Obiora vs. Duru (1994) 8 NWLR (Pt.365) 631; Kalio vs. Woluchem (1985) 1 NWLR (Pt.4) 610 at 628-629; Alade vs. Awo (1975) 4 SC 215 shows what a person relying on inheritance which is traditional evidence, ought to plead and prove at the trial to establish title to disputed lands. But all these are lacking in the pleadings of the 1st and 2nd respondents. The names of the ancestors that first founded the land and exercised acts of possession were not pleaded:

Akinloye vs. Eyiyola (1968) NMLR 92; Owoade vs. Omitola (1988) 5 SCNJ 1 at 11 and Total Nigeria Ltd. vs. Nwako & Ors. (1977) 5 SC 1. Nevertheless, the learned Counsel to the appellant allowed the witnesses to testify on un-pleaded matters. And the learned trial Judge did not expunge evidence on un-pleaded facts when he came to write the judgment.

The Court and the parties are bound by the pleadings. See African Continental Seaways Ltd. vs. Nigeria Dredging Road & General Works Ltd. (1977) 5 SC 235 at 250 and Temco Eng. Co. Ltd. vs. S.B.N. Ltd. (1995) 5 NWLR (Pt.397) 607. The relief granted must be claimed in the pleadings and proved at the trial. See Ajayi vs. Texaco Nig. Ltd. (1987) 3 NWLR (Pt.62) 577 at 593 paragraphs “D” – “E”; Archurhu vs. Delta Steel Co. Ltd. (1997) 3 NWLR (Pt.491) 82 at 92. If that is not so, the award will not stand. See Hassan vs. Maiduguri Management Committee (1991) 8 NWLR (Pt.212) 738 at 749 paragraph “D”.
Alhaji Bukar Gonimi the 1st respondent, did not counterclaim seeking that the Statutory Rights of Occupancy issued by the Borno State Government to the appellant should be revoked hence the learned trial Judge had no business to delve into the issue of its validity. To grant a relief not asked for is to act without jurisdiction. See Ekpenyong vs. Nyong (1975) 2 SC 71; Nigerian Housing Development Society vs. Mumuni (1977) 2 SC 57; Obayagbona vs. Obazee (1972) 5 SC 247/254 and Mangibo vs. Oguide (2009) 4 NMLR 357 at 362.The judgment of the learned trial Judge (as he then was) was founded or anchored on inadmissible evidence which the learned trial Judge should have expunged at the stage of writing judgment. See Emegokwe vs. Okadigbo (1973) 4 SC 113; Shell BP vs. Abechi (1974) 1 NMLR 202 and N.I. vs. Thompson Organization (1969) NMLR 99. Neither should the learned trial Judge have considered the issue of revocation of the customary rights of the 2nd respondent and payment of compensation when that was never an issue in the respondents’ pleadings.

A defence or evidence obtained from a party by his adversary during evidence-in-chief or under cross-examination cannot be used against that party if the material facts relating to the evidence or defence was not pleaded by the party seeking to use it. See Wayne vs. Ekwunife (1989) 12 SCNJ 99 at 112; Dina vs. NNN Ltd. (1986) 2 NWLR (Pt.22) 353 at 364; George vs. UBA (1972) 1 All NLR (Pt.2) 347; George vs. Dominion Flour Mills Ltd. (1963) 1 All NLR 73; Okagbue vs. Romaine (1982) 1 All NLR (Pt.1) 103 at 112-115; Stee Transport Ltd. vs. Oluwasegun (1973) 3 ECSLR 1177 at 1183 and Ihenache vs. Chigere (2004) All FWLR (Pt.226) 204.
It has been held that once the line of succession to disputed land is not satisfactorily pleaded and established, but there are gaps or nexus not established by the pleadings, oral and documentary exhibits, the claim ought to fail. See Yusuf vs. Adegoke (2007) 11 NWLR (Pt.1045) 332 at 379; Mogaji vs. Cadbury (Nig.) Ltd. (1985) 2 NWLR (Pt.7) 393; Onibudo vs. Akibu (1982) 7 SC 60 at 84-85. The 1st respondent had the onus of proving the title of his Vendor, namely, 2nd respondent which he woefully failed to do at the trial. See Alhaji Adebola Olakunle Elias vs. Chief Timothy Omo-Bare (1982) 5 SC 13.

In allowing this appeal, I shall adopt the words of Irikefe, JSC (as he then was) in Ibrahim vs. Shagari (1983) 14 NSCC 431 wherein his Lordship held at page 435 lines 5-8 that, “…the evidence available to him was so palpably unreliable as to reduce the proceedings to a farce.” The pleadings of the respondents in the Court below, and the oral evidence adduced at the trial, was a farce, and undoubtedly vague. The respondents Counsel’s argument on appeal has made the case, in the words of Aniagolu, JSC, in Sabiya vs. Tukur & Ors. (1983) 14 NSCC 559 at 561 lines 39-44, “…even more vague – a woolly mixed bag of incomprehensible assertions…”

Accordingly, this appeal richly deserves to be allowed. The judgment of the trial Court is set aside. In its place I direct that the suit in the lower Court be, and is hereby dismissed. I ward N50,000.00 costs to the appellant.

TIJJANI ABDULLAHI, J.C.A.: I have had the advantage of reading in advance the draft of the judgment of my learned brother, J.T. Tur, JCA, just delivered. His Lordship has meritoriously and extensively treated all the live issues that call for determination in this appeal. I entirely agree with his reasoning and conclusions arrived thereat. I adopt them as mine. I too allow the appeal in the terms ably set out in the lead judgment. I abide by all the consequential orders therein contained including order as to costs.

ELFIREDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A.: I have had opportunity of a preview of the lead judgment just read by my learned brother, JOSEPH TINE TUR, JCA. I am in entire agreement with the reasoning and conclusions therein. In support thereto I state thus:

This Court stated the position of the law to the effect that a Court lacks the vires or jurisdiction to grant a party an unclaimed relief in the case of INTERNATIONAL BEER & BREWERIES IND. & ANOR V. MUTUNCI COY. LTD. 2001 LPELR-4329 CA. and cited therein the judgment of the apex Court in the case of AGU V. ODOFIN 1992 3 SCNJ 173.

Further, it is necessary to state and as clearly held by my learned brother that the law is trite that a declaratory relief is a discretionary remedy which will be refused where the Claimant fails to establish his alleged entitlement to the satisfaction of the Court. It is incumbent on the party claiming to be entitled to the declaration to satisfy the Court by evidence. ……..that he is entitled to the decision. See the cases of DIM V. ENEMUO 2009 4-5 S.S PT.111 P.69 and OGOLO V. OGOLO 2003 12 S.C. PT.1 P.73.

For these and the fuller reasons given by my learned brother in the lead judgment I hereby allow this appeal.

I abide by the orders made therein.

Appearances

P.A. Bello, Esq.For Appellant

AND

Respondents absent and unrepresentedFor Respondent