ALHAJI UMAR IDRIS v. KACHALLA BUBA SEINE
(2019)LCN/12817(CA)
In The Court of Appeal of Nigeria
On Thursday, the 7th day of March, 2019
CA/YL/121/2018
RATIO
COURT AND PROCEDURE: DECLARATORY RELIEF
“Declaratory reliefs are not granted as a matter of course and on a platter of gold. They are only granted when credible evidence has been led by the person seeking the declaratory relief. A declaratory relief will be granted where the plaintiff is entitled to the relief in the fullest meaning of the word. It is a requirement of the law that the person seeking the declaratory relief must plead and prove his claim for declaratory relief without relying on the evidence called by the defendant. Such declaratory relief is not granted even on admission by the defendant. However, there is nothing wrong in a plaintiff taking advantage of any evidence adduced by the defence which tends to establish the plaintiff?s title. See Anyanru vs. Mandilas Ltd (2007) 4 SCNJ 288, Chukwumah vs. S.P.D.C (Nig) Ltd (1993) LPELR-864 SC page 64 – 65, Matanmi & Ors vs. Dada & Anor (2013) LPELR-19929, Oguanuhu vs. Chiegboka (2013) 2 SCNJ 693 and Akinboni & Ors vs. Akintope & Ors (2016) LPELR-40184.” PER JAMES SHEHU ABIRIYI, J.C.A.
COURT AND PROCEDURE: WHERE EVIDENCE ON PLEADINGS IS FIRMLY ESTABLISHED
“The law on pleadings is firmly established. And the law is that parties are strictly bound by their pleadings and they are not allowed to make a case that is at variance with their pleadings. Evidence which is at variance with the averments in the pleadings goes to no issue. See Buhari vs. Obasanjo (2005) 2 NWLR (Pt. 910) 241, Makinde vs. Akinwale (2000) 1 SC 89 and Allied Bank (Nig) Ltd vs. Akubueze (1997) 6 NWLR (Pt. 509) 374.” PER JAMES SHEHU ABIRIYI, J.C.A.
JUSTICES
OYEBISI FOLAYEMI OMOLEYE Justice of The Court of Appeal of Nigeria
JAMES SHEHU ABIRIYI Justice of The Court of Appeal of Nigeria
SAIDU TANKO HUSSAINI Justice of The Court of Appeal of Nigeria
Between
ALHAJI UMAR IDRIS Appellant(s)
AND
KACHALLA BUBA SEINE Respondent(s)
JAMES SHEHU ABIRIYI, J.C.A. (Delivering the Leading Judgment):
This appeal is against the judgment delivered on 29th June, 2018 in the High Court of Taraba State sitting at Gembu. In the High Court (Court below), the Appellant was the plaintiff. The Respondent was the defendant/counterclaimant.
The claim of the Appellant against the Respondent at the Court below was for a declaration of title to land, an order of the Court revoking the customary right of occupancy number 575 issued to the Respondent and costs of the suit.
On his own part, the Respondent counterclaimed against the Appellant for a declaration that his customary certificate of occupancy No. 575 is valid and subsisting, declaration of title in his favour over the land covered by the customary certificate of occupancy, a declaration that the acts of the Appellant on the land amount to trespass, a perpetual injunction restraining the Appellant from further acts of trespass on the land and general damages of N500, 000.00 (Five Hundred Thousand Naira) only damages for trespass and costs of the suit.
Let me start by summarising the facts of the case.
According to the Appellant, he purchased the land in dispute in 2011 and was rearing cattle on it undisturbed until 2016. He planted eucalyptus trees on the land and the Respondent did not protest. The Respondent?s shepherd helped him in planting the eucalyptus trees.
In defence and proof of his counterclaim, the Respondent stated that the land was initially given to DW3 and himself for grazing by Jauro Dauda. Upon occupying the land for several years without disturbance or challenge from anybody he decided to obtain a customary certificate of occupancy and he was granted the customary certificate of occupancy in 2005. Since then he has been paying ground rent.
The Local Government later advised him to apply for another certificate of occupancy since the land was divided into two by a road passing through it. He instructed his son to do so. Another certificate of occupancy was issued in the name of the son covering the smaller portion of the land.
The Appellant then entered the land with his cattle and has since refused to vacate the land on the excuse that he bought it.
That he was surprised to hear the Appellant claiming to have bought the land from Yunusa who ran away to Cameroun over thirty years ago and had not returned.
That his customary certificate of occupancy No. 575 Exhibit DE 2 is still subsisting.
After considering the evidence led by both parties and written addresses of learned counsel for the parties, the Court below in its judgment dismissed the claim of the Appellant and entered judgment in favour of the Respondent as per his counterclaim.
The Appellant has proceeded to this Court by a notice of appeal dated and filed on 9th August, 2018. The notice of appeal contains five grounds of appeal. From the five grounds of appeal, the Appellant in his brief of argument dated 22nd October, 2018 and filed on 25th October, 2018 presented the following four issues for determination.
1. Whether having rightly found as facts that the traditional history relied upon in proof of title by both parties was of equal weight, the trial Court ought to have made recourse to acts of possession in recent time to determine title? (distilled from ground 1 of the notice of appeal).
2. Whether the trial Court was not wrong to have placed heavy probative value on the bundle of exhibits tendered by the respondent?s counsel from the bar in declaring title of the disputed land to the respondent. (distilled from grounds 2 and 3 of the notice of appeal).
3. Whether the findings of the trial Court that the appellant did not prove his root of title as pleaded is not perverse? (distilled from ground 4 of the notice of appeal).
4. Whether the trial Court was not wrong in law for rejecting the evidence of PW3 which established that the respondent’s certificate of occupancy was issued in error. (distilled from ground 5 of the notice of appeal).
On his own part, the Respondent formulated the following two issues for determination:
1. Whether by his pleadings and totality of the evidence adduced in support the Trial High Court of Justice of Taraba State in Gembu Judicial Division was right to give Judgment in favour of the Defendant/Counter-Claimant’s Counter Claim (distilled from grounds 1, 2 and 3 of the Notice of Appeal).
2. Whether by his pleadings and totality of the evidence adduced by the Appellant herein before the trial High Court, the Court was wrong in dismissing the Plaintiff’s claim (distilled from grounds 4 and 5 of the Notice of Appeal).
I will determine the appeal on the issues formulated by the Appellant.
Arguing the appeal, learned counsel for the Appellant submitted on issue 1 that the Appellant pleaded and led evidence to prove that he bought the land from Yunusa Sali Babandah (PW4) in 2011 and that the land was allocated by Ardo Dauda to the father of PW4 by name Sali Babandah. That it was upon the death of Sali Babandah that PW4 inherited the land.
The Court below, it was contended, determined the suit based on grazing and cattle tax permit tendered by the Respondent?s counsel from the bar.
It was submitted that there is evidence that it was the Appellant who exercised acts of possession in recent years and not the Respondent and the Court below ought to have considered this in determining title to the disputed land. The Court was referred to evidence of DW2 at page 216 of the record and evidence of DW4 at page 220 of the record.
The Court was urged to determine the appeal by recourse to acts of possession exercised in recent times and allow the appeal.
On issue 2, it was submitted that the Court below wrongly relied on a bundle of exhibits tendered by the Respondent?s counsel from the bar to declare title to land for the Respondent. The Court was referred to portions of the judgment of the Court below at pages 238 and 242 of the record of appeal.
It was submitted that where documents are dumped on the Court without calling their maker to testify, no weight can be attached to such documents despite the fact that they were admitted in evidence as admissibility and their probative value are two different things. The Court was referred to Ogboru vs. Uduaghan (2011) 8 EPR 476 at 526 ? 527 and Osagie vs. INEC (2017) 71 (Pt. 2) N.S.C.Q.R 839 at 901, 902, 905 and 934.
The Court below, it was further argued, relied on grazing permits and cattle tax receipts to declare title to the Respondent. These documents, it was submitted, only create a license in favour of the Respondent and cannot confer title. The Court was referred to Kuba vs. Abel & Anor, Appeal No. CA/YL/31/2014 and Apena vs. Aileru (2014) Vol. 59 N.S.C.Q.R 278 at 313.
The Court below, it was also argued, relied on a certificate of occupancy which formed part of the documents tendered from the bar in declaring title to the land in favour of the Respondent. It was submitted that there was no basis for the issuance of the certificate of occupancy. It was submitted that a certificate of occupancy does not confer title where the holder does not have a previous customary title or a deemed grant. The Court was referred to Otukpo vs. John (2012) Vol. 49 Part 2 N.S.C.Q.R 1304 at 1330 ? 1331.
It was submitted that the Court below erred when it declared title to the land in favour of the Respondent based on cattle tax permit, grazing permits and the certificate of occupancy.
On issue 3, it was submitted by learned for the Appellant that the Appellant led evidence to establish that the disputed land was allocated to Sali Babandah and that Sali Babandah reared his cattle on the land for a long time before his death and upon his death his son Yunusa Sali Babandah inherited the land and later sold it to the Appellant. The Court was referred to the evidence of PW3, evidence of DW3 at page 217 and evidence of DW4 at page 210.
The Court was also referred to the evidence of the Respondent to the effect that the land which was allocated by Ardo Dauda to Sali Babandah was taken over and occupied by Tanko Sadiq who later sold same to Alhaji Adamu Madugu and therefore Sali Babandah no longer owned any land which shared boundary with him.
It was submitted that the depositions of the Respondent in paragraphs 17, 25 and 40 wherein he stated that Sali Babandah’s land was taken over by Tanko Sadiq and presently occupied by Tanko Sadiq or Alhaji Adamu Madugu are lies.
It was submitted that in the light of the admission by the Respondent that Ardo Dauda allocated land to Sali Babandah there was no further burden of proof on the Appellant to establish that the disputed land was actually allocated to Sali Babandah.
It was submitted that the Appellant having paid the purchase price for the disputed land, taken over possession in the presence of the vendor and witnesses, had acquired a valid equitable title to the land. The Court was referred to several authorities on the point.
On issue 4, learned counsel for the Appellant submitted that the finding of the Court below that the PW3 was a ‘former official’ of the Sardauna Local Government Council at the time he testified was perverse as evidence abounds that he was at the material time the Supervisory Councillor for Works Department of Sardauna Local Government Council. Therefore, this Court has a duty to interfere and draw the correct inference and conclusion. The Court was referred to Gbemisola vs. Bolarinwa (2014) Vol. 57 Part 1 N.S.C.Q.R 510 at 536 and Momoh vs. Umoru (2011) Vol. 46 Part 1 N.S.C.Q.R 292.
Learned counsel for the Respondent submitted that the lower Court did not find that the traditional history relied upon by both parties based on the evidence adduced by both parties was at par or of equal weight. That the portion of the judgment quoted at page 4 of the Appellant?s brief was not a finding of fact but consideration of the evidence adduced by the Appellant?s witnesses that it was Jauro/Ardo Dauda who allocated the land in dispute to Sali Babandah in 1970.
It was submitted that the Respondent never pleaded or adduced evidence of traditional history except the evidence of production of documents by way of grant of customary certificate of occupancy No. 575, Exhibit DE 2.
After referring the Court to the various ways of proving title to land as enunciated by the Courts, learned counsel for the Respondent submitted that acts of possession in recent times is not one of the five ways of proving title to land.
It was submitted that by Order 38 Rule 1(3) of the Taraba State High Court Civil Procedure Rules 2011 documents or other exhibits shall be tendered from the bar or by the party where he is not represented by a legal practitioner. The documents, it was submitted, were tendered and legally admitted and each given an Exhibit number by the Court below. Therefore, they were not tendered as a bundle of documents.
The Court below, it was submitted, did not err in law when it ascribed probative value to Exhibits DE 2, DE 4 and DE
5. The documents, it was submitted, were tendered through the Respondent himself who had earlier made a written statement on oath which is at page 49 to 56 of the record of appeal.
It was submitted that where there is no objection to the tendering of a document in evidence, the document will be admitted and acted upon unless the document is inadmissible in evidence. The Court was referred to Omega Bank Nig. Ltd vs. O.B.C. Ltd (2005) 8 NWLR (Pt. 928) 547.
It was submitted that the cases relied upon by learned counsel for the Appellant on bundle of documents are on election petitions and therefore not applicable to this case. The case of Apena vs. Aileru (supra), it was submitted is irrelevant to this case as neither the Appellant nor the Respondent is a licensee.
The case of Otukpo vs. John (2012) Vol. 49 2 N.S.C.Q.R 1304 at 1331, it was submitted, supports the case of the Respondent that he is the holder of an existing customary title over the land in dispute. That he was allocated the land the early 1970s by Jauro Dauda as grazing land and in 2005, based on his status as an existing customary title holder applied to Sardauna Local Government Council for a customary certificate of occupancy and was issued Exhibit DE 2.
Learned counsel for the Respondent submitted that the burden of proof lies on the plaintiff who desires a declaration of title over a disputed land to prove his title to the land and he must succeed on the strength of his case and not on the weakness of the defendant?s case. The Court was referred to Nkado vs. Obiano (1997) 50 LRCN 1084 at 1114.
Exhibit PE 2, it was submitted, was of no evidential value and did not confer title on the Appellant under the Land Use Act 1978.
PW3, it was submitted, is not the issuing authority or his official representative to say that Exhibit DE 2 issued to the Respondent in 2005 was irregularly issued. Evidence of PW3, it was submitted, was manifestly unreliable since he was no longer an official of the Local Government who was duly authorised by the Chairman Sardauna Local Government Council to attend Court to testify that the customary certificate of occupancy Exhibit DE 2 was irregularly issued.
Exhibit DE 1, it was submitted, was never submitted to the Chairman who is authorized person to speak or decide over an issue affecting the Local Government.
By virtue of Sections 133 and 134 of the Evidence Act, in civil cases the burden of proof is on the party who asserts a fact to prove same for he who asserts must prove. The standard of proof required is on the preponderance of evidence and balance of probabilities. A party in a civil case must prove his/its case on credible evidence of his/its witnesses and is not at liberty in law to make a case or rely on the weakness of the defendant?s case in order to succeed. See Daodu vs. NNPC (1998) 2 NWLR (Pt. 538) 355 and Agbi vs. Ogbeh (2006) 11 NWLR (Pt. 990) 65.
Since 1976 when Idundun vs. Okumagba was decided by the Supreme Court, the Courts have held that title to land can be established by traditional evidence; (2) Production of documents of title duly authenticated in the sense that their due execution must be proved; (3) By positive acts of ownership extending over a sufficient length of time; (4) By acts of long possession and enjoyment of the land; (5) By Proof of possession of connected or adjacent land in circumstances rendering it probable that the owner of such connected or adjacent land would in addition, be owner of the land in dispute. The law is that the establishment of one of the ways enumerated above is sufficient proof of ownership of the land. See Idundun vs. Okumagba (1976) 9 ? 10 SC 337, Ayoola vs. Odofin (1984) 11 SC 120 and Nkado vs. Obiano (1997) 5 NWLR (Pt. 503) 31.
Relief 1 of the claim of the Appellant is for a declaration that he is entitled to a customary right of occupancy in respect of the land in dispute.
Declaratory reliefs are not granted as a matter of course and on a platter of gold. They are only granted when credible evidence has been led by the person seeking the declaratory relief. A declaratory relief will be granted where the plaintiff is entitled to the relief in the fullest meaning of the word. It is a requirement of the law that the person seeking the declaratory relief must plead and prove his claim for declaratory relief without relying on the evidence called by the defendant. Such declaratory relief is not granted even on admission by the defendant. However, there is nothing wrong in a plaintiff taking advantage of any evidence adduced by the defence which tends to establish the plaintiff?s title. See Anyanru vs. Mandilas Ltd (2007) 4 SCNJ 288, Chukwumah vs. S.P.D.C (Nig) Ltd (1993) LPELR-864 SC page 64 ? 65, Matanmi & Ors vs. Dada & Anor (2013) LPELR-19929, Oguanuhu vs. Chiegboka (2013) 2 SCNJ 693 and Akinboni & Ors vs. Akintope & Ors (2016) LPELR-40184.
The law on pleadings is firmly established. And the law is that parties are strictly bound by their pleadings and they are not allowed to make a case that is at variance with their pleadings. Evidence which is at variance with the averments in the pleadings goes to no issue. See Buhari vs. Obasanjo (2005) 2 NWLR (Pt. 910) 241, Makinde vs. Akinwale (2000) 1 SC 89 and Allied Bank (Nig) Ltd vs. Akubueze (1997) 6 NWLR (Pt. 509) 374.
From paragraphs 10, 11 and 12 of the Appellant’s statement of claim, he deposed that he was told by Yahaya Hassan, Jika Galu, Jauro Mahdi and Dewa Babandah that the land was allocated by Ardo Dauda to Sali Babandah from whom PW4 inherited the land which he sold to the Appellant. The Appellant called Jika Galu as PW1. The PW1 nowhere stated in his evidence that the land was allocated by Ardo Dauda to Sali Babandah the father of PW4. None of the other people who the Appellant claimed told him that the land was allocated by Ardo Dauda to Sali Babandah the father of PW4 was called to testify. Therefore, the pleading of the Appellant that the land was allocated by the Ardo Dauda to PW4’s father remains what it is hearsay.
Learned counsel for the Appellant wrongly sought to rely on the evidence of the Respondent (DW4) under cross- examination to say that he admitted that the land in dispute was allocated to PW4’s father by Ardo Dauda. That is far from the true position. The DW4 stated that the land which was allocated by Ardo Dauda to PW4?s father was a different piece of land and that in any case he PW4’s father had since lost it to other people.
There is therefore no basis for the evidence in Chief of the PW4 that the land was allocated to his father by Jauro Dauda and that he inherited it from his father Sali Babandah. There is no evidence that the land in dispute was allocated to Sali Babandah. There is no evidence that the PW4 inherited it. There was therefore nothing for the PW4 to sell to the Appellant. The Court below colourfully painted the picture in the following words:
Clearly the evidence led by the plaintiff that Jauro Dauda gave this piece of grazing land to Sali Babada is not persuasive. It is not cogent enough to prove that Sali Babada ever owned this land much less for his son Yunusa to inherit same and consequently sale (sic) to the plaintiff, having regard to the circumstance of this case.
In that regard therefore Yunusa has nothing to inherit and nothing to sale to the plaintiff. It is trite law that no one can validly give what he does not have. This is expressed in the Latin maxim ‘Nemo dat quod non habet’. This maxim applies pointedly where a party who does not have something purports to sell it. See Olagunju vs. Yahaya (2004) NWLR (Pt. 883) 24.
I agree. On the pleadings and evidence of the Appellant there is nothing to establish the claim of the Appellant that the land in dispute was allocated to the father of the PW4. Therefore, the father had no title to pass to the PW4. PW4 had nothing to sell to the Appellant.
Under cross examination, the PW4 said twenty-two of them survived his father. That he was not the only one who inherited the land. That they sold the land and distributed the money. There is no evidence that he was authorised to sell the land. There is also no evidence that the proceeds of the sale were distributed among the children in 2015 when the estate of their father was distributed. None of the twenty-two children was called to confirm the claim that the land belonged to their father. This has further done violence to the claim of the Appellant.<br< p=””
The Appellant did not plead acts of possession in recent years so he cannot turn round after relying on purchase of the land to rely on to acts of possession in recent years. In any case, acts of possession of land in recent years as rightly submitted by learned counsel for the Respondent is not one of the five ways of proving title to land but acts of long possession and enjoyment of the land is one of them.
Issue 1 is therefore resolved against the Appellant and in favour of the Respondent.
Documents admitted in evidence, no matter how useful they could be, would not be of much assistance to the Court in the absence of admissible oral evidence by persons who can explain their purport. See Alao vs. Akano (2005) 11 NWLR (Pt. 935) 160. The Respondent pleaded and led evidence to the effect that DW3 and himself were allocated the land in dispute in the 1970s by Ardo Dauda for grazing. Both of them were grazing on the land and he was paying for grazing permits and cattle tax.
Between 2001 and 2002, DW3 moved out of the land leaving the DW4 alone on the land. The DW4 (Respondent) in 2005 applied for a customary certificate of occupancy and Exhibit DE 2 a customary certificate of occupancy was issued to him in 2006 after due process. It is the grazing permits and cattle tax receipts among other documents and the customary certificate of occupancy which were pleaded and tendered from the bar that the Appellant said were dumped on the Court. That cannot be correct in the light of the pleadings and evidence led. The DW4 in his statement on oath explained the purport of these documents before learned counsel for the Respondent sought to tender them from the bar. When learned counsel for the Respondent sought to tender the documents learned counsel for the Appellant stated as follows, I have seen the documents no objection to their admissibility.? See page 218 of the record. Thereafter the Court below as learned counsel for the Respondent rightly pointed out, admitted and marked each of the documents.
It is clear from the foregoing that the documents were not merely dumped on the Court below and that the Court below could not look at them.
It is not correct as argued by learned counsel for the Appellant that the Court below relied on grazing permits and cattle tax receipts to declare title to land in dispute in favour of the Respondent.
Rather the Court below relied on the evidence of DW3 and DW4 to the effect that the DW3 and DW4 had been allocated the land by Ardo Dauda. The DW3 later vacated the land haven got another one. DW4 considering the fact that he had been grazing on the land for a long time applied for a customary certificate of occupancy which was granted to him after confirmation of his claim to allocation and long possession of land. The Court below rightly relied on the customary certificate of occupancy Exhibit DE 2 in granting him title to the disputed land.
Issue 2 is also resolved against the Appellant and in favour of the Respondent.
As shown earlier in the judgment, it was not pleaded and no evidence led to show that Jauro allocated the land in dispute to Sali Babandah, father of PW4 who purportedly sold the land to the Appellant. The Respondent never admitted as shown above also that the land in dispute was allocated to Sali Babandah.
Issue 3 is therefore resolved against the Appellant and in favour of the Respondent.
PW 3 testified to facts not pleaded. For example, it was nowhere pleaded that the disputed land was allocated to Sali Babandah by Ardo Dauda in the 1970s. That it is the Ardo?s that allocate grazing land to people for grazing and mixed farming. That people who are so allocated the land inherited such lands. That to his knowledge Sali Babandah reared his cattle on the land until 2001/2002 when he moved away for safety. That it was his duty to oversee all grazing lands. That disputes concerning ownership or trespass to land were usually brought to him. That the grazing land of the Respondent was fenced. That the Respondent never kept his cattle on the disputed land. That he set up a committee which he chaired. That he discovered that the Appellant kept his cattle on his father?s land and not on the Respondent’s land. That the committee which he constituted and headed found as fact that the site plan accompanying the customary certificate of occupancy number 575 was wrongly drawn to include the former land of Sali Babandah.
PW3 was like a wild horse that bolted out of its stable in that he narrated facts which were not pleaded and no effort was made to rein him in. He should have been reined in by the pleadings.
The object of pleadings is to compel parties to define accurately and precisely the issues upon which the case between them is to be contested to avoid the element of surprise by either party. It also guides the parties so that no evidence is led outside the facts pleaded as evidence on a fact not pleaded goes to no issue. See Oladunjoye vs. Akinterinwa (2000) 4 SC (Pt. 1) 19 and Oshodi vs. Eyifunmi (2000) 7 SC (Pt. II) 145. As the evidence of (PW3) was outside the statement of claim of the Appellant including Exhibit PE 1 tendered through him, the evidence adduced through him goes to no issue.
Under cross examination, the PW3 said he did not present the report of the committee to the Chairman of the Local Government.
Issue 4 is also resolved against the Appellant and in favour of the Respondent.
All four issues having been resolved against the Appellant and in favour of the Respondent the appeal should be dismissed.
It is accordingly hereby dismissed by me.
The judgment of the Court below in Suit No TRSG/10/2016 delivered on 29th June, 2018 is hereby affirmed.
Respondent is awarded N100, 000.00 costs which shall be paid by the Appellant.
OYEBISI FOLAYEMI OMOLEYE, J.C.A.: I had the privilege of reading the draft of the leading judgment, in this appeal, just delivered by my learned Brother, James Shehu Abiriyi, J.C.A.
I am at one with His Lordship?s line of reasoning and the conclusion reached by him in the said leading judgment that, the appeal is devoid of any jot of merit and equally dismiss it. I also abide by the consequential orders made therein, including that of costs.
SAIDU TANKO HUSSAINI, J.C.A.: I read in draft the copy of the lead judgment just delivered by my Lord, JAMES SHEHU ABIRIYI, J.C.A. with whom I concur with the reasoning and conclusion that the appeal be dismissed. I too enter that order of dismissal and affirm the Judgment of the trail Court in Suit No. TRSG/10/2016 delivered on the 29th of June, 2018. I also abide by the order as to costs in the lead judgment.
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Appearances:
D. O. Ovoyenta, Esq.For Appellant(s)
S.M. Tafi Warwar, Esq. with him, Desmond MueFor Respondent(s)
