ALI & ANOR v. BALA & ORS (2020)

ALI & ANOR v. BALA & ORS

(2020)LCN/14091(CA)

In The Court Of Appeal

(BENIN JUDICIAL DIVISION)

On Friday, March 13, 2020

CA/B/256/2014

RATIO

WHETHER THE FAILURE OF ONE PARTY TO COUNTER-ARGUMENTS CONFER MERIT ON THEM

Generally, in law where one party is duly served with the arguments of the other party and he fails or neglects or refuses to respond to the said arguments as proffered by the other party, it would be taken that he has conceded to the arguments of that party. See Dr. Arthur Nwankwo & Ors V. Alhaji Umaru Yar’Adua & Ors (2010) 12 NWLR (Pt. 1209) 518. See also Ahmed V. Ahmed (2013) 41 WRN 1; Dairo V. Aderinoye (2013) 50 WRN 111.
However, I am also aware that in law where an issue raised by one party is not countered by the other party, it does not automatically follow that such arguments, though unchallenged, are to be taken hook, line and sinker by the Court. Thus the failure of one party to counter the arguments of the other party alone does not ipso facto without more confer merit on the arguments of the party as the Court is still under a duty to consider the arguments on their own merit. See Adah V. NYSC (2004) 13 NWLR (Pt. 891) 639. See also Tanko V. UBA Plc. (2010) 7 NWLR (Pt. 1221) 80; Obiuweubi V. CBN (2011) 17 NWLR (Pt. 1247) 80; Stowe V. Benstowe (2012) 17 NWLR (Pt. 1306) 450; Elelu – Habeeb V. AG. Fed.(2012) 13 NWLR (Pt. 1318) 423; Agi V. Access Bank Plc (2014) 9 NWLR (Pt. 1411) 121. PER BIOBELE ABRAHAM GEORGEWILL, J.C.A.

 

PLEADINGS: PARTIES ARE BOUND BY THEIR PLEADINGS

Now, in law the parties as well as the Court are bound by the pleadings and thus the parties are obligated and must conduct their cases within the confines of their pleadings. So also is the Court obliged to stay within the issues as joined by the parties and therefore, cannot go outside those issues to make findings on facts not in issue. See Olodo V. Josiah (2011) 190 LRCN 34 @ p. 52. See also Aminu & Ors. V. Hassan & Ors (2014) 231 LRČN 84 @ p. 118.; Nsiegbe V. Mgbemena (2007) All FWLR (Pt. 372) 1769; George V. Dominion Flour Mills Ltd.(1963) NLR 74; Emegokwue V. Okadigbo (1973) 4 SC 113; Oyebade V. Ajayi (1993) 1 NWLR (Pt. 260) 313.
I will therefore, take all the facts on which the parties are either ad idem in their pleadings or were not sufficiently traversed with material particulars as admitted and thus duly established in this appeal. See Nsiegbe V. Mgbemena (2007) All FWLR (Pt. 372) 1769. See also George V. Dominion Flour Mills Ltd.(1963) NLR 74; Emegokwue V. Okadigbo (1973) 4 SC 113; Oyebade V. Ajayi (1993) 1 NWLR (Pt. 260) 313, Akere V. Adesanya (1993) 1 NWLR (Pt. 288) 484; Smurtiff Ltd. V. MV. Gongola Hope (2002) 22 WRN 30. See also Solana V. Olusanya & Ors. (1975) 1 SC 35; Olubode V. Oyesina & Ors. ( 1977) 2 SC 97. PER BIOBELE ABRAHAM GEORGEWILL, J.C.A.

 

BURDEN OF PROOF OF CIVIL PROCEEDINGS   

In law, in civil proceedings the evidential burden of proof, in terms of adducing prima facie evidence, is on the party who alleges a fact and is generally on the Claimant who would fail in his claim if no evidence were adduced at all. However, in civil cases the burden is not static and shifts from one side to the other depending on the issues as joined by the parties in their pleadings. See Section 136 of the Evidence Act 2011. See alsoNigerian Westminster Dredging and Marine Ltd. V. Smooth & Anor. (2011) LPELR-4619 (CA); Cardoso V. Daniel & Ors (1986) LPELR – 830 (SC);Osuji V. Ekeocha (2009) 52 WRN 1; Mini Lodge Ltd. V. Ngei (2010) 10 WRN 58; Bunge V. Gov. Rivers State (2006) 6 SC 81. In proof of their claims, the Respondents called several witnesses in support of the averments in their pleadings. I have taken time to review the totality of their evidence, including Exhibit A, as in the printed record. PW1 was one Madam Habiba Musa. Her evdience is atpages 73 – 76 of the Record of Appeal. PW2 was one Ketumi Bala. Her evidence is at pages pages 77 – 78 of the Record of Appeal. The 2nd Claimant before the Court below, Aminu Bala also testified. His evidence is at pages 79 – 83 of the Record of Appeal. PW3 was one Alhaji Garba. His evidence is at pages 84 – 85 of the Record of Appeal. PW4 was one Yahaya Ibrahim. His evidence is at pages 86 – 87 of the Record of Appeal. PER BIOBELE ABRAHAM GEORGEWILL, J.C.A.

DEVOLUTION OF FAMILY PROPERTY

There is no difference at all. Generally, particularly under customary law, a family property belongs to the family as a whole while individual members of the family are entitled to enjoy the property and even where pieces of land may be allotted to members of the family, such as the Respondents’ father, even if that were proved but was not even so proved, the allotees would have only right to occupy and use the land which they cannot alienate or part with without the consent of the family. A family member cannot convert family land allotted to him for the mere purpose of use either for building or any other purposes to his personal own merely by building on family land. Thus, under customary law family land remains in perpetuity as family land unless and until it is brought to an end either by partition or sale or otherwise by the family. Therefore, all the findings to the contrary by the Court below were in grave error and perverse and thus liable to be set aside without much ado! See Shelle V. Chief Asajon (1957) 2 FSC 65 @ p. 67; Christlieb Plc V. Majekodunmi (2011] All FWLR (Pt 592) 1802; Seriki V. Aduralere (2012) All FWLR (Pt. 626) 535 @ p. 550.
Having found as fact that the house in dispute was built by the joint and collaborative efforts of the Respondent’s father and the Appellants, all brothers of full blood, on the family land, I hold that the house in dispute built on family land belongs to the family. It neither belongs personally to the Respondents or their late father nor to the Appellants. It belongs to the family as a whole and no individual members, inclusive of the Respondents’ late father as well as his brothers of full blood, the Appellants, can arrogate or convert it to his or their personal ownership unless and until it is partitioned. InOgundairo V. Abeje (1967) LLR 9, it was emphatically pronounced inter alia thus:
“The law is settled that family property is property which devolves from father to children and grand children under native law and custom and which no individual child or member of the family can dispose of in his or her will until such property is partitioned and each child or member of the family has his or her own separate share of the whole”
See also Olukoya V. Bankole (1909 – 09) 1 NLR 81; Otun V. Ejide (1933) 11 NLR 124; I. O. Smith, ‘Practical Approach to Laws of Real Property in Nigeria’ Ecowatch Publications Limited @ page 32. PER BIOBELE ABRAHAM GEORGEWILL, J.C.A.

                                               

Before Our Lordships:

Tunde Oyebanji Awotoye Justice of the Court of Appeal

Moore Aseimo Abraham Adumein Justice of the Court of Appeal

Biobele Abraham Georgewill Justice of the Court of Appeal

Between

1. MALLAM MAHAZU ALI 2. ALHAJI BILIAMINU ALI APPELANT(S)

And

1. MR. ADAMU BALA 2. MR. AMINU BALA 3. YUSUF BALA (For Themselves And On Behalf Of OtherMembers Of Bala Ali Family) RESPONDENT(S)

BIOBELE ABRAHAM GEORGEWILL, J.C.A. (Delivering the Leading Judgment): This is an Appeal against the Judgment of the High Court of Edo State, Coram: E. F. Ikponmwen J., in Suit No.HAU/9/2009: Mr. Adamu Bala & Ors V. Mallam Mahazu Ali & Anor., delivered on 5/2/2014, wherein the claims of the Respondents as Claimants were granted against the Appellants as Defendants.

The Appellants were peeved with the said judgment and had appealed against it to this Court vide their Notice of Appeal filed on 7/3/2014 on nine grounds of appeal. The Record of Appeal was duly transmitted to this Court on 30/5/2014. The Additional Record of Appeal was transmitted to this Court on 12/9/ 2019. The Appellants’ brief was filed on 8/7/2014. The Respondents’ brief was filed on 16/9/2019.

At the hearing of this appeal on 28/1/2020, A. Atteh Esq., learned counsel for the Appellants adopted the Appellants’ brief as their arguments and urged the Court allow the appeal and set aside the judgment of the Court below. On her part, Mrs. F. P. Mejowa, learned counsel for the Respondents adopted the

1

Respondents’ brief as their arguments and urged the Court to dismiss the appeal and to affirm the judgment of the Court below.

By a Writ of Summons filed on 12/3/2009, and in the Amended Statement of Claim, the Respondents as Claimants claimed against the Appellants as Defendants the following reliefs, namely:
1. A Declaration that the plaintiffs are that ones entitled to be entitled to be granted the Statutory Right of Occupancy over and in respect of the landed property known as Bala Ali’s House, situate and being at Yeluwa Quarter, Jattu Uzairue, a place within the jurisdiction of this Honourable Court.
2. A Declaration that the plaintiffs being the children of late Bala Ali cannot be deprived of their right of access, occupation and usage of their father’s house (Bala Ali House) situate and being at Yeluwa quarters, Jattu Uzairue.
3. A Declaration that the action of the defendants in giving our some of the apartment of Bala Ali House on rentage to tenants without giving any account whatsoever of the rentage money to the plaintiffs (the children of late Bala Ali) is wrongful and illegal.
4. An order of Court compelling the

2

defendants to render account, through this Honourable Court, for the rents so far collected from the tenants in the house of plaintiff’s father (Bala Ali House) situate and being at Yeluwa quarters, Jattu Uzairue.
5. Two million, five hundred naira (N2, 500, 000, 00) being general damages against the defendants for the harassment; deprivations, pains and sufferings causes by the defendants to the plaintiffs.
6. An Order of perpetual injunction restraining the defendants, their servants, agent and/or privies from any further act(s) of harassment intimidation and deprivation or denial of the plaintiffs’ right to occupy and use their said father house.
See pages 6 – 8 of the Record of Appeal.

BRIEF STATEMENT OF FACTS
As can be garnered from the pleadings of the parties and the evidence, both oral and documentary, as led before the Court below, the facts relevant to this appeal on the part of the Respondents, who were the Claimants before the Court below, are that the Respondents are children of one late Alhaji Bala Ali, who is the senior brother of the Appellants of same parents, Ali Jibrin & Maimuna also called Hajia Mairiga. That

3

their late father Alhaji Bala Ali lived at Onitsha and when the threat of the Nigeria Civil war was raging, came home at Yeruwa Quarter, Jattu to ask for a piece of land from his mother and grandmother to build a house. He had initially wanted to build the house behind his grandmother’s mud house, but his mother and grandmother took him to a vacant portion of the compound in front of the mud house along Jattu road, since the house to be built was going to be a modern house. Their late father brought from Onitsha, building materials and laborers who constructed the building for him. At the completion of the building, their father brought into the house their mother and the Appellants who are his brothers. The house therefore, belongs exclusively to their father and not jointly with the Appellants.

On the other hand, the facts relevant to this appeal on the part of the Appellants, who were the Defendants before the Court appeal, are that the Respondents are nephews of the Appellants and that the land on which the building in dispute was erected, originally belonged to Hassan – Sarkin Hausawa, who was the husband of Appellants’ grandmother called Hauwa. That

4

between 1949 and 1958 there were two mud houses on the land, which were built for their grandmother, Hauwa and these had to be demolished to pave way for the building of the house now in dispute, which is a family house jointly built by Hauwa’s grandchildren for her in 1963 before she died. However, shortly after the house was completed Hauwa died in November 1963 and the house was inherited by Appellants’ mother called Mairiga Ali being the only child and daughter of Hauwa. Mairiga Ali had seven children amongst who were Appellants and Respondents’ father. At the time of instituting this suit the 1st Appellant was and is still the head of the family.

ISSUES FOR DETERMINATION
In the Appellants’ brief, three issues were distilled as arising for determination from the nine grounds of appeal, namely:
1. Whether from the pleadings and evidence, the Court below was right to have declared that the Respondents are the persons entitled to the grant of statutory right of occupancy over the landed property in dispute when in fact they could not prove their title to the landed property? (Distilled from Grounds 1, 2, 3, 4, 6, 7 and 8)
2. Whether

5

the Court below was right to have relied on the evidence of DW1 by virtue of Section 39(a) of the Evidence Act 2011 when he did not conclude his evidence in chief before he died? (Distilled from Ground 7)
3. Whether the trial Court was right to the have held that Appellants were acting malafide in relation to the estate of the Respondents’ father and if this finding had not occasioned a miscarriage of justice? (Distilled from Ground 9)

In the Respondents’ brief, two issues were distilled as arising for determination in this appeal, namely:
i. Whether the Court below properly evaluated the evidence of the parties before arriving at the conclusion that “root of title” was not in issue between the parties, and proceeded to grant the claim of the Respondents?
ii. Whether there were material contradictions in the evidence of the Respondents and their witnesses sufficient enough to weigh on the mind of the Court below to refuse the claim of the Respondents?

​I have taken time to review the pleadings of the parties and the evidence, both oral and documentary, as led before the Court below. I have also considered the submissions of

6

counsel for the parties in their respective briefs in the light of the findings in the judgment of the Court below, and it does appear to me that the proper issues for determination in this appeal are the three issues as distilled in the Appellant’s brief, which best represent the real issues arising for determination in this appeal. It is my view that a consideration of these three issues would involve the due consideration of the two issues as distilled in the Respondents’ brief. However, I shall consider Appellant’s issue two first and thereafter Appellants’ issues one and three together with Respondents’ issues one and two to resolve them in one fell swoop.

ISSUE TWO
Whether the Court below was right to have relied on the evidence of DW1 by virtue of Section 39(a) of the Evidence Act 2011 when he did not conclude his evidence in chief before he died?

APPELLANTS’ COUNSEL SUBMISSIONS
On issue two learned counsel for the Appellants had submitted that the Court below erred in law when it relied on evidence of DW1 by virtue of Section 39(a) of the Evidence Act 2011 and contended that in law what is

7

contemplated under Section 39 of the Evidence Act 2011 are statements admissible under Sections 40 – 50 of the Evidence Act 2011 and urged the Court to hold that the half way evidence of the late DWI was irrelevant and does not come within the contemplation of Section 46(1) of Evidence Act 2011 to make it admissible in evidence and to set aside the reliance on the evidence of DW1 by the Court below. Counsel relied on Isiaka V. State (2011) All FWLR (Pt. 583) 1966 @ p. 1983.

​It was also submitted that assuming, but not conceding that half way evidence of the late DW1 was relevant it did not in any way strengthen the Respondents’ case as erroneously held by the Court below and contended that the evidence of the DW1 did not by any means show that the Respondents’ father solely build the house but rather corroborates the case of the Appellants that the two houses built for Hauwa had to be demolished to pave way for building the house in dispute, which is contrary the case as put forward by the Respondents and urged the Court to hold that the Court below lost impression of the case as presented by the parties and had thereby occasioned a miscarriage of

8

justice and to allow the appeal and set aside the judgment of the Court below.

RESPONDENTS’ COUNSEL SUBMISSIONS
As part of his submissions on his issue one, learned counsel for the Respondents had submitted on the evidence of the late DW1 that in law the fact that a trial Court relied on a wrong law to arrive at a right decision will not invalidate the decision of the trial Court and contended that what is important is whether the evidence is relevant and equivocal and urged the Court to hold that the Court below was right to have relied on the extent to which the of DW1 was very material to the determination of the issue of ownership of the house in dispute which was in favor of the Respondents against the Appellant who called the said DW1.

RESOLUTION OF ISSUE TWO
My lords, the issue of the reliance of the Court below on the evidence of DWI, called by the Appellants but who died half way in his evidence, was feebly responded to by the Respondents. The question is whether the Court below was right when it held that the evidence of the DW1, though given half way before his death, was relevant and relied on it in finding for the

9

Respondents that his evidence, though he was as witness called by the Appellants, supported the case of the Respondents?
Generally, in law where one party is duly served with the arguments of the other party and he fails or neglects or refuses to respond to the said arguments as proffered by the other party, it would be taken that he has conceded to the arguments of that party. See Dr. Arthur Nwankwo & Ors V. Alhaji Umaru Yar’Adua & Ors (2010) 12 NWLR (Pt. 1209) 518. See also Ahmed V. Ahmed (2013) 41 WRN 1; Dairo V. Aderinoye (2013) 50 WRN 111.
However, I am also aware that in law where an issue raised by one party is not countered by the other party, it does not automatically follow that such arguments, though unchallenged, are to be taken hook, line and sinker by the Court. Thus the failure of one party to counter the arguments of the other party alone does not ipso facto without more confer merit on the arguments of the party as the Court is still under a duty to consider the arguments on their own merit. See Adah V. NYSC (2004) 13 NWLR (Pt. 891) 639. See also Tanko V. UBA Plc. (2010) 7 NWLR (Pt. 1221) 80; Obiuweubi V. CBN (2011) 17

10

NWLR (Pt. 1247) 80; Stowe V. Benstowe (2012) 17 NWLR (Pt. 1306) 450; Elelu – Habeeb V. AG. Fed.(2012) 13 NWLR (Pt. 1318) 423; Agi V. Access Bank Plc (2014) 9 NWLR (Pt. 1411) 121.
There is no dispute as to the fact that the DW1, one Shaibu Abba, who had testified half way, became deceased before the conclusion of his evidence before the Court below. He was a witness to the Appellants. See page 91 of the Record of Appeal. However, in its judgment the Court below having adverted its mind to the fact of the death of the DW1 half way in his evidence before the conclusion of his evidence had stated and held inter alia thus:
“I do not agree that the evidence of DWI should not be considered. His evidence was truncated by his death. The evidence of DW1 is relevant by virtue of Section 39 (a) of the Evidence Act 2011 and will be utilized by me in deciding this matter if necessary.His evidence supports and strengthens the claim of the Claimants.”
Now, in Section 39 (a) of the Evidence Act 2011 it is provided thus:
“Statements, whether written or oral of facts in issue or relevant facts made by a person; (a), Who is dead…..are

11

admissible under Sections 40 – 50”
I have taken time to read through the above provisions of Section 39 (a) of the Evidence Act 2011 and in my view what is contemplated under Section 39(a) – (d) of the Evidence Act 2011 are statements made admissible under Sections 40 – 50 of the Evidence Act 2011. It does appear to me that, in the circumstances of this appeal, to become relevant for the purposes of admissibility as envisaged under Section 39 (a) of the Evidence Act 2011 as relied upon by the Court below, the provisions in Section 46 (1) of the Evidence Act must be complied with in relation to admissibility of evidence given by a witness in one judicial proceeding in a subsequent judicial proceeding between the same parties if it is shown that the witness is dead and can no longer be called as a witness in the subsequent judicial proceeding between the same parties.
I hold the view that the half way evidence of the late DWI was irrelevant as it does not come within the contemplation of Section 46(1) of Evidence Act 2011. It is neither relevant nor admissible in evidence. In the circumstances therefore, the heavy reliance by the

12

Court below on the inchoate evidence of the late DW1 was in error as rightly contended by the Appellants’ counsel and I so hold. In the result, the evidence of the late DW1, being irrelevant and inadmissible but having been wrongly relied on and acted upon by the Court below, is hereby expunged. See Isiaka V. State (2011) All FWLR (Pt. 583) 1966 @ p. 1983.

However, even assuming, but not so deciding, that the half way evidence of the late DW1 was relevant and admissible, was the Court below right when it held that the evidence of DWI, though called by the Appellants, supported the case of the Respondents? The crux of the evidence of the DW1 was as follows:
“I know the house in dispute. It is situate in Yelwa village. I know how the house was built. In the compound, there are two buildings. The first built with grass and hatch (sic). It is complete thatch house. The 2nd one was a mud house with thatch roofing. The two houses were destroyed before the house in dispute was built. The thatch house was where Hauwa resided. In building the house now in dispute, Bala Ali, the Plaintiffs’ father, provided cement, Amada Ali and his family

13

brought in sand used for moulding the blocks. After moulding the blocks, Plaintiffs’ father Bala Ali brought bricklayer and labourers from Onitsha and built the house”See pages 89 – 90 of the Record of Appeal. See also the evidence of PW1 at page 75 lines 12 – 13 and the evidence of PW2 at page 78 lines 18 -19 of the Record of Appeal.

So, was the Court below right when it held that the evidence of the Late DW1, though called by the Appellant, supported the case of the Respondents? I think not! In my finding, these pieces of evidence did not in any way strengthen the Respondents’ case as erroneously held by the Court below but as to whether the evidence of DW1 rather corroborated the case of the Appellants or not and whether the reliance by the Court below on the evidence of DW1 occasioned a miscarriage of justice or not are part of the issues to be considered and resolved under issues one and three in this appeal. In the light of the above, issue two is hereby resolved in favor of the Appellants against the Respondents.

ISSUES ONE AND THREE
Whether from the pleadings and evidence, the Court below was right to have declared that the respondents

14

are the persons entitled to the grant of statutory right of occupancy over the landed property in dispute when in fact they could not prove their title to the landed property AND Whether the trial Court was right to the have held that Appellants were acting Malafide in relation to the estate of the Respondents’ father and if this finding had not occasioned a miscarriage of justice?

APPELLANTS’ COUNSEL SUBMISSIONS
On issue one learned counsel for the Appellant had submitted that in law he who asserts must prove and that without cogent and credible evidence of the party asserting, he will not succeed in his suit and obtain judgment in his favour and contended that since the claim of the Respondents was for declaration of title to the disputed house, they are under a duty to prove ownership of the house and urged the Court to hold that the Respondents failed to lead any credible evidence to prove title to the house in dispute and to allow the appeal and set aside the perverse judgment of the Court below. Counsel referred to Section 136 of Evidence 2011 and relied on Eyo V. Onuoha & Anor (2011) 195 LRCN 38 @ 64; Bello V. Sanda (2012) All

15

FWLR (Pt. 636) 462 @ p. 478.

It was also submitted that from the issues joined in the pleadings of the parties, the Appellants challenged the Respondents’ root of title to the land on which the house is built and contended that in law the Respondents must therefore prove title to the land on which the house is built as well as the house and urged the Court to hold that the Court below was wrong when it held that title was not in issue and proceeded to find for the Respondents as owners of the house in dispute even in the face of lack of proof of title of the Respondents’ father over their father’s mother’ land and to allow the appeal and set aside the judgment of the Court below. Counsel relied onEyo V. Onuoha and Anor (2011) 195 LRCN 38 @ p. 83; Otanma V. Yondubagha (2006) 2 FWLR (Pt 308) 1995 @ p. 2016; Dagaci of Dare V. Dagaci of Ebwa (2006) All FWLR (Pt. 306) 786.

It was further submitted that the evidence of the Respondents through PW1 and PW2 that it was the mother and grandmother of their father that gave him the land to build the house, which is at variance with the averment in paragraph 8 of the Respondents Amended Statement of

16

Claim that it was the mother of their father that gave him the land, in law evidence which is at variance with pleadings goes to no issue and urged the Court to hold that the Court below was wrong when it held, on these pieces of evidence at variance with their pleadings, that the Respondents proved their title to the land on which the house was built as well as the house itself and allow the appeal and set aside the perverse judgment of the Court below and to dismiss the Respondents’ suit. Counsel relied on Union Bank of Nigeria Plc v. Ajabule (2012) All FWLR (Pt. 611) 1413 @ p. 1426; Adimora V. Ajufo (1988) SCNJ 18.

​It was also further submitted that the PWI, PW2 and PW3 were even not sure of and contradicted themselves as to who gave their father the land to build the house since in law the parties are bound by their pleadings and contended that where in a claim for a declaration of title to land, the Claimant and his witnesses gave conflicting history of the root of title such root would be treated as unreliable and contended that the Respondents failed to prove any title to the land on which the house was built and urged the Court to hold that

17

the Court below was wrong to have granted the claim of the Respondents to title to the land on which the house was built and to allow the appeal and set aside the perverse judgment of the Court below. Counsel relied on Olodo V. Josiah (2011) 190 LRCN 34 @ p. 52; Aminu & Ors. V. Hassan & Ors (2014) 231 LRČN 84 @ p. 118.

​It was also submitted that on the totality of the evidence led by the party when properly appraised, it is clear that the house in dispute was built jointly by the Respondents’ father and the Appellants on their mother’s and grandmother’s land and as such family house and contended that the Court below was in grave error when it held surprisingly and contrary to the proved evidence before it that it was the Respondents’ father that single handedly built the house in dispute and put his mother to live with him and urged the Court to hold that this finding was most perverse and not supported by the evidence led before the Court below and to re – evaluate the evidence in the printed record and make proper findings and allow the appeal and set aside the judgment of the Court below. Counsel relied on Bassey V. Cobham

18

(1924) 5 NLR 92; Igwemadu V. Igwemadu [2011] All FWLR (Pt. 573) 1980 @ p. 2008; Will, Fixon Owoo V. Robert Williams Owoo & Ors 11 WACA 81.

​It was further submitted that the Court below faced with the unchallenged facts that the land on which the house was built was indeed family property over which there were no title documents and having found as fact that the Respondents’ father built on a part of the family land with the necessary consent, turned somersault and without any relief to that effect claimed by the Respondents, ordered a relief not asked for buy the Respondents, the excise and or partition of the family’s land by the 1st Appellant for the Respondents and contended that under native law and custom a family property belongs to the family as a whole while all individual members of the family are entitled to enjoy the property and even where pieces of land may be allotted to members of the family, the allotees have only right to occupy and use the land which they cannot alienate or part with without the consent of the family and urged the Court to allow the appeal and set aside the perverse findings to the contrary by

19

the Court below. Counsel relied on Shelle v. Chief Asajon (1957) 2 FSC 65 @ p. 67; Christlieb Plc V. Majekodunmi (2011] All FWLR (Pt 592) 1802; Seriki V. Aduralere (2012) All FWLR (Pt. 626) 535 @ p. 550.

On issue three learned counsel for the Appellants had submitted that the observation by the Court below that the Appellants were acting mala fide in relation to the properties of Respondents father was misplaced and contended that this impression weighed heavily in the mind of the Court below as could be seen in the judgment that Exhibit ‘A’ tendered by Respondents may appear trifle but is significant as to declaration as to next of kin of the Respondents’ father and urged the Court to hold that neither was the 1st Appellant signatory to Exhibit A nor did Exhibit A had anything to do with the house in dispute and to set aside such adverse and unfair observation against the Appellants.

RESPONDENTS’ COUNSEL SUBMISSIONS
On his issue one, learned counsel for the Respondents had submitted that the onus was on the Respondents as Claimants to establish by evidence that their father was granted the piece or parcel of land and any admission

20

on the part of the Appellant would the onus on the Respondents on minimal proof and contended that in law where there is any evidence from the Appellants which supports the Respondents case it is allowed to be relied on as proof of their case by the Respondents. Counsel relied on Sunmonu Olohunde & Anor V. Prof S. K. Adeyoju (2000 – 2006) 6 SCJE 150 @ p. 152.

It was also submitted that since it was a common ground that Hauwa, the grandmother of the Appellants was in possession of the land and Maimuna also called Hajia Mairiga, the only heir to Hauwa Estates were the persons who made the gift to the Respondents’ father to build, the issue of the root of title was not in dispute between the parties and contended that what was in dispute was whether they made a gift of the land to the Respondents’ father or not and urged the Court to hold that on the evidence led, the Respondents proved that there was a gift of the land to their father inter vivos, and did not pass onto the Appellant in the life time of their mother to have become a family land and to affirm the findings of the Court below and dismiss the appeal for lacking in merit. Counsel relied on

21

Olowosago & Ors V. Alhaji Adebanjo & Ors (1988} 4 NWLR (Pt.88) 1; Oshe V. Okin Biscuit Limited (2010) 33 WRN 1 @ p. 16; Sagay V. Sajere & Ors (2000 – 2006) 6 SCJE 101 @ pp. 102 – 103; Onu & Ors V. Idu & Ors (2006 – 2011)7 SCJE 1; Gyara V. Amaic High (2005) All FWLR (Pt. 730) 732.

On his issue two, learned counsel for the Respondents had submitted that in law it is not every seeming contradictions that will make an appellate Court upturn a judgment and contended that for contradictions to lead to the upturn of a judgment, it must be a material contradiction relied upon by a trial Court in arriving at a decision and urged the Court to hold that there were no such material contradictions in the case of the Respondents and to affirm the decisions of the Court below and dismiss the appeal for lacking in merit. Counsel relied on Administrator General, Delta State V. Ogogo (2006) 14 WRN 178 @ p. 185; Awudu V. Daniel (2005)2 NWLR (Pt. 909) 1; Ajero V. Ugorji (1999) 10 NWLR (Pt. 621) 1 @ p. 6.

It was also submitted that in law even when the pieces of evidence complained of as contradiction are removed there are other pieces of evidence

22

such as the evidence of the DW2, an independent witness who said that that the Respondents’ father brought all the materials to build the house in question and contended that all the alleged contradiction were not material enough to lead to the setting aside of the decision of the Court below and to affirm the findings of the Court below and dismiss the appeal for lacking in merit.

RESOLUTION OF ISSUES ONE AND THREE
My lords, a consideration of issues one and three would involve seeking and proffering answers to an amalgam of questions, on whose answers would lie the resolution of issues one and three. These questions are as follows: A. Was the Court below right when it held that title to the land on which the house in dispute was built was not put in issue? B. Who built the house in dispute? C. Who owns the house in dispute? D. Was there any relief of partition of the land on which the house in dispute was built? and E. Is the issue of bad faith in the judgment of the Court below a finding of fact or mere observation and was it fair?

Now, in law the parties as well as the Court are bound by the pleadings and thus the parties are obligated and

23

must conduct their cases within the confines of their pleadings. So also is the Court obliged to stay within the issues as joined by the parties and therefore, cannot go outside those issues to make findings on facts not in issue. See Olodo V. Josiah (2011) 190 LRCN 34 @ p. 52. See also Aminu & Ors. V. Hassan & Ors (2014) 231 LRČN 84 @ p. 118.; Nsiegbe V. Mgbemena (2007) All FWLR (Pt. 372) 1769; George V. Dominion Flour Mills Ltd.(1963) NLR 74; Emegokwue V. Okadigbo (1973) 4 SC 113; Oyebade V. Ajayi (1993) 1 NWLR (Pt. 260) 313.
I will therefore, take all the facts on which the parties are either ad idem in their pleadings or were not sufficiently traversed with material particulars as admitted and thus duly established in this appeal. See Nsiegbe V. Mgbemena (2007) All FWLR (Pt. 372) 1769. See also George V. Dominion Flour Mills Ltd.(1963) NLR 74; Emegokwue V. Okadigbo (1973) 4 SC 113; Oyebade V. Ajayi (1993) 1 NWLR (Pt. 260) 313, Akere V. Adesanya (1993) 1 NWLR (Pt. 288) 484; Smurtiff Ltd. V. MV. Gongola Hope (2002) 22 WRN 30. See also Solana V. Olusanya & Ors. (1975) 1 SC 35; Olubode V. Oyesina & Ors. ( 1977) 2 SC 97.

24

In the Amended Statement of Claim, the Respondents had averred inter alia as follows:
2. The plaintiffs aver that the 1st and 2nd defendants are their uncles – born of the same parents with their late father and both junior to their said father.
8. The plaintiffs aver that it was the mother of their late father who gave to their said father the parcel of land on which their father built his said house at Yeluwa quarters Jattu.
9. The plaintiffs aver that soon after their father finished his said building, he moved home to Jattu to live there in his said house.
11. The plaintiffs aver that the 1t and 2nd defendant together with some of their late father’s half brothers equally lived with their late father in his said house until some of them built their personal houses and left their father said house to live in their respective houses.
22. The plaintiffs further aver that the defendants have been trying also to prevent the plaintiffs from claiming that the said house belongs to their father, in spite of the testimonies of the leader of Yeluwa quarters Jattu to the effect that the house belongs to Alhaji Bala Ali (plaintiff’s father).

25

  1. The plaintiffs aver that the issues of this house have come up before-the leaders of Yeluwa quarters Jattu on several occasions and it has been declared by the leaders of the quarters that the plaintiffs being the children of late Alhaji Bala Ali are the owner of the said house and not the defendants.See pages 6 – 8 of the Record of Appeal.In the Amended Joint Statement of Defense, the Appellants had averred inter alia as follows:
    2. The defendants deny paragraphs 4, 5, 6, 7, 8, 9, and, 13 of the amended statement of claim and state as follows:
    (c) Between 1949 and 1958 there were two mud houses erected on the land where the present building now stands. The two blocks of mud. houses were built for defendants’ grandmother and those who cleared the land where these first buildings were built are Amada Ali, Qasim Ali and Muazu (1st defendant).
    (d) The present building (now in dispute) was completed in 1963 long before the commencement of the civil war and defendants’ grandmother, Qasim Ali, Hannatu Ali and defendants had lived in the house by October 30th 1963 and by November 1963 the defendants’ grandmother died.
    (e) The

26

initial two mud houses built on the land for defendants’ grandmother between 1949 and 1958 had to be demolished when the building now in dispute was to be erected for defendants’ grandmother by her daughter and grandchildren.
(f) Defendants’ grandmother had only one daughter known as Hajiya Mairiga Aliwho upon the death of her mother inherited the building now in dispute in accordance with Islamic law on inheritance.
(j) It is not the tradition and it is not Islamic and therefore impossible for defendants to disrespect and disregard the presence of their mother and senior brother and chase away their brother’s wives and children. Indeed the 1st and 3rd plaintiffs lived in Yelwa Uzairue under the guardianship of Qasim or Kasim the then head of family who later died in May 1995.
5. The defendants deny paragraphs 19 of the statement of defence and state that it was Qasim who was head of family until he died in 1995 and no tenant lived or stayed in the house except the shop which Qasim rented out and which has been vacated for many years now.
6. The defendants deny paragraph 20 and 21 of the statement of claim and further state that

27

plaintiffs’ father is not the owner of the house in Jattu and that since 1st defendant became the head of the family he had spent various sum of money in maintaining the house now in dispute particularly at a time when the roof was blown off by wind; he has also expended money on the wall fence.
7. Defendants state that plaintiffs are lazy and had attempted to sell the building and when the attempt was thwarted, plaintiffs started writing petitions to the police against defendants which were all found to be frivolous.
13. The defendants deny paragraph 21, 22, 23, 24, 25, 26, 27, 28 and 29 of the amended statement of claim and put plaintiffs to the strictest proof of the averments. Defendants further state that house in Jattu was not built by plaintiffs father but as uncles and elders in the family they cannot chase away their brothers children from their grandmother’s house which defendants’ mother later inherited. See pages 19 – 21 of the Record of Appeal.

​I have taken time to calmly review the averments in the pleadings of the parties, noting particularly the issues as joined by them. The parties are ad idem that the title to the land on

28

which the house in dispute was built belonged to the grandmother of the Respondents and the mother of the Appellants, who was the sole heir to the grandmother of the Respondents’ father as well as being the grandmother of the Appellants. In other words, the land on which the house in dispute was built belonged to the Respondents’ Great Grandmother, who was the Grandmother of the Appellants. There was therefore, in my finding no issue joined between the parties in their pleadings as to the root of title to the land on which the house in dispute was built.The Court below was therefore, right when it held that the root of title to the land on which the house in dispute was built was not in issues.
Having held that the root of title to the land on which the house in dispute was built was not put in issue, there was in my finding no duty whatsoever on the Respondents to plead and prove title to the land on which the house in dispute was built in any of the five ways of means of proof of title to land in an action for declaration of title to land as erroneously but so vehemently contended by the Appellants. See Idundun V. Okumagba (1976) 7 –

29

10 SC 244 @ p. 277. See also Egbo V. Agbara (1997) 1 NWLR (Pt. 481) 293 @ p. 303; Ani V. Ewo (2004) 1 SC (Pt. 11) 115 @ p. 133. In Ezuchukwu V. Ukachukwu (2000) 1 NWLR (Pt 642)657 @ p. 679.

So who built and owned the house in dispute? The Respondents pleaded that the house in dispute was built solely by their late father on the land given to him by their grandmother, one Hajia Maimuna and their great grandmother to build his own personal house and that upon completion the house became exclusively his own though he brought his mother and grandmother to live in the house in dispute with him. On the other hand, the Appellants pleaded that the house was built jointly by the Respondents’ father and the Appellants, who are brothers of full blood on part of the family land for the use of their mother, and grandmother and that it is a family house in which their mother and grandmother lived until their death at different times.

In law, in civil proceedings the evidential burden of proof, in terms of adducing prima facie evidence, is on the party who alleges a fact and is generally on the Claimant who would fail in his claim if no evidence were adduced

30

at all. However, in civil cases the burden is not static and shifts from one side to the other depending on the issues as joined by the parties in their pleadings. See Section 136 of the Evidence Act 2011. See alsoNigerian Westminster Dredging and Marine Ltd. V. Smooth & Anor. (2011) LPELR-4619 (CA); Cardoso V. Daniel & Ors (1986) LPELR – 830 (SC);Osuji V. Ekeocha (2009) 52 WRN 1; Mini Lodge Ltd. V. Ngei (2010) 10 WRN 58; Bunge V. Gov. Rivers State (2006) 6 SC 81.

In proof of their claims, the Respondents called several witnesses in support of the averments in their pleadings. I have taken time to review the totality of their evidence, including Exhibit A, as in the printed record. PW1 was one Madam Habiba Musa. Her evdience is atpages 73 – 76 of the Record of Appeal. PW2 was one Ketumi Bala. Her evidence is at pages pages 77 – 78 of the Record of Appeal. The 2nd Claimant before the Court below, Aminu Bala also testified. His evidence is at pages 79 – 83 of the Record of Appeal. PW3 was one Alhaji Garba. His evidence is at pages 84 – 85 of the Record of Appeal. PW4 was one Yahaya Ibrahim. His evidence is at pages 86 – 87 of the Record of Appeal.

31

PW5 was one Alhaji Jibrin Itsagwede. His evidence is at pages 88 – 89 of the Record of Appeal. In their defense, the Appellants called some witnesses in support of the averments in their pleadings. I have taken time to review the totality of their evidence as in the printed record. DW1 was one Alhaji Shaibu Abba. His inchoate evidence before his death is at pages 80 – 86 of the Record of Appeal. DW2 was one Alhaji Baba Azumi. His evidence is at page 92 of the Record of Appeal. The 1st Defendant before the Court below, Mu’azu Jibril Ali, also testified. His evidence is at pages 93 – 96 of the Record of Appeal.

It was on the strength of the above state of pleadings and evidence as led by the parties that the Court below had in its judgment held inter alia thus:
“…The parties are agreed in principle that the deceased father of the Claimants built the house but the contention of the Defendants is that they contributed to the building…..I am satisfied that there is credible evidence that the Claimants’ father Baba Ali in his lifetime was in Onitsha and at a time re-located to Yelwa Quarters Jattu Uzairue and built the house in

32

dispute. The evidence of the Defendants tends to support this evidence. The only difference is that they contributed. The fact that they contributed in any way would not justify the claim to ownership….The only dispute in my respectful view is as to the ownership of the house built on the land….The DW2 and DW3 cannot lay claim to ownership of the land in dispute they supported to build.The evidence of CW3 and independent witness and community leader is very weighty so also that of CW5. I believe them when they said the Claimants’ father built the house and put his mother to live with him….The fact that the mother of the Defendants permitted in her life time the Claimants’ father to erect the house on the land it belongs to him…..I am satisfied that the father of the claimants built on that part of the land with the necessary consent. The land on which the house is built is ordered excised or partitioned by the 1st Defendant for the Claimants…” See pages 97 – 108 of the Record of Appeal.

​It is against the above findings that the Appellants had approached this Court in this appeal contending that these findings were perverse in

33

that the claims of the Respondents were not proved by the inconsistent and contradictory evidence of PW1 and PW2, which they argued were at variance with their pleadings. On the other hand, the Respondents had contended that their claims were proved fair and square on the credible evidence led by them as was rightly found by the Court below.

My lords, the Appellants and the Respondents are ad idem that the title to the land on which the house in dispute was built belonged to the Respondents’ grandmother and great grandmother, who are the mother and grandmother of the Appellants. Thus, both the Respondents’ father and the Appellants had the same interest in the land prior to the building of the house in dispute on it. There is therefore, no difficulty at all that prior to the building of the house in dispute, the land on which it was built was part of the family land of the parties devolving from the Respondents’ great grandmother, who is the grandmother of the Appellant unto her only heir in successor, the Respondents’ grandmother, who is the direct mother of both the Appellants and the late father of the Respondents.

​34

So how, and when did the family land cease to be family land to become the personal land of the Respondents’ late father? Was it by the mere fact of his putting up the building on part of the family land? Was it a gift inter-vivos of a part of the family between the Respondents’ grandmother and great grandmother and their late father? Was there any evidence of such a gift and or partition and under what law, either under their native law and custom or under statute?
Honestly, the more I closely review and evaluate the totality of the pleadings and evidence as led by the parties, particularly the Respondents and their own witnesses, the more it becomes obvious to me and established as fact that the land on which the house in dispute was built was, still is and had remained the family land of the parties. I cannot see any partition or gift under any law, either customary or any statute transferring any form of title, whether legal or equitable, unto the Respondents’ father either by their grandmother and or great grandmother of the land on which the house in dispute was built. A house built by a member of family on part of family land and with

35

consent of the mother and grandmother of the family, admittedly the owners of the land, as found as fact by the Court below, no matter the amount of resources spent thereon, cannot ripen into personal ownership of family land unless it was partitioned under the applicable customary law of the parties. See Bassey V. Cobham (1924) 5 NLR 92; Igwemadu V. Igwemadu [2011] All FWLR (Pt. 573) 1980 @ p. 2008; Will, Fixon Owoo V. Robert Williams Owoo & Ors 11 WACA 81. The preponderance of the evidence led also showed clearly that the house in dispute was built by joint and collaborative efforts of the children of the Respondents’ grandmother, which includes the Appellants and the father of the Respondents. At any rate, having found as fact that the land on which the house in dispute was built was and still is family land, in law even if it is found as fact, which is not the proved fact, that the house was built solely by the Respondents’ father on family land, that would still not have made the Respondents’ father the owner of either the family land and or the house built upon family land. SeeBassey V. Cobham (1924) 5 NLR 92; Igwemadu V. Igwemadu

36

[2011] All FWLR (Pt. 573) 1980 @ p. 2008; Will, Fixon Owoo V. Robert Williams Owoo & Ors 11 WACA 81. ​The attempt by the Court below to distinguish the facts of this case from the succinct fats of the very old decision in Bassey V. Cobham (1924) 5 NLR 92 in order to hold that that case was not applicable to the instant case can be akin to an attempt at distinguishing between six and half a dozen. There is no difference at all. Generally, particularly under customary law, a family property belongs to the family as a whole while individual members of the family are entitled to enjoy the property and even where pieces of land may be allotted to members of the family, such as the Respondents’ father, even if that were proved but was not even so proved, the allotees would have only right to occupy and use the land which they cannot alienate or part with without the consent of the family. A family member cannot convert family land allotted to him for the mere purpose of use either for building or any other purposes to his personal own merely by building on family land. Thus, under customary law family land remains in perpetuity as family land unless

37

and until it is brought to an end either by partition or sale or otherwise by the family. Therefore, all the findings to the contrary by the Court below were in grave error and perverse and thus liable to be set aside without much ado! See Shelle V. Chief Asajon (1957) 2 FSC 65 @ p. 67; Christlieb Plc V. Majekodunmi (2011] All FWLR (Pt 592) 1802; Seriki V. Aduralere (2012) All FWLR (Pt. 626) 535 @ p. 550.
Having found as fact that the house in dispute was built by the joint and collaborative efforts of the Respondent’s father and the Appellants, all brothers of full blood, on the family land, I hold that the house in dispute built on family land belongs to the family. It neither belongs personally to the Respondents or their late father nor to the Appellants. It belongs to the family as a whole and no individual members, inclusive of the Respondents’ late father as well as his brothers of full blood, the Appellants, can arrogate or convert it to his or their personal ownership unless and until it is partitioned. InOgundairo V. Abeje (1967) LLR 9, it was emphatically pronounced inter alia thus:
“The law is settled that family

38

property is property which devolves from father to children and grand children under native law and custom and which no individual child or member of the family can dispose of in his or her will until such property is partitioned and each child or member of the family has his or her own separate share of the whole”
See also Olukoya V. Bankole (1909 – 09) 1 NLR 81; Otun V. Ejide (1933) 11 NLR 124; I. O. Smith, ‘Practical Approach to Laws of Real Property in Nigeria’ Ecowatch Publications Limited @ page 32.

​I now come to the issue of, what even the counsel for the Appellants termed as, ‘observation’ by the Court below but yet made it an issue for determination in this appeal! I think the law is now too elementary to make room for any ambiguity any longer that an appeal must be against a decision or finding of the Court not against every side remarks or obiter in the judgment appealed against. I have read through the contents of Exhibits A and juxtaposed it with the comment or observation of the Court below in its judgment were it felt Exhibit A though seemingly trifle but showed some form of mala- fide by the

39

Appellants towards the Respondents, the children of their late brother and I think that the observation was unfair, uncalled for and unnecessary since Exhibit A to all intents and purposes had no bearing on the issues in contention between the parties in this case over the house in dispute. I shall say no more!

The last question is whether or not the Respondents claimed any relief seeking an order of partition or excision in their favor of that part of the family land on which the house in dispute was built? Honestly, I am at a loss as to how and why the Court below had so gratuitously made the order of partition or excision of the land on which the house in dispute was built! On both the pleadings and the entirety of the evidence led by the Respondents, there was no where the Respondents pleaded or sought for an order of partition or excision of that part of the land on which the house in dispute was built.The parties therefore, did not join any issue on partition or excision of the land on which the house in dispute was built. That being so, in law the Court below lacked both the jurisdiction and power to grant a relief not even sought from it by the

40

Respondents against the Appellants. Thus, in law the grant by the Court below of the order of excision and or partition of the land on which the house in dispute was built in favor of the Respondents against the Appellants is perverse and indefensible to say the least! It cannot be allowed to stand but must be set aside. InGaruba V. KIC Ltd (2005) 5 NWLR (Pt. 917) 160 @ p. 170, the Supreme Court per Oguntade JSC., had opined inter alia thus:
“It is the law generally that a Court not being a charitable institution would not grant to a party a relief not claimed from Court…Even if the trial Court had been minded to grant the Plaintiff an award, there was no claim before it upon which to hinge such an award”
See also Nigeria Air Force V. Shekete (2002) 18 NWLR (Pt. 798) 129 @ p. 151.

I had already held, while resolving issue two, that the Court below erred in law when it relied on the inchoate evidence of the late DW1. Now, having come to the end of this judgment, I have found that the reliance on that inchoate evidence of the DW1 played a key role in the impressions on the Court below and led it to misdirect itself when it

41

held erroneously that the evidence of the late DW1, though called by the Appellant, supported the case of the Respondents. There can be nothing farther from the truth than such an inference drawn by the Court below from the evidence of the late DW1. On the contrary, the evidence of the late DW1, even though I had already held was irrelevant and thus inadmissible under Section 39 (a) of the Evidence Act 2011, was clearly in support of the case of the Appellants to the effect that the house in dispute was built by the joint and collaborative efforts of the Respondents’ father and his brothers, the Appellants and I hereby so reiterate. In the light of the findings above, issues one and three are hereby resolved in favor of the Appellants against the Respondents.

On the whole therefore, having resolved issues one, two and three for determination in favor of the Appellants against the Respondents, I hold that the appeal has merit and ought to be allowed. Consequently, it is hereby allowed.

In the result, the Judgment of the High Court of Edo State, Coram: E. F. Ikponmwen J., in Suit No. HAU/9/2009: Mr. Adamu Bala & Ors V. Mallam Mahazu Ali

42

& Anor., delivered on 5/2/2014, wherein the claims of the Respondents as Claimants were granted against the Appellants as Defendants, is hereby set aside.

In its stead, the Respondents’ Suit No No. HAU/9/2009: Mr. Adamu Bala & Ors V. Mallam Mahazi Ali & Anor., is hereby dismissed for lacking in merit.

There shall be no order as to cost.

TUNDE OYEBANJI AWOTOYE, J.C.A.: I agree

MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A.: For all the reasons given in the leading judgment of my learned brother, Biobele Abraham Georgewill, JCA just delivered, I also allow this appeal. I abide by the orders made by my learned brother.

43

Appearances:

  1. Atteh Esq. For Appellant(s)

Mrs. F. P. Mejowa For Respondent(s)