JIBIA & ORS v. SULE & ORS (2022)

JIBIA & ORS v. SULE & ORS

(2022)LCN/16939(CA)

In The Court Of Appeal

(KADUNA JUDICIAL DIVISION)

On Friday, March 11, 2022

CA/K/168/2016

Before Our Lordships:

Mojeed Adekunle Owoade Justice of the Court of Appeal

Amina Audi Wambai Justice of the Court of Appeal

Abubakar Mahmud Talba Justice of the Court of Appeal

Between

1. SHAMSU INUSA JIBIA 2. NASIRU INUSA 3. KABIRU INUSA JIBIA (Substituted For Late Alhaji Jibia) APPELANT(S)

And

1. YUSUF SULE 2. KABIR SULE 3. ALI SULE (For Themselves And On Behalf Of Other Legal Heirs Of Late Sule Mai-Mai) RESPONDENT(S)

 

RATIO

THE BURDEN AND STANDARD OF PROOF IN CIVIL CASES

The law is that the burden of proof in civil matters is on the Plaintiff to prove what he asserts. This is the general burden of proof in the sense of establishing his case. OTANMA V. YOUDUBAGHA (2006) 2 NWLR (Pt. 964) 337.
The standard of proof is on the preponderance of evidence. Unless this standard is attained the burden is not discharged and does not shift. However, unlike in criminal cases, once the plaintiff adduces sufficient evidence that prima facie establishes his case, the burden shifts to the defendant to explain away or rebut the plaintiff’s case. CHABASAYA V. ANWASI (2010) 10NWLR (Pt. 1210) 163 SC.
Thus, the burden of proof keeps shifting from the plaintiff to the defendant like a pin-pong or the horse’s tail, I would say, until it finally rests on the party who would lose if no further evidence is produced.  PER WAMBAI, JC.A.

THE BURDEN OF PROOF IN AN ACTION FOR DECLARATION OF TITLE TO LAND

​It is now trite that in an action for declaration of title to land, the onus is on the claimant to prove his case. The plaintiff who asserts title to land and seeks declaratory relief has the onus to establish his title. He must succeed on the strength of his case and not on the weakness of the defence or opponent’s case. except where the weakness of the defence or opponent supports his own case. OGUANNHU V. CHIEGBOKA (2013) 6 NWLR (Pt. 1351) 588 at 604. PER WAMBAI, JC.A.

WAYS OF PROVING TITLE OF OWNERSHIP TO LAND

It is now settled that the ownership or title to land may be proved in any of the following ways: (i) By Traditional evidence; (ii) By Production of documents of title which are duly authenticated; (iii) By acts of selling, leasing, renting out all or part of the land, or farming on it or on a portion thereof; (iv) 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 the owner of the land in dispute. See Idundun v. Okumagba (1976) 1 NMLR 200, 210-221 and, Ashiru v. Olukoya (2006) LPELR-580 (SC) OR (2006) 11 NWLR (Pt. 990). PER WAMBAI, JC.A.

WHETHER OR NOT THE APPELLATE COURT CAN RAISE ISSUES FROM THE GROUND OF APPEAL SUO MOTU

Regrettably, there is no appeal against the decision of the lower Court rejecting the documents. That issue has not been properly placed before this Court for consideration and determination. Simply put, the said issue is not before us for review. This is so because we are mindful of the trite law that an appellate Court is bound to restrict itself to the issues properly placed before it and raised from grounds of appeal or with leave of Court. It cannot go on a voyage outside those issues. It can only concern itself with the ratio decidendi or findings of the lower Court properly placed before it by way of an appeal. It has no business and indeed no jurisdiction over a decision against which there is no appeal to it. See OLUSANYA V. OLUSANYA (1983) 3 SC 41 at 56-57; FIN BANK NIG. PLC. V. OLA WALE (2012) LPELR 16362 (CA).
What an appellate Court is permitted to do over an error ex facie committed by the lower Court upon which there is no appeal is to only comment on the misapplication of the law or adoption of wrong procedure by the lower Court, as we have done, but cannot disturb the decision. See MOSES V. THE STATE (2006) 11 NWLR (Pt. 992) 458, NWABUEZE V. OKOYE (1988) 4 NWLR (Pt. 91) 664. 
PER WAMBAI, JC.A.

WHETHER OR NOT PARTIES ARE BOUND BY THEIR PLEADINGS

​The Respondent’s case on the other hand as pleaded by their joint statement of defence is that the 1st Respondent borrowed the money from the original plaintiff. However, like a chameleon the Respondents changed the nature of their case in evidence from a “loan” as pleaded to “mortgage”. This is not permissible in law. The elementary Rule of pleadings is that parties are bound by their pleadings and shall not be permitted to set up a different case. It is not open for any party to depart from his pleadings E.D. TSOKWA & SONS LTD. V. U.B.N. LTD (1996) 10 NWLR (Pt. 478) 281, OJOBO V. MORO & ORS (2019) LPELR-47181 (CA), A.C.B. LTD. V. A.G. NORTH (1967) NWLR 231.
It follows, and this is also trite, that any evidence at variance with the pleadings goes to no issue and a trial Court must ignore such evidence and where wrongly admitted and relied upon by the trial Court, the Appellate Court has an obligation to discountenance or expunge the evidence. See OKAFOR V. OKITIAKPE (1973) 2 SC 69, KALU NJOKU & ORS V. UKWU EME & ORS (1973 5 SC 293, AILIED BANK OF NIG. V. AKUBUEZE (1997) 6 NWLR (Pt. 509) 374.
In OTARU & SONS LTD V. IDRIS & ANR. (1999) 6 NWLR (Pt. 606) 330 the Supreme Court succinctly stated the law through Achike JSC in these eloquent words:-
“Surely, no Court has the power to allow inadmissible evidence to be led in respect of unpleaded facts because such evidence goes to no issue. The Court ought to ignore such evidence. And, in any event, an appellate Court should remedy such error by expunging or ignoring such evidence. It offends the rules of pleadings for any Court to act on evidence of unpleaded facts. See Ekpenyong v. Nyong (1975) 2 S.C 71 at 80-81.” 
PER WAMBAI, JC.A.

AMINA AUDI WAMBAI, J.C.A. (Delivering the Leading Judgment): This appeal arose from the judgment of Hon. Justice Sanusi Tukur of the Katsina State High Court in SUIT NO KTH/46/2011 (now called the learned trial Judge and lower Court respectively), delivered on 27th October, 2014 which dismissed the Appellants’ claim and entered judgment for the Respondents.

The original plaintiff Alhaji Inusa Jibia, (now deceased and substituted with the present Appellants) claimed before the lower Court the following reliefs
a. A Declaration that the sale of the Defendant’s Father’s house located beside the Plaintiff’s house along Kauran Namoda Road which house is popularly referred to as Gidan Garba Waware in Tudun Wada Jibia, Jibia Local Government Area at the cost of N300,000.00k to the Plaintiff by then Area Court Jibia is valid and subsisting.
b. An Order of prohibitive injunction restraining the Defendants and other Legal Heirs of their late father from laying claim to the house forming the subject matter of this suit.
​c. General damages against the defendants for the expenses incurred by the plaintiff for filing and prosecuting this suit together with such other costs that the Honourable Court may deem fit and just to award in the interest of justice in the circumstance.

The case of the original plaintiff, Alhaji Inusa Jibia, at pleadings is that during the distribution of the estate of Respondents’ Father (late Alh Sule Jibia) by the Jibia Area Court (now Sharia Court Jibia), the Court ordered the sale of one of the houses of the deceased to be able to settle all the heirs. The Respondents were given first option but declined on ground of lack of funds. The original plaintiff was approached and after the initial hesitation, agreed to purchase the house at N300,000.00 (three hundred thousand naira). He paid the money and was given a writ of possession. The money was shared to the Respondents and other heirs in accordance with Islamic law. Surprisingly, almost 20 years after the Appellants’ peaceful and quick possession, the Respondents suddenly decided to lay claim to the house.

​The case of the Respondents on the other hand, who denied the sale of the house to Alh. Inuwa Jibia is that there was no need to sell the house but that the 1st Respondent borrowed the sum of N300,000.00 from the original plaintiff (Alh. Inusa Jibia), after the distribution of the estate on the understanding that Alhaji Inusa Jibia would be and remain in possession pending the payment of the loan to him. Upon confirmation of the rumors from Alh. Inusa Jibia that he was claiming ownership of the house, the 1st Respondent filed a complaint before the Jibia District Head, Sarkin Arewa, and eventually before His Royal Highness the Emir of Kastina who invited all parties including the Area Court Judge, who distributed the estate of Late Sule Jibia, but he denied ever signing the writ of possession for Alh. Inusa.

In support of their case, the Appellants called five witnesses and tendered five exhibits two of which were rejected. Respondent’s called four witnesses but tendered no exhibit.

At the end of the trial, the lower Court dismissed the Appellants’ claim and in doing so held inter alia:-
’’…-and declare that the said property the subject matter of this dispute remains the property of the estate of late Alhaji Sule Mai-Mai and further declare that the plaintiff should collect back his mortgage sum from the 1st defendant in the sum of N300,000.00 (three hundred thousand naira) only with the effect from today the date of judgment and release the disputed property to the defendant’’.

The Appellants were aggrieved by the decision and filed a Notice of Appeal which was by leave of this Court amended on 15/02/2021. The amended notice of appeal contains five grounds of appeal.

The grounds of appeal snub their particulars read:
GROUND ONE:
That the learned trial Judge erred in law when he held thus:
…and declare that the said property the subject matter of this dispute remains the property of late Alhaji Sule Mai-Mai and further declare that the plaintiff should collect back his mortgage sum from the 1st defendant in the sum of 300,0000.00 (three hundred thousand Naira) only with effect from today the date of the judgment and release the disputed property to the defendant.
GROUND TWO:
That the learned trial Judge erred in law when he awarded to the defendants the declaratory reliefs which they did not claim in this suit by way of counter-claim.
GROUND THREE:
The learned trial Judge erred in law in that he wrongfully dismissed the plaintiff’s claim in this suit without putting into consideration the evidential value of exhibits 1(a), 1(b) & 1(c) which documents support the case of the Appellant that he bought the disputed property at the request of the 1st defendant and the said exhibits support this evidence.
GROUND FOUR:
That the decision is against the weight of evidence adduced in this matter.
GROUND FIVE:
The learned trial Court erred in law in that he dismissed the Appellant’s claim in this suit on the basis that he failed to adduce any documentary evidence to back up the sale of the disputed property when he testified in Court when it is obvious that the defendants did not tender any document to back their assertion that the property was mortgage.

Learned Counsel to the Appellants Chief Chris A. Ekhasemomhe Esq. nominated two issues for determination, namely: –
(1) WHETHER THE TRIAL COURT WAS RIGHT WHEN IT AWARDED THE RESPONDENTS RELIEFS WHICH THEY DID NOT CLAIM OR MADE OUT.
(2) WHETHER FROM ALL THE CIRCUMSTANCES OF THIS CASE, THE SUM OF N300,000.00 PAID BY THE PLAINTIFF WHICH WAS SHARED BY THE COURT AMONG THE DEFENDANTS NOW RESPONDENTS WAS A CONSIDERATION FOR A MORTGAGE.
He also filed a reply brief on 2nd October 2020.

The Respondents brief of argument settled by Abdul Aliyu Esq. filed on 14th September, 2020 raised two issues for determination, to wit:-
1. WHETHER THE TRIAL COURT WAS RIGHT WHEN IT AWARDED THE RESPONDENTS RELIEFS WHICH DID NOT CLAIM OR MADE OUT
2. WHETHER FROM ALL THE CIRCUMSTANCES OF THIS CASE, THE SUM OF N300,000.00 PAID BY THE PLAINTIFF WHICH WAS SHARED BY THE COURT AMONG THE DEFENDANTS NOW RESPONDENTS WAS A CONSIDERATION FOR A MORTGAGE.

At the hearing of the appeal on 20/01/2022, the Appellants’ counsel though duly served with a hearing notice did not appear in Court. All briefs having been filed, the appeal was deemed duly argued pursuant to Order 19 Rule 9 (4) of the Court of Appeal Rules 2021.

Learned counsel for the Appellants in his brief of argument attacked the competence of the Respondents’ two issues as formulated contending that the issues do not arise from any of the grounds of appeal; that the Respondents having not filed a cross-appeal or Respondents’ notice, the issues are incompetent and liable to be struck out as he cannot use issues to supply the missing link. He cited the cases of NGERE VS. ENEYO (2010) ALL FWLR (Pt 550) 1375, 1395 F.G and TYONEX NIG. LTD VS PFIZER (2019) 78 NSCQR 387at 413 parag B in urging us to strike out the Respondents’ issues for determination

Without much ado, the law is well settled that issues for determination must flow from or relate to the grounds of appeal. In other words, issues for determination are derivable from the grounds of appeal, a fortiori, a Respondent who does not file a cross-appeal and wishes to formulate his own issues can only do so from the grounds of appeal filed by the Appellant. He cannot go outside the Appellant’s grounds of appeal. The principle of law that allows a Respondent to formulate issues for determination restricts and limits the Respondent to navigate only within the fine compass of the grounds of appeal. The restriction is lifted only when he files a cross-appeal from which grounds he is entitled to formulate his own separate and distinct issues, otherwise, his issues for determination must be relevant and intimately connected to the grounds of appeal.

It is therefore necessary to critically examine the two issues with a view to tying them to the grounds of appeal. If the issues are connected to and fit into any of the grounds of appeal, they are competent. Conversely, if any or both of them cannot find a compatible link or connectivity with any of the grounds of appeal the issue or issues is/are incompetent and is/are liable to be struck out or discountenanced for serving no purpose

Looking at the Respondents’ issue 1 already reproduced, together with the Respondent’s 2nd Relief sought at the lower Court which is:
“a declaration that the property is the property forming the estate of the Late Sule Jibia.”,

There is no doubt that the issue flows from ground 1 of the grounds of appeal as well as ground 2 when read together with particular (c) (i).

Ground one as earlier reproduced reads.
“that the learned trial Judge erred in law when he held thus:
and declare that the said property the subject matter of this dispute remains the property of the estate of Alhaji Sule Mai-Mai and further….”

Ground 2 reads;
That the learned trial Judge erred in law when he awarded to the defendant’s the declaratory reliefs which they did not claim in this suit by way of a counter-claim.
C) In the instant case the learned trial Judge declared that:
(i) The property, the subject matter of this dispute remains the property of the estate of late Alhaji Sule Mai-Mai.

It follows that there is no substance in the Appellants’ argument that Respondents’ issue 1 does not flow from the grounds of appeal.

The Respondents’ 2nd issue challenges the competence of the Appellants’ 2nd issue.

It is now trite that an issue for determination cannot be used to challenge the competence of an appeal or the opponent’s issue for determination. The proper procedure is for the Respondents’ counsel to file a motion for the striking out of the Appellants’ issue being challenged.

​Moreover, the ground for the challenge is not sustainable in law as the Appellant’s 2nd issue flows from ground five particular (c) of the grounds of appeal. Respondent’s 2nd issue formulated for determination is therefore discountenanced. We shall however consider the alternate submission at paragraph 4.18-4.19 which responds to Appellants’ submission on the issue.

ISSUE FOR DETERMINATION
Considering the argument in support of the two issues nominated by the Appellants Counsel as well as the Respondents’ surviving issue No. I, the judgment of the lower Court and the record before us, a sole issue crafted from the nominated issues is sufficient to decide this appeal. The issue is: –
Whether the learned trial Judge was right in dismissing the Appellants’ claims and granting reliefs to the respondents.

APPELLANTS SUBMISSION.
Arguing the issue, learned Counsel to the Appellants reiterated the trite position of the law that in civil cases the burden of proof rests on the party who desires a Court to give judgment in his favour. That the burden is fixed at pleadings and fluctuates with the state of the pleadings. He submitted that from the totality of the evidence on record, the Appellants proved their case and referred to the uncontroverted evidence of P.W.1, Sani Yunusa who was the only person that witnessed the transaction between the 1st Respondent and the original plaintiff whose testimony is that it was the 1st defendant who requested him to prevail on the original plaintiff to buy the house and after the persuasion and the plaintiff agreed to buy the house and paid for it, it was to him that the 1st Respondent gave the writ of possession and other documents from the Court to deliver to the plaintiff.

He submitted that by the Appellants’ evidence on record and the Respondents’ admission that the money collected by the 1st Respondent was shared between them in accordance with Islamic law of inheritance, the burden had shifted to the Respondents to prove that 20 years later they could come back to claim that they still have interest in that property on the ground that it was only mortgaged to the Appellants. He cited the cases of ADEGOKE V. ADIBI (1992) 5 NWLR (PT. 242) 410; AGU V. NNAJI (2003) FWLR (PT. 139) 1537 and UNION BANK V. RAVIH ABDUL & CO. LTD (2018) LPELR- 46333 (SC).

​Contending that it was the Respondents’ case that was weak, learned counsel called in aid the cases of AKINOLU V. OLUWO (1962) 1 SCNLR 352; BELLO V. EWEKA (1981) 1 SC 101 and PASTOR J AKINLOLU AKINDURO V. ALHAJI IDRIS ALAYA SC. 296/2002. to argue that the Appellants are entitled to benefit from the weakness of the Respondents’ case insisting that the claim that the property was only mortgaged or the money collected by the 1st Respondent as a loan was an afterthought.

On the reliefs granted to the Respondents, counsel submitted that the Court is bound by and confined strictly to the reliefs sought by parties and cannot give to a party what he did not claim citing in support the cases of EAGLE SUPER PACK (NIGERIA) LIMITED V. ACB PLC (2006) 19 NWLR (PT. 1013) 20; OSUJI V. EKEOCHA (2009) LPELR (2816) 1 AT 44 COUNTY & CITY BRICKS DEVELOPMENT COMPANY LIMITED V. MKC NIG. LTD (2019) LPELR–46889. Our attention was drawn to page 81 of the record where the Court declared that the plaintiff should collect back his mortgage money and release the disputed property to the defendants, a relief which neither featured in their joint statement of defence (that the property was mortgaged to the plaintiff) nor prayed for by the Respondents. He urged us to resolve the issue in favour of the Appellants to allow the appeal.

RESPONDENTS SUBMISSION
Responding, the learned counsel for the Respondents referred to paragraph 9 of their joint statement of defence to contend that the Respondents having therein sought the reliefs and adduced evidence in support of reliefs 1 and 2, the lower Court was right in granting same and in making the declarations that the said property still forms the property of late Sule Mai-Mai.

He submitted that the lower Court rightly dismissed the Appellants’ case, their relief No. 1 which is declaratory in nature cannot be granted even on admission but only upon credible evidence by the Appellants noting that the Appellant must rely only on the strength of their own case and not on the weakness of the defence. He referred to GODDY EDOSA V. OGIEMWANRE (2018) 76 NSCQR 212 AT 230 PARA. F and urged us to resolve the issue in his favour of the Appellants and dismiss the appeal.

RESOLUTION OF APPEAL
This issue challenges the correctness of the finding and conclusion of the lower Court that the Appellant did not prove his case and also the propriety of the grant of the reliefs to the Respondents.

The Appellants’ case is that he is the owner of the house in question having bought same at the sum of N300,000.00. Premised on his contention, the Appellant sought a declaration from the lower Court that the sale of the said house to him as duly described both at pleadings and evidence, is valid and subsisting.

The law is that the burden of proof in civil matters is on the Plaintiff to prove what he asserts. This is the general burden of proof in the sense of establishing his case. OTANMA V. YOUDUBAGHA (2006) 2 NWLR (Pt. 964) 337.
The standard of proof is on the preponderance of evidence. Unless this standard is attained the burden is not discharged and does not shift. However, unlike in criminal cases, once the plaintiff adduces sufficient evidence that prima facie establishes his case, the burden shifts to the defendant to explain away or rebut the plaintiff’s case. CHABASAYA V. ANWASI (2010) 10NWLR (Pt. 1210) 163 SC.
Thus, the burden of proof keeps shifting from the plaintiff to the defendant like a pin-pong or the horse’s tail, I would say, until it finally rests on the party who would lose if no further evidence is produced.

​It is now trite that in an action for declaration of title to land, the onus is on the claimant to prove his case. The plaintiff who asserts title to land and seeks declaratory relief has the onus to establish his title. He must succeed on the strength of his case and not on the weakness of the defence or opponent’s case. except where the weakness of the defence or opponent supports his own case. OGUANNHU V. CHIEGBOKA (2013) 6 NWLR (Pt. 1351) 588 at 604.

It is now settled that the ownership or title to land may be proved in any of the following ways: (i) By Traditional evidence; (ii) By Production of documents of title which are duly authenticated; (iii) By acts of selling, leasing, renting out all or part of the land, or farming on it or on a portion thereof; (iv) 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 the owner of the land in dispute. See Idundun v. Okumagba (1976) 1 NMLR 200, 210-221 and, Ashiru v. Olukoya (2006) LPELR-580 (SC) OR (2006) 11 NWLR (Pt. 990).

The Appellant herein relies on purchase of the house as the root of his title and pleaded the receipt of payment and the Writ of possession from the Area Court Jibia.

​The summary of the evidence adduced for the Appellant through the five witnesses is that in the course of the distribution of the estate of the deceased father of the Respondents, (late Sule Mai-mai) by the then Area Court Jibia, the Court had to sell one of the houses left behind by the deceased to realise sufficient money to be shared to all the legal heirs. The house in dispute, popularly referred to as GIDAN GARBA WAWARE at Tudun Wada Jibia was valued at N300,000.00. The 1st Respondent who is the senior son and then the chairman of Jibia Local Government Council contacted PW1 to plead with Appellants’ father (the original plaintiff) to buy the house but Appellants’ father declined. It took the intervention of P.W1, Sani Inusa Jibia, and the assurance of the father of one of the deceased’s wives to persuade the original plaintiff (Alh. Inusa Jibia) to agree to buy the house. That two days after the payment of the sum of N300,000.00 by Alh. Inusa Jibia, the 1st Respondent gave him (PW1) the Writ of Possession of the house and the receipt from the Court to hand over to the original plaintiff who immediately went into possession.

PW 2, Abdulrazak Shuaibu, a tailor, was a tenant let into possession by the original plaintiff for 18 years and was paying rent to him.

PW 4, Alh. Abdullahi Lawal was the person collecting rent for the original plaintiff and did so from 1997–2007. He collected rent on behalf of the original plaintiff from the Jibia Local Government even when the 1st Respondent was the chairman of Jibia Local Government Council. That the plaintiff went into possession between 1991–1992 when the property was sold to him.

PW5 was the original plaintiff himself, Alh. Inusa Jibia who maintained that he bought the house through the Court on the request of 1st Respondent, and paid the sum of N300,000.00 which the house was valued, and was issued with a Writ of possession and a receipt by the Court. That he has been in possession of the house for up to 20 years until the 1st Respondent suddenly alleged that he only borrowed the said sum of N300,000 from him (PW5) but the house was not sold to him.

​The Appellants tendered in evidence Hausa version of the proceedings of Jibia Area Court I in respect of the estate distribution of late Alh. Sule Mai-Mai (late father of the Respondents) and the English translated version as well as the receipt for payment of the record of proceedings as Exhibits 1A, 1B & 1C respectively.

Counsel for the Appellant also tendered certified true copies of the writ of possession and receipt in evidence through PW1 but upon objection to their admissibility, the documents were rejected and marked as “tendered but rejected”.

The ground for the objection of the documents was that the name of the certifying officer was not subscribed on the documents though his official title and signature were subscribed. In rejecting the documents, the lower Court held that the word “shall” in Section 104 (2) of the Evidence Act makes full compliance mandatory and that the absence of the name of the certifying officer rendered the documents inadmissible.

​The two rejected documents the “writ of possession from the Area Court, Jibia (in Hausa Language) and the Katsina State Govt receipt as conceded by the Respondents counsel and the lower Court, bear the signature and the designation of the certifying officer, the Assistant Registrar of the Area Court Jibia, and are all dated 24/4/13. With the afore stated endorsements on the documents, they ought not to have been rejected because they are in substantial compliance with the requirement of Section 104 (2) of the Evidence Act.

Furthermore, though counsel for the Appellant on 13/1/2014 just before the delivery of the ruling on the objection wrongly applied to withdraw the documents because he had found the original, he took no further steps to have the original documents in evidence after the secondary copies were rejected.

​Regrettably, there is no appeal against the decision of the lower Court rejecting the documents. That issue has not been properly placed before this Court for consideration and determination. Simply put, the said issue is not before us for review. This is so because we are mindful of the trite law that an appellate Court is bound to restrict itself to the issues properly placed before it and raised from grounds of appeal or with leave of Court. It cannot go on a voyage outside those issues. It can only concern itself with the ratio decidendi or findings of the lower Court properly placed before it by way of an appeal. It has no business and indeed no jurisdiction over a decision against which there is no appeal to it. See OLUSANYA V. OLUSANYA (1983) 3 SC 41 at 56-57; FIN BANK NIG. PLC. V. OLA WALE (2012) LPELR 16362 (CA).
What an appellate Court is permitted to do over an error ex facie committed by the lower Court upon which there is no appeal is to only comment on the misapplication of the law or adoption of wrong procedure by the lower Court, as we have done, but cannot disturb the decision. See MOSES V. THE STATE (2006) 11 NWLR (Pt. 992) 458, NWABUEZE V. OKOYE (1988) 4 NWLR (Pt. 91) 664.

In the circumstance, we cannot interfere with the decision of the lower Court rejecting the very vital documents in support of the Appellant’s case.

As it turned out, by the rejection of the two documents, the Appellants were unable to put in evidence the documents they pleaded at paragraph 6 of their joint Statement of Claim as the “writ of possession [Form 15]” and “a Katsina State Revenue Receipt No. KTTA/16306Y25 as evidence of title”. That notwithstanding, the oral evidence on record proves the following facts,
1. That the house in question was valued at N300,000.00
2. That the 1st Respondent collected from the original plaintiff the sum of N300,000.00 in respect of the house.
3. That the said house valued at N300,000.00 on Exhibit 1B is the 1st item on the list of the estate of the deceased for distribution.
4. That the said sum of N300,000.00 form part of the total estate amounting to N538,000.00 which was distributed and shared out to all the heirs including the 1st Respondent.
5. That the Appellant was let into and remained in possession for about 20 years exercising acts of ownership to the knowledge of the 1st Respondent.

The 1st Respondent as DW4 testified inter alia.
The money I borrow (sic) from the plaintiff was shared amongst the heirs about 22 years ago.
Yes, he issued it (the house) out to rent and has been maintaining the house for the rent he collect (sic) which initially it was my father who gave it to the local government.

The 3rd Respondent as DW3 also in cross-examination stated:-
“the N300,000.00 collected as mortgage was part of what was shared to us…”

There is no doubt that all these pieces of evidence strongly support the case of the Appellants. However, the law is settled that a party who claims title to land through purchase and seeks a declaration in respect of the land must prove he purchased the land by producing a purchase receipt or an agreement of sale or any document that shows that such a transaction did in fact take place. See OTANMA V. YOUDUBAGHA (2006) 2 NWLR (Pt. 964) 337.
It is the purchase receipt that evidences that there was an agreement for sale of land, and that the consideration for sale was paid by the purchaser. Equally, a purchase of land can be proved by an agreement of sale or by any fact that shows that such a transaction did take place; such as transfer of documents of title. See Aminu v. Ogunyebi (2004) 1 NWLR (Pt. 882) p. 457.

This being the requirement of the law, though Appellants have proved equitable interest in the property, the oral evidence of the 1st Appellant and PW1 are not sufficient to entitle the Appellants to the declaration sought.

​The Respondent’s case on the other hand as pleaded by their joint statement of defence is that the 1st Respondent borrowed the money from the original plaintiff. However, like a chameleon the Respondents changed the nature of their case in evidence from a “loan” as pleaded to “mortgage”. This is not permissible in law. The elementary Rule of pleadings is that parties are bound by their pleadings and shall not be permitted to set up a different case. It is not open for any party to depart from his pleadings E.D. TSOKWA & SONS LTD. V. U.B.N. LTD (1996) 10 NWLR (Pt. 478) 281, OJOBO V. MORO & ORS (2019) LPELR-47181 (CA), A.C.B. LTD. V. A.G. NORTH (1967) NWLR 231.
It follows, and this is also trite, that any evidence at variance with the pleadings goes to no issue and a trial Court must ignore such evidence and where wrongly admitted and relied upon by the trial Court, the Appellate Court has an obligation to discountenance or expunge the evidence. See OKAFOR V. OKITIAKPE (1973) 2 SC 69, KALU NJOKU & ORS V. UKWU EME & ORS (1973 5 SC 293, AILIED BANK OF NIG. V. AKUBUEZE (1997) 6 NWLR (Pt. 509) 374.
In OTARU & SONS LTD V. IDRIS & ANR. (1999) 6 NWLR (Pt. 606) 330 the Supreme Court succinctly stated the law through Achike JSC in these eloquent words:-
“Surely, no Court has the power to allow inadmissible evidence to be led in respect of unpleaded facts because such evidence goes to no issue. The Court ought to ignore such evidence. And, in any event, an appellate Court should remedy such error by expunging or ignoring such evidence. It offends the rules of pleadings for any Court to act on evidence of unpleaded facts. See Ekpenyong v. Nyong (1975) 2 S.C 71 at 80-81.”
Indeed, the implication of evidence adduced for a party being different from his pleadings on a material fact such as in the instant case is that the party’s case or defence as the case may be, would fail and stand dismissed. Surely, per force of law, the consequence of adducing evidence for a party which is at variance with the averment in his pleadings on a material and relevant point is that the claim would fail and liable to a dismissal. See MOSES OKHUAROBO & ORS V. CHIEF EGHAREVBA AIGBE (2002) 9 NWLR (Pt. 771) 29.

​This underscores the significance of the relationship between pleadings and evidence on cases fought on pleadings. The relationship between a party’s evidence and his pleadings is like that of a building and its foundation.

Every structure or building is erected upon a foundation. The party’s pleadings in civil cases is the foundation, the skeletal framework, while the evidence is the flesh that clothes the skeletal framework, both of which, put together, make up the body of party’s case. In other words, the pleadings of a party form the backbone, (framework of the case) which provides the foundation upon which to rest the flesh of the case. It is the evidence that makes the body (the case) solid. Evidence must therefore be consistent with pleadings. Where the flesh is different from the foundation, the building or the body cannot stand. Obviously, the Respondents’ evidence that the transaction was a mortgage, cannot stand on their pleadings that the transaction was a loan. The evidence though wrongly received and acted upon by the lower Court must be and is hereby discountenanced.

​In addition, the 1st Respondent also failed to produce any documentary evidence that the transaction was a loan. No loan agreement was pleaded or tendered in evidence in support of their defence. The absence of any loan agreement as pleaded by the 1st Respondent is also a serious setback to the credibility of their claim.

Furthermore, the Respondents did not file a counter-claim. A counter-claim as is well known is a separate and distinct claim from the plaintiff’s claim whereby the defendant claims and seeks relief in opposition to or as a set off against the plaintiffs’ claim. As to what constitutes a counter-claim Tobi JSC in OKONKWO V. CO-OPERATIVE & COMMERCE BANK NIG. PLC & ORS (2003) 8 NWLR (Pt. 822) 342 stated thus:-
“It is clear from the procedure adopted by the 3rd respondent that paragraph 24 alone does not qualify as a counter-claim. I have not come across a counter-claim of only one paragraph. Although the law does not provide for a minimum number of paragraphs in a counter-claim, I am pretty certain in my mind that one paragraph cannot in law make a counter-claim. Is it possible for the single paragraph to narrate the story of the counter-claim as well as the relief sought? I think not. I therefore agree entirely with the Court of Appeal when that Court came to the conclusion that the counter-claim is incompetent. A counter-claim is a conspicuous process which must be clearly donated by the statement of defence. It is not a secret or obscure document where the Court and the plaintiff must use due diligence and strength to locate in the statement of defence. On the contrary, it is one clear process which the Court and the plaintiff can easily identify. Even a plaintiff who is a layman, in the sense that he is not a lawyer, can easily identify a counter-claim as it is clearly written on the face of the pleadings of the defendant. In my humble view, paragraph 24 does not constitute a counter-claim.”
In the instant case, the Respondents filed nothing like a counter-claim. They only claimed at page 9 of their joint statement of defence as follows:-
“WHEREOF the defendants shall urge the Court for the following:
A. AN ORDER dismissing the plaintiff’s claims as contained in his Statement of Claim dated 8th June, 2011.
B. A DECLARATION that the said property is the property forming the estate of the Late Sule Jibia.
C. Cost of prosecuting this defence in the sum of N500,000.00
​They pleaded no facts upon which the reliefs were based not even a statement that they rely on the facts pleaded in the joint statement of defence. Further, the word “counter claim” is conspicuously absent from the entirety of the joint statement of defence. There is nowhere the word or phrase “counter-claim” appears at their pleadings. The Respondents therefore did not file or have any counter-claim. Having not counter-claimed, it goes without saying and as a piece of cake, to bring to bear the effect of such failure on their declaratory relief at paragraph 9 (b) of the joint statement of defence. A defendant who did not counter-claim is not by any means entitled to a declaratory relief.

It therefore beats my imagination why the lower Court not only granted declaratory reliefs to the Respondents without a counter-claim, but also reliefs outside paragraph 9 of the joint statement of defence which we have held does not constitute a counter-claim.

Assuming without so deciding that paragraph 9 of the joint statement of defence constitutes a counter-claim, the evidence on record does not support the grant of the declaration sought. The grant of the relief at paragraph 9 (b) by an order of the lower Court to wit.
“…and declare that the said property the subject matter of this dispute remains the property of the estate of the late Alh. Sule mai-mai…”

Is quite incongruent to and is at war with the established and admitted evidence on record that the value of the said property (N300,000.00) had been collected by the 1st Respondent from the plaintiff and added to the estate of the deceased and shared to all the heirs including the Respondents. How on earth can the same property still form part of the estate of the deceased after its monetary value had been collected and shared to the same heirs who were the beneficiaries of the value of the property when it was shared? The Respondents’ claim is that of eating their cake and still wanting to have the same cake. Quite incredible. They can either eat their cake or have it. They cannot have both. That declaratory order is oxycronomic to the evidence. The Respondents are not in any way entitled to the declaratory order.

​Worse still is the further order that the plaintiff should collect back his mortgage sum from the 1st defendant in the sum of N300,000.00 (three hundred thousand Naira only) with effect from the date of the judgment and release the disputed property to the defendant”.

In the entire body of the joint statement of defence, the prayer never featured at all. A Court of law is not a charitable institution or Father Christmas that doles out without asking. The Court of law cannot grant to an applicant a prayer he has not asked for. It can only grant a relief properly sought to which the party is entitled. By granting to a party what he has not prayed for, the Court only expands the boundaries of the litigation and unnecessarily instigates more litigation to the detriment of the parties as played out in this appeal. See NIG. AIR FORCE V. WING COMMANDER T.L.A. SHEKETE (2002) 18 NWLR (Pt. 798) 129.
Therefore, any claim or prayer granted without being pre-claimed by parties is invalid and the proper order to make in respect of such an order is to set it aside. See AKINRIMISI V. MAERKS NIG LTD. & ANOR (2013) 10 NWLR (Pt. 1361) 73.

​Accordingly, this appeal has some merit. We resolve the 2nd arm of the issue in favour of the Appellants to the extent that the lower Court was wrong in granting the reliefs to the Respondents. Consequently, the appeal succeeds in part and it is ordered as follows.
1. The declaratory order made by the lower Court that the property in dispute remains the property of the estate of the late Alh. Sule mai-mai; and
2. The order directing the plaintiff (Appellants herein) to collect back the sum of N300,000.00 and release the disputed property to the defendant. (Respondent herein)
are hereby set aside.
3. There shall be no order as to costs.
These are the orders of this Court.

MOJEED ADEKUNLE OWOADE, J.C.A.: I was privileged to read in draft, the judgment delivered by my learned brother Amina Audi Wambai, JCA. My learned brother has painstakingly dealt with the salient issues in the appeal.

I agree with the reasoning and conclusion reached in the judgment. I also join my learned brother to allow the appeal in part.

I abide by the consequential orders and the order as to costs.

ABUBAKAR MAHMUD TALBA, J.C.A.: I had the privilege of reading in draft, the judgment of my learned brother AMINA AUDI WAMBAI, JCA. I entirely agree with the reasoning and conclusion reached that this appeal has some merit. There is a common saying that wonders shall never end. That applies to the instant case. By the Appellants’ evidence on record and the Respondents’ admission that the money collected by the 1st Respondent the sum of N300,000.00 was shared between them in accordance with Islamic law of inheritance. And 20 years later they are claiming that they still have interest in the property on the grounds that it was only mortgaged to the Appellants. That is not only an afterthought but is grossly mischievous. A Court of law and equity should not allow itself to be used in order to achieve selfish desire. I shall say no more. Certainly, the lower Court was wrong in granting the reliefs to the Respondents. The appeal succeeds in part. I abide by the consequential order(s) in the lead judgment.

Appearances:

Chief Chris A. Ekhasemomhe, Esq. For Appellant(s)

Abdul Aliyu, Esq. For Respondent(s)