MAIYAKI ADAMU & ANOR. v. ALHAJI MAKU SHABA (2010)

MAIYAKI ADAMU & ANOR. v. ALHAJI MAKU SHABA

(2010)LCN/3570(CA)

In The Court of Appeal of Nigeria

On Monday, the 15th day of February, 2010

CA/A/197/07

RATIO

APPEAL: EFFECT OF AN ISSUE FOR DETERMINATION NOT RELATED TO ANY GROUND OF APPEAL

An issue formulated but not related to any Ground of Appeal is irrelevant and goes to no issue will be discountenanced. See:Ibator v. Barakuro (2007) 9 NWLR Pt. 1040 page 475. PER ABDU ABOKI, J.C.A.

LAND LAW: WAYS OF PROVING TITLE TO LAND

There are five ways of proving or establishing title to land or ownership of land in Nigeria. These are by:

(a) traditional evidence,

(b) production of documents of title duly authenticated

(d) acts of long possession and enjoyment of the land

(e) proof of possession of connected or adjacent land

Where a claimant establishes one of the five methods, that is sufficient proof of ownership of the land he claims. See: Ndukuba v. Izundu (2007) 1 NWLR Pt.1016 page 432: Adanigi v. Anwase (2006) 12 NWLR Pt.993 page 183; Ewo v. Ani (2004) 17 NSCQR 36;Adeosun v. Jibesin (2001) 14 WRN page 106 at 108;Adesanya v. Aderounmu (2000) 6 SC Pt.11 page 18. PER ABDU ABOKI, J.C.A.

PLEADINGS: BINDINGNESS OF PLEADINGS

Parties to a civil action are bound strictly by their pleadings and they are not allowed to make a case that is at variance with their pleadings. See: Eneoli v. Oraekwe (2006) 1 NWLR Pt.961 page 342; Buhari v. Obasanjo (2005) 13 NWLR Pt. 941 page 1; Ngige v. Obi (2006) 14 NWLR Pt.999 page 1; Okko v. Dakolo (2006) NSCQR (Vol.27) page 259; Klifco (Nig.) Ltd. v. N.S.I.T.F.M.B. (2005) 6 NWLR Pt.922 PAGE 445; S.B.N. Ltd. v. M.P.I.E. Ltd. (2004) 6 NWLR Pt.868 page 146; Akinola v. V.C. Unilorin (2004) 11 NWLR Pt.885 page 616. PER ABDU ABOKI, J.C.A.

PLEADINGS: EFFECTS OF EVIDENCE LED ON A FACT NOT PLEADED

Evidence, which is at variance with the averments in pleadings goes to no issue and should be disregarded or discountenanced even if it had been received by the court inadvertently. See: Buhari v. Obasanjo (2005) 2 NWLR Pt.910 page 241; SBN Ltd. v. MPIE Ltd. (2004) 6 NWLR Pt. 868 page 146; Tyum v. Acavti (1996) 8 NWLR Pt.469 page 675.

Evidence led on a fact not pleaded goes to no issue. Such evidence if inadvertently admitted will be expunged. See: Ito v. Ekpe (2000) 2 SC 98;Olowofoyekun v. A.G. Oyo State (1996) 10 NWLR Pt. 477 page 190; Amobi v. Amobi (1996) 8 NWLR Pt.469 page 638. PER ABDU ABOKI, J.C.A.

JUSTICES

JIMI OLUKAYODE BADA Justice of The Court of Appeal of Nigeria

ABDU ABOKI Justice of The Court of Appeal of Nigeria

AYOBODE OLUJIMI LOKULO-SODIPE Justice of The Court of Appeal of Nigeria

Between

1. MAIYAKI ADAMU
2. YAKUBU MAJI Appellant(s)

AND

ALHAJI MAKU SHABA Respondent(s)

ABDU ABOKI, J.C.A. (Delivering the Leading Judgment) This is an appeal against the decision of Fati Lami Abubakar J. of the High Court of Niger State sitting at Minna delivered on 7/12/2005.
The fact of the case is briefly stated as follow:- The Respondent before this Court who was the plaintiff at the trial Court sued the Appellant who were the Defendants for a declaration of title to a farmland lying and situate at Tsohon Daga. The identify of the subject matter of the suit was not in dispute. The plaintiff relied on traditional history and act of possession to establish evidence of acquisition and claim of ownership of the disputed land.
The Defendants on their part did not counter-claim but relied on traditional history as evidenced in their statement of defence.
The trial Court found in favour of the Plaintiff. The Defendant dissatisfied with the decision of the trial court appealed to this Court.
The Plaintiff/Respondent’s claim at the Court as contained paragraph 11 of his statement of claim on page on page 4 of the Record of Appeal reads:-
“11. The Plaintiff claim from the Defendant jointly and severally as follows:
(a)A declaration that the farmland lying and situate at Tsohon Daga and particularly described in paragraph five (5) above belongs to the Plaintiff.
(b)A perpetual injunction restraining the Defendants, their privies and agents from interfering with the possession of the farmland by the Plaintiff, his privies and agents.
(c)Substantial costs”.
The learned trial Judge at the end of hearing of evidence from both parties to the dispute made the following finding:
“In the circumstances and in view of my findings, I find on a preponderance of evidence that the plaintiff has proved his claim against the Defendants to entitle him to the reliefs he seeks. Consequently judgment is hereby entered in favour of the plaintiff thus:-
i.It is hereby DECLARED that the Plaintiff, ALHAJI MAKU SHABA is the owner of the farmland lying and situate at Tsohon Daga and particularly described in paragraph five(5) above.
ii.Perpetual injunction is hereby granted the plaintiff restraining the Defendant their privies, and agents from interfering with the possession of the farmland situate and lying at Tsohon Daga.”
The Defendants/Appellants brief of argument dated 28th December, 2007 and filed on 14/2/2008 out of time with the leave of this Court was deemed filed on 6/4/09, while the Plaintiff/Respondent’s brief of argument dated 4th May, 2009 was filed on 8th/5/09.
The Appellants in their brief of argument distilled two issues for determination from their three Grounds of Appeal contained in the Amended Notice of Appeal dated 28th December, 2007 but deemed filed on 6/4/09. The issues read as follows:-
“1. Whether the Respondent and not the Appellants proved better title.
2. Whether the question as to the Defendants being biological children of late Kpotu was an issue arising from pleadings”.
The Plaintiff/Respondent on his part raised three issues for determination:-
“i. Whether the Respondent and not the Appellants proved better title (Grounds 1 and 3).
ii. Whether the question as to the Defendants being biological children of late Kpotu was an issue arising from the pleadings. (Ground 2).
iii. Whether the Court can declare title in favour of the Appellants who did not counter claim”.

It is trite that an issue formulated for determination by the Respondent in an Appeal must relate to the Grounds of Appeal filed by Appellant. However, where a Respondent desires to raise any issue not related to the grounds of Appeal filed by the Appellant, he will be required to file a Cross appeal or file a Respondent’s Notice. See: Ossai v. Wakwah (2006) 4 NWLR Pt.969 page 208; UTB (Nig.) Ltd. v. Ajagbule (2006) 2 NWLR Pt. 965 page 447; Momodu v. Momoh (1991) 1 NWLR Pt.169 page 608.
An issue formulated but not related to any Ground of Appeal is irrelevant and goes to no issue will be discountenanced. See:Ibator v. Barakuro (2007) 9 NWLR Pt. 1040 page 475.
In the present appeal, the third issue formulated by the Respondents was not been distilled from any of the three Grounds of Appeal filed by the Appellants, it is therefore irrelevant and is hereby struck out.
Since the issues formulated by both parties are the same in language and content, I will adopt the two issues as formulated by the Appellant for the determination of this Appeal.
ISSUE ONE.
“Whether the Respondent and not the Appellants proved better title”.
In his submission on this issue, Counsel for the Appellant, Ibrahim Isiyaku, SAN referred to paragraph 3,4,6,7,8,9, and 10 of the statement of claim at page 3 – 4 of the Record of Appeal which are to the effect that:-
1.Plaintiff inherited the farmland from his father Shaba Galadima, who died in 1972.
2.His father, whom he grew up to see cultivating the land without challenge, was the first to acquire the farmland.
3.Since he took over possession of the land he loaned same out to 2 Persons (an Iboman and woman) and planted some economic trees thereon from which he has been benefiting without challenge.
4.Yam buyers came to him on the land to buy yam tubers, and
5.Both parties share common boundary and their fathers had during that time, cultivated their separate portion without interference until in 2003 when Defendants challenged Plaintiff’s title.
He submitted that conversely, the Appellants (Defendants) averred that:-
1.Their father, Kpotu Tukura, was the first to clear the land and other adjoining land all of which they cultivated.
2.Upon their said father’s death, they inherited and continue to farm the whole land.
3.They loaned the disputed portion of a number to a number of people including Kata Inkpani, Tanko Baduku, Yusuf Mogaji and others including the Plaintiff (whose wife is 1st Defendant’s younger sister).
4.The economic tree on the land grew after some Fulani herdsmen settled (with the Defendants’ permission) and later vacated the land.
5.The Plaintiff referred to Ibo man and woman to the Defendants’ family for their consent before they were allowed to farm on the land.
6.Many farmers had participated in community work on the disputed land for and at the instance of the Defendants or their father; and
7.The present dispute began 3 years previously when Plaintiff resisted Defendants’ claim to title.
Learned Senior Counsel submitted that from the averments, the identity of the land is not in dispute while issues were joined only on the founding of the land and subsequent acts of ownership.
Ibrahim Isiyaku, SAN referred the Court to the testimony of PW1 at pages 22-23 lines 29-18 and contended that when the Plaintiff testified in 2004 he said his father died 32 years ago, it meant 1972, which is in tandem with paragraph 3 of his statement of claim at page 3 of the record of Appeal.
Learned Senior Counsel also referred the Court to page 23 lines 24-25 where the Plaintiff admitted that he did not see his father clear the land because he was not born then. At page 24, lines 8-25 learned Senior Counsel said the Plaintiff denied Defendants’ alleged act of ownership.
Learned Senior Counsel pointed out series of contradictions in the testimony of the witnesses of the Plaintiff and submitted that the Plaintiff can only succeed on the strength of his case. He referred to the case of Elegushi v. Oseni (2005) 14 NWLR Pt. 945 page 348 at 367.
He maintained that the Plaintiff must establish the founding of the land and its development to him, his alleged borrowing to others and the making of his farm produce (yam tubers right there in the land in dispute).
Learned Senior Counsel submitted that in so far as Plaintiff sought to establish title by traditional evidence, all these unresolved contradictions were material not only as to the founding of the land but its devolution to him.
He argued that, it is trite that a Plaintiff relying on traditional evidence must lead evidence as to how the land was founded and through whom it devolved to him. He referred the Court to the case of Alli v. Alesinloye (2000) 6 NWLR Pt. 660 page 177 at 201-203 and 223
Ibrahim Isiyaku SAN submitted that in the instant case, the Plaintiff failed to establish how his father founded the land; whether it was by conquest or gift to him (and by whom) or by purchase (and from whom). He argued that it cannot be said, as held by the trial Court (at page 57 lines 1-4) that the mere fact that both PW1 and PW2 claimed that their father founded the land, without more suffices.
Learned Senior Counsel submitted that Plaintiff failed to establish title through traditional history.
Ibrahim Isiyaku, SAN argued that even the alleged acts of ownership claimed by the plaintiff to have been exercised by him were not proved and submitted that the trial court ought to have dismissed the Plaintiff’s claims.
Ochai J. Ogaba, Counsel for the Respondent submitted on this issue that by evidence proffered by the Plaintiff/Respondent and his witnesses, he had proved better title than the Appellants. He argued that the Plaintiff/ Respondent had by his evidence in support of his claim in line with the relevant averments as pleaded in his statement of claim in paragraph 3,4,5,6,7,8,9 and 10 (pages 3-4 of the record of Appeal), relied not only on traditional evidence to prove his claim, but also by acts of ownership over a sufficient length of time and positive enough as to warrant an inference of act of long possession and enjoyment. He referred this court to page 23 lines 3-15 of the Record of Appeal and the case of Mr. Ayoade Adewuyi v. Andrew A. Odukwe (2005) All FWLR Pt.1100 at 1101.
Learned Counsel contended that the Appellants who also relied on traditional evidence stated that, their father Kpotu Tukuro was the first person to clear the land and other adjoining land. Under cross-examination, Aliyu Galadima as DW2 stated that Kpotu Tukura is not the biological father of the Appellants but Mallam Gwari. That Mallam Gwari had a separate farmland other than that of Kpotu Tukura (see page 38 lines 30-32 and page 39 line 1 of the Record of Appeal).
Ochai J. Ogaba argued that this clearly shows that, the Appellants abandoned their inherited land and started to lay claim to their uncle’s land. He maintained the Appellants can only claim what they are entitled to. He contended that no evidence was led to show that Kpotu and his children passed ownership of the farmland to the Appellants. Learned Counsel submitted that the Appellants filed to established title through the said Kpotu Tukura.

There are five ways of proving or establishing title to land or ownership of land in Nigeria. These are by:
(a) traditional evidence,
(b) production of documents of title duly authenticated
(c) positive acts of ownership extending over a long period of time
(d) acts of long possession and enjoyment of the land
(e) proof of possession of connected or adjacent land
Where a claimant establishes one of the five methods, that is sufficient proof of ownership of the land he claims. See: Ndukuba v. Izundu (2007) 1 NWLR Pt.1016 page 432: Adanigi v. Anwase (2006) 12 NWLR Pt.993 page 183; Ewo v. Ani (2004) 17 NSCQR 36;Adeosun v. Jibesin (2001) 14 WRN page 106 at 108;Adesanya v. Aderounmu (2000) 6 SC Pt.11 page 18.
In the instant case, both parties relied on traditional evidence to establish their title to the farmland in dispute lying and situate at Tsohon Daga village.
While the Plaintiff/Respondent traced his root of title to the land to his father Shaba Galadima who died in 1972, the Defendants/Appellants in their defence said they inherited the farmland from their father, Kpotu Tukura and that, the land was loaned to the Plaintiff by Defendants. The Defendants/Appellants claimed that the farmland was a virgin land when it was cleared by their father.
The Defendants/Appellants also claimed that the Plaintiff/Respondent’s father never farmed on the said land. The Defendants/Appellants in their joint statement of defence at pages 8-9 of the Record of Appeal averred thus:-
“3. The Defendants’ father who was known and called Kpotu Tukura was a renowned farmer who initially, originally and or first cleared, cultivated and farmed on the disputed farmland as well as other adjoining portions of farm land but which do not form the basis of the present dispute.
4. The Defendants’ father together with the Defendants have all been farming and coating not only the disputed farm land but also other adjoining portions of farmlands as one single and distinct portion of farmland.
5. The Defendants inherited the whole but one distinct portion of farmland lying and situate at Tsohon Daga on the death of their father some years back.
7. The Defendants therefore continued to farm and cultivate the deputed farmland even after the death of their father.
8. The Defendants aver further to the effect that the Plaintiff approached them by contacting the first Defendant for the disputed farmland to be borrowed to him (Plaintiff).
9. No sooner had the Plaintiff contacted the first Defendant for the disputed farmland to be borrowed to him, than the first Defendant released same to the Plaintiff in view of the fact that the Plaintiff is marrying the first Defendant’s junior sister.
10. The first Defendant borrowed the disputed farmland to the Plaintiff about seven years back”.
The Defendants/Appellants in their, joint statement of Defence at page 8 of the Record of Appeal averred in paragraph 2 thus:-
“2. The Defendants specifically deny paragraphs 3,4,5,6,7,8,9,10 and 11 as contained on the Plaintiffs statement of claim”.
The Plaintiff/Respondent had pleaded his source of title to the farmland in dispute in paragraphs 2,3,4,7 and 10 thus:
“2. The Defend are farmers and also residents of Tsoho Daga village.
3. The Plaintiff avers that, he is the owner of a piece of farmland in Tsoho Daga village which he inherited from his late father by name Shaba Galadima who died in 1972.
4. The Plaintiff avers that, he grew up to meet his father farming on this land without any interference from anybody since his late father first cultivated the land.
7. The Plaintiff avers that, since the death of his father and when his elder brothers handed over the farmland to him, he has planted two mango trees fifteen (15) years ago, guava trees, kuka trees on the land. On the land also, there is locust bean tree which he has been harvesting without interference.
10. The Plaintiff avers that, the farmland does not belong to the Defendants and that his father and the Defendants’ father were living in peace and farming together while maintaining their respective boundary lines before their deaths”.

It is trite that a party who alleges a fact in his pleadings must prove such fact by adducing sufficient evidence. See: Eze v. Atasie (2000) 6 SC (pt.1) page 214; Ehidiwhen v. Musa (2000) 4 SC (Pt.11) page 166.
Parties to a civil action are bound strictly by their pleadings and they are not allowed to make a case that is at variance with their pleadings. See: Eneoli v. Oraekwe (2006) 1 NWLR Pt.961 page 342; Buhari v. Obasanjo (2005) 13 NWLR Pt. 941 page 1; Ngige v. Obi (2006) 14 NWLR Pt.999 page 1; Okko v. Dakolo (2006) NSCQR (Vol.27) page 259; Klifco (Nig.) Ltd. v. N.S.I.T.F.M.B. (2005) 6 NWLR Pt.922 PAGE 445; S.B.N. Ltd. v. M.P.I.E. Ltd. (2004) 6 NWLR Pt.868 page 146; Akinola v. V.C. Unilorin (2004) 11 NWLR Pt.885 page 616.
In the instant case, though the Defendants/Appellants traced their root of title to their father Kpotu Tukura, at pages 40-41 of the Record of Appeal the 1st Defendants/Appellants who gave his name as Adamu Kpotu and testified as DW3 admitted that his biological father is Mallam Gwari, and a junior brother to Kpotu Tukura. He said that the land in dispute belongs to him and the 2nd Defendant. That his father, Kpotu was the first person who cultivated the land. He gave the name of his father as Kpotu and that he had died. He claimed that the land did not belong to the Plaintiff but that he is the owner; that the Plaintiff’s father share boundary with him toward the east and that the  disputed land is surrounded by his farmland.
He  said that his uncle Mallam Kpotu has two female children and that one is dead while the one alive has eye problems. The witness as DW3 said, Mallam Kpotu took care of him after the death of his father and  that he was already a grown up when Kpotu started taking care of him.
The DW3 under cross-examination said that Mallam Gwari had no separate land from that of Kpotu; that the land in dispute is family land. He further testified that he had  three older brothers called Bawa, Muhammodu and Wakili. He admitted that Mallam Shaji, Gwari and Kpotu are all dead. He claimed that their assets were not shared.
DW2 Aliyu Galadima at page 38 of the Record said:-
“It was Kpotu that first cleared that land in dispute. The Plaintiff’s father used to share boundary with Kpotu on the southern side. I am not aware of any land dispute occurring between either the Plaintiff’s father or that of the Defendants or the Defendants themselves.
To the best of my knowledge, the land does not belong to the Plaintiff. He borrowed the land from the Defendant’s father. I cannot say whether Plaintiff borrowed the land from the Defendants or their father. I know only that he borrowed it”.
Further under cross-examination, DW2 said:-
“At the time Plaintiff borrowed the land, Kpotu was not alive. I don’t know the year the Plaintiff borrowed the land. I know Mallam Shaji. I also know Mallam Gwari. They are all brothers to late Kpotu. The real father of the Defendant is called Mallam Gwari Kpotu had only two female children before he died. One is now dead, the other is alive but blind and lives close to the road in the village. Yes Mallam Gwari and Mallam Shaji have their own separate farmland…Yes, my Lord, my wife is from the Defendants’ family. No man will be happy if his wife divorce him. My coming to Court has nothing to do with issue of wife. It is true I was informed by Ma’aji that the Plaintiff borrowed the land in dispute not that I witness it”.
It is the finding of the trial Court and I am in total agreement with it that the testimony of DW2 is not supported by the averments contained in the Defendants’ Joint Statement of defence, specifically paragraphs 3,4,5,6 and 7 earlier reproduced in this Judgment.The Defendants/Appellants have averred in their Pleading that the land was first cultivated by their father Kpotu Tukura. However, the evidence given in support of their claim is at variance with the averments in the pleadings.
The case put forward by the Defendants/Appellants from the evidence of their witnesses is that the land in dispute was family land shared by Kpotu’s brother and that Kpotu was Defendants/Appellants’ uncle and not their biological father.

It is trite that parties are strictly bound by their pleadings and they are not allowed to make a case that is at variance with their pleadings See:- Buhari v. Obasanjo (2005) 13 NWLR Pt.941 page 1; Khfco (Nig.) Ltd. v. N.S.I.T.F.M.B. (2005) 6 NWLR Pt. 922 page 445.
Evidence, which is at variance with the averments in pleadings goes to no issue and should be disregarded or discountenanced even if it had been received by the court inadvertently. See: Buhari v. Obasanjo (2005) 2 NWLR Pt.910 page 241; SBN Ltd. v. MPIE Ltd. (2004) 6 NWLR Pt. 868 page 146; Tyum v. Acavti (1996) 8 NWLR Pt.469 page 675.

In the instant case, the evidence adduced by the Appellants in support of their case at the lower Court did not form part of their pleadings. The evidence therefore goes to no issue and is accordingly discountenanced.
The Defendants/Appellants were unable to dispute the claims of the Plaintiff/Respondent that his father Shaba Galadima farmed the land until his death and the Plaintiff subsequently inherited the land.
I am satisfied from the evidence presented at the trial Court as contained in the Record of Appeal, that it is the Respondent and not the Appellants that proved better title. The Appellants had not advanced any useful argument before this court to warrant the finding of the trial court being set aside.
The first issue is resolved in favour of the Respondent
ISSUE TWO
“Whether the question as to the Defends being the biological children of late Kpotu was an issue arising from the pleadings”.
Counsel for the Appellant in his submission on his issue referred the court to paragraph 10 of the Statement of Claim and paragraph 3 of the Statement of Defence. He argued that there is no issue joined as to whether or not Kpotu was Defendants/Appellants’ biological father.
Learned Senior Counsel argued that the plaintiff/Respondent did not file a reply to join issue with the Defendants/Appellants in their claim to being Kpotu’s Children or that they could not inherit from Kpotu for whatever reason.
Ibrahim Isiyaku, SAN submitted that whatever information was elicited under Cross-examination by the Plaintiff/Respondent’s Counsel goes to no issue if no issue was joined on the point. He argued that the statements made under cross examination by DW1 at page 37 line 3-6, DW2 at pages 38-39 lines 29-31 and DW3 at page 41 lines 4-9 go to no issue.
Counsel for the respondent in his response on the issue submitted that in view of the testimonies of the 1st Appellant which contradicts his averments in the pleading as regards his relationship with Kpotu and Mallam Gwari, the Court should expunge the piece of evidence in that respect and to treat the entire evidence relating to who is the actual father of the Appellants as unreliable.
He also urged the Court to disregard the evidence of the 1st Appellant at page 41 line 4-6 and 12-16 that Mallam Gwari (his biological father) was Kpotu’s younger brother and that the land is a family land.

JIMI OLUKAYODE BADA, J.C.A: I read before now the lead Judgment of my Lord, ABDU ABOKI, J.C.A just delivered and I agree with my Lord’s reasoning and conclusion.
I am also of the view that this appeal lacks merit and it is dismissed by me.

AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A: I agree.

Appearances

Ibrahim Isiyaku SANFor Appellant

AND

Ochai J OgabaFor Respondent