MR. MUHAMMED O. S. OLATEJU v. ALHAJA RALIAT OYENIKE SANNI
(2010)LCN/3853(CA)
In The Court of Appeal of Nigeria
On Monday, the 7th day of June, 2010
CA/IL/87/2006
RATIO
EVIDENCE: BURDEN OF PROOF; ON WHOM LIES THE BURDEN TO PROVE IN CIVIL CASES
In civil cases, there is the general burden of proof on the plaintiff to prove his claim or relief before a court by virtue of section 137 (1) of the Evidence Act, Frempong II v Brempong II (1952) 14 WACA 13; Olowu v. Olowu (1985) 3 NWLR (pt 13) 372; Fashanu v Adekoya (1974) 6 SC 83; Commissioner of Police v Oguntayo (1993) 6 NWLR (pt 299); Kokoro-Owo v. Ogunbabi (1993) 6 NWLR (pt 313) 627. PER CHIMA CENTUS NWEZE. J.C.A
EVIDENCE: WHAT IS THE CONCEPT OF BURDEN OF PROOF ON THE PLEADINGS
The concept of burden of proof on the pleadings has an ancient ancestry, Pickup v. Thames Ins. Co. 3 Q.B.D.594. 600; and Wakelin v. L & S. W. R v. 12 App Cas. 41, 45. Its contemporary affirmation can be found in such popular cases like Joseph Constantine Steamship Line Ltd. v Imperial Smelting Corporation [1942] AC 154.174; Seldon v. Davidson (1968) 1 WLR 1083. Leading authorities on the English Law of Evidence have endorsed this usage, see, for example, Phipson on Evidence, (11th Edition), paragraph 92; page 40: “Burden of proof on the pleadings.”
In Imana v Robinson (supra), Aniagolu JSC (as he then was), delivering the unanimous judgement of the Supreme Court, approvingly adopted the exposition in Phipson on Evidence (supra) as the Nigerian law on the subject:
‘The burden of proof, in this sense, rests upon the party, whether plaintiff or defendant, who substantially asserts the affirmative of the issue. ‘It is an ancient rule founded on consideration of good sense, and it should not be departed from without strong reasons’. It is fixed at the beginning of the trial by the state of the pleadings, and it is settled as a question of law, remaining unchanged throughout the trial exactly where the pleadings place it, and never shifting in any circumstances whatever. If, when all the evidence, by whosoever introduced, is in, the party who has this burden has not discharged it, the decision must be against him. PER CHIMA CENTUS NWEZE. J.C.A
EVIDENCE: WHAT IS THE RATIONALE OF ALL BINDING AUTHORITIES TOWARDS EVALUATION OF EVIDENCE
In simple terms, the rationale of all binding authorities is that where issues have been raised in the pleadings and oral evidence, the court would, then, resolve them by evaluating the available evidence, Mobil Prod Nig UnLtd v Monokpo (2003) 18 NWLR (pt. 852) 346, 436, that is, by assessing or estimating them so as to be able to ascribe value to them, Osazuwa v. Isibor (2004) 3 NWLR (pt. 859) 16, 39.
To be able to discharge this obligation, certain antecedent considerations have to be attended to. The court must address questions such as these: whether the issues arose in the pleadings? Whether they are relevant and credible; if pleaded, whether they were admitted; where they were not admitted, what contrary evidence was offered?
Upon discharging this obligation, the court is required to construct an imaginary scale on which such evidence called, by either side, is weighed, Opadere v. Odebunmi (2003) 16 NWLR (pt. 845) 46, 57 – 58. Where the evidence dripping with probative value preponderates on one side of the balance, such evidence constitutes the findings of the court, Osazuwa v. Isibor (supra); Bodi v. Agyo (2003) 16 NWLR (pt 846) 305, 323 – 324. What matters is not the number of witnesses called by each party, but the quality or probative value of the evidence, Bodi v. Agyo (supra) 323-324; 326. These guidelines are inviolable, Oyewole v. Akande (2009) All FWLR (pt491) 835, paragraphs D-G. PER CHIMA CENTUS NWEZE. J.C.A
ACTION: WHAT CONSTITUTES FACTS-IN-ISSUE
it is the assertion and denial that constitute the dispute and it is only where facts are disputed that they are said to be “facts-in-issue” see, Barje v. Gunduma (supra) at 673, 688; Ehimare and Anor v. Emhonyon (supra) at 183; Olufosoye v. Olorunfemi (supra). That is to say, in civil proceedings, an issue only emerges where the court, upon a comparison of the averments in the pleadings, identifies the matters really in dispute between parties and upon which it is necessary to lead evidence. This is the only process through which the court is enabled to received evidence on matters in respect of which the parties are in dispute, Adedeji v. Oloso (supra) 176. PER CHIMA CENTUS NWEZE. J.C.A
JUSTICES
SOTONYE DENTON WEST Justice of The Court of Appeal of Nigeria
IGNATIUS IGWE AGUBE Justice of The Court of Appeal of Nigeria
CHIMA CENTUS NWEZE Justice of The Court of Appeal of Nigeria
Between
MR. MUHAMMED O. S. OLATEJU Appellant(s)
AND
ALHAJA RALIAT OYENIKE SANNI Respondent(s)
CHIMA CENTUS NWEZE. J.C.A (Delivering the Leading Judgment): The appellant herein was the plaintiff/claimant before the Kwara State High Court holden at Ilorin (coram Folayan J). Suing for himself and on behalf of the family of Muhammed Ayinla Olatundun Olateju of Magaji Abudu Family, Ilorin, he entreated the court (herein after referred to as the lower court) for the following reliefs against the respondent: declaration; order of nullification; injunction and damages in respect of a parcel of land covered by a Certificate of Occupancy and more accurately delineated in a Survey Plan attached to the said Certificate. The respondent counter-claimed against him for damages for trespass and for the destruction of her block fence.
Pleadings were settled and exchanged. They were, subsequently, amended and exchanged. Consequent upon the consummation of the amendments to the pleadings, the lower court heard the respective cases of the parties. In its considered judgment delivered on November 21, 2005, the lower court not only dismissed the plaintiff/claimant’s case, it, also dismissed the respondent’s counter claim.
Being dissatisfied with the outcome of their claim and counter claim, the claimant and defendant/counter claimant have appealed and cross appealed against the said judgment of the lower court as appellant and cross appellant, respectively.
The cases which the parties presented before the lower may be summarized thus. In the main, the claimant’s case was that the land, the subject matter of the suit, was an integral part of a larger expanse of land which belonged to his extended family, known as the Magaji Abudu family, by inheritance. He maintained that, over time, the said Magaji Abudu family had been exercising acts of ownership over the land. According to him, Government acquired some parts of the land while the family sold some other parts.
More specifically, the gravamen of his case was that in January, 1992, the extended family [that is, the Magaji Abudu family] sold the particular portion in dispute to his father. His father, the Late Muhammed Ayinla Olatundun Olateju, during his life time, [precisely, between 1977-1992], was the Head (Magaji) of the extended family. In his capacity as Magaji, he [his father, represented the said family in matters pertaining to the land during the period.
What triggered off the suit at the lower court was that in December, 2001, and some other members of the family, met some people constructing a fence on the land. These people claimed that they were on the land at the instance of the defendant.
The defendant’s case was that the Government of Kwara State granted her a certificate of occupancy over the land. That was after the said Government had required it from the original owners, namely, the two families of Adifa and Magaji of occupancy; she was made to pay compensation to the said families through the State Government: a compensation which the appellant’s late father corrected on behalf of the Magaji Abudu family.
She maintained that what prompted the suit was her unfavourable disposition to the appellant’s request to her for a part of the land. It was her posture that incurred the wrath of the appellant who ordered the demolition of the fence she erected on the land.
From his six grounds of appeal, the appellant formulated two issues for the determination of this appeal. They were couched thus:
(1) Whether or not the learned trial judge is not wrong in holding that Exhibit D1 with file No.3124 relates to the land covered by Exhibit A (the Certificate of Occupancy No.8183) with file No.13124 and that the appellant’s father received compensation for the land in dispute vide Exhibit D1.
(2) Whether or not the learned trial judge was right in dismissing the appellant’s claims by holding that the receipt of compensation by appellant’s father through Exhibit D1 amounts to ratification of the void acquisition of the land in dispute and the void Certificate of Occupancy issued over same to the respondent for the private business and personal use and benefit of the respondent.
On her part, the respondent took the view that only one issue was sufficient for the determination of the appeal, namely, the question:
Whether on the preponderance of evidence, the plaintiff/appellant ought to succeed in his claims.
Upon a thorough perusal of the six grounds of appeal, I have no hesitation in endorsing the lone issue articulated by the respondent, not only for its precision, accuracy and concinnity, but also because its breath is so commodious that it neatly captures the crux of the agitation of the appellant, namely, that his case ought to have succeeded at the lower court. Thus, the lone issue which shall be addressed in the resolution of this appeal is the question:
Whether, on the preponderance of evidence, the plaintiff/appellant ought to succeed in his claims
CONTENTION OF THE PARTIES
Salman Jawondo, learned counsel for the appellant, approached his disavowal of the lower court’s judgment from two main perspectives: perspectives encapsulated in the two issues set out earlier. In the first place, he impugned the court’s findings with respect to exhibit ‘D1’. He submitted that the learned trial judge erred and misdirected himself in law and on the facts in holding that the said exhibit ‘D1’ [with file number 3124] relates to the Certificate of Occupancy No 8183 (exhibit ‘A)’, [with file number 13124] and that “the error or omission of digit ‘1’ in the file number written on exhibit ‘Dl’ [should be] treated as a typographical error.” He further submitted that the lower court was, equally, in error to have held that the appellant’s father received compensation for the land in dispute through the said exhibit ‘D1’.
In his view, these findings were anchored on assumptions and conjectures: assumptions unsupported by any piece of evidence. To rebut these assumptions, counsel drew attention to the testimony of DWl [page 109, lines 12 – 15 of the record] where the witness testified that: “[f]or every allocation we have a record file (sic) of them, exhibit ‘D2’ is an evidence of payment. There is a payee signature on it. The payment in exhibit ‘D2’ is in respect of Aro/Com. 13124 referring to the file of allocation to the defendant.” The witness had also testified that: “[t]he file No in exhibit Dl is Land/Com/3124,” [page 110, line 5]. In the same vein, DW2 said that: “[t]he File No. in Exhibit ‘A’ is Comm/13214,” [page 113, lines 9-10 of the record].
He explained that apart from the above pieces of evidence from DW1 and DW2, there was no other evidence from which the court could have hinged its explanation of the difference in file number 1324 in exhibit ‘Dl’ and file number 13124 in exhibit ‘A.’ This prompted the submission that since each allocation had its own file number distinct from the other, in the absence of any explanation or evidence that the file number as stated in exhibit ‘D1’ (1324) viz-a-viz the file number stated in exhibit ‘A’, (i.e. 13124), was as a result of any “typographical error or omission of digit “1”, the finding of the lower court, that “the error or omission of digit 1″ in the file number written on exhibit Dl [should be] treated as a typographical error” amounted to a perverse finding. Counsel cited cases which demonstrate the courts’ aversion to speculation, Archibong and Ors v Ita and Ors [2004) 1 SC [pt.1) 108, 126; Aiguoreghen v The State [2004) 1 SC [pt 1) 65, 86; Mozie and Ors v Mbamolu and Ors [2006) 7 S.C. [pt II) 154, 201; Moghalu and Anor v. Wobo [2005) 11 WRN 115, 135. He took the view that the finding is, also, perverse because there is no evidential basis for it, citing CSS. Bookshop Ltd v. R.T.M.C. Rivers State and Ors [2006) 4 S.C. [pt II) 142, 165; Iwuoha and Anor v N.P.S Ltd and Anor [2003) 4 [pt II) 37, 61; Overseas Construction Company Nig. Ltd. v. Creek Enterprises (Nig) Ltd (1985) 3 NWLR [pt 13) 407; Ikono Local Government v. De Beacon Finance & Securities Limited )2002) 6 WRN 135, 145 and Onu and Ors vldu [2006] 6 SC 38, 78.
Not done yet, counsel derided the said findings as “an unwarranted importation of evidence to reach a predetermined destination”: an approach which, he maintained, is unknown to our adjectival system of litigation in which he who asserts must prove by evidence, citing Ossai v. Wakwah and Ors [2006) 2 SC (pt.1) 19, 30. He, also, equated the findings of the learned trial judge to an attempt to alter the contents of written documents without proper evidential basis, citing section 132 of the Evidence Act; also, Ojoh v. Kamalu and Ors [2006) 12 SC (pt II) 1, 44.
Still on exhibit ‘D1’, counsel further submitted that the learned trial judge was wrong to have held that the said exhibit [that is, exhibit ‘Dl’] proved that the appellant’s father collected compensation in respect of the land in dispute with Certificate of Occupancy number 8183 granted to the respondent. He explained that exhibit -B’ [Minutes of Meeting of July 22, 1993] predates exhibit ‘Dr, dated October 22, 1993. He observed that from exhibit, it was evident that the appellant’s father disagreed with the attempt to acquire the land in dispute for the respondent and there was no evidence before the court as to when and how that position changed. He maintained that the file number in exhibit ‘D1’ – 1324 is the same as that of the Certificate of Occupancy 8183.
He noted that the evidence of the appellant and DW1 that different portions of the Magaji Abudu family land were acquired by the State Government at efferent times, particularly the Magaji Abudu family ,and within TPO 166 where the land in dispute is situated, was un-controverted. What is more the evidence by the appellant that compensations for the Magaji Abudu family land acquired were paid by instalments such that as at now, there are outstanding compensations due to the family remained unchallenged. That is not all. The appellant’s evidence that his father, as the ninth Magaji Abudu, represented the family, during his reign as Magaji Abudu, between 1976 and 1994 for the collection of compensations, was, also unchallenged. In his view, the above pieces of unchallenged and un-controverted evidence go to show that even if it was assumed that it was the father of the appellant that collected compensation [paid through exhibit Dl], that compensation could just have been one of those compensations paid by instalments to the family for other acquisitions with their own different files and file numbers and not for the land in dispute covered by Certificate of Occupancy number 8183 with file number 13224 and not file number 1324, to which exhibit ‘D1’ relates.
Counsel, further contended that the evidence of the appellant that his father not receive any compensation for the land in dispute was not even challenged under cross-examination. Above all, although exhibit D1 had been in existence since 1993, and the respondent had a copy as she claimed, the appellant was not confronted with the document during cross-examination so as to confirm or deny that the picture on the exhibit ‘D1’ was that of his late father. This is more so when the name of the recipient in exhibit ‘D1’ is just Magaji Abudu: an official name, without the name of the particular occupant of the office more particularly, the name of the appellant’s father, citing Kuforiji v. V.Y.B. (Nig.) Ltd (1981) 6-7 SC 40. 81 – 83; Oba Brother Merchant Co. Ltd v. Merchant Bank of Africa Securities Ltd (2005) 2 SC (Pt.1) 51, 68; Duruminiya v. COP (1961) NRNLR 70, 73; Onibudo v. Akibu (1982) 7 SC. (Reprint) 29; (1982) 7 SC. 60 at 68.
He finally, submitted that the short-comings in exhibit ‘D1’, which he highlighted above, render the findings of the learned trial judge (that the father of the appellant received compensation for the land in dispute through the said exhibit) perverse as they were not born out of evidence before the court. he conceded that the lower court was at liberty to draw the necessary inference from the evidence before it, Umudje and Anor v. Wobo (supra) at 135. He, however, took the view that such inferences must flow from credible evidence before the court and not predicated on assumptions and suppositions, Overseas Construction Company Nig Ltd. v. Creek Enterprises (Nig.) Ltd. (1985) 3 NWLR (Pt.13) 407.
Counsel’s second ground for disavowing the judgment of the lower court was predicated on the contention that the court was in grave error and misdirection of facts when it held that the receipt of compensation by the appellant’s father ratified the illegal and unlawful acquisition of the land in dispute and the issuance of the Certificate of Occupancy number 8183 to the respondent for the respondent’s private business, personal use and benefit.
He, further, submitted that the lower court did a somersault by so holding because it had earlier held that the acquisition and the manner of acquisition of the land in dispute and issuance of Certificate of Occupancy number 8183 on the same to the respondent were wrongful and void, citing page 125 [lines 33 – 34 of the record]. He, also, drew attention to page 127 [lines 20 – 23; 31 – 37 of the record] lines].
He, equally, drew attention to page 129 [lines 16 – 22] where the lower court held thus: “But Exhibit D1 has brought a new dimension. In Exhibit ‘B’ the meeting held on 22/07/93 at page 2 last paragraph. The Magaji Abudu Plaintiffs father promised to convey the acquisition to his family and the act of coming back on 22/10/93 to collect the N6,000.00 compensation on the land allocated to the defendant in TPO 166, Certificate of Occupancy No 8183 to my mind is ratification of the Act of Ministry of Land and Housing which was initially wrong.” (emphasis supplied]. Counsel contended that where a law has prescribed a method of doing an act, the method must be followed; otherwise, the act becomes ineffective, citing Ude v Nwara and Anor (1993) 2 SCNJ 47, 62. He submitted that from the totality of evidence before the court it was not in dispute that no notice of acquisition was issued and served on the appellant’s father or the Magaji Abudu family for the acquisition of the land in dispute and no compensation was paid to the appellant’s father or Magaji Abudu family over the land in dispute before exhibit ‘A’ (i.e. Certificate of Occupancy No 8183) and exhibit ‘D3’ (i.e. Grant of Right of Occupancy) were issued to the respondent over the land in dispute.
What is more, there was no evidence before the court to the effect that the land in dispute, covered by Certificate of Occupancy number 8183 (exhibit A) and exhibit D3, was part of the Magaji Abudu family land acquired by Government within TPO 166 before the issuance of exhibits ‘A’ and D3 to the respondent.
He, further, submitted that the holding of the lower court that the father of the appellant came back to collect compensation for the land in dispute on October 22, 93, through exhibit ‘D1’, was a mere assumption: an erroneous assumption which was a carryover of an earlier erroneous assumption that exhibit ‘D1’, which relates to the Certificate of Occupancy with file number 3124, was the same as the file number 13124 of exhibit “A” Certificate of Occupancy number 8183. He maintained that the court acts on hard facts and not assumptions, Ojoh v. Kamalu & Ors (2005) 12 SC (pt II) 1, 44.
Counsel further explained that from the evidence before the court, It was clear that exhibits ‘D3’ and ‘A’ had been issued to the respondent over the land in dispute before the meeting of July 22, 93 (exhibit ‘B’) and no mention of the existence of exhibits ‘D3’ and ‘A’ was made to the appellant’s father at the meeting. This shows that the allocation of the land in dispute and the issuance of exhibits ‘D3’ and ‘A’ over the land to the respondent were afflicted with fraud and concealment of facts which rendered both the allocation and issuance of exhibits D3 and A to the respondent over the land in dispute void.
Since a fraudulent and void act cannot be ratified, the acceptance of compensation by the appellant’s father through exhibit D1 (assuming that to be true] cannot ratify the fraudulent and void act, Kuforiji v V.Y.B. (Nig.) Ltd (1981)6-7SC40.
Next, counsel submitted that even if this court arrives at the conclusion that the lower court was right in holding that the appellant’s father received compensation for the land in dispute through exhibit ‘D1’ and, thereby, ratified the void acquisition of the land in dispute and issuance of exhibits ‘D3’ and ‘A’ (Statutory Right of Occupancy and Certificate of Occupancy No 8183) to the respondent, the learned trial judge was wrong to have dismissed the appellant’s claims when from the evidence before the court, it was not in dispute that the allocation of the appellant’s land in dispute to the respondent and the issuance of exhibits ‘D3’ and ‘A’ to the respondent in respect thereof were for the private enjoyment/business of the respondent and not for over riding public interest.
He noted that there was no dispute that the allocation/grant of the land in dispute to the respondent through exhibits ‘D3’ and ‘A’ was for the respondent’s private use/business, citing page 113 [lines 32 – 33 of the record]. There was no dispute that the land in dispute belonged to the Magaji Abudu family who were the customary owners before the same was allocated/granted to the respondent, (a private citizen) for her personal benefit and use.
He submitted that by the combined effect of sections 1 and 28 (1) of the Land Use Act 1978, the Government of a State was empowered to revoke a Right of Occupancy either deemed or actual grant. However, this can only be done for overriding public interest as defined in section 28(2) and (3) of the Land Use Act in accordance with the procedure/requirements of section 28(6) and (7).
For the allocation of the Magaji Abudu family land to the respondent to be valid, the respondent had the burden to show that the provisions of section 28 of the Land Use Act were complied with, llona v Idakwo and Anor (2003) 5 SC 216, 232; Dantsoho v Mohammed (2003) 2 SC 42, 58- 59; Ibrahim v. Mohammed (2003) 2 SC 127, 137-138; Provost Lagos State College of Education and Ors v Edun and Ors (2004) 2 SC (pt II) 17, 38 and Olohunde and Anor v. Adeyoju (2000) 6 SC (pt III) 118,150-151.
Counsel drew attention to the unchallenged evidence of the appellant that the land was never acquired and or revoked from either the Magaji Abudu family or his Late father Alhaji Muhammed A. O. Olateju or his children: a piece of evidence consistent with paragraph 23 of the Amended of Statement of Claim and borne out by exhibit B [Minutes of Meeting of July 22, 93]. The effect of this is that there was no revocation as prescribed by section 28(6) and (7) of Land Use Act. He submitted that without lawful revocation or acquisition of the title of the customary landowner, no valid grant can be made to another person, Kyari v. Alkali and Ors (2001) 5 SCN] 421, 451 – 452.
Above all, the grant of the land to the respondent was not is strict compliance with the provisions of section 28 (2) and (3) of the Land Use Act as the purported revocation was not for overriding public interest, Dantsoho v. Mohammed (2003) 2 SC 42, 59; Ibrahim v. Mohammed (2003) 2 SC 127,137- 138 and Olohunde and Anor v. Adeyoju (2000) 6 SC (pt III) 118, 151. An acquisition/revocation is only valid if made for overriding public interest Dantsoho v Mohammed (2003) 2 SC 42, 58- 59; Osho v. Foreign Finance Corporation (1991) 4 NWLR (pt 184) 157; Ibrahim v Mohammed (2003) 2 SC. 127, 137-138.
In all, he maintained that the purported revocation of the title of the Magaji Abudu family and the subsequent grant to the respondent is null and void unconstitutional and against the provisions of the Land Use Act, Kyari v Alkali and Ors (2001) 5 SCNJ 421,452. Thus, exhibits ‘D3’ and ‘A’ which evidence the illegal grant to the respondent are null and void and the court has the power to nullify/set them aside, Kyari v Alkali and Ors (2001) 5 SCNJ 421, 452 and Olohunde and Anor v. Adeyoju (2000) 6 SC (pt III) 118,150-151.
He prayed the court to grant the reliefs in numbers 2 and (3) of paragraph 28 of the Amended Statement of Claim by declaring as illegal, unlawful, null and void and of no effect exhibits ‘D3’ and ‘A’ and set them aside, Kyari v. Alkali and Ors (2001) 5 SCNJ 421, 452 and Olohunde and Anor v Adeyoju (2000) 6 SC (pt.111) 118, 150-151; C. S. S. Bookshops Ltd v The Registered Trustees of Muslim Community River State and Ors (2006) 4 SC (pt II) 142, 163-164 and 176; Nigerian Telecommunications Ltd v. Ogunbiyi (supra); Obikoya v. Governor of Lagos State (supra); AG Bendel Engineering Works Ltd v. Denap Ltd (1997) 10 NWLR (pt 525) 481; Osho v Foreign Finance Corporation (1991) 4 NWLR (pt.184) 157.
RESPONDENT’S CONTENTION
Learned counsel for the respondent, on his part, noted that since the case of the claimant was for declaration, trespass and injunction, title was put in issue, Ajero v. Ugorji (1991) 2 NWLR (pt 621)1. He referred to Idundun v. Okumagba (1976) 9 and 10 SC 227 on the five ways of proving title to land, one of them being by the production of title documents.
He explained that a perusal of the appellant’s claim and evidence at the trial would show that his case was that, though the land belonged to the extended Magaji Abudu family by inheritance, the particular portion, the subject matter of this action, had been sold to his late father, Ayinla Olatundun Olateju.
He noted that the claimant instituted the action on behalf of his immediate father’s family and not the extended Magaji Abudu family who, according to the claimant, had divested themselves of their interest in the portion of land through the sale to his late father, citing page 96 of the record. Parties are bound by their pleadings, Jiozo v Bomgbose (1999) 7 NWLR (pt 610) 182.
He observed that the claimant’s case was that when his father bought the land in dispute he (his late father) was issued with a receipt in addition to the transaction being carried out in the presence of witnesses, page 26 of the record [paragraph 5 of the Statement of Claim]. However, at the trial of this action, he not only failed to produce or tender this receipt, he, equally, failed to identify or call as witnesses any of those whom he said witnessed the sale to his late father. He submitted that declaratory reliefs are only granted based on the strength of the claimant’s case and not on the weakness of the case of the defendant, Alao v. Akano (2005) 11 NWLR (pt.935)160, 173.
Counsel dismissed all the arguments on the numberings on exhibit ‘A’ and its effect on exhibit ‘D’ as misconceived. This must be so for the claimant had not successfully demonstrated that he had sufficient interest in the subject matter of the action. The claimant would, therefore, appear to be shifting the onus of proof to the respondent/cross-appellant contrary to established rules, Onyege v. Ebere (2004) 13 NWLR (pt 889) 20, 38.
He, further, submitted that even if the learned trial judge was wrong in his reasoning as to the irregularities in the Certificate of Occupancy, the judgment ought not to be vitiated on that point in as much as the conclusion reached by the learned trial judge on the claimant’s claim was correct, namely, that he did not prove his case, Lebile v. Reg Trustees C and S (2003) 2 NWLR (pt.804)399, 422 – 423.
He explained that apart from the receipt of purchase which the claimant pleaded, he also made efforts to establish that the sale to his father was carried out under native law and custom, page 26 of the record. This prompted his submission that to prove a sale under customary law there are some laid down procedure, Akingbade v. Elemosho (1964) 1 ANLR 54. He drew attention to the two essential ingredients of such transaction, namely: (i) payment of purchase price; and (ii) physical handing over of the land to the buyer in the presence of witnesses. He submitted that the claimant did not plead the above fundamental facts. Even paragraphs 5 and 6 of the Amended Statement of Claim failed to plead expressly the purchase price and the name of the witnesses as required by law, Mann v. Durojaiye (1988) 1 NWLR (p, 70) 351, 365; Adedeji v. Oloso (2007) 1 SCNJ 399 416.
He contended that payment of purchase price as well as physical handing over of land to the buyer in the presence of witnesses were material facts which ought to be pleaded. Hence, failure to plead them was fatal to the case notwithstanding the subsequent evidence at the trial as evidence based on un-Pleaded facts goes to no issue, Enemuo v. Duru (2004) 9 NWLR (pt.877) 75. He, further, contended that the pleadings of the parties determine the issues for consideration. However, the appellant hinged the bulk of his arguments on the short comings of the respondent’s certificate of occupancy losing sight of the fact of his main agitation, namely, his claim that he was entitled to the possession of the land in dispute and that it was only when he had succeeded on this leg that he would be entitled to the other ancillary reliefs, particularly the ones affecting the certificate of occupancy.
On the alleged discrepancy in the file numbers of exhibits ‘A’ and ‘D’ counsel endorsed the approach of the lower court on the issue. The court had noted that the Plaintiff neither denied nor threw light on exhibit ‘D1 to show that it was not in respect of the land in dispute. Thus, it could not accept the address of the plaintiff’s counsel in lieu of evidence in rebuttal of the defendant’s claim that the said exhibit D1 was a receipt of the compensation she paid to the Magaji Abudu in respect of the land in dispute. The court had treated the error or omission of the digit ‘1’ in the file number written on the exhibit [Dl] as a typographical error which it would not allow to lead to a miscarriage of justice.
He endorsed this approach as being in tandem with the duty which the court had to ensure that justice was done between the parties, Amaechi v INEC (2008) 5 NWLR (pt 1080) 227, 315-316; Engineering Enterprise Contract Company of Nigeria v Attorney-General of Kaduna State (1987) 1 NSCC 601, 613; (1987) 2 NWLR (pt 57) 381
He maintained that this court can look at all the documents in order to see whether or not the lower court was in order in its decision, Ndayako v. Mohammed (2006) 17 NWLR (pt. 1009) 655, 673; Nyah v Noah (2007) 4 NWLR (pt.1024) 320, 336.
He explained that exhibit ‘D1’ was a document from the Ministry of Lands and Housing, Kwara State, titled “Certificate of Indemnity for improvements compensation payment” issued in the name of Magaji Abudu. He submitted that the exhibit created a nexus between the Kwara State Government, the defendant and the plaintiff’s family. Above all, since the plaintiff did not challenge the exhibit which bore the photograph of his father when it was tendered, it was deemed accepted, CBN v. Igwillo (2007) 14 NWLR (pt 1054) 393, 435; CDC (Nig.) Ltd v. SCOA (Nig.) Ltd (2007) 6 NWLR (pt 1030) 300, 350- 351.
What is more, the said exhibit was a public document presumed to be correct as it formed part of the record of an official body. Thus, the plaintiff had a duty to rebut the presumption which inures in favour of the exhibit. This, he failed to do as the content was never challenged. The effect was two-fold: the defendant had no obligation to confront him with it; and it meant that the plaintiff’s father took compensation in respect of land covered by exhibit ‘A’. Thus, if exhibits ‘A’ and D1- were taken together, the missing digit “1” in the file number was not sufficient to diminish the potency or efficacy of the documents. The documents were relevant and due consideration was given to them.
Turning to the effect of the receipt of compensation on the plaintiff’s case counsel argued that a party asking for a declaratory relief must mate out a case for the relief before it can be granted. Even then, declaration is an equitable remedy that must be sought with dean hands, C.P. (Nig.) M. v MIMS Bank Plc (2006) 13 NWLR (pt 996) 61, 70.
It was submitted that having accepted compensation especially after the alleged regularities, it was unconscionable for the plaintiff to still, be asking for declaration of title in respect of the,and on which compensation had been paid indeed, it was an abuse of court process, Saraki v. Kotoye (1992, NWLR (pt 264) 156, 188-189.
On the plaintiff’s contention in relation to overriding public interest, reference was made to paragraph 11(i) of the Amended Statement of Defence and Counter claim where it was averred that the land was to be used for building a school, citing section 28(1) and 28(2)(b) of the Land Use Act on when an interest in land can be revoked for overriding public interest. Acquisition and allocation for setting up a school is no, an acquisition for private purpose, Lawson v. Ajibulu (1997) 6 NWLR (pt 507) 14, 41- 42.
Counsel urged the court to uphold the decision of the trial court as the appellant had failed in his duty of establishing by preponderance of evidence that he was entitled to the claims in his Amended Statement of Claim.
In his reply, Jawando maintained that the appellant pleaded and gave evidence of sale under native law and custom to which written document is unknown Etajata and Ors v Ologbo and Anor (2007) All FWLR (pt. 386) 584, 520 Above all the appellant, in line with the un-denied facts pleads in paragraphs 3, 4, 6 and 7 of Amended Statement of Claim, gave evidence of sale under native law and transfer of the land in dispute to his late father by other members of the entire Abudu family in the presence of witnesses, citing page 97 [lines 26 – 31) and page 98 [lines 1 – 7 of the record]. The appellant had, therefore, given sufficient evidence of sale and transfer of the land to his late father under native law and customs, Etajata and Ors v Ologba and Anor (2007) All FWLR (supra) at 630.
He took the firm view that the appellant demonstrated sufficient interest in the land in dispute. The evidence of sale and transfer of the land to the appellant’s father by the larger Abudu family was unchallenged, Man, v Snanono (2007) All FWLR ,pt 345, 303, 323, hence, the standard of proof was on the minima standard, Babe v MCATC Zaria and Anor ,1991, 7 SCNJ (pt.1) 1, 18; Adewuyi Odukwe (2005) 7 SC (pt.II) 1, 13- 14; Etajata and Ors v. Ologbo and Anor (supra, at 630
The respondent, therefore, had the onus to prove valid transfer by or acquisition of the land in dispute from Magaji Abudu family so as to disprove the appellant’s claim of sale and family, Amuroti v Agbeke (1991) 6 SCNJ 54, 63; Adesanya v. Otuewu and Ors (1993) 1 SCNJ 75, 105; Clay Industries (Nig.) Ltd. v Aina & Ors (1997) 7 SCNJ 491, 578.
Above all, the respondent, a stranger to the Magaji Abudu family can not deny or contest sale of Abudu family to the family, Onigbede and Ors v Balogun and Anor (2002) 2 SCNJ 218, 229. Even then, proof on the other hand is based on the state of pleadings and evidence produced by the parties. In proof of his case a claimant need not call multitude of witnesses and the claimant’s evidence if credible as in this case is enough, Alao v. Akano (2005) 4 SC 25, 26.
On the appellant’s locus stand,, reference was made to the Amended Statement of Claim, particularly paragraphs 1,2, 3, 4, 5, 6 and 7, Rebold Industries Ltd v. Ladipo (2007) All FWLR (pt 395) 522, 534. He submitted that the fact that exhibit ‘D1’ is an official document which enjoins presumption of correctness is of no moment in this case. A holistic consideration of exhibits A, B, D1, D2 and D3 and the evidence of DW1 on pages 109, [lines 12 – 15] and 110, [lines 5]; and DW2 (defendant) on pages 110, [lines 25 – 25]; 112, [lines 21 – 22 and 113, [lines 8 – 10] points to one and only one conclusion that exhibits ‘A’ and ‘D3’, and ‘D2’ are in respect of one allocation with file number 13124 while exhibit ‘D1’ is in respect of allocation with file number 3124.
It was further submitted that there was no evidence before the court that the father of the appellant received compensation for the land in dispute. Exhibits ‘A’ and ‘D1’ are not to be taken and considered in isolation of, but in conjunction with, exhibits ‘B’, ‘D2’ and ‘D3’. Taken together, exhibits ‘A’ and ‘D3’ and ‘D2’ relate to one allocation with file number 3124 which is the land in dispute. Exhibit ‘D1’ relates to another allocation with file number 3124 which has no bearing with the land in dispute. Thus, it is clear that the father of the plaintiff/appellant did not receive compensation of for the land in dispute.
He noted that as stated by Dw1(on page 109, lines 29 – 31), if compensation was not paid, the process of acquisition was incomplete because it was the compensation that was supposed to extinguish the title of the customary owner. Exhibit ‘B’ shows that at the meeting held on July 22, 1993, the appellant’s father resisted the attempt to allocate his land to the defendant. Thus, compensation could not have been paid to the appellant’s father.
Above all, even if compensation was paid as alleged, once it turned out that the land was not acquired for over ridding public interest, as prescribed by the Land Use Act, the receipt of compensation would be irrelevant. Counsel dismissed Lawson v. Ajibulu (1997) 6 NWLR (Pt.507) 14, 41-42 as inapplicable.
CONSIDERATION OF THE ARGUMENTS
As shown above, the plaintiff took out the suit at the lower court in a representative capacity; he sued for himself and on behalf of the family of Muhammed Ayinla Olatundun Olateju of Magaji Abudu Family, Ilorin (page 96 of the record). It is not in dispute that from this claim and evidence at the trial, his case was that, thought he land belonged to the extended Magaji Abudu family by inheritance, the particular portion, the subject matter of this action, had been sold to his late father, Ayinla Olatundun Olateju.
He charted his nexus with the land in dispute in paragraphs 4 and 5 of the Amended Statement of Claim. For their bearing on the resolution of this appeal, we shall set them out them here out for ease of reference:
4 The Plaintiff avers that the Plaintiffs late father became the owner/occupier of the said large parcel or piece of land which include the land in dispute by purchase from the other joint owners and members of the Magaji Abudu chieftaincy family of llorin in 1992″ (emphasis supplied).
5. The plaintiff avers that the sale of the said parcel or piece of land to the plaintiff’s late father (Alhaji Muhammed Ayinla Olatundun Olateju, the Magaji Abudu of Ilorin) by the other joint owners/members of the Magaji Abudu was under the native law and customs whereat the land was transferred to the plaintiffs father in the presence of witnesses upon payment of the agreed purchase price, [see page 26 of the record].
The pivotal relief was couched thus in paragraph 28 (1):
28. WHEREOF the plaintiff claims against the defendant as follows:
(1) A declaration that the Plaintiff has an equitable and customary interest and title in the land measuring 5.12 hectares situate at Agbabiaka Area, llorin, Kwara State having acquired customary law title and possession from his predecessors in title in an undisturbed long possession and the Plaintiffs said right cannot be defeated merely by the subsequent issuance of Certificate of Occupancy No. 8183 to the Defendant.
The fate of the other reliefs, namely, 2; 3; 4 and 5 was inextricably tied to the fortunes of this principal relief. Learned counsel for the respondent rightly submitted that the pleadings of the parties determine the issue for consideration. He was, equally, right that the plaintiffs primary purpose for instituting the action was to claim entitlement to the possession of the land in dispute. Hence, it was only when he succeeded on this leg that the other reliefs, that is, the ancillary reliefs, particularly, the ones affecting the respondent’s certificate of occupancy, would inure in his favour. It cannot be otherwise for it is settled that for a plaintiff asking for a declaration to succeed, he must rely on the strength of his own case and not on the weakness of the defence, Adeniran v. Alao (2001) 18 NWLR (pt 745) 361; Onwuama v. Ezeokoli (2002) 5 NWLR (pt.760) 353; Anukam v Anukam (2008) 5 NWLR (pt 1081) 455, 472-473; Odutola v. Sanyo (2008) All FWLR (pt 400) 780; Ibrahim v Barde (1996) 9 NWLR (pt.473) 513, 580; Titiloye v. Olupo (1991) 7 NWLR (pt 205) 579; Bella v. Eweka (1991) 11SC 61.
Did he succeed in establishing his said entitlement to the principal relief? It would appear from the records that the plaintiff was un-surefooted on whether to anchor his entitlement on a deed of transfer or a sale under customary law. For instance, on the one hand, although he did not plead facts relating to transfer of the land, he attempted to put a deed of transfer in evidence. On the other hand, he pleaded sale under customary law. Unfortunately, at the trial, he failed in his attempt to prove entitlement through either of these methods.
In the first place, his attempt to tender the said deed of transfer was met with firm objection. Indeed, the lower court expressly rejected the document, holding that it was not pleaded [page 100 of the record]. He did not appeal against the ruling. On the other hand, in what would appear to be an attempt to prove the above averments relating to sale under customary law, the plaintiff gave evidence as follows:
My father, Mohammed Ayinla Olateju bought the whole of the land from Magaji Abudu family. He bought the land off the family in January 1922… The witnesses to the transfer on the family side are…On the side of my late father the witnesses are…
[pages 97-98 of the record]
Undoubtedly, it was against the background of the above averments and evidence in proof thereof that Jawondo maintained that the appellant Pleaded and gave evidence of sale under native law and custom to which written document is unknown, citing Etajata and Ors v Ologbo and Anor (2007) All FWLR (pt. 386) 584, 520. He was emphatic that the appellant in Line with the un-denied facts pleaded in paragraphs 3, 4, 6 and 7 of Amended Statement of Claim, gave evidence of sale under native law and transfer of the land in dispute to his late father by other members of the entire Abudu family in the presence of witnesses. In his view, the appellant had, therefore, given sufficient evidence of sale and transfer of the land to his late father under native law and customs, Etajata and Ors v Ologbo and Anor (2007) All FWLR (supra) at 630.
Learned counsel for the respondent demurred. He canvassed the forceful view that payment of purchase price and the physical handing over of the land in the presence of witnesses were material facts that should have been pleaded. With profound respect to Salman Jawondo, one of the most diligent and indefatigable counsel I have ever come across, his above submission is not well founded. Let me explain.
That submission, evidently, overlooked the fact that by the averments in paragraph 4 (supra) that the joint owners and members of the Magaji Abudu Chieftaincy family of Ilorin sold the land in dispute to his father under native law and custom in the presence of witnesses, the plaintiff was making an affirmative assertion. Thus, from these averments alone, he had a burden to discharge in his pleading even before the actual hearing of the case. As is well known, In civil cases, there is the general burden of proof on the plaintiff to prove his claim or relief before a court by virtue of section 137 (1) of the Evidence Act, Frempong II v Brempong II (1952) 14 WACA 13; Olowu v. Olowu (1985) 3 NWLR (pt 13) 372; Fashanu v Adekoya (1974) 6 SC 83; Commissioner of Police v Oguntayo (1993) 6 NWLR (pt 299); Kokoro-Owo v. Ogunbabi (1993) 6 NWLR (pt 313) 627.
What is, perhaps, not well-known is that there is yet another kind of burden which is dictated by the nature of the pleadings. This is known as the burden of proof on the pleadings. Unlike the general burden referred to earlier, the burden of proof on the pleadings rests on any party [whether the plaintiff or the defendant] who substantially asserts the affirmative of the issue. This category of burden is fixed at the beginning of the trial by the state of the pleadings; it is settled as a question of law, remaining unchanged throughout the trial, exactly where the pleadings place it, Imana v. Robinson (1974) 6 SC 83.
The concept of burden of proof on the pleadings has an ancient ancestry, Pickup v. Thames Ins. Co. 3 Q.B.D.594. 600; and Wakelin v. L & S. W. R v. 12 App Cas. 41, 45. Its contemporary affirmation can be found in such popular cases like Joseph Constantine Steamship Line Ltd. v Imperial Smelting Corporation [1942] AC 154.174; Seldon v. Davidson (1968) 1 WLR 1083. Leading authorities on the English Law of Evidence have endorsed this usage, see, for example, Phipson on Evidence, (11th Edition), paragraph 92; page 40: “Burden of proof on the pleadings.”
In Imana v Robinson (supra), Aniagolu JSC (as he then was), delivering the unanimous judgement of the Supreme Court, approvingly adopted the exposition in Phipson on Evidence (supra) as the Nigerian law on the subject:
‘The burden of proof, in this sense, rests upon the party, whether plaintiff or defendant, who substantially asserts the affirmative of the issue. ‘It is an ancient rule founded on consideration of good sense, and it should not be departed from without strong reasons’. It is fixed at the beginning of the trial by the state of the pleadings, and it is settled as a question of law, remaining unchanged throughout the trial exactly where the pleadings place it, and never shifting in any circumstances whatever. If, when all the evidence, by whosoever introduced, is in, the party who has this burden has not discharged it, the decision must be against him.
What, then, was the burden on the pleadings at the lower court? As shown above, the plaintiff pleaded affirmatively that the joint owners and members of the Magaji Abudu Chieftaincy family of Ilorin sold the land in dispute to his father under native law and custom in the presence of witnesses. So, what he was required to do was to plead and lead evidence as to the names of persons who witnessed the sale transaction and the handing over of the land in dispute, Folarin v. Durojaiye (1988) 1 NWLR (pt 70) 351, 366; Erinosho v. Owokoniran (1965) NMLR 479; Cole v Folami (1956) 1 FSC 66, 69; Adedeji v. Oloso (2007) 1 KLR (pt 228) 159, 183, 184.
In cases dealing with sale of land and transfer of title under native law and custom the necessity of accurate pleadings cannot, therefore, be gainsaid. Indeed, as Oguntade JSC (as he then was) explained in Adedeji v Oloso (supra) at page 185, “it [is] the particularity with which (the names and description of the witnesses] were pleaded and given in evidence that would the court in determining whether was credible,” [emphasis supplied]. This rule is so strict that even if the witnesses were dead and could not be called as witnesses, the obligation to plead their names remains sacrosanct. Thus, a trial court would be wrong to grant a plaintiff a reprieve for the consequences at law attending upon his failure to plead and testify as to the names of persons who witnessed the sale transaction and the handing over of the land, Adedeji v Oloso (supra) at page 184.
In this case, the names of the witnesses were not pleaded. Yet, evidence was led on their names. I, is on this score that I endorse the contention of the respondent that the payment of purchase price as well as physical handing over of land to the buyer in the presence of witnesses were material facts which ought to have been pleaded and failure to plead them knocked the bottom off the case of the Plaintiff notwithstanding his subsequent evidence at the trial.
The reason is very simple: it is the pleadings of the parties that determine the facts in issue. Put differently, it is the assertion and denial that constitute the dispute and it is only where facts are disputed that they are said to be “facts-in-issue” see, Barje v Gunduma (2001) 13 NWLR (pt. 731) 673, 688; Ehimare and Anor v. Emhonyon (1985) INWLR (pt. 2) 177, 183; Olufosoye v Olorunfemi (1989) 1 NWLR (pt. 95) 26.
That is the rationale for the rigid prescription that parties are bound by their Pleadings. It cannot be otherwise for the pleadings define and, actually, delineated the contours of the dispute between the parties. That is why any fact that is un-pleaded goes to no issue.
Both the lower court and learned counsel for the as the learned counsel for the plaintiff fell into a grave error. As the learned counsel for the respondent pointed out in the brief (page 6), the appellant hinged the bulk of his arguments on the shortcomings of the respondent’s certificate of occupancy. It was the oversight of the lower court in venturing into the second stage of evaluation of evidence, when, in fact, the plaintiff, as show above, had not discharged his burden on the pleadings that gave the appellant the impetus to weave his arguments around the findings of facts.
However, it has to be stated that since the plaintiff had not discharged that burden on the pleadings, there was no dispute between him and the defendant on the question of his entitlement by virtue of the sale under customary law. As noted above, it is the assertion and denial that constitute the dispute and it is only where facts are disputed that they are said to be “facts-in-issue” see, Barje v. Gunduma (supra) at 673, 688; Ehimare and Anor v. Emhonyon (supra) at 183; Olufosoye v. Olorunfemi (supra). Oguntade JSC (as he then was) expressed this point differently. According to His Lordship, an issue in a civil proceeding conducted by pleadings in the High Court emerges where, the court, upon a comparison of the averments in the Statement of claim, and the statement of defence, identifies the matters really in dispute between parties and upon which it is necessary to lead evidence…it is, by this process, that the court is enabled only to receive evidence on matters in respect of which the parties are in dispute, Adedeji v. Oloso (supra) 176.
It is only when parties have crossed this hurdle and have called evidence on those issues joined that the obligation of the court to evaluate evidence matures. In simple terms, the rationale of all binding authorities is that where issues have been raised in the pleadings and oral evidence, the court would, then, resolve them by evaluating the available evidence, Mobil Prod Nig UnLtd v Monokpo (2003) 18 NWLR (pt. 852) 346, 436, that is, by assessing or estimating them so as to be able to ascribe value to them, Osazuwa v. Isibor (2004) 3 NWLR (pt. 859) 16, 39.
To be able to discharge this obligation, certain antecedent considerations have to be attended to. The court must address questions such as these: whether the issues arose in the pleadings? Whether they are relevant and credible; if pleaded, whether they were admitted; where they were not admitted, what contrary evidence was offered?
Upon discharging this obligation, the court is required to construct an imaginary scale on which such evidence called, by either side, is weighed, Opadere v. Odebunmi (2003) 16 NWLR (pt. 845) 46, 57 – 58. Where the evidence dripping with probative value preponderates on one side of the balance, such evidence constitutes the findings of the court, Osazuwa v. Isibor (supra); Bodi v. Agyo (2003) 16 NWLR (pt 846) 305, 323 – 324. What matters is not the number of witnesses called by each party, but the quality or probative value of the evidence, Bodi v. Agyo (supra) 323-324; 326. These guidelines are inviolable, Oyewole v. Akande (2009) All FWLR (pt491) 835, paragraphs D-G.
Regrettably, the lower court fell into the error of evaluation of evidence when the plaintiff had not crossed the first hurdle of discharging the burden on the pleadings. That was a wrong approach: it is the pleading of a party that fixes the onus of proving particular facts, Kyari v Alkali (2001) 31 WRN at 93; High Grade Maritime Services Ltd v First Bank Ltd (1991) 1 N WLR (pt 167) 290. Since the averment in his pleading alleged that the sale was under customary Law, the plaintiff had a duty to plead a valid sale under that customary law, Olalunjoye v. Akinterinwa (2000) 12 W R N 171; Adesanya v. Aderonmu (2000) 13 W R N, 106; from settled authorities, the plaintiff, equally, had an obligation to plead payment of the agreed purchase price coupled with delivery of the land, Adesanya v. Aderonmu (2000) 13 W R N 106 – 107; Olowoke v. Salawu (2000) 19 WRN 96 and the names of the witnesses, Folarin v. Durojaiye (1988) 1 NWLR (pt.70) 351, 366; Erinosho v. Owokoniran (1965) NMLR 479; Cole v. Folami (1956) 1 FSC 66, 69; Adedeji v. Oloso (2007).
From the submission of the learned counsel for the appellant, it is not in doubt that he did not advert to these fundamental inadequacies in the pleadings of the plaintiff. For instance, he had contended that the appellant, in line with the undenied facts pleads in paragraphs 3, 4, 6 and 7 of Amended Statement of Claim, gave evidence of sale under native law and transfer of the land in dispute to his late father by other members of the entire Abudu family in the presence of witnesses, citing page 97 [lines 26-31] and page 98 [lines 1 – 7 of the record]. In his view, the appellant had, therefore, given sufficient evidence of sale and transfer of the land to his late father under native law and customs, Etajata and Ors v. Ologbo and Anor (2007) All FWLR (supra) at 630.
The truth, however, is that the averments in paragraphs 3, 4, 6 and 7 of the Amended Statement of Claim were deficient: they ought to have pleaded the names of persons who witnessed the sale transaction and the handing over of the land in dispute, Folarin v. Durojaiye (1988) 1 NWLR (pt 70) 351, 366; Erinosho v Owokoniran (1965) NMLR 479; Cole v. Folami (1956) 1 FSC 66, 69; Adedeji v. Oloso (2007) 1 KLR (pt 228) 159, 183, 184. There was, also, the obligation to plead the payment of the agreed purchase price coupled with delivery of the land, Adesanya v. Aderonmu (2000) 13 W R N 106 – 107; Olowoke v. Salawu (2000) 19 WRN96; Folarin v. Durojaiye (1988) 1 NWLR (pt.70) 351, 366; Erinosho v. Owokoniran (1965) NMLR 479. These cases orchestrate the cogency of accurate pleadings in cases dealing with sale of land and transfer of title under customary law, Folarin v. Durojaiye (supra) 351, 366.
In the face of these lacunae in the pleadings, the evidence which the plaintiff offered on pages 97 and 98 of the record, in so far as they related to the unpleaded names of the witnesses, went to no issue, Anyika v Uzor (2006) 15 NWLR (pt 1003) 560; Nwaranta v Egboka (2006) All FWLR (pt 338) 768; Yusuf v. Adegoke (2007) All FWLR (pt 385) 384, 387; Ounyande v Oshunkeye (2007) All FWLR (pt 389) 1179, 1181.
The effect is that the plaintiff did not prove any valid transfer of the land in dispute from the larger Magaji Abudu family to his immediate family of Muhammed Ayinla Olatundun Olateju. In all, then, his counsel’s contention that the respondent had the onus to prove valid transfer by or acquisition of the land in dispute from Magaji Abudu family so as to disprove the appellant’s claim of sale and family, was a disingenuous, indeed, an unwarranted assault on the settled principles on the operations of evidential burden, Mozie v. Mbamalu (2006) 15 NWLR (pt 1003) 466. Surely, where the plaintiff has not discharged his evidential burden, the onus does not shift to the defendant. Indeed, since the evidence on the un-pleaded names went to no issue, it simply means that the plaintiff neither pleaded nor led evidence on the issue of valid sale under customary law. The lower court could not, therefore, rightly make findings of fact in favour of the plaintiff, Odekilekun v. Hassan (1997) 12 NWLR (pt 531) 56. This must be so because a court can only rely on evidence based on pleaded facts to make its findings, Nwaranta v. Egboka (2006) All FWLR (pt 338) 768, 771.
Against this background of the failure of the plaintiff to prove his entitlement to the declaratory relief in respect of the land in question, the question of his entitlement to the reliefs (a) as to the illegality or invalidity of the Certificate of Occupancy [relief 28 (2)]; order setting side or directing the immediate cancellation of the said certificate [relief 28 (3) and an order of perpetual injunction [relief 28 (4)], to put it mildly, remained in abeyance. Consequently, all the arguments relating to the findings with respect to exhibit Dl etc [indeed, the contentions canvassed in support of the appellant’s issues 1 and 2] are merely hypothetical arguments that do not address the above-stated fundamental defects in the appellant’s case. As such, they are academic since they do not impact on the fortunes of this appeal. This court, like all courts, would not brook such academic questions, Lawal v. Morohunfola (1998) 1 NWLR (pt 532) 111; Badejo v Minister of Education (1996) 9-10 SC 51. I find no merit in this appeal. I must note, however, that although the lower court was right in dismissing the plaintiff’s case, its approach showed that it, merely, stumbled on the correct conclusion. It did not advert to the fundamental defect that afflicted the plaintiff’s case and which warranted its dismissal. All the same, it rightly dismissed the case as having not been proved. I, hereby, enter an order dismissing this appeal.
CROSS APPEAL
As noted earlier, the counter-claim of the defendant [now cross-appellant] was, equally, dismissed by the lower court, hence his cross-appeal. Pursuant to the leave of this court, he filed three additional grounds of appeal which were incorporated into the Amended Notice of Cross-Appeal. He formulated the following issues for determination:
1. Whether having regard to the case put forward by the plaintiff/appellant the learned trial judge ought to have made any finding in respect of acquisition of the land in dispute.
2. Whether the appellant/cross-respondent’s suit is (sic) properly constituted as to confer jurisdiction on the court.
3. Whether the trial court was right in holding that the question of sale of lands from larger family of Mogaji Abudu to plaintiffs family is (sic) not an issue before the court.
Before the resolution of these issues, it would only be appropriate to deal with the cross-respondent’s preliminary objection.
PRELIMINARY OBJECTION
In their process titled “CROSS-RESPONDENT’S AMENDED BRIEF AND APPELLANT’S AMENDED REPLY BRIEF,” the cross respondents raised a preliminary objection. It was brought pursuant to Order 10 Rule 1 of the Court of Appeal Rules, 2007. For ease of reference, we shall set out the ipssissima verba of the Notice of objection. It was expressed thus:
TAKE NOTICE that at the hearing of the cross-appeal the cross-respondent shall raise and argue Preliminary Objection to the competency of:
1. Paragraph (i) of the part of the decision complained of and
2. Grounds 1, 2 and 3 of the Grounds of Appeal contained in the Amended Notice of Cross-Appeal Notice of which is hereby given.
PRELIMINARY OBJECTION
Paragraph (i) of the part of the decision complained of and Grounds 1, 2 and 3 of the Grounds of Appeal are incompetent and liable to be struck-out
GROUNDS OF OBJECTION:
A PARAGRAPH (i) OF THE PART OF THE DECISION COMPLAINED OF CONTAINED IN THE AMENDED NOTICE OF CROSS-APPEAL
(1) Paragraph (i) of the part of the decision complained of as contained in the Amended Notice of Cross-Appeal is an amendment of the part of decision complained of contained in the original Notice of Cross-Appeal.
(2) The cross-appellant did not seek and obtain leave of the Court to amend part of decision complained of contained in the original Notice of Cross-Appeal.
(3) The particulars of Ground 1 of cross-appeal contained in the Amended Notice of Cross-Appeal are not related to Paragraph (i) of the “PART OF THE DECISION COMPLAINED OF.”
B. GROUNDS 1, 2 AND 3 OF THE CROSS-APPEAL CONTAINED IN THE AMENDED
NOTICE OF CROSS-APPEAL
(1) Grounds 1, 2 and 3 of the cross-appeal contained in the Amended Notice of Cross-Appeal are outside the “PART OF THE DECISION COMPLAINED OF” appealed against by the cross-appellant.
(2) The cross-appellant having stated the “PART OF THE DECISION COMPLAINED OF” in paragraph 2 of her Amended Notice of Cross-Appeal, she cannot file and argue ground(s) outside the “PART OF THE DECISION COMPLAINED OF.”
C. By virtue of A & B above, Paragraph (i) of the part of the decision complained of and Grounds 1, 2 and 3 of the Grounds of Appeal are incompetent.
ARGUMENTS ON THE PRELIMINARY OBJECTION:
The arguments on the objection can be found on pages 1-6 of the above process. On March 15, 2010, when this appeal was heard, Jawondo drew attention to the said Notice of preliminary objection. He adopted the arguments which already been canvassed in the said process.
In the first place, counsel argued that paragraph (i) of the “PART OF THE DECISION COMPLAINED OF” in the Amended Notice of Cross-Appeal is incompetent for being an illegal and unlawful amendment of the “PART OF THE DECISION COMPLAINED OF” contained in the original Notice of Appeal.
It was pointed out that by Notice of Cross-Appeal dated 29th February, 2008, although filed on 3rd March, 2008 and deemed, properly filed and served by an Order of this Court of 18th June, 2008, the “PART OF THE DECISION COMPLAINED OF” upon which the cross-appellant predicated her sole Ground of Cross-Appeal read: “[t]he finding of the learned trial judge that the proper procedure for the acquisition of the land in the dispute has not been followed.”
However, by the Amended Notice of Cross-Appeal filed on 6th March, 2009 pursuant to the Order of Court of 23rd February, 2009, paragraph (i) of the “PART OF THE DECISION COMPLAINED OF” contained therein, upon which the cross-appellant predicated her original sole ground of appeal, but now Ground 1 of the Grounds of the Cross-Appeal had been amended to read: “[t]hat part dealing with the lawfulness of acquisition when Plaintiff did not prove or establish his locus standi.”
Counsel submitted that from the above, it was clear that part of the decision complained of as stated in the original Notice of Cross-Appeal and in Paragraph (i) of the Amended Notice of Cross-Appeal were not the same. The amendment of the part of the decision complained of, as stated in the original Notice of Cross-Appeal in paragraph (i) of the Amended Notice of Cross-Appeal by the cross-appellant, was without the leave of this court. It was, therefore, incompetent as a party cannot, without the leave of the court, amend a court process, citing Order 6, Rule 15, Court of Appeal Rules, 2007.
He acknowledged that the cross-appellant’s motion dated and filed 16th February, 2009 was granted by the Court on 23rd February, 2009. This notwithstanding, he still submitted that the amendment made to “Part of the decision complained of” as stated in the original Notice of Cross-Appeal in Paragraph (i) of the Amended Notice of Cross-Appeal was unauthorized; illegal and incompetent. As such, paragraph (i) of the Amended Notice of Cross-Appeal was liable to be struck out.
He reproduced prayers 2 and 3. He observed that prayers 1, 4 and 5, contained in the cross-appellant’s motion dated and filed 16th February, 2009 and granted by the Court on 23rd February, 2009 relate to amendments of Cross-appellant’s Brief and her Cross-respondent’s Brief and had nothing to do with amendment of any part of the Original Notice of Cross-Appeal.
He further noted that from prayers 2 and 3, contained in the cross-appellant’s motion dated and filed 16th February, 2009, and granted by the Court on 23rd February, 2009, it was clear that the cross-appellant did not seek leave of the Court and was never granted leave to amend “PART OF THE DECISION COMPLAINED OF” contained in the original Notice of Cross-Appeal. In his view, this rendered Paragraph (i) of the “PART OF THE DECISION COMPLAINED OF” contained in the Amended Notice of Cross-Appeal incompetent. He prayed the Court to strike-out the amendment.
With regard to grounds 1, 2 and 3 of the Amended Notice of Cross-Appeal, counsel submitted that grounds 1, 2 and 3, contained in the Amended Notice of Cross-Appeal are incompetent. As such, the arguments in support thereof are, also, incompetent.
He further submitted that once the cross-appellant had exercised her right under Order 6, Rule 2 (1) of the Court of Appeal Rules, 2007, by indicating particular parts/areas of the decision which she appealed against, her grounds of appeal must be restricted to those parts of the decision only and she cannot be allowed to strike at any part of the decision at her whims, Kosile v. Folarin (1989) 4 SC (pt.1) 150, 153- 154; also, C.C.B. Pic and Anorv Ekperi (2007) 4 MJSC 172, 185.
It was observed that Ground 1 [in paragraph 3 of the Amended Notice of Cross-Appeal] challenged the trial court’s finding of fact on the proper procedure for acquisition of the land in dispute and not locus standi of the cross-respondent. According to counsel, the issue of finding of facts by a court and issue of locus standi of a claimant are different and distinct issues which cannot form one ground of appeal as the cross-appellant did.
Learned counsel submitted that particulars in support of a ground of appeal must relate to the ground and highlight, the compliant, against the judgment on appeal or part of the judgment appeal against, Amabebholo v. Edo Slate University Workers Fanner, Multipurpose Cooperate Society Ltd & Ors (2007) All FWLR (pt.366) 712,t.72. He took the view that since the particulars in support of Ground 1 of the cross-appeal are at variance with that ground of the cross-appeal and or the part of decision complained of, Ground 1 of the cross-appeal becomes incompetent, Dikibo v. Ibuluya (2007) All FWLR (pt.383) ,66, 171; also, Ezomo v. New Nigeria Bank Plc and Anor (2007) All FWLR (pt. 368) 1032, 1050. That is no, all; the issue for determination and the arguments in support thereof are incompetent C.C.B Plc. & Anor v. Ekperi (supra, a, 185. Counsel prayed the court to strike out Ground 1 of cross-appeal; Odeh v. Federal Republic of Nigeria (2008) 5 MJSC 1, 10.
Next, counsel contended that Grounds 2 and 3 are no, related to the parts of the decision complained of in paragraph 2 of the Amended Notice of Cross-Appeal. In his view, these grounds are outside the purview of the parts of the decision complained of in Paragraph 2 of ,he Amended Notice of Cross Appeal, Kosile v. Folarin (supra) a, 154. Grounds 2 and 3 in the Amended Notice of Cross-Appeal are therefore incompetent, Odunze v. Nwosu (2007) All FWLR (pt. 379) 1295, 1315.
Expectedly, counsel for the cross appellant debunked the above submissions. He noted that from the nature of the objection filed and argued, the cross-respondent was no, confining that the grounds of appeal were argumentative; narrative; vague or misleading. He submitted that the current trend is that the Court will only strike out a ground of appeal, if and only if, a respondent has complained that by the very mode of couching the ground of appeal, he is not able to understand the complaint being raised by the said ground. That is not the complaint of the cross-respondent here for he has even responded to the merit of the grounds of appeal; an indication that he understood the complaint embedded in the said grounds and he has not been misled in anyway.
Above all, the current attitude is that a ground of appeal will not be struck out for being incompetent once it gives notice of the complaint it is making to the other side who is not misled by it, Imam and Ors v. Sheriff and Ors (2005) 4 NWLR (Pt.914) 80, 134-135; Aderounmu v. Olowu (2000) 4 NWLR (Pt.652) 253 and Hambe v. Hueze (2001) 4 NWLR (Pt.703) 372.
He submitted that all the grounds of appeal filed by the cross-appellant herein have given sufficient information of the precise nature of the cross-appellant’s complaint to the cross-respondent. The objection is, thus, clearly as to form which cannot be a basis for striking them out. Once a respondent is not misled and no miscarriage of justice has been allege or suffered, the grounds of appeal will not be struck out, Military Administrator of Benue State and Ors v. Ulegede and Anor (2001) 17 NWLR (Pt.741) 194, 212-213. Thus, the cross-respondent must show how he has been misled, Obi-Odu v. Duke (2006) 1 NWLR (Pt.961) 375, 396; Solumade v. Kuti (2006) 2 NWLR (Pt.965) 558, 569 – 570. Indeed, the fact that the cross-respondent was able to formulate issues in his brief on ground of appeal showed that he was not misled by them, Imam v. Sheriff (2005) 4 NWLR (Pt.914) 80, 135. What is more, court no longer rely on technicalities, Engineering Enterprises Contractor Company of Nigeria v Attorney-General of Kaduna State (1987) 1 N.S.C.C. 601 at 613 (1987) 2 NWLR (pt.57) 381.
Counsel further submitted that grounds 1, 2 and 3 of the Amended Notice of Appeal, being complaints on jurisdiction, can be raised at any stage of the proceedings and by any means, even viva voce, Petrojessica Enterprises Ltd v Leventis Technical Company Ltd (1992) 5 NWLR (Pt 244) 675, 693; Osadebay v. A.G., Bendel State (1991) 1 NWLR (pt. 169) 525; Owoniboys Tech. Services Ltd. V John Holt Ltd (1991) 6 NWLR (pt. 199) 550; Okesuji v. Lawal (1991)1 NWLR (pt. 170)661; Katto v. Central Bank of Nigeria (1991) 9 NWLR (pt. 214) 126; Utih v. Onoyivwe (1991) 1 NWLR (Pt. 166) 166); Okoye v NCFC Ltd (1991) 4 NWLR (pt. 199) 501: Din v A.G. Federation (1988) 4 NWLR (pt.87) 147.
Counsel further submitted that the powers of the court to resolve the issue of jurisdiction or any complaint is not limited by the notice of appeal, citing Order 4 Rule 4 of the Court of Appeal Rules, 2007. The preliminary objection was, therefore, an abuse of the process of the court since it was only filed to irritate the cross-appellant and the court, Saraki v. Kotoye (1992) 9 NWLR (pt.264) 156, 188
He drew attention to the fact that on 23rd February, 2009, this court granted leave to file and argue additional grounds of appeal and to amend the notice of Cross-Appeal. Specifically, prayer 3 on the motion paper entreated the court for: “[a]n order granting leave to the cross-appellant/applicant to amend the notice of cross-appeal and to incorporate into same the additional grounds of Cross-Appeal.”
He recalled that the cross-respondent’s counsel did not oppose the application. Thus having been given leave to amend and file an amended notice of appeal, it was still within the framework of the amendment granted to file a process that would reflect the intention of the applicant to effect an amendment. Thus having been allowed to bring in three additional grounds, it goes without saying that the original couching of the “part of the decision complained of” would be expanded or modified to take care of the additional grounds being brought in. That is exactly what the Cross-appellant did. The cases of Kosile v. Folarin (supra) and C.C.B. Plc v. Akperi (supra) cited by the Cross-Respondent are most irrelevant. In the first place grounds 1, 2 and 3 of the Amended Notice of Appeal arose from the decisions of the trial Court and issues formulated thereon arose from those grounds. Furthermore, the grounds are well covered by part of the decision complained of.
Taking a look at part 1 of the part of the decision of the Court complained of, particularly item 2, it is clear that grounds 2 and 3 are duly covered by that leg of the portion complained of. For the sake of explanation, grounds 2 and 3 complain that, having not joined Kwara State Government as a party to the suit, the plaintiffs suit was not properly constituted and no decision can be made against Kwara State Government. The portion of part of the decision complained of is just to give a directive or insight as to the nature of the appeal and it is not provided that the amplitude and plenitude of the appeal must be stated in that portion of the notice of appeal. It is the grounds of appeal that demonstrate the complaints against the judgment, which has been done in this case and no complaint of being misled has been raised. On ground 1 of Amended Notice of Cross-Appeal, it was submitted that the ground is valid as there is nothing in the particulars that derogate from the grounds of appeal. Finally, grounds 1, 2 and 3 of the Amended Notice of Appeal, being challenges to jurisdiction, no strict rule would be observed or applied. He urged the court to dismiss the preliminary objection and take the merit of the Cross-Appeal.
RESOLUTION OF THE PRELIMINARY OBJECTION
As noted above, counsel for the cross-appellant submitted that the current trend is that the court will strike out a ground of appeal, if and only if, a respondent has complained that by the very mode of couching the ground of appeal, he is not able to understand the complaint being raised by the said ground. I entirely endorse this submission as an accurate statement of the law. Indeed, only recently, I had the opportunity of expressing my understanding of this current trend. That was in appeal number CA/IL/22/2003: Governor of Ekiti State v Oyewo and Anor (unreported judgment delivered on March 26, 2010). I am constrained to reproduce my views in that judgement here to expose the poverty of the logic that informed the preliminary objection: an objection that is not only frivolous but is also vexatious!
Like in the above unreported case, the objections of Salman Jawondo in this cross-appeal rest on four principal misconceptions: in the first place, it would appear that he glossed over the radical change which the evolution of the Brief system introduced in our adjudicatory procedure. Unlike the pristine practice [the pre-Brief System era] where appeals were argued on grounds of appeal, today, appeals are argued on issues distilled from the grounds of appeal themselves. In effect, where the grouse of the objector is not on the origin of the issues, namely, that the issues do not flow from the grounds of appeal, any complaint about the form of the ground will merely be a complaint based on technicality and will be discountenanced, see, Military Administrator of Benue State v. Ulegede (2001) 51 WRN 1, 15-16.
Again, the objection betrayed a regrettable misconception of the raison d’detre for the evolution of the rules of court relating to the formulation of issues. Put in very plain terms, such rules governing the formulation of Grounds of Appeal are designed to ensure fairness to the respondent: fairness by giving sufficient notice and information to such a respondent of the precise nature of the complaint or grievance of the appellant: a grievance which foreshadows or pre figures the issues that are likely to arise in the actual hearing of the appeal, Aderounmu v. Olowu (2000) 4 NWLR (pt 652) 253. That explains the requirement that the appellant shall set forth concisely his grounds which should not be vague or general in terms and must disclose a reasonable ground of appeal, Hambe v. Hueze (2001) 12 WRN 64; (2001) 4 NWLR (pt 703) 372.
As a corollary to the rule designed to vouchsafe fairness to the respondent, the courts have evolved another objective approach, namely, that the application of such rules should not be reduced to a matter of mere technicality: technicality in which the court merely looks at the form rather than the substance, see per Achike JSC in Hambe v. Hueze (supra) 389- 391; see, also, per Ayoola JSC in Aderounmu and Anor v. Olowu (2000) 2 SCNJ 180; (2000) 4 NWLR (pt.652) 253. The result is that any ground that satisfies the purpose as shown above, will not be struck out notwithstanding that it did not strictly conform to a particular form, Hambe v Hueze (supra).
What is more, the objection elided any consideration of the major shift in emphasis from the impregnable reign of technicalities to the anxious concern of the courts to attain substantial justice. It is this concern that dictated the current trend: a trend that simply dictates that the purpose of a ground of appeal is to ensure that the respondent is not taken by surprise, see, per Achike JSC in Hambe v Hueze (supra) 386. Hence, once a ground clearly states what the appellant is complaining about and there is compliance with the rules of court, the court cannot describe a ground as bad, and therefore, incompetent, Aderounmu v. Olowu (2000) 4 NWLR (pt.625) 253; Hambe v Hueze (supra).
It is this trend that underscores the consequence of the current approach to the effect that where the respondent is not misled and no miscarriage of justice has been alleged or suffered, a ground of appeal will not be struck out, Military Administrator of Benue State v. Ulegede (supra). This, equally, underlies the new trend to the effect that even where a court finds that the particulars of a ground of appeal are argumentative or narrative, it will treat any complaint about its form as a mere technicality which is un-becoming of learned counsel to pursue up to the appellate courts except where the parties to the appeal and the court are misled or where retaining them will occasion a miscarriage of justice, Military Administrator of Benue State v Ulegede (supra).
It is evident that what prompted this new judicial attitude is the resolve of the courts to pursue the concern of justice as the overriding force or the underlying philosophy of all their decisions, E.E.C.C.N v. A.G of Kaduna State (1987) 2 NWLR (pt.57) 381.
In all, as already held above, the preliminary objection is totally devoid of merit. I hereby enter an order dismissing it. I shall proceed to the determination of the cross-appeal.
CROSS APPEAL
The first issue of the cross appellant was expressed thus:
Whether having regard to the case put forward by the Plaintiff the learned trial judge ought to have made a finding in respect of acquisition of the land in dispute.
In support of this issue, Counsel adopted the arguments already canvassed in the Amended Respondent’s Brief of Argument. He submitted that the issue of locus standi is intertwined with the question of jurisdiction. Thus, if a plaintiff lacks the locus standi to institute an action then the court would have no jurisdiction to entertain the claims, Emezi v Osuagwu (2005) 12 NWLR (pt. 939) 340, 361.
He explained that at the lower court, it was the case of the plaintiff [now cross-respondent] that the land in dispute belonged to his late father by virtue of a sale under Native law and custom and that a receipt issued to him evidencing the sale. However, the plaintiff/cross-respondent failed to establish any such sale. Counsel argued that, in the circumstance, the only reasonable conclusion is that the plaintiff does not have the requisite interest in the subject matter of the suit to confer on him locus standi to bring the action.
In his view, since the plaintiff did not prove the sale of the family land to his father, it was the entire larger family, and not the plaintiff, that was the competent to sue. In other words, the plaintiff lacked locus standi to sue in respect of a land which belonged to the larger family. He contended that the case of the plaintiff/cross-respondent could have been better if he had brought the action on behalf of the extended Magaji Abudu family since he is also a member of the said family. Unfortunately, that was not the position which the plaintiff/cross-respondent took. Indeed, his case was that the land belonged solely to his immediate family. He was, thus, bound to swim or sink with his claim. Having failed to establish the sale to his father, his claim was bound to collapse like a pack of cards.
Counsel contended that in the light of such authorities like Keyamo v. LSHA (2000) 12 NWLR (pt.680) 196, 219; Ojukwu v. Ojukwu (2000) 1 NWLR (pt.677) 65, 86 etc which define what constitutes sufficient interest, even if the procedure for the acquisition for the land, the subject matter of the action, was irregular, the plaintiff/cross-respondent who had failed to demonstrate that he had suffered any personal injury by the said irregularities could not invoke the jurisdiction of the court to make such finding.
He submitted further that cases are determined based on the facts submitted before the court. In this appeal, from the case which the plaintiff presented, he would appear not to be bothered about the way and manner the land in dispute was acquired. His main contention was that he was entitled to the land since his father had earlier bought same from the extended Magaji Abudu family. Thus, once he failed to establish his title, the findings as to the propriety of the acquisition were, totally, irrelevant in the proceedings.
He took the view that the lower court was in error to have given any consideration to the issue of acquisition of the land in dispute. The lower court would have avoided the error if it sorted out the question of the plaintiffs locus to present the claim in the first place. The court, however, would appear to harbour the impression that the plaintiff was maintaining the action on behalf of the Magaji Abudu family as opposed to the Olatundun Olateju family.
Against this background, he finally submitted that since the plaintiff failed to establish his legal right to the and in dispute, it was erroneous for the lower court to have adjudicated over his claims and make findings that the acquisition of the land in dispute was irregular.
Learned counsel for the cross respondent dichotomized between locus standi and findings of fact made by a court. According to him, while locus standi relates to the competence of a Caiman, to maintain a suit, an appeal against findings of fact relates to the way and manner a court discharged its duty on the evaluation and appraisal of evidence before it.
It was submitted that from the particulars in support of Ground 1 of the Cross-Appeal particularly, Particular III thereof [which sated that the “plaintiff failed to establish any (sic) sale to his father of the land in dispute by the extended Magaji Abudu family,” the cross-appellant was not challenging the locus slandi of the cross-respondent but his alleged failure to establish sale of the land in dispute to his father by the larger Magaji Abudu family.
In his view, in the absence of any complain, or particulars complaining of findings of fact by the trial Court in Ground I of the cross-appellants appeal, the arguments canvassed by the cross-appellant, on the findings of fact made by the trial court are incompetent being arguments not anchored on any issue arising from ground of appeal or particulars of ground of appeal, C.C.B. Plc. and Anor v. Ekperi (supra) at 185 and Odeh v. Federal Republic of Nigeria (supra) a, 10; Dabo v. Abdullah, (2005) 2 SC (pt 1); NBCI v. Integrated Gas Bug Ltd and Anor (2005) 1 SC (p.1) 133, 140. Worse still, the arguments here are mere repetitions which do not improve the quality of arguments, Magit v University of Agriculture, Makurdi (2005) 12 SC (pt. 1) 122, 140.
It was, however, submitted, in the alternative, that the contentions on the cross-respondent’s want of sufficient interest in the disputed land because he failed to prove the sale and transfer of the land to him was erroneous in that they equated the issue of sufficient interest or locus standi with the issue of proof which are separate, distinct and different. Locus standi of a claimant, it was noted, was determined by the claimant’s statement of claim, Rebold Industries Ltd v. Ladipo (2007) All FWLR (pt. 395) 522, 534 while proof, on the other hand, was based on the state of pleadings and evidence produced by the parties.
Counsel submitted that paragraphs 1, 2, 3, 4, 5, 6 and 7 of the appellant’s Amended Statement of Claim disclosed the appellant’s sufficient interest in the land in dispute and therefore, the appellant had the locus standi, Rebold Industries Ltd v. Ladipo (supra) at 534.
What is more, the cross- appellant as defendant did not deny paragraphs 3, 4, 5, 6, 7 and 8 of the Amended Statement of Claim, hence, they were deemed admitted as no issues were joined on such facts, Sodipo and Ors v. Ogidan and Ors (2007) All FWLR (pt.2) 100, 122. Counsel maintained the general denial in paragraph 1 of the respondent’s Amended Statement of Defence did not constitute joinder of issues on the facts specifically pleaded by a claimant, Niko Engineering Ltd v. Akinshina and Ors (2005) 4 FWLR (pt. 293) 2150, 2169- 2170. Thus, no issue was joined and or arose on the competence of the appellant to maintain this suit in the capacity in which he did.
It was further submitted that having regard to the state of pleadings evidence before the trial court, the appellant had proved his interest in the disputed land. The cross-appellant as defendant admitted that the appellant was a member of Magaji Abudu family and a son of the 9th Magaji of Abudu family, Late Mohammed Olatundun Ayinla Olateju, (page 110, line 31 – 33 of the Record). Above, all being a stranger to the Magaji Abudu family, the cross-appellant cannot deny or contest the sale of Abudu family to the father of the appellant who was a member (and Magaji Abudu) of Abudu family, Onigbede and Ors v. Balogun and Anor (2002) 2 SCNJ 229.
In the reply brief of the cross-appellant, it was submitted that locus standi being a species of jurisdiction must be viewed from the totality of the case before the court, AG-Kwaa State v. Olawale (1993) 1 NWLR (Pt.272) 645, 663. In the present matter, the cross-appellant had obtained leave to raise the issue of locus standi as a jurisdictional issue. Thus, the question of locus cannot be limited to the Amended Statement of Claim as being advocated by the cross-respondent. It was observed that apart from the general traverse in her Amended Statement of Defence, the Cross-Appellant specifically joined issue with the cross-respondent in respect of his capacity to maintain the action through paragraphs 2, 3, 4, and 5 of the Amended Statement of Defence, (pages 39 and 40 of the Record). What is more, in declaratory action, the claim is only grantable on the strength of the Plaintiff’s case. Thus, even when the defendant admits the claim of the plaintiff or did not overtly controvert same the plaintiff still has a duty to proof his case by cogent evidence, Ayanru v. Mandilas Ltd (2007) 10 NWLR (pt.1043) 462, 477-478. Counsel dismissed the case of Onigbede and Ors. v. Balogun and Anor (supra) as inapplicable.
ISSUE TWO
Whether the plaintiff/appellant/cross-respondent’s suit is (sic) properly constituted as to confer jurisdiction on the court.
Counsel submit that jurisdiction is extrinsic to adjudication and where a court is without jurisdiction, any decision handed down is a nullity, FRIN v Gold (2007) 11 NWLR (pt. 1044) 1, 18 – 19. He maintained that the question of jurisdiction is germane to any lawful adjudication and it can be raised at any stage of the proceedings even for the first time on appeal, FRIN v Gold (supra) 19; Madukolu v. Nkemdilim (1962) 2 SCNLR 341; NDIC v. CBN (2002) 7 NWLR (pt 766) 272; RTEA v. N.U.R.T.W. (1996) 8 NWLR (pt. 469) 737.
He noted that it is the claim of the plaintiff that determines the jurisdiction of the court, Abdul-Raheem v. Oloruntoba-Olu (2006) 15 NWLR (pt. 1003) 581, 620; 642. He referred to paragraphs 21, 23, 24 and 28 of the Amended Statement of Claim where it was pleaded that the family did not sell, alienate or dispose of same and the Government did not acquire the land from the late Magaji; further that the said parcel of land in dispute was never revoked before the Certificate of Occupancy No. 8183 was issued to the defendant and thus the issuance of the said Certificate to the defendant is invalid, illegal, unconstitutional and in violation of the provisions of the Land Use Act 1978 and the Certificate is therefore, null and void and of no effect. Attention was drawn to the reliefs entreating the court for setting aside or directing the immediate cancellation of the Certificate of Occupancy No. 8183 issued in favour of the defendant.
It was explained that section 5 of the Land Use Act, 1978 vests the Governor of a State with powers to issue Certificate of Occupancy to any person while section 28 of the same law vests the Governor with power to revoke any interest in land.
The plaintiff’s case was targeted at this exercise of powers by the State Governor. Thus, where an act of the Governor or Government is sought to be nullified or attacked, the Government becomes a necessary party to the proceedings, Lawal v. P.G.P. (Nig.) Ltd (2001) 17 NWLR (pt 742) 393, 405 – 406. It was submitted that where a necessary party is not joined to a proceeding, the proceeding is incompetent and the court cannot exercise jurisdiction on such a proceeding, Elegushi v. Oseni (2005) 14 NWLR (pt. 945) 348, 374 – 375. Thus, the failure of the plaintiff to join Kwara State Government as a necessary party robbed the trial court of jurisdiction to entertain the Plaintiff’s suit.
Learned counsel drew attention to page 130 of the record where the lower court in reaction to the issue of non-joinder of Kwara State Government held that it sufficed that the defendant called an officer of the Ministry to testify in the case and that the non-joinder of Kwara State Government as a Co-Defendant could not have prevented the court from revoking exhibit ‘A” if it had found in favour of the plaintiff, thus holding that the Kwara State Government was not a necessary party.
It was submitted that failure to make Kwara State Government a defendant to the plaintiffs suit was fatal and that failure robbed the trial court of necessary jurisdiction to adjudicate on the incompetent case of the plaintiff, Elegushi v. Oseni (supra) and Lawal v. P.G.P. (Nig.) Ltd (supra). It is further submitted that no court has the power to make any order that will affect the interest of a person not a party before it, Awoniyi v. Amore (2000) 10 NWLR (pt. 676) 522, 533. In this case, the learned trial judge declared as nullity the acquisition done by the Kwara State Government, when the Government was never a party to the proceedings. The learned trial judge had variously made pronouncements affecting the interest of the Kwara State Government, citing pages 124 – 127 of the printed record.
For the cross-respondent, it was submitted that having regard to the claim of the appellants/cross-respondent, as contained in the amended writ of summons and the Amended Statement of Claim, the Kwara State Government was no, a necessary party. While counsel conceded that jurisdiction is extrinsic to adjudication and can be raised a, any stage of the proceedings even for the firs, time on appeal it was, however, submitted that when the issue bothers on non-joinder, the determinant ,s the claims and prayers of the claimant as contained in the Statement of Claim. In other words, the question is whether having regard to the plaintiff’s pleading, the suit is such that cannot be effectively and effectually determined between the parties before the court and without the joinder of the party not joined, Akani v. Olaniyan (2007) All FWLR (Pt.380) 1534, 1547. Counsel submitted that a suit is properly constituted when all the necessary parties for effective and effectual determination of the suit are before the court, Ayantunji and Ors. v. Gov. of Ondo State and Ors. (2005) 14 W.R.N. 67, pt.103-104; Ayorinde & Ors v. Arat & Oni & Anor (2000) 2 SC 33, 50.
Counsel took the view that none of the reliefs contained in paragraph 28 of the Amended Statement of claim was directed against the Kwara State Government and no order was sought against the said Government. Further, the granting of the reliefs in paragraph 28 of the Amended Statement of Claim would not, in any way, prejudice and or affect the interest of the Kwara State Government and, as such, the said Government was not a necessary party. Its presence was, therefore, not essential for the effectual and complete determination of the claims before the court, Orishagbemi v. Osho (2005) 14 WRN 177, 191 – 192. It was explained that all the reliefs sought in paragraph 28 of the Amended Statement of Claim were aimed and directed at the nullification or cancellation of the Certificate of Occupancy No. 1883 by virtue of which the defendant claimed ownership of the land in dispute and nothing more. It was further submitted that since the cross-respondent did not make any claim against the Kwara State Government, it was improper to join the said Government, Ayorinde and Ors v Oni and Ors (supra) 50, 51. Further, if the defendant/cross-appellant considered the State Government as a necessary party to this case the defendant/cross-appellant had the duty to draw the attention of the court to the absence of the necessary party. That done, the court could have directed the cross-respondent to take necessary steps to have the Government joined as a co-defendant, Osunrinde and Ors v. Ajamogun (1992) 7 SCNJ (pt 1) 79. He prayed in aid Order 14, Rule 16(1) of the Kwara State High Court (Civil Procedure) Rules 2005 and contended that the non-joinder of the Kwara State Government could not defeat the plaintiff/cross-respondent’s claim against the defendant/cross-appellant before the court, Osunrinde Ors v. Ajamogun and Ors (supra) 90. Counsel dismissed Lawal v. P.G.P (Nig.) Ltd (2001) 17 NWLR (pt.742) 393, 405- 406 as irrelevant and distinguished Elegushi v Oseni (2005) 14 NWLR (pt. 945) 348, 374-375; (2005) 7 SC (pt. Ill) 22, citing Okafor v Nnaife (1987) 9-10 SCNJ 63.
Counsel, further, noted that an official of the Lands Department gave evidence as DW1 for the defendant/cross-appellant in this case: an act which was an eloquent testimony to the fact that the Kwara State Government was fully aware of the suit and indeed, demonstrated its awareness by positively getting involved. The non joinder of the Kwara State Government could, therefore, not invalidate the proceedings and or render the suit incompetent, Duru v. Onwumelu (2002) 7 WRN 1, 22-23.
In the reply brief, counsel for the cross appellant adopted the earlier arguments in the main cross-appellant’s brief that the Kwara State Government was a necessary party. It was argued that the jurisdiction of the court is determined not only by the claim but also the complaint which gave rise to the claim. Thus the statement of claim as a determinant of jurisdiction would include averments in the Statement of Claim and the prayers being sought, citing paragraphs 21 of the Amended Statement of Claim where it was pleaded that since Late Muhammed Ayinla Olatundun Olateju became the owner of the vast expanse of Magaji Abudu family land by purchase including the land in dispute, he did not sell alienate or dispose of same and the Government did not acquire the land from him.
Counsel contended that by this averment, the plaintiff had put in issue a complaint that the Kwara State Government did not acquire his land: a complaint which was resolved in his favour. He further contended that on the basis of paragraph 29 of the Amended Statement of Claim and the finding on the impropriety of the acquisition, it was preposterous to argue that the cross-respondent [as plaintiff] had no complaint against the said Government to make it a necessary party. Counsel ruled out the relevance of Osunrinde v. Ajamogun (supra) and Order 14 Rule 16(1)
supra) to this appeal.
ISSUE THREE
Whether the trial court was right in holding that the question of sale of land from larger family of Mogaji Abudu to plaintiff’s family is (sic) not an issue before the Court.
Learned counsel for the cross-appellant drew attention to page 129 of the record where the lower court expressed the view that the issue whether the immediate family of the late father of the plaintiff had become the owner of the remaining Magaji Abudu extended family was not the issue before it. He derided that view as a clear misconception of the case of the parties, citing paragraph 21 of the Amended Statement of Claim where the plaintiff pleaded his root of title.
He explained that the sale from the Magaji Abudu family was the root of title which the plaintiff pleaded. Whether his case would succeed or not depended on this root of title. He pointed out that the defendant did not admit this averment, citing paragraph 1 of the Amended Statement of Defence. The effect of this denial was that there was a joinder of issues on the said question, Buhari v Obasanjo (2005) 2 NWLR (pt. 900) 241,385-386. He, further, submitted that since the plaintiff claimed for a declaration of title, he could not rely on the defendant’s admission. On the other hand, he was required to plead and lead cogent and compelling piece(s) of evidence to prove his entitlement to the declaration being sought.
Counsel, forcefully, contended that since the plaintiff predicated his root of title on a purported sale from the Magaji Abudu family, the propriety of that sale was a live and relevant issue to his claim. The lower court was, therefore, in serious error in its view that the question whether the immediate family of the late father of the Plaintiff had become the owner of the remaining Magaji Abudu extended family was not the issue before the court. He submitted that the issue was tied to the root of title which the plaintiff pleaded. He urged the court to hold that the question whether or not the plaintiff had become the owner of the entire land of Magaji Abudu extended family was a crucial and relevant issue before the court.
For the cross-respondent, it was contended that a general denial without more does not constitute denial so as to bring parties to an issue, citing Order 27 Rule 7(2) of the Kwara State High Court (Civil Procedure) Rules, 2005; Adeke v Obiareri (2002) 18 WRN 24, 39 – 40; Daniyan and Anor v. Iyagin (2002) 8 WRN 44, 60; University of llorin Teaching Hospital Management Board & Anor v. Ajide (2005) 15 WRN 113 139 – 140
Counsel conceded that the plaintiff in a claim for declaration must rely on the strength of his case and not the weakness of the defendant’s case. He, however, submitted that the plaintiff is not bound to prove more than what is in issue in a case, Anukam v. Anukam (2008) All FWLR (pt. 413) 1255, 1269. Above all, where the evidence is only one-sided, the fact is proved on a minimal standard, Baba v. NCAT Zaria (1991) 7 SCNJ (Pt.1) 1, 18. He, further, submitted that the cross-appellant did not give any evidence in challenge of paragraphs 4; 5; 6 and 21 of the Amended Statement of Claim. Thus, the facts were deemed proved on a minimal standard, Kosile v. Folarin (supra) 164.
He maintained that where parties relied on the title of an accepted common original owner, the party who linked his title to the accepted common owner had better title. Thus, as between the parties, the cross-respondent who traced his title to the Abudu family – original customary owner, was entitled to judgment, Isaac v Imasuen (2007) All FWLR 689, 708. The lower court was, therefore, correct.
In the reply brief, counsel for the cross-appellant submitted that since the plaintiff must succeed on the strength of his claim: a claim which was declaratory, the weakness, if any, of the case of the defence, would not assist him where he has failed to lead credible evidence to support his own case, Ajagungbade III v. Adeyelu II (2001) 16 NWLR (pt 738) 126.
The three issues set out for the determination of this cross-appeal are inseparably tied to some of the questions already dealt with in the main appeal. Thus, we shall bring our conclusions on them to bear on the latter set of issues. With regard to issue 1, it would suffice to reiterate our conclusions that both the lower court and learned counsel for the plaintiff fell into a grave error. The appellant [now, cross-respondent] hinged the bulk of his arguments on the shortcomings of the respondent’s certificate of occupancy. It was the oversight of the lower court in venturing into the second stage of evaluation of evidence when, in fact, the plaintiff had not discharged his burden on the pleadings that gave the appellant the impetus to weave his arguments around the findings of facts.
True, indeed, the lower court fell into the error of evaluation of evidence when the plaintiff had not crossed the first hurdle of discharging the burden on the pleadings. That was a wrong approach: it is the pleading of a party that fixes the onus of proving particular facts, Kyari v. Alkali (2001) 31 W R N at 93; High Grade Maritime Services Ltd v. First Bank Ltd (1991) 1 N WLR (pt 167) 290. Since the averment in his pleading alleged that the sale was under customary Law, the plaintiff had a duty to plead a valid sale under that customary law, Olalunjoye v. Akinterinwa (2000) 12 W R N 171; Adesanya v. Aderonmu (2000) 13 W R N, 106; from settled authorities, the plaintiff, equally, had an obligation to plead payment of the agreed purchase price coupled with delivery of the land, Adesanya v. Aderonmu (2000) 13 W R N 106 – 107; Olowoke v. Salawu (2000)19 W R N 96 and the names of the witnesses, Folarin v. Durojaiye (1988) 1 NWLR (pt 70) 351, 366; Erinosho v Owokoniran (1965) NMLR 479; Cole v. Folami (1956) 1 FSC 66, 69; Adedeji v. Oloso (2007).
Since the plaintiff had not, discharged that burden on the pleadings, there was no dispute between him and the defendant on the question of his entitlement by virtue of the sale under customary law. Put differently, it is the assertion and denial that constitute the dispute and it is only where facts are disputed that they are said to be “facts-in-issue” see, Barje v. Gunduma (supra) at 673, 688; Ehimare and Anor v. Emhonyon (supra) at 183; Olufosoye v. Olorunfemi (supra). That is to say, in civil proceedings, an issue only emerges where the court, upon a comparison of the averments in the pleadings, identifies the matters really in dispute between parties and upon which it is necessary to lead evidence. This is the only process through which the court is enabled to received evidence on matters in respect of which the parties are in dispute, Adedeji v. Oloso (supra) 176.
It is only when parties have crossed this hurdle and have called evidence on those issues joined that the obligation of the court to evaluate evidence matures. The plaintiff [now cross-respondent) did not scale the first scale. The lower court was therefore, in error to have embarked on the second stage of the evaluation of evidence and making findings of facts. The plaintiff, by his pleading, did no, make out any case that warranted the voyage into the stage of findings of facts. Without averments in the pleadings and oral evidence in proof thereof, the lower court could not, therefore, rightly make findings of fact in favour of the plaintiff, Odekilekun v. Hassan (supra). This must be so because a court can only rely on evidence based on pleaded facts to make its findings, Pronto v. Egboka (supra). I, therefore, resolve this issue in favour of the cross-appellant.
That was not the only error of the lower court. The crux of the complain, in the second issue is that the lower court nullified the acts of the Kwara State Government whereas the said Government was not a party to the suit. I, entirely, agree with the cross-appellant that the lower court fell into a grave in so doing, Lawal v P. G. P (Nig) Ltd (supra).
What dictated the tenor of the third issue was the view which the lower court expressed on page 129 of the record that the “issue whether the immediate family of the late father of the plaintiff is (sic) now the owner of the remaining Magaji Abudu extended family land is not the issue before the court”. This is somewhat surprising. As the counsel for the cross-appellant rightly observed, by the averments in the plaintiff’s pleading, particularly, paragraph 21 thereof, the alleged purchase of the land in dispute by the late Olateju from the extended Magaji Abudu family was the root of title which the plaintiff pleaded. He, therefore, had to succeed on the strength of that root of title. That was the gravamen of the case: it was the pivot of the entire case. The lower court was, therefore, wrong in side-stepping the most important building block in the edifice of the case which the plaintiff attempted to construct before it. What is more, being an edifice erected on a claim for declaration, it was not only the hub of the entire case, the plaintiff had a duty to establish it by evidence, Akininwo v Nsirim (2008) 9 NWLR (pt 1093) 439; Ndu v Unudike Properties Ltd (2008) 10 NWLR (pt 1094) 24. Such was the weight of the burden on the plaintiff that he could not be favoured with that relief either on admission or in default of pleadings by the defendant, Akininwo v. Nsirim (supra). The authority of the court in the event of the plaintiff’s failure to establish the claim has long been settled, Dumez (Nig.) Ltd v. Nwakhoba (2008) 18 NWLR (pt 1119) 361. I have no difficulty in finding for the cross-appellant on this issue. In all, I find considerable merit in the cross appeal which I, herby, allow.
For the avoidance of any doubt, the judgment of this court is as follows: the judgment of the lower court, to the effect that the appellant failed to establish by preponderance of evidence that he was entitled to the claims in his Amended Statement of Claim, is hereby affirmed. As noted, earlier, the lower court stumbled on the correct conclusion. Accordingly, the main appeal is dismissed in its entirety. The cross-appeal succeeds and it is, hereby, allowed. That shall be the judgment of this court.
SOTONYE DENTON WEST, J.C.A.: I agree with the judgment just delivered by my learned brother C. C. NWEZE J.C.A, as he has amply and aptly dissected the appeal and the cross appeal on both law and facts and I am obliged to agree with his reasonings and conclusions therein.
From a close study of the appeal, I also find that it is lacking in merit and I endorse the dismissal order of the appeal whilst the cross-appeal succeeds and is accordingly allowed.
Consequently I abide by the resolution of the appeal and cross appeal in the judgment.
HON. IGNATIUS IGWE AGUBE, J.C.A.: I have had the privilege of reading the illuminating judgment of my learned brother C. C. Nweze J.C.A. and must commend the industry and his usual erudite approach to the issues that called for determination in the Appeal.
I agree with his reasoning and conclusion on all the issues formulated and hereby concur that the main Appeal is unmeritorious and is accordingly dismissed while the Cross-Appeal shall succeed. I also affirm the judgment of the lower Court which was to the effect that the Appellant failed to establish by preponderance of evidence that he was entitled to the claims in his Amended Statement of Claim. No order as to costs.
Appearances
Salman JawondoFor Appellant
AND
H. O. AfolabiFor Respondent
