MRS ABISHAG DAN HABU v. ALHAJI KAWUJI ISA
(2012)LCN/5494(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 27th day of June, 2012
CA/J/250/2010
RATIO
LAND LAW: ESSENTIAL ELEMENTS FOR A VALID SALE OF LAND UNDER CUSTOMARY LAW
It has been variously held, to constitute a valid sale of land under customary law three essential elements are required namely:
(a) Payment of purchase price
(b) Purchaser is let into possession by vendor
(c) In the presence of witness, See Ogundalu v Macjob (2006) 7 NWLR (pt 978) 148. PER CHIMA CENTUS NWEZE, J.C.A.
LAND LAW: PURPORT OF THE LAND USE ACT 1978
True, indeed, about six year years after the commencement of the Act, confusion ensued as to the subsistence of land rights that pre-dated the Act: confusion engendered by an obiter dictum in Nkwocha v Governor of Anambra State (1984) All NLR 324, 340 that the effect of the Act “was to nationalize all lands in the country by vesting its ownership in the state.” This opinion polarized academic responses which need not detain us in this judgement.
Instructively, the apex court, in a gallant effort to stem the controversy, forthrightly, disclaimed that posture at the earliest opportunity. It seized the occasion presented to it by such cases like Salami v Oke (1987) 4 NWLR (pt 63) 1 etc to state the correct position of the law which is that the Act did not expropriate pre-existing land rights. The court later explained that though section 1 of the Act vested “all land within the territory of the state in the Governor”, an action which is tantamount to vesting of radical title under which all other interests, legal or equitable, are subsumed, it does not, by that fact, eradicate such interests. Indeed, in Ogunsola v Eiyekole and Ors (1990) 4 NWLR (pt 146) 163, 653, the court characterized the main consequence of the Act in this appetizing prose “[t]he most pervasive effect of the [Act] is the diminution of the plenitude of the powers of the holders of land. The character in which they hold remain substantially the same.” Subsequent decisions endorsed this interpretation of the effect of the Act. For example in Obasohan v Omorodion [2001] 7 MJSC 56, Ayoola JSC held, inter alia that:
The Land Use Act, 1978 (‘the Act’), does not set aside existing laws. Section 48 of the Act provides that:
All existing laws relating to the registration of title to, or interest in and or the transfer of title to or any interest in land shall have effect subject to such modifications (whether by way of addition, alteration or omission) as will bring those laws into conformity with this Act or its general intendment.
Such existing laws envisaged in section 48 will include unwritten laws such as customary law and the common law.
By virtue of section 34(1) and (2) any person in whom land was immediately vested before the commencement of the Act, shall where the land is developed, be deemed to be the holder of a statutory right of occupancy issued by the Governor under the Act.
Case law and scholastic opinions favour this interpretation, see, for example, Iguh JSC in Kyari v Alkali [2001] 11 NWLR (pt 724) 412; Eta v Anwan [2010] All FWLR (pt 546) 570, 581; Abioye v Yakubu [2001] FWLR (pt 83) 2212; Onwugbufor v Okoye [1996] 1 NWLR (pt 424)252; C. Ilegbune, “Proposals on the Reform of the Land Use Act, 1978,” in I. O. Smith (ed), Law and Real Property Rights in Nigeria: Essays in Memory of J. O. Omotola (Lagos: Faculty of Law, University of Lagos, 2008) 51, 52; I. O. Smith, “The Nature, Scope and Protection of Real Property Rights Post Land Use Act, 1978: An Overview,” in I. O. Smith (ed) (supra) 1. PER CHIMA CENTUS NWEZE, J.C.A.
EVIDENCE: ON WHOM LIES THE BURDEN OF PROVING A FACT
We entertain no doubt that the respondent, as plaintiff, had no burden to prove that negative averment, Jolasun v Bamgboye (2011) All FWLR (pt 595) 203, 219 because the law has long been settled that the burden of proving a particular fact lies on the party who, substantially, asserts the affirmative of the issue, see, Phipson on Evidence, (11th Edition), paragraph 92; page 40: “Burden of proof on the pleadings”, cited with approval, in Imana v Robinson (1974) 6 SC 83, per Aniagolu JSC; also, Elemo and Ors v Omolade and Ors (1968) NMLR 359, 361.
Other cases on the point include: Atane v Amu (1974) 10 SC 237; Fashanu v Adekoya (1974) 6 SC 83; Kate Enterprises Ltd v Daewoo Nig Ltd (1985) 2 NWLR (pt 5) 116; Onyenge & Ors v Ebere 18 NSCQR (pt II) 789 at 802; Osawaru v Ezeiruka [1978] 6-7 SC 135, 145; Okogbule v Oyagbola [1990] 4 NWLR (pt 147) 723; Odukwe v Ogubiyi [1998] 8 NWLR (pt 561) 339, 352. PER CHIMA CENTUS NWEZE, J.C.A.
JUDGEMENT: WHAT CONSTITUTES A CONSENT JUDGMENT
However, a consent judgement ought to indicate the judicial officer who presided over the admission of the consensual terms of the parties in the court’s record as such a judgement, Spectra Ltd v Stabilini Vivioni Ltd [1999] 6 NWLR (pt 608) 631. PER CHIMA CENTUS NWEZE, J.C.A.
JUSTICES
MONICA B. DONGBAN-MENSEM Justice of The Court of Appeal of Nigeria
CHIMA CENTUS NWEZE Justice of The Court of Appeal of Nigeria
ABUBAKAR ALKALI ABBA Justice of The Court of Appeal of Nigeria
Between
MRS ABISHAG DAN HABU Appellant(s)
AND
ALHAJI KAWUJI ISA Respondent(s)
CHIMA CENTUS NWEZE, J.C.A. (Delivering the Leading Judgment): The respondent in this appeal [as plaintiff] took out a writ of summons on May 20, 2008 against the appellant herein [as defendant] at the Taraba State High Court. His claim was endorsed in these terms:
The plaintiff claims against the defendant as follows:
(6) Declaration of the title over the piece of land lying and situate in Jalingo more particularly along the road leading to Government Comprehensive Secondary School (GCSS) Jalingo …
(7) An order for perpetual injunction to restrain the defendant or any person claiming through her from interfering with the plaintiff’s right over piece of land.
(8) General damages against the defendant for trespass in the sum of N500,000.00
(9) An order to the defendant to remove anything she brought deposited, constructed or affixed unto the piece of land in dispute (which does not form the natural part of land)
(10) The cost of this suit
Pleadings were, duly filed; served and exchanged; amended; served and exchanged. The respondent, and three other witnesses, testified in proof of his case. He tendered two documents, namely, exhibits “PEI” and “PE2,” respectively. The appellant testified in person. She tendered thirteen documents. She claimed that the land in dispute forms part of the larger portion of land acquired by the Taraba State Government for a government lay-out. The court: [coram Bashir J] (hereinafter referred to as the lower court): in its judgement of July 2, 2010, found in favour of the plaintiff [now respondent].
As an expression of her disagreement with the outcome of the case, the appellant filed this appeal. From her seven grounds of appeal, she has formulated the following issues for the determination of this appeal:
1. Whether interest or title to land to which section 34 (5) and (6) of the Land Use Act relates or applies can be validly transferred or alienated without the consent of the Governor of the state first sought and obtained;
2. Whether a court of law can competently, properly and completely adjudicate and determine the issue as to whether or not a land in dispute has been acquired by a state government without making the state government a party to the suit;
3. Whether the contradictions in the respondent’s pleadings and evidence called by him were inconsequential and immaterial or consequential and material enough to affect the case of the respondent and whether from the totality of evidence, the learned trial judge was right in declaring title in favour of the respondent;
4. Whether estoppel binds only parties to a transaction or extends to parties directly or indirectly connected with the cause of action.
ARGUMENTS OF COUNSEL
ISSUE 1
Whether interest or title to land to which section 34 (5) and (6) of the land use Act relates or applies can be validly transferred or alienated without the consent of the Governor of the state first sought and obtained (ground one of the grounds of the appeal)”.
At the hearing of this appeal, learned counsel for the appellant, F. K. Idepefo, leading C.C. Okeke and B. Simon, placed reliance on the appellant’s brief of argument and reply brief. First, he drew attention to paragraph 3 of the Statement of Claim. He noted that upon the commencement of the Land Use Act, 1978 [hereinafter simply referred to as the Act], only two kinds of interests in land can be held in an urban area, to wit: (a) actual grant under section 5 of the Act or (b) deemed grants under section 34(5) and (6) of the said Act.
In his view, section 34 subsections (5) and (6) (supra) were aimed at preserving the right of the owner or occupier of land to continue to enjoy and own same as if a certificate of occupancy under the hand of the Governor of a state had been issued, citing Obasohan v Omorodion (2001) 89 LRCN 2389, 2491; Kyari v Alkali (2001) 87 LRCN 2096, 2131.
Counsel noted that section 34(7) of the Act imposes a limitation and prescribes the procedure to be followed and complied with before an owner or occupier of land can validly alienate his interest on the land. Thus, even if land, the subject matter of the suit, belonged originally to Amete Mashi, the transactions, which the respondent pleaded in paragraphs 10 and 13 of his Statement of Claim, are all void for non compliance with the provision of section 34(7) (supra).
He explained that the respondent tendered the sale agreement between him and his vendor as exhibit PE2. On her part, at paragraph 25 of her Statement of Defence, the appellant had pleaded that the transaction between respondent and his vendor was void as no Governor’s consent was obtained. On its face, no Governor’s consent was obtained in respect of “PE2.” The respondent’s contention was not that such consent was obtained. Counsel was emphatic that where a Governor’s consent was obtained, it is the duty of the respondent to prove the existence of such consent, citing Calabar Central Cooperative v Bassey Ekpo (2008) All FWLR (p 418) 198.
He drew attention to page 98 of the record. There, in resolving the issue of the failure of the respondent to obtain Governor’s consent, the lower court held that the transaction between the respondent and his vendor was a sale under customary law. In the view of that court, it was not necessary to comply with section 34(7) of the Act.
Counsel submitted that the respondent did not raise a successful plea of sale under customary law. As evidence of this failure, he pointed out that the names of the witnesses who witnessed the payment of the purchase price and handing over of possession to the respondent were never pleaded. He cited paragraphs 13 and 14 of the Statement of Claim where the respondent pleaded thus:
13 The plaintiff avers that he is the rightful owner of the disputed land and that he acquired it through purchase in (sic) the sum of N220, 000. 00 from Umar Garba Allashuere on 28/6/2005 and that the transaction was reduced into writing and signed by the parties and their respective witness (sic). The original copy of the sale agreement is pleaded and shall be elide (sic relied) upon by the plaintiff as evidence of payment of purchase price.
14 The plaintiff avers that he paid the purchase price of N220, 000. 00 to his vendor Umar Garba Allashure upon the execution of the sale agreement and he was let in to possession of the disputed piece of land.
On this state of pleadings, Idepefo contended that for a sale of land under customary law, the plaintiff must plead all the ingredients of a customary sale, that is, he must plead the names of those who witnessed the payment of the purchase price and also the witnesses to the taken over of possession, citing Adedeji v Oloso (2007) All FWLR (pt 356) 610, 620.
Furthermore, he maintained that, in addition to pleading and proving the ingredients of a customary sale, the plaintiff must also plead and prove that the land, the subject matter of the suit, is also subject to customary law.
He offered what he called “a brief analysis of the history of title” which the respondent pleaded. In his said “analysis”, he pointed out that:
i. At paragraph 5 it was pleaded that Amete Mashi was the original owner of the land.
ii. At paragraph 7 it was pleaded that Amete Mashi begat Mading Mashi
iii. At paragraph 8 Mading Mashi begat Masho
iv. At paragraph 10 Mashi sold the land to Umar Garba Allashure (the respondent’s vendor) on 20/2/1996
v. At paragraph 13 Umar Garba Allshure sold the land to the respondent.
He wondered when the land was alienated in favour of the respondent’s vendor in 1996 and under what customary law the respondent’s vendor held the land until the land was alienated in favour of the respondent on 28/6/2005. He submitted that if the lower court had considered whether or not the land was subject to customary law, he would have come to a different conclusion.
Idepefo observed that there was evidence before the lower court that an approval of a right of occupancy had been issued by the Governor of Taraba in respect of this land. The grant and the composite plan were tendered as exhibit ‘D13.’ He called attention to paragraphs 7 to 9 of the Statement of Defence where the appellant [as defendant] pleaded thus:
7 The defendant in reply to the averment contained in paragraphs 6 to 10 of the plaintiff’s statement claim avers that the area in dispute is a Government layout. The defendant avers that sometimes (sic) in 1994 the Taraba state Government acquired an expanse of land of which the defendant’s land forms part of the large expanse of land acquired by the Taraba State Government.
8 The Taraba State Government acquired the land for the purpose of urban development and all the owners of the land acquired by the Government were compensated by the Taraba State Government. The defendant shall place reliance on the documents for the payment of compensation in respect of the land designated as TSJPI Extension annex.
In his submission, the land in dispute is a land to which section 34 subsections (5) and (6) of the Act relate. Section 34(7) prohibits the alienation of land saved under section 34 subsections (5) and (6) without the consent of the Governor.
He explained that section 34(7) of the Act is similar to sections 22 and 26 of the Act. While sections 22 and 26 prohibit the alienation of actual grant without the consent of the Governor, section 34(7) prohibits the alienation of deemed grant without the consent of the Governor. He contended that sections 22, 26 and 34 (7) of the Act prohibit the alienation of land without the consent of the Governor, Mba-Ede v Okufo (1990) 2 NWLR (pt 135) 787, 789 where the court identified sections 22, 26 and 34 (7) as relevant provisions of the Act prohibiting alienation of interest in land without the consent of the Governor. On the effect of alienation without the consent of the Governor, he referred to Calabar Central Cooperative and Ors v Bassey Ekpo (supra) pg 189 at 106.
He maintained that the requirement for Governor’s consent is a conditio sine qua non for a valid alienation of land. Citing section 2 (1) of the Act, counsel submitted that land falling within the jurisdiction of the Governor of a State cannot be held under customary law. Relying on section 6 of the Act, he took the view that customary land holding can only be practised in non Urban Areas under the control of the Local Government Councils. Even then, land subject to customary right cannot be alienated without the consent of the appropriate Local Government Council because section 21 of the Act prohibits the alienation of customary right in land without the consent of the appropriate Local Government Council where the land is situate. He observed that Ogundalu v Macjob (supra) only restated the principle of law guiding a customary land sale. As such, it did not decide that an alienation of interest in land without the consent of the Governor is valid.
RESPONDENT’S ARGUMENTS
On his part, learned counsel for the respondent, adopting and relying on the respondent’s brief of argument, submitted that in Nigeria there are two ways of acquiring or disposing of interest in land. He listed them as: (a) the indigenous or customary legal system and (b) the received English legal system, citing Folarin v Durojaiye (1988) 1 NWLR (pt 70) 351,361 where Obaseki, JSC stated the requirements of valid sale under the two legal systems.
He contended that under the received English legal system, more especially under the provisions of Section 22 of the Act, where the transfer or alienation of a piece of land is done by a conveyance or deed, the consent of the Governor must first be had and obtained. He drew attention to section 26 of the Act which makes such transaction null and void where such consent is not obtained, citing Owoniboys Technical Services v U.B.N PLC (2003) FWLR (pt 180) 1529, 1533.
He canvassed the view that where acquisition of title or interest in land by purchase is in issue, the court would have to determine whether the transaction was governed by the customary or the received English legal system by examining the pleaded facts and the evidence led at the trial, Mustapha v Mshelizah (2003) FWLR (pt 183) 8, 10.
He maintained that to acquire a valid interest in land under customary law by purchase, there must be: (a) a valid sale; (b) payment of money in the presence of witnesses; and (c) delivery of possession of land to the purchaser in the presence of witnesses, citing Mustapha v Msheliza (2003) FWLR (pt 183) 1, 6; Kopek Construction Ltd v Ekisola (2003) FWLR (pt 139) 1481, 1483; Folarin v Durojaiye (supra) at 361.
He observed that, in the present case, the nature of title which the respondent [as plaintiff] claimed, as disclosed in his Amended Statement of Claim, (pages 28 – 31 of the record), and the evidence led at the trial (pages 23 – 24 and pages 32 – 38 of the record), suggests that the respondent relied on purchase under customary law and not by way of purchase by way of conveyance or deed as provided under the Act. He drew attention to paragraphs 13, 14 and 15 of the Amended Statement of Claim. At page 23, the PW1 testified-in-chief as follows:
I know the land belongs to the plaintiff because I was there when he bought the land. I signed as a witness. He bought part of the land from Umaru Garba Allahsure then the other part he bought it from me which he fenced.
The one he bought from me was in 2000 and the one from Umaru Garba Allahsure was in 2005. I am the one who sold Baba Iyali Lau too who is a boundary man.
The defendant carved part of the land and deposited blocks and sand thereon measuring 125 ft x 165ft which constitute the part the plaintiff bought from Umaru Garba Allahsure.
On his part, the plaintiff testified, as Pw4, on pages 37 of the record thus:
Umaru Garba showed me the place, we bargained on 25 -6- 2005 and I paid him on 12 -7 – 2005 on which date he signed the agreement….Exhibit PEZ is the agreement between me and Umaru Garba Allahsure….
After purchasing the land I dug a foundation and erected a small building of 2 courses (sic) while 6 courses (sic) on one part and 7 courses (sic) on another part.
Counsel submitted that exhibit PE2, which is the sale agreement between Umaru Garba Allahsure (PW2) and the plaintiff (PW4), contains the name and signature of PW2 as the seller; the name and signature of the respondent as the buyer; the name and signatures of PW1 and one Sani Abubakar as witnesses to the transaction.
Next, he turned to the question of pleadings in respect of a valid sale under customary law. He submitted that the main aim of pleading by a party is to give the opposing party a fair notice of the case he would be confronted with so as to enable him to prepare his own side of the case and thus avoid any element of surprise, Orunengimo v Egebe (2008) 154 LRCN 40, 42.
He took the view that the facts pleaded in paragraphs 13, 14 and 15 of the respondent’s Statement of Claim gave a fair notice to the appellant of how the respondent acquired the disputed land. As such, he submitted that the pleadings and evidence which the respondent led satisfied the requirements of valid sale of land under customary law.
Counsel drew attention to the appellant’s Statement of Defence (pages 17 – 21 of the printed record). He observed that the above averments, specifically, admitted paragraphs 1 and 2 and, specifically denied paragraphs 3,4,5,6,7,8,9, and 10 of the respondent’s Statement of Claim (pages 28 – 31 of the printed record).
He maintained that the appellant never denied the averment of facts contained in paragraphs 11, 12, 13, 14, 15, 16, 17 and 18 of the respondent’s Statement of Claim, citing Order 24, Rule 9 of the High Court Civil Procedure Rules of Taraba State. He insisted that the appellant did not, specifically, deny how the respondent acquired the disputed land as, specifically, pleaded in paragraphs 13, 14 and 15 of his Statement of Claim. Counsel maintained that the entire content and effect of the appellant’s Statement of Defence do not suggest any implied denial of the facts pleaded in paragraphs 13, 14 and 15 of the respondent’s Statement of Defence, Shodi v Eyifumi (2000) 7 SCNJ 295, 329.
Even the general traverse in the appellant’s Statement of Defence cannot be of any assistance to her because the law is trite that general traverse ought not to be adopted to controvert essential and material allegations in a statement of claim. Rather, such essential and material allegations should be specially traversed, Bamgbegbin v Oriare (2010) 178 LRCN 87, 95.
He submitted that it was sufficiently clear from the state of pleadings of the parties that the fact that the respondent acquired the disputed land through purchase under native law and Custom were established.
APPELLANT’S REPLY
On the contention that a sale contracted under Customary Law does not require Governor’s consent, appellant’s counsel re-iterated the view that after the commencement of the Act, no land in Nigeria is exempted from its provisions. In effect, land held under Customary Law is subject to the requirement for consent, UBN Plc v Ayodare and Sons Nig Ltd (2007) All FWLR (pt 383) 1, 16.
He further submitted that section 34 subsections (5) and (6) (supra) cover un-certificated land and are made subject to obtaining the relevant consent before there can be valid alienation. He urged the court to discountenance, Mustapha v Msheliza (supra) as being inapplicable.
Next, he turned to the respondent’s submission that he did not need to plead the incidence of customary sale. He submitted that where a party’s legal right depends on the existence of certain facts, such fact must be pleaded and proved by that party, Calabar Central Cooperative Society v Ekpo (supra). The Respondent did not plead sale under any Customary Law. He is bound by his pleadings.
Counsel insisted that that appellant’s answer to all the averments in paragraphs 11,12,13,14,15,16,17 and 18 of the respondent’s Statement of Claim is contained at paragraph 25 of the appellant’s Statement of Defence where she pleaded that the transaction pleaded by the respondent is void for the respondent’s failure to obtain the Governor’s consent to the transaction in question.
In his view, the appellant’s reply to the averment is an absolute defence which rendered the transaction pleaded by the respondent a nullity. Above all, the facts which the respondent pleaded at paragraphs 11,12,13,14,15,16,17 and 18 (supra) in themselves constitute an infraction of the Act on the requirement for consent.
RESOLUTION OF THE ARGUMENTS
As shown above, the respondent [as plaintiff] pleaded the transactions through which he derived title to the land in dispute in his Amended Statement of Claim. For example, paragraphs 13 and 14 of the Amended Statement of Claim contain the following averments:
3. The plaintiff avers that he is the rightful Owner of the disputed land and that he acquired it through purchase in the sum of N220, 000. 00 from Umar Garba Allahsure on 28/6/2005 and that the transaction was reduced into writing and signed by the parties and their respective witnesses. The original copy of the sale agreements is pleaded and shall be relied upon by the plaintiff as evidence of payment of purchase price.
14. The plaintiff avers that he paid the purchase price of N220, 000. 00 to his vendor Umar Garba Allahsure upon the execution of the sale agreement and he was let in to possession of the disputed piece of land.
He tendered exhibit ‘PE2’, the sale agreement between his vendor [PW2] and himself. The respondent’s position at the lower court was that the said transaction between PW2 and himself, evidenced in the said exhibit ‘PE2’ “was customary in nature which does not require Governor’s consent,” [see, page 95 of the record where the lower court summed up his argument in the course of its judgement]. The lower court was persuaded by this tendentious submission. The court reasoned thus [page 98 lines 10-25]:
From the pleadings and the evidence before me it goes without saying that the transaction lend (sic) itself more towards the customary sale of land because all that they emphasized was payment of purchase price, taking of possession and execution of agreement. It has been variously held, to constitute a valid sale of land under customary law three essential elements are required namely:
(a) Payment of purchase price
(b) Purchaser is let into possession by vendor
(c) In the presence of witness, See Ogundalu v Macjob (2006) 7 NWLR (pt 978) 148. I have seen all these 3 elements in the case at hand thereby qualifying the transaction as being under the customary law, which by the above authority decided by the Court of Appeal in 2006 is absolutely valid. Absence of consent or other legal requirement under the English or statutory law will simply have no adverse effect.
[italics supplied for emphasis]
Idepefo, learned counsel for the appellant, submitted that upon the commencement of the Land Use Act, 1978, there can only be two categories of interests in land in an urban area, namely, actual grant under section 5 of the Act and deemed grant under section 34 (5) and (6) of the same Act. He maintained that section 34 subsections (5) and (6) (supra) were aimed at preserving the right of the owner or occupier of land to continue to enjoy and own same as if a Certificate of Occupancy under the hand of the Governor of a State had been issued.
True, indeed, about six year years after the commencement of the Act, confusion ensued as to the subsistence of land rights that pre-dated the Act: confusion engendered by an obiter dictum in Nkwocha v Governor of Anambra State (1984) All NLR 324, 340 that the effect of the Act “was to nationalize all lands in the country by vesting its ownership in the state.” This opinion polarized academic responses which need not detain us in this judgement.
Instructively, the apex court, in a gallant effort to stem the controversy, forthrightly, disclaimed that posture at the earliest opportunity. It seized the occasion presented to it by such cases like Salami v Oke (1987) 4 NWLR (pt 63) 1 etc to state the correct position of the law which is that the Act did not expropriate pre-existing land rights. The court later explained that though section 1 of the Act vested “all land within the territory of the state in the Governor”, an action which is tantamount to vesting of radical title under which all other interests, legal or equitable, are subsumed, it does not, by that fact, eradicate such interests. Indeed, in Ogunsola v Eiyekole and Ors (1990) 4 NWLR (pt 146) 163, 653, the court characterized the main consequence of the Act in this appetizing prose “[t]he most pervasive effect of the [Act] is the diminution of the plenitude of the powers of the holders of land. The character in which they hold remain substantially the same.” Subsequent decisions endorsed this interpretation of the effect of the Act. For example in Obasohan v Omorodion [2001] 7 MJSC 56, Ayoola JSC held, inter alia that:
The Land Use Act, 1978 (‘the Act’), does not set aside existing laws. Section 48 of the Act provides that:
All existing laws relating to the registration of title to, or interest in and or the transfer of title to or any interest in land shall have effect subject to such modifications (whether by way of addition, alteration or omission) as will bring those laws into conformity with this Act or its general intendment.
Such existing laws envisaged in section 48 will include unwritten laws such as customary law and the common law.
By virtue of section 34(1) and (2) any person in whom land was immediately vested before the commencement of the Act, shall where the land is developed, be deemed to be the holder of a statutory right of occupancy issued by the Governor under the Act.
Case law and scholastic opinions favour this interpretation, see, for example, Iguh JSC in Kyari v Alkali [2001] 11 NWLR (pt 724) 412; Eta v Anwan [2010] All FWLR (pt 546) 570, 581; Abioye v Yakubu [2001] FWLR (pt 83) 2212; Onwugbufor v Okoye [1996] 1 NWLR (pt 424)252; C. Ilegbune, “Proposals on the Reform of the Land Use Act, 1978,” in I. O. Smith (ed), Law and Real Property Rights in Nigeria: Essays in Memory of J. O. Omotola (Lagos: Faculty of Law, University of Lagos, 2008) 51, 52; I. O. Smith, “The Nature, Scope and Protection of Real Property Rights Post Land Use Act, 1978: An Overview,” in I. O. Smith (ed) (supra) 1.
The italicized view of the lower court set out above [see, page 98 of the record “… Absence of consent or other legal requirement under the English or statutory law will simply have no adverse effect”], completely, overlooked one further implication of the re-configuration of tenurial rights in the Act. The provision of the Act apropos the facts of this case on appeal is section 34 of the Act which converts pre-existing rights on land in an urban area [the land in dispute is in Jalingo urban area] to statutory rights of occupancy deemed granted by the Governor. We may as well add that land rights in non-urban areas are converted to customary rights of occupancy deemed granted by the local government, see, section 36 of the Act, Ojah v Ogboni [1996] 6 NWLR (pt 454) 272; Eta v Anwan (2010) All FWLR (pt 546) 570, 579.
As shown above, the lower court held that:
I have seen all these 3 elements in the case at hand thereby qualifying the transaction as being under the customary law, which by the above authority decided by the Court of Appeal in 2006 is absolutely valid. Absence of consent or other legal requirement under the English or statutory law will simply have no adverse effect.
[italics supplied for emphasis]
With due respect, this posture is an affront to the Act. We, entirely, agree with Idepefo that the tenurial rights comprised in the land in dispute are governed by section 34 (5) and (6) of the Act. We entertain no doubt that, just like actual grants, the tenurial rights in question, falling under deemed grants, are, also, subject to the consent requirement. Furthermore, we endorse his submission that section 34 (7) is similar to sections 22 and 26 of the Act. For ease of reference the said section 34(7) is reproduced here:
No land to which subsection(5) (a) or (6) of this section applied held by any person shall be further subdivided or laid out in plots and no such land shall be transferred to any person except with the prior consent in writing of the Governor.
This section prohibits the alienation of a deemed grant without the consent of the Governor just as sections 22 and 26 prohibit the alienation of an actual grant without the said consent.
Now, the interpretation of these sections has had a chequered odyssey. As this court demonstrated elsewhere in Pharmatek Industrial Projects Ltd v Trade Bank (Nig) Ltd (2009) 41 WRN 65; (2009) All FWLR (pt 495) 1678; (2009) 13 NWLR (pt 1159) 577 [per Nweze JCA], the decision in Savannah Bank of Nigeria Ltd v Ajilo (1989) 1 NSCC 135, on the effect of non-compliance with the consent requirement of the Act, triggered off so many disputations as evidenced in the following scholastic works, among others, A. A. Utuama, “Crocodile Tears in Savannah Bank Ltd v Ajilo (1989) 2 GRBPL No. 7, 29; A. Ekpu, “The Consent Controversy Resurrected? Awojugbagbe Light Industries Ltd. v Chinukwe”, (1993) 2 EDSU L J 117; Okoli, “Savannah Bank Ltd v Ajilo: Crocodile Tears in The Supreme Court?” (1989) 2 GRBPL No. 7, 37; Nwizugbo, “A Way out of the Quandary of Ajilo” (1989) 2 GRBPL No. 7, 41; K. Awodein, “Failure to obtain Consent to Mortgage – Judicial Attitude” (1988) 1 GRBPL No 1, 56; Fekumo, “The Land Market Under the Land Use Act 11” (1989) 2 GRBPL No. 9, 24 etc.
Later, in Awojugbagbe Light Industries Ltd v Chinukwe (1993) 1 NWLR (pt 270) 379, the apex court seemed to have attenuated the consequences that flowed from a rigid interpretation of the consent requirement. It held, inter alia, that an agreement to transfer or an instrument requiring Governor’s consent is not void simply because the requisite consent was not obtained immediately after its execution, being rather inchoate until consent is obtained.
Indeed, the decision in the Awojugbagbe case was, later, interpreted as giving the consent provisions “a human face in the interest of business efficacy, and to discourage inequitable and unconscionable bargains”, see, C. Ilegbune, “Proposals on the Reform of the Land Use Act, 1978,” in I. O. Smith (ed) (supra). Be that as it may, the current position is that the apex court has reverted to its posture in the Ajilo case. The cases evidencing the consecration of that approach include: Union Bank of Nigeria Plc v Astra Builders (W/A) Ltd [2010] All FWLR (pt 518) 865, 885- 886; Union Bank of Nig Ltd v Ayodare and Sons Nig Ltd [2007] 13 NWLR (pt 1052) 567; Olalomi Industries Ltd v N. I. D. B. [2009] 29 NSCQR 240; International ile (Nig) Ltd v Aderemi and Ors [1996] 8 NWLR (pt 464) 15, 42; Brosette v. Ilemobola & 3 Ors (2008) 154 LRCN 64-109; Yaro v Arewa Construction & 2 Ors (2008) 154 LRCN 163-217; Calabar Central Co-operative & 2 Ors v Ekpo (2008) All FWLR (pt 418) 198-244. Instructively, in Union Bank of Nigeria Plc v Astra Builders (W/A) Ltd (supra at pages 885-886), the apex court, specifically, quoted, approvingly, from its decision in Savannah Bank of Nigeria Ltd v Ajilo (supra) and International ile (Nig) Ltd v Aderemi and Ors [supra]. It, also, referred to Union Bank of Nig Ltd v Ayodare and Sons Nig Ltd (supra) and Olalomi Industries Ltd v N. I. D. B. (supra).
Exhibit PE2 (supra), which evidenced the transaction between the respondent and PW2, was made on June 28, 2005 [that is, twenty years after the Land Use Act]. There is nothing on it to show that the said consent was obtained as required by section 34 (7) (supra). The position of the lower court was that the “absence of consent or other legal requirement under the English or statutory law will simply have no adverse effect.”
From all the cases cited above, we take the view that this position is untenable. Indeed, contrary to the view of that court, the effect of the absence of consent is so adverse that any transaction which purports to vest in any person any interest or right over land except in accordance with the provisions of the Act is null and void, Union Bank of Nig Ltd v Ayodare and Sons Nig Ltd (supra) and Olalomi Industries Ltd v N. I. D. B. (supra); Union Bank of Nigeria Plc v Astra Builders (W/A) Ltd (supra); Calabar Central Co-operative and Ors v Ekpo (supra).
Now, if exhibit PE2 is invalid for non-compliance with section 37 (supra), how can it be the basis of a court order awarding a declaration of title as claimed by the respondent at the lower court? The simple answer, in our view, is that the implication of exhibit PE2’s non-compliance with the above consent provision is that even if, as the lower court held, all the ingredients of customary law had been complied with, the non-compliance had the effect of robbing the court of the jurisdiction to favour him with the relief sought. This is quite apart from the fact that the land in question is situate in the Jalingo urban area. The respondent’s contention that the appellant did not, specifically, deny how the respondent acquired the disputed land as pleaded in paragraphs 13, 14 and 15 of the Amended Statement of Claim, with respect, underrated the import of the averment in paragraph 25 of the Statement of Defence that the said transaction is void for non-compliance with the Act, that is, for the failure to obtain Governor’s consent.
Just like the respondent, the lower court betrayed a misconception of the pervading effect of the mandatory consent provisions: consent provisions which embrace both actual and deemed grants under the Act. As the apex court held in Union Bank of Nig Ltd v Ayodare and Sons Nig Ltd (supra) at page 16 “Where the requiste consent is not obtained, the transaction or instrument which purports to confer or vest the property in any person shall be null and void.” Instructively, at pages 885-886 of Union Bank of Nigeria Plc v Astra Builders (W/A) Ltd (supra), Adekeye JSC, as recently as February 19, 2010, quoted, approvingly, the opinion of Karibi-Whyte JSC at page 349 of Savannah Bank of Nigeria Ltd v Ajilo (supra) that:
….every such holder [of a right of occupancy whether statutory or otherwise], whether under section 5, 34 or 36 of the Land Use Act, requires the prior consent of the [ ] Governor before he can transfer, mortgage or otherwise dispose of his interest in the right of occupancy. This means that section 22 is of general application to every holder under the Act pursuant to sections 5, 34 or 36 thereof…
[italics supplied for emphasis]
Contrary to the decision of the lower court that the transaction between the plaintiff [now respondent] and his vendor [PW2] evidenced in exhibit ‘PE2’ [sale agreement between the said PW2 and the plaintiff/respondent, PW4] was not caught by the provisions of the Act, we endorse the submission of Idepefo, for the appellant, that the said transaction pleaded in paragraphs 10 and 13 of the Amended Statement of Claim (supra) is void for non-compliance with section 34 (7) of the Act Union Bank of Nigeria Plc v Astra Builders (W/A) Ltd (supra). We, therefore, resolve this issue in favour of the appellant. Ordinarily, this should suffice for the resolution of this appeal. However, as a penultimate court which is bound to consider all the issues, we now proceed to the determination of the other issues, first, issue two.
ISSUE TWO
Whether a court of law can competently, properly and completely adjudicate and determine the issue as to whether or not a land in dispute has been acquired by a state government without making the state government a party to the suit
APPELLANT’S CONTENTION
Counsel for the appellant drew attention to paragraph 16 of the respondent’s Statement of Claim where he pleaded thus:
16 Plaintiff avers that the government of Taraba State had attempted to acquire the disputed land from the original owner and other owners of the surrounding pieces of land but the government later changed its decision and the disputed land together with other surrounding pieces of land reverted to their original owners.
He referred to paragraphs 7 to 11 of the Statement of Defence where issues were joined on the above pleaded facts:
7 The defendant in reply to the averment contained in paragraph 6 to 10 of the plaintiff’s statement of claim avers that the area in dispute is a government layout. The defendant avers that sometimes in 1994 the Taraba State Government acquired an expanse of land of which the defendant’s land forms part of the large expanse of land acquired by Taraba state Government.
8 The Taraba state Government acquired the land for the purpose of urban development and all the owners of the land acquired by the Government were compensated by the Taraba State Government. The Defendant shall place reliance on the documents for the payment of compensation in respect of the land designated as TSJPI Extension annex.
9 The defendant avers that after the Taraba State Government acquired the land, it developed it into a layout and the street on which the defendant’s land is situate was marked as “B” road and the defendants plot designated as plot No. 4
10 The defendant avers that neither the plaintiff nor his predecessor in title contested the ownership of the land with the owners who showed up to collect compensation in respect of the land acquired by the government or challenged government’s acquisition of the land.
11 The defendant avers that plot No. 4 B road was subsequently allocated to one Mr. Godwin N. Soken and approval of a right of occupancy No. TS/10386 dated 12th May, 1998 was granted to him by the Taraba State Government. The defendant shall place reliance on the said grant and the site plan at the hearing of the suit.”
Counsel pointed out that, at the lower court, he had argued that the Taraba State Government was a necessary party to the case. Thus, the court was not in the position to determine whether or not the said Government, actually or validly, acquired the land in dispute unless she was made a party to the case, citing pages 84 to 85 of the printed record. He submitted that the appellant did not introduce the issue of Government acquisition of the land. Indeed, it was the respondent who, at paragraph 16 of his statement of claim, actually, pleaded the issue of Government acquisition of the land.
He canvassed the view that the initial burden of proof is on the party who will lose where no evidence is called. In effect, the initial burden of proving whether or not Government acquired the land is on the respondent, citing Dagaci of Dere v Dagaci of Ebwa (2006) All FWLR (pt 306) 786, 798.
On the one hand, he contended that even if it was the appellant who introduced the issue of Government acquisition of the land, what she did was, simply, to put the respondent on notice that all the necessary parties were not before the court.
Against this background, he maintained that the respondent should have applied to join the said Government to enable the court determine whether or not there was government acquisition of the land; whether or not the land was validly acquired and whether compensation was paid to anyone in respect of the land.
This submission, in his view, flows from the fact that it is a plaintiff who has the duty to ensure that all necessary parties are joined in his case, Jimoh v Oyinloye (2006) All FWLR (pt 322)1556, 1558; Adisa v Oyinwola (2000) FWLR (pt 8) 1349; Ekpere v Aforije (1972) All NLR (pt 1) 220. Thus, where the issue of Taraba state government acquisition of land is raised in a suit either as a defence or as a claim, the state Government becomes a necessary party, Elegbushi v Oseni (2006)14 WRN 1; (2005) 14 NWLR (pt 945) 348, 357: a case in which the defendant relied on the fact that before the institution of the suit, existing rights of occupancy over the land in dispute were revoked. The defendant’s family obtained an excision of the land in dispute from the State Government after making representation.
He explained that the defence which the appellant put forward in the present case was also to the effect that the Taraba State Government had acquired the land in dispute; paid compensation to the owners; developed it into a layout; allocated plot No 4 to Godwin N. Soken and issued a right of occupancy No TS/10386 dated May 12, 1998.
According to counsel, the issue the court below ought to consider was the effect of respondent’s failure to join the Government of Taraba State as a party to the suit. In effect, whether or not the acquisition was proved and who had the initial burden of proof could have been properly decided by the court if all necessary parties were before the court. This is because in civil claims all parties necessary for the invocation of the judicial powers of the court must be before it for it to effectually and completely adjudicate upon and settle all questions involved in a case or matter, Awoniyi v Regd Trustees of AMORC (2000) FWLR (pt 25) 1592, 1599; Uzor v Nigeria Stores (1973) 9-10 SC 35; Oloriode v Oyebi (1984) 1 SCNLR 390; Okafor v Nnaife (1973) SC 85; Jimoh v Oyinloye (supra).
According to him, the respondent’s action was not properly constituted before the trial court because the party necessary for proper determination of the case was not joined. He urged the court to set aside all the findings, and the decision of the lower court. A court that acted without jurisdiction did so in vain, no matter how well the proceedings were conducted, Jimoh v Oyinloye (supra); National Bank of Nigeria Ltd v Weide & Consult Ltd (1996) 9-10 SCN 5, 147.
RESPONDENT’S CONTENTION
Counsel for the respondent cited ASESA v Ekwenem (2009) 173 LRCN 1, 5 as authority for the view that the claim of a litigant depends on the averment in his pleadings. Thus, it is the entire pleadings of the parties that are considered holistically to determine the reliefs vis a vis the court’s jurisdiction.
He submitted that it was not the case of the respondent that the Government of Taraba State had acquired the disputed land. Paragraph 16 of the respondent’s Statement of Claim did not disclose the case that the said Government had acquired the disputed land as argued by the appellant. In the same vein, the entire pleadings of the respondent and the evidence in support did not suggest that the disputed land was acquired by that Government from its original owners.
He maintained that it was the appellant who, in paragraphs 7, 8, 9, 10 and 11 of her statement of Defence, clearly and positively, stated that the said Government had acquired the disputed land, paid compensation to the original land owners and then laid out the and allocated it to various individuals including her vendor. He set out paragraphs 7, 8, 9, 10 and 11 of her Statement of Defence (supra) and contended that the appellant introduced the issue of government acquisition of the disputed land in her Statement of Defence. However, she abandoned it in the course of hearing as she failed to lead evidence to prove the said averments, Arewa iles PLC v Finetex Ltd (2003) FWLR (pt 162) 1985, 1990.
He argued that where there is no complaint against a party, the non-joinder of that party will not affect the proper determination of the issues joined, Dantsoho v Mohammed (2003) FWLR (pt 150) 1717, 1727. The respondent had no complaint against the Government of Taraba State since his case was that the said Government never acquired the disputed land. Thus, the said Government could not be a necessary party to his case more especially when the appellant failed to prove that the said Government had acquired the disputed land.
RESOLUTION OF THE ISSUE
At 93 of the record, the learned trial Judge, in resolving this issue, held that:
The critical issue introduced by the defendant here is the issue of Government acquisition of the land and payment of compensation to the original owners of the land. The onus of proving this aspect of the case now automatically rest on the defendant…
From the above state of the averments in the respective pleadings of the parties, we are satisfied that what the respondent [as plaintiff] pleaded in paragraph 16 (supra) was a negative averment whose, ultimate, effect is that the Taraba State Government did not acquire the land in dispute. It was the appellant, as defendant, who made the positive averment in paragraphs 7, 8, 9, 10, 11 of the Statement of Defence (supra) that the said Government acquired the said land. As Mahmud Mohammed JSC held in Jolasun v Bamgboye (2011) All FWLR (pt 595) 203, 219, there is no doubt that the burden of proving a particular fact lies on the party who, substantially, asserts the affirmative of the issue, citing Osawaru v Ezeiruka [1978] 6-7 SC 135, 145; Okogbule v Oyagbola [1990] 4 NWLR (pt 147) 723; Odukwe v Ogubiyi [1998] 8 NWLR (pt 561) 339, 352.
As shown above, counsel for the respondent had contended that it was not their case that the Government of Taraba State had acquired the disputed land. Indeed, the entire pleadings of the respondent and the evidence in support did not suggest that the disputed land was acquired by that Government from its original owners. This prompted his submission that since they had no complaint against the Government of Taraba State, the said Government could not be a necessary party to his case. Even at that, its non-joinder will not affect the proper determination of the issues joined.
There is considerable force in this submission. As Ogbuagu JSC, percipiently, held in Sapo v Sunmonu [2010] All FWLR (pt 531) 1408, 1426, it is, now, fairly, settled that no cause or matter shall be defeated by reason of the mis-joinder or non-joinder of parties. In effect, the court may, in every cause or matter deal with the issue in controversy as far as regards the rights and interests of the parties actually before it, Kalu v Odili [1992] 5 NWLR (pt 240) 130; In Re Chief Nwoja and Ors [1992] 7 SCNJ (pt 1) 76, 115; Osunrinde and Ors v Ajamogun and Ors [1992] 6 NWLR (pt 246) 156, 183-184; also, reported in [1992] 7 SCNJ (pt 1) 79; Sheehan v Great Eastern Railway Co (1880) 16 CH. 35, 64. True, indeed, as Ogbuagu JSC, firmly, conclude in Sapo v Sunmonu [supra] at page 1426, it is the undisputed right of a plaintiff to choose the person or persons against whom he wishes to proceed against. In fact, ten years before Sapo v Sunmonu [supra], Karibi-Whyte JSC had stated the correct position of the law to be that:
…when an action is properly constituted with a plaintiff with legal capacity to bring the action; a defendant with capacity to defend and a claim with a cause of action against the defendant; and the cause of action has satisfied all preconditions for instituting he action, the fact that a necessary party to the action has been joined is not fatal to the action and will not render the action a nullity. See, Ayorinde and Ors v Oni [2000] FWLR (pt 3) 445, 464; also, reported in [2000] 2 SCNJ 1, citing Oladeinde and Anor v Oduwole (1962) WNLR 41.
The matter does not end here because Idepefo, for the appellant, had maintained that the respondent should have applied to join the said Government to enable the court determine whether or not there was government acquisition of the land; whether or not the land was validly acquired and whether compensation was paid to anyone in respect of the land.
With respect, this submission is not well-taken. The reason is not far-fetched. We had found above that what the respondent [as plaintiff] pleaded in paragraph 16 (supra) was a negative averment whose, ultimate, effect is that the Taraba State Government did not acquire the land in dispute. We entertain no doubt that the respondent, as plaintiff, had no burden to prove that negative averment, Jolasun v Bamgboye (2011) All FWLR (pt 595) 203, 219 because the law has long been settled that the burden of proving a particular fact lies on the party who, substantially, asserts the affirmative of the issue, see, Phipson on Evidence, (11th Edition), paragraph 92; page 40: “Burden of proof on the pleadings”, cited with approval, in Imana v Robinson (1974) 6 SC 83, per Aniagolu JSC; also, Elemo and Ors v Omolade and Ors (1968) NMLR 359, 361.
Other cases on the point include: Atane v Amu (1974) 10 SC 237; Fashanu v Adekoya (1974) 6 SC 83; Kate Enterprises Ltd v Daewoo Nig Ltd (1985) 2 NWLR (pt 5) 116; Onyenge & Ors v Ebere 18 NSCQR (pt II) 789 at 802; Osawaru v Ezeiruka [1978] 6-7 SC 135, 145; Okogbule v Oyagbola [1990] 4 NWLR (pt 147) 723; Odukwe v Ogubiyi [1998] 8 NWLR (pt 561) 339, 352.
One further point on this issue: citing Dantasho v Mohammed (supra), the respondent’s counsel had canvassed the view that since they had no complaint against the Government of Taraba State, the said Government could not be a necessary party to his case.
In our view, this submission cannot be faulted. Oputa JSC’s memorable classification of the typologies of parties into “proper parties”; “desirable parties” and “necessary parties” in Green v Green [1987] 3 NWLR pt 61 480 will, always, remain ever green as an abiding testimony to His Lordship’s profound reasoning. Ever since then, the courts have, consistently, followed the definition of necessary parties in that case as those who are not only interested in the result, but, also, who in their absence, the proceedings cannot be fairly dealt with.
In other words, the question to be settled in the action between the existing parties must be a question which cannot be properly settled unless they are parties to the action instituted by the plaintiff, see, for example, O. K. Contact Point Holdings Ltd v Progress Bank (Nig) Plc and Anor [1999] 5 NWLR (pt 604) 631, 634; AG, Federation v Ajayi [2000] 12 NWLR (pt 682) 509; Bello v INEC [2010] All FWLR (pt 526) 397, 444.
The net effect is that, in the con of the peculiar facts of this case, having regard to the burden of proof on the pleadings; the actual averments in the respective pleadings of the parties; the claim of the respondent and the evidence before the lower court, the non-joinder of Taraba State Government could not have affected the proper determination of the issues joined and on which admissible evidence was led. We, therefore, resolve this issue against the appellant.
ISSUE THREE
Whether the contradictions in the respondent’s pleadings and evidence called by him in proof of the identity of the land claimed by him were inconsequential and immaterial or consequential and material enough to affect the case of the respondent and whether from the totality of evidence, the learned trial judge was right in declaring title in favour of the respondent
APPELLANT’S CONTENTION
Attention was drawn to pages 50 -56 of the record where the appellant’s counsel had argued at the lower court that the pleading and evidence called by the respondent were in conflict. The lower court’s response to that submission was that:
The contradictions highlighted by the learned counsel vis-a-vis the evidence already on record in respect of that issue seem rather inconsequential and immaterial which will in no way obliterate the cogency in (sic) the testimony of PW1 and PW2 on the boundaries and therefore identity of the land.
[page 97 of the record]
Counsel submitted that a piece of evidence is contradictory to another when it asserts the opposite of what the other asserts. Contradiction between two pieces of evidence goes to the essentiality of their something being. On the other hand, minor discrepancies depend rather on the forms of the persons’ astuteness and capacity to observe facts, Afan v State (1993) 4 NWLR (pt 288) 403; Ogoala v State (1991) 3 SCNJ 61, 63.
He, then, proceeded to instantiate the conflicts in the pleading and evidence. In the first place, he drew attention to page 28 paragraph 3 of the record where the respondent pleaded that the land in dispute is 3767.93 square metres whereas at page 20 lines 21 to 23 of the record the PW1 testified that the land in dispute measures 125 feet x 165 feet. Next, he pointed to page 28 paragraph 4 and page 30 paragraphs 17 of the record. There, the respondent pleaded that he bought 3767.93 square metres of land from Umaru G. Allashure who testified as PW2. In his testimony, contained at page 33, lines 15 to 18 of the record, he testified that the land he sold to the respondent was 125 x 165 metres.
PW1, at page 23 lines 20-23 of the record, testified that the land the PW2 sold to the respondent was 125 feet x 165 feet. PW2, at page 33 lines 15 to 18 of the record, testified that the land he sold to the respondent is 125 x 165 metres.
While the respondent pleaded that he bought all the 3767.93 square metres of land from the PW2, the PW1, at pg 23 lines 14 to 17 of the record, testified that the respondent bought part of the land from him and part from PW2.
At page 34 lines 5-6 of the record, the PW2 testified that he sold an empty plot to the respondent. On the other hand, at page 38 lines 2 to 4, the respondent testified that the land he bought from PW2 had the foundation of a building thereon.
The respondent’s claim related to 3767.39 square metres of land but he testified as PW4 at page 37 line 13 of the record that the size of his land is 2767.93 square metres. He pleaded the boundary of his land. PW2, the alleged vendor of the respondent, described the boundary of land at page 34 of the record. At page 37 lines 18 to 20, the respondent testified that he bought an empty land, dug a foundation and erected a small building. However, at page 38 lines 3 to 5 of the record, he testified that he bought the land with the building on it.
Exhibit ‘PE2’ showed that the land it conveyed had a building on it. Both the PW2 and PW4 were confronted with the said exhibit ‘PE2.’ The respondent pleaded that he bought his land from the PW2. However, in his evidence contained at page 37 lines 5 to 8 of the record, he testified that he bought the land from two people.
Against this background, counsel submitted that there were material contradictions in the pleading and evidence of the respondent. In his view, the effect of it all is that the evidence in support of the plaintiff/respondent’s case was, manifestly, unreliable hence the lower court should not have relied on it to give judgment in his favour of such a plaintiff, Anyakora v Obiakor (1990) 2 NWLR (pt 190) 52, 56; CC Construction Coy Ltd v Okhai (2004) 5 WRN 73, 77.
He submitted that as the appellant had no claim before the lower court, she had no duty to prove that exhibit D12 obtained Governor’s consent. As such, she could not be said to be in pari delicto with the respondent. It is even more so when in a case of declaration of title to land, a plaintiff must succeed on the strength of his case and not on the weakness of the case of the defendant, Dim v Enemuo (2009) 172 LRCN 206, 210; Onwuama v Ezeokolo (2002) 94 LRCN 246; Nwadiogbu v Nnadozie (2001) 88 LRCN 2247; Nsirim v Nsirim (2002) 94 LRCN 2293.
Counsel noted that the learned trial Judge found as a matter of fact that the appellant was the one in possession of the land. He took the view that even on that evidence of possession alone; the respondent ought to have been called upon to prove a better title. Above all, the appellant tendered the right of occupancy as exhibit ‘D13’. He maintained that although a right of occupancy is not conclusive evidence of title, it raises a presumption of ownership in favour of the appellant, Mani v Shono (2007) All FWLR (pt 345) 303, 306; Harun v Ojukwu (1991) 7 NWLR (pt 202) 207; Dabup v Kolo (1995) 9 NWLR (pt 317) 24; Regd Trustees, Apostolic Church v Owoleni (1990) 6 NWLR (pt 158) 514.
He contended that this presumption in favour of the appellant can only be rebutted by credible and admissible evidence. However, the evidence adduced by the respondent does not have the quality to rebut presumption of law in favour of the appellant.
RESPONDENT’S CONTENTION
For the respondent, it was submitted that contradictions can only be fatal to the case of a party if they are shown to be material to the facts of the case or that they amount to a substantial disparagement of the witness or witnesses concerned, Fatoba v Ogundahunsi (2003) FWLR (pt 154) 561, 565; Bodi v Agyo (2003) FWLR (pt 156) 815, 819; Salawu v Yusuf (2007) 5 SCNJ 354, 356.
He took the view that in this case, the contradictions which the appellant’s counsel pointed out above are not material contradictions but minor discrepancies. He maintained that:
1. There was no contradiction in the size of the land which the respondent pleaded in paragraph 4 of his Statement of Claim on page 3 of the record and the evidence of PW1 on page 23 of the record. PW1 stated on page 23 of the record that the entire size of the land of the respondent is 3767.93 square metres. He further stated that respondent bought part of the disputed land from PW2 while the other part he bought from him. The witness further stated that the size of the portion of the disputed land the respondent bought from PW2 is 125ft x 165ft.
2. Paragraph 4 of the respondent’s Statement of Claim on page 28 of the record refers to the total size of the disputed land which is 3767.93M2. PW2’s testimony on page 33 of the record showed the exact portion of the disputed land which the respondent bought from him i.e. 125ft x 165ft. This piece of evidence is consistent with the evidence of PW1. The respondent never pleaded that he bought 3767.93 Square metres of land from PW2.
3. The PW2 stated in his evidence that the size of the piece of land he sold to the respondent is 125m x 165m instead of 125ft x 165ft as stated in the evidence of PW1. The fact that the respondent testified that the total size of his land is 276.93 square metres instead of 3767.39 square metres are metres discrepancies. In the normal course of things, it is often difficult for witnesses to speak of the same facts with equal accuracy particularly when they speak of events in the past in which figures are involved.
4. The respondent never pleaded that he bought the entire land 3767.39 square metres from the PW2. The evidence of the respondent on page 37 of the record shows clearly that the size of the portion of the disputed land he bought from PW2 is 125ft x 165ft. 5. PW2 stated on page 34 of the record that he sold an empty land to the respondent while respondent on page 37 of the record stated that he constructed a building foundation on the land he bought from PW2. The respondent further maintained on page 38 of the record that he was the one who did the foundation on the land he bought from PW2.
6. The description of the boundaries of the disputed land as pleaded in paragraphs 3 and 4 of the respondent’s Amended Statement of Claim has been proved by the testimonies of PW1 and pw4. The description of the disputed land given by pw2 on page 34 of the record was elicited during cross-examination, in response to a suggestive question by the appellant’s counsel.
7. The respondent has maintained in his evidence that the disputed land comprises the two (2) pieces of land he bought from pw1 and pw2. The area encroached upon by the appellant was the portion he bought from pw2.
8. Exhibit PE2 clearly conveys empty plot of the size of 125ft x 165ft.
Counsel, then, submitted that the lower court was right when it found that the contradictions highlighted by the appellant were immaterial and inconsequential.
RESOLUTION OF THE ISSUE
Idepefo’s impeachment of the lower court’s opinion on the question of contradictions at page 97 of the record has to be set in the con of the court’s earlier finding at page 96 of the record. Dealing with the question of the identity of the land which the appellant [as defendant] put in issue at paragraph 3 of the Statement of Defence, the lower court found as follows:
A solemn and sober reading of the averment [in the above paragraph] will give the impression that what the defendant is contesting is the size of her land in the area and not the identity of the land in dispute. It should be seen and taken that the defendant is not by any means claiming total ignorance of the land but only contending that her land is only 1200 square metres and not 3767.39m2 claimed by the plaintiff
[italics supplied for emphasis]
At 97, the lower court, after finding that the “evidence, especially from the defendant of the various altercations she had with one Usman Umaru, PW2 and the plaintiff physically on the land in dispute has done away with any pretension of ignorance of the disputed land location [italics for emphasis] proceeded to the question of the boundary of the land. Listen to this:
Be that as it may, however, the plaintiff have (sic) led an excellent evidence with respect to the boundary from himself and PW1, their oral evidence accorded precisely with the pleadings at paragraphs 3 and 4 of the Second Amended Statement of Claim.
In effect, the court acknowledged that the question of the boundary of the disputed land was raised in the pleadings and, indeed, in the evidence of the witnesses. This acknowledgement, notwithstanding, it still thought that the contradictory evidence of PW2 was inconsequential just because it “was elicited during cross-examination given in response to a suggestion…” [page 97].
The court did not cite any authority for this view. However, we have surveyed the relevant authorities on this point. The cases are many. Only a handful will be cited here: SPDC v Anaro [2000] 10 NWLR (pt 675) 248; Ita v Ekpeyong [2001] 1 NWLR (pt 695) 587; Kayode v Odutola [2001] 5 KLR (pt 123) 1861, 1876; Idahosa v Oronsaye (1959) 4 FSC 166, 171; George v Dominion Flour Mills (1963) 1 All NLR 71, 72; Isheno v Julius Berger Nig Plc [2003] 14 NWLR (pt 840) 289, 304; Ojo v Kamalu [2005] 18 NWLR (pt 958) 523, 548; Woluchem v Gudi [1981] 5 SC 291, 320; Ewarami v ACB Ltd [1978] 4 SC 99, 108; Dina v New Nigeria Newspapers Ltd [1986] 2 NWLR (pt 22) 353; Agnocha v Agnocha [1986] 4 NWLR (pt 37) 366; Okwejiminor v Gbakeji [2008] All FWLR (pt 408) 405.
What emerges from these decisions is that “evidence obtained in cross examination but on facts not pleaded is inadmissible,” per Tabai JSC in Okwejiminor v Gbakeji [supra italics supplied], citing Dina v New Nigeria Newspapers Ltd [supra] and Agnocha v Agnocha (supra). Put differently, evidence elicited in cross examination is inadmissible in as much as it is not supported by the pleading of either party, Punch Nigeria Ltd v Enyina [2001] 17 NWLR (pt 741) 228; SPDC v Anaro (supra); Ita v Ekpeyong (supra). That is to say, evidence extracted under cross examination, but which was not pleaded, and upon no issue has been joined and canvassed, goes to issue, Isheno v Julius Berger Nig Plc (supra) 304; Ojo v Kamalu (supra) 548; Woluchem v Gudi (supra) 320; Ewarami v ACB Ltd (supra) 108.
The corollary, therefore, is that evidence obtained in cross examination on matters that are pleaded, that is, on matters on which issues were joined, is admissible, Adeosun v Governor of Ekiti State [2012] All FWLR (pt 619) 1044, 1059; Akomolafe v Guardian Press Ltd [2010 3 NWLR (pt 1181) 338, 351; 353-354.
As shown above, even the lower court acknowledged that the question of the boundary of the disputed land was raised in the pleadings and, indeed, in the evidence of the witnesses. It was wrong, therefore, to have concluded that it was “inconsequential and immaterial” on the ground that it “was elicited during cross-examination given in response to a suggestion…” [page 97].
On the whole, however, the court’s conclusion is no longer of any consequence since the entire judgement cannot withstand the suffocating weight of section 34 (7) of the Act. Finally, we observe that the appellant [as defendant] did not counter claim against the respondent at the lower court. As such, her only duty was to defend the action. Above all, since the respondent’s claim was a declaratory relief, his case must succeed only on the strength of his case and not on the weakness of the defendant’s case, Sosanya v Onadeko [2000] 11 NWLR (Pt 677) 34; Kodilinye v Odu (1944) 10 WACA 274. Against this background, the lower court was, equally, wrong when at page 98 of the record it invoked the doctrine of in pari delicto against the defendant who, as shown above, did not counter claim for a declaration of title over the said land but was merely defending the action against her. As Adekeye JSC held recently in Nwaolisah v Nwabufoh [2011] All FWLR (pt 591) 1438, 1455, the Latin phrase in pari delicto, which means “in equal fault,” is a legal term used to indicate that two persons or entities are equally at fault, whether the malfeasance in question is a crime or tort. The erudite jurist further explained that the courts, most commonly, use the phrase when relief is being denied both parties in a civil action because of wrong doing on both sides.
In all, the answer to the question whether from the totality of the evidence the lower court was right in declaring title in favour of the respondent is self evident. In the absence of any evidence of the Governor’s consent to the transaction evidenced in exhibit ‘PE2’ the lower court awarded the declaration claimed in flagrant violation of the stringent provisions of section 34 (7) (supra). As shown above, any such transaction in clear violation of the Act is invalid, Union Bank of Nig Ltd v Ayodare and Sons Nig Ltd (supra); Union Bank of Nigeria Plc v Astra Builders (W/A) Ltd (supra) etc.
ISSUE FOUR
Whether estoppel binds only parties to a transaction or extends to parties directly or indirectly connected with the cause of action.
APPELLANT’S CONTENTION
Counsel for the appellant pointed out that the appellant, in her Statement of Defence, contained at page 20 paragraph 20 of the record, pleaded that:
The defendant avers that Umaru Usman pleaded for a peaceful resolution of the case and named Usman G. Allashure as his vendor. The case was compounded and a memorandum of settlement was signed between her and Umaru Usman, the said memorandum dated 25th May, 2008 is hereby pleaded.
He explained that, in proof of the above averment, the appellant, in her testimony, contained at page 43 lines 15 to 20 of the record, testified thus:
…He (Umaru Usman) sent people to my house that I should remove the case from the court, later he came personally and pleaded with me to withdraw the case so that we can settle. I agreed and I withdraw the case then we wrote a memo of settlement.
Counsel further explained that the respondent sold the land in dispute to Usman Umaru. It was after Usman Umaru entered into a compromise with the appellant not to tamper with the land again, that his vendor (respondent) now turned back to file an action against the appellant.
Counsel noted that the appellant tendered the memorandum of settlement between her and Usman Umaru in evidence as exhibit D10. The term of the settlement at page 2 thereof reads as follows:
1. “That Umaru Usman shall rebuild complainant’s fence which he destroyed
2. That the accused, his heirs and agent henceforth are restrained from encroaching upon the land or tempering with same or from claiming same.
3. That the complainant shall withdraw her action.
He, also, noted that the respondent, under cross examination [at page 38 lines 9 to 10 of the record] admitted that the land on which Usman Umaru had problem with the appellant was that which he sold to Usman Umaru.
He drew attention to the submission before the lower court [at pages 57 – 58 of the record] that exhibit D10 operates as an estopel against the respondent.
Counsel submitted that the lower court arrived at the above conclusion because it proceeded from an application of a wrong principle of law. At the time the respondent’s purchaser (Umaru Usman), purportedly, rescinded the sale with the respondent there was no title left for him to give back to the respondent.
He noted that since Umaru Usman had surrendered title to the land to the appellant, he had nothing to give back to the respondent. He invoked the ancient principle codified in the Latin maxim nemo dat quod non habet. He submitted that the cause of action estoppel created by exhibit D10 binds the respondent as he is directly connected with the cause of action which is title to the land in dispute, citing Bello v Fayose (1999) 71 LRCN 2419, 2424.
RESPONDENT’S CONTENTION
Counsel for the respondent submitted that exhibited ‘D10’, which the appellant relies upon to invoke the doctrine of estoppel, lacks the necessary legal foundation to support the doctrine. This is because for a party to sustain a plea of estoppel he must specifically plead and prove: (a) that the parties (or their privies as the case may be) are the same in the present case as in the previous case; (b) that the issue and subject matter are the same in the previous suit as in the present suit; (c) that the adjudication in the previous case must have been given by a court of competent jurisdiction; and (d) that the previous decision must have finally decided the issues between the parties, citing Afolabi v Governor of Osun State (2003) FWLR (pt 175) 412; Adone v Ikebudu (2001) 7 SCNJ 513, 516.
He took the view that in the case at hand, the appellant failed to plead the specific facts and issues constituting the estoppel she was relying upon. According to him, there is nothing in the pleadings and evidence of the appellant on the record to establish that the respondent was a party or privy to the transaction contained in exhibit “D10″
He dismissed as unfounded the earlier submission in favour of the appellant that paragraph 20 of the appellant’s Statement of Defence was the basis for raising the issue of estoppel against the respondent. In his view, if paragraph 20 of the appellant’s statement of defence is read together with paragraphs 15, 16, 17, 18 and 19 thereof, the conclusions of the lower court on this issue would be vindicated.
He drew attention to paragraphs 15, 16, 17, 18, 19 and 20 of the appellant’s Statement of Defence [pages 19-20 of the record] where she pleaded that:
15. The defendant avers that sometimes in 2008 she was on a routine inspection of her land and noticed that someone had trespassed unto her land and was adding blocks to the fence already built by her.
16. The defendant avers that she reported the matter to the ministry of land and survey which sent their personnel to the site and confiscated the working tools of the workmen working on the site and issued a stop work Notice to the builders.
17. The defendant avers that on the 21/04/08 one Alhaji Umaru Abubakar came with the stop Notice and after an undertaken not to carry out any further work on the site, the items confiscated were returned to him. The said stop Notice of 18/04/08 is hereby pleaded.
18. The defendant avers that she made series of enquiries to unravel who was building blocks on her fence but did not succeed, so decided to raise the Northern and Southern parts of the fence to the last course. When the work was completed one Usman Umar went and pulled down the part of the fence constructed by the defendant.
19. The defendant avers that when she discovered that Umaru Usman was the who built on her fence and responsible for the demolition, she filed a criminal case against him before the chief magistrate’s court Jalingo.
20. The defendant avers that Umaru Usman pleaded for a peaceful resolution of the case and named Usman G. Allashure as his vendor. The case was compounded and a memorandum of settlement was sibned between her and Umaru Usman, the said memorandum dated 25th May 2008 is hereby pleaded.”
In his view, from the foregoing paragraphs, the appellant, merely, pleaded facts to suggest that the person who was involved in the transaction that culminated in the making of exhibit ‘D10’ was one Umar Usman who was not called to testify. The respondent was not shown to be a party to the transaction leading to the making of ‘D10’. The respondent was not shown to be a privy to the said Umar Usman either in blood, law or estate.
He maintained that exhibit ‘D10’ did not vest title over the disputed land on the appellant as it was not shown to be a judgment of a court.
RESOLUTION OF THE ISSUE
It is difficult to fault the conclusion of the lower court on the said exhibit ‘D10.’ In response to Idepefo’s submission, the lower court took the view that at page 101 lines 5 to 13 of the record held that:
Evidently therefore Exhibit ‘D10’ lacks the necessary potency to invest on any party the right to invoke the doctrine of Estoppel…Further still exhibit ‘D10’ is not the final decision of a court of competent jurisdiction being a mere memorandum between parties who as a fact are not even the same in this and the previous proceedings.
Let me also say that exhibit ‘D10’ from its very nature is not a judgement of court of any kind, it is wrong to classify same as a consent judgement. The document does not bear the features of a court process and importantly the issue of title to land which is the main claim in this present action was never determined by exhibit ‘D10.’ Estoppel can therefore not be invoked in this circumstance…
We have examined the said exhibit ‘D10’ over and over again. Although it purports to be a court process, we agree with the lower court that it “does not bear the features of a court process.” For example, quite apart from the fact that the presiding Magistrate is not indicated, it does not have a charge number [being, supposedly, a complaint in a criminal charge before a Magistrate]. Perhaps, the appellant conceived it to be a “consent judgement.”
However, a consent judgement ought to indicate the judicial officer who presided over the admission of the consensual terms of the parties in the court’s record as such a judgement, Spectra Ltd v Stabilini Vivioni Ltd [1999] 6 NWLR (pt 608) 631.
Above all, since it purports to be a court process, it comes under the category of documents which the Evidence Act in section 109 [then applicable to the proceedings] classified as public documents. Surely, only the original copy of the document [with the name and signature of the presiding Magistrate], Iteogu v LPDC (2009) 17 NWLR (pt 1171) 614, 634, or a secondary copy duly certified under section 111 of the said Evidence [then applicable], SPDC v Aswani ile Industries Ltd (1991) 3 NWLR (pt 180) 496, 505; Ojibah v Ojibah (1991) 5 NWLR (pt 191) 296, 312 would suffice to clothe it with probative value.
Quite apart from the above defects, the lower court, rightly, concluded that the said exhibit lacked “the necessary potency to invest on any party the right to invoke the doctrine of Estoppel.” Surely, the Magistrate’s court is not a court of competent jurisdiction in matters relating to title to land, Okonkwo v Okonkwo [2010] 14 NWLR (pt 1213) 228, 251-253; Adisa v Oyinwola (2000) 79 LRCN 2180. Even then, titles to land are not determined through the criminal justice system.
Worse still, the pre-conditions for the invocation of the doctrine of estoppels were not established, Dakolo v Rewane-Dakolo [2011] All FWLR (pt 592) 1768; Makun v F. U. T. Minna [2011] All FWLR (pt 594) 1; Iga v Amakiri [1976] 11 SC 1; Ikabala v Ojosipe [1988] 4 NWLR (pt 86) 119; Faponle v U. I. T. H. M. B [1991] 4 NWLR (pt 183) 43; Oshodi v Eyifunmi [2000] 13 NWLR (pt 684) 298; Adone v Ikebudu [2001] 14 NWLR (pt 733) 385; Ebba v Ogodo [2000] 10 NWLR (pt 675) 387. We find no merit in this issue. We resolve it against the appellant.
That notwithstanding, this appeal is, still, bound to succeed. The respondent’s transaction evidenced in exhibit PE2 was caught by section 37 of the Act. The lower court could not have awarded judgement in his favour when it was evident that the said exhibit ‘PE2’ was a clear affront to the stringent provisions of section 37 (supra): a provision which invalidates all transactions such as the one in the said exhibit which were consummated without the consent of the Governor having been obtained, see, Union Bank of Nigeria Plc v Astra Builders (W/A) Ltd (supra).
We, therefore, allow this appeal with costs assessed and fixed at N30,000 in favour of the appellant. Appeal allowed. We hereby enter an order setting aside the judgment of the lower court dated July 22, 2010 and dismissing the respondent’s claim.
M.B DONGBAN-MENSEM, J.C.A.: This appeal is a mixed grill of several legal issues. My learned brother C. C. Nweze JCA has fully navigated round all the issues.
I find nothing useful to add, I adopt the lead Judgment wholly as mine.
ABUBAKAR ALKALI ABBA, J.C.A.: I read the lead Judgment of my learned brother Hon. Justice C. C. Nweze, Justice Court of Appeal,
I agree that this appeal has merit and it should be allowed. I allow this appeal and set aside the decision of the Lower Court. I also award N30,000 (thirty thousand Naira) cost..
Appearances
F. K. Idepefo for the appellant; with him: C. C. Okeke and B. Simon;For Appellant
AND
I. M. NurudeenFor Respondent
