MTN v. AGBONKPOLOR & ORS (2022)

MTN v. AGBONKPOLOR & ORS

(2022)LCN/17142(CA)

In The Court Of Appeal

(AKURE JUDICIAL DIVISION)

On Monday, March 28, 2022

CA/AK/37/2014

Before Our Lordships:

Ayobode Olujimi Lokulo-Sodipe Justice of the Court of Appeal

Habeeb Adewale Olumuyiwa Abiru Justice of the Court of Appeal

Yusuf Alhaji Bashir Justice of the Court of Appeal

Between

MTN NIGERIA COMMUNICATIONS LTD APPELANT(S)

And

1. MR. OJO LUCKY AGBONKPOLOR 2. MRS. BLESSING AJAYI (FOR HERSELF AND ON BEHALF OF CHILDREN OF OHAMEN ALONGE) 3. MR. ILESANMI AGBONKPOLOR RESPONDENT(S)

RATIO

THE POSITION OF LAW ON THE FOUNDATION OF PLEADINGS OF PARTIES

FACTOR THAT MUST BE CONSIDERED FOR THE COURT TO DETERMINE THE CASE MADE BY A PARTY

Now, what was the state of the pleadings of the parties in this case? It is trite law that in determining the case made by a party, a Court must read all the paragraphs of the pleadings of the party together to get a flowing story of the party and not a few paragraphs in isolation and it is the totality of the pleadings that states the case of the party– Onyiorah Vs Onyiorah (2019) 15 NWLR (Pt 1695) 227, Adama Vs K.S.H.A (2019) 16 NWLR (Pt 1699) 501, Multichoice (Nig) Ltd Vs Musical Collecting Society of Nigeria Ltd.Gte (2020) 13 NWLR 1742) 415, Anyalewechi Vs Lufthansa German Airlines (2021) LPELR-55213(CA), Ostankino Shipping Co. Ltd Vs The Owners, The MT Bata (2022) 3 NWLR (Pt 1817) 367. PER ABIRU, J.C.A.

THE PRINCIPLE THAT PARTIES ARE BOUND BY PLEADINGS

It is a firmly established principle of adjudication in a case predicated on pleadings that the parties and indeed the Court are bound by the pleadings filed and exchanged by the parties – Uzodinma Vs Ihedioha (2020) 5 NWLR (Pt 1718) 529, Adamawa State Ministry of Land & Survey Vs Salisu (2021) 2 NWLR (Pt 1759) 1, Eweje Vs O. M. Oil Industry Ltd (2021) 4 NWLR (Pt 1765) 117, Wulangs Vs Central Bank of Nigeria (2021) 16 NWLR (Pt 1802) 195, Imaruagheru Vs Aiguokunrueghian (2021) 18 NWLR (Pt 1808) 307. Where a case is brought before the Court by pleadings and issues are joined on the pleadings filed by both parties, the issues must be tried as settled in the pleadings, and neither the parties nor the Court can go outside the pleading to fish for issues – Offodile Vs Onejeme (2021) 7 NWLR (Pt 1775) 389, Haladu Vs Access Bank Plc (2021) 13 NWLR (Pt 1794) 434, Mekwunye Vs Carnation Registrars Ltd (2021) 15 NWLR (Pt 1798) 1. The Court can only adjudicate on the specific matters in dispute raised in the pleadings of the parties – Ewarawon Vs First Bank of Nigeria Plc (2020) 5 NWLR (Pt 1717) 268, Trade Bank Plc Vs Pharmatek Industrial Projects Ltd (2020) 8 NWLR (Pt 1725) 124. PER ABIRU, J.C.A.

WHETHER OR NOT THE COURT CAN GRANT ANY RELIEFS NOT SPECIFICALLY CLAIMED BY PARTIES

It is settled law that a Court has no power to grant any relief that has not been specifically claimed by the parties – Think Ventures Limited Vs Spice and Regler Ltd (2021) 2 NWLR (Pt 1759) 114, Bakari Vs Ogundipe (2021) 5 NWLR (Pt 1768) 1, Offodile Vs Onejeme (2021) 7 NWLR (Pt 1775) 389. Counsel to the first and second Respondents suggested that the lower Court was correct to have granted the relief for the benefit of the male and female children of the family because the relief they claimed which limited the inheritance to only the male children was unconstitutional and repugnant to natural justice, equity and good conscience. This suggestion of Counsel has no foundation in the law. The aphorism “the Court is not a Father Christmas” is a long standing principle of judicial adjudication. The Court and the parties are bound by the reliefs claimed and the Court cannot, on its own, begin to chop and change the reliefs claimed by a party and amend it to what it considers to be the proper relief to be granted – Tilley Gyado & Co (Nig) Ltd Vs Access Bank Plc (2019) 6 NWLR (Pt 1669) 399, Cappa & D’Alberto (Nig) Plc Vs NDIC (2021) LPELR-53379(SC). PER ABIRU, J.C.A.

THE POSITION OF LAW IN AN ACTION FOR DECLARATION OF TITLE TO LAND

This is particularly more so as the first Respondent was claiming for declaration of ownership of an interest in land; that he is entitled to co-inherit the property in dispute with the third Respondent. It is settled law that in such a claim, the onus is entirely on the claimant and proof of the claim must be established. There must be strong and positive evidence to establish his title. This is so, even if the defendant at the Court of trial admitted the claimant’s claim – Adeniji Vs Adeniji (1972) 4 SC 10, Ezeokonkwo Vs Okeke (1991) 2 NWLR (Pt 173) 331, Jimba Vs AP (Nig) Ltd (1998) 3 NWLR (Pt 581) 273, Temile Vs Awani (2001) 12 NWLR (Pt 728) 726. In such matters, a defendant’s position is that even if he fails to adduce any evidence at all, he is entitled to judgment in his favour where a claimant fails to establish his claim for title by credible evidence; the defendant has no burden of proof – Umeojiako Vs Ezenamuo (1990) 1 NWLR (Pt 126) 253, Ezema Vs Ezeja (1995) 9 NWLR (Pt 419) 300, Dim Vs Enemuo (2009) 10 NWLR (Pt 1149) 353, Luke Vs Rivers State Housing and Property Development Authority (2010) 5 NWLR (Pt 1188) 604.
In an action claiming for a declaration of ownership of an interest in land, the onus is on the claimant to prove his case and until this is done no burden shifts to the defendant who is putting forward a different case of his own. Once the claimant has failed to establish his link with the disputed land, he has failed to discharge the burden of proof placed on him. The law is that there is no burden on the defendant – Awomuti Vs Salami (1978) 3 SC 105, Olowosago Vs Adebanjo (1988) 4 NWLR (Pt 88) 275, Ajibona Vs Kolawole (1996) 10 NWLR (Pt 476) 22, Akanbi Vs Raji (1998) 12 NWLR (Pt 578) 360, Gbadamosi Vs Okege (2011) 3 NWLR (Pt 1233) 175. Where the defendant does not counterclaim in such an action, as in the present case, the onus is on the claimant to first establish a prima facie case before consideration of the case of the defendant can arise – Aromire Vs Awoyemi (1972) 1 SC 1, Nwofor Vs Nwosu (1992) 9 NWLR (Pt 264) 229, Oyedeji Vs Oyeyemi (2008) 6 NWLR (Pt 1084) 484, Iroagbara Vs Ufomadu (2009) 11 NWLR (Pt 1153) 587, Nwokidu Vs Okanu (2010) 3 NWLR (Pt 1181) 362. It is after the claimant has proved his claim satisfactorily that the onus shifts – Kopek Construction Ltd Vs Ekisola (2010) 3 NWLR (Pt 1182) 61. PER ABIRU, J.C.A.

HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of Ondo State, Ifon Judicial Division delivered in Suit No HIF/6/2008 by Honorable Justice S. A. Bola (as he then was) on the 11th of October, 2013.

The first and second Respondents were the claimants in the lower Court and the third Respondent and the Appellant were the first and second defendants respectively. The relevant claims of the first and second Respondents were for:
i. A declaration that the residential building situate, lying and being at No 3 Sobe-Ijagba Road is family property and that the purported lease of the property unilaterally by the third Respondent to the Appellant is null and void and of no effect.
ii. A declaration that the land wherein the residential building known as No 3 Sobe-Ijagba Road is family land and as such the purported lease of the land with the building therein by the third Respondent to the Appellant without the consent and authority of the first Respondent is null and void and of no effect.
iii. A declaration that the eventual demolition of the residential building situate, lying and being at No 3 Sobe-Ijagba Road, Ijangba Ondo State which was not part of the 20meters by 20meters by the Appellant’s agents without the consent and authority of the first Respondent is unlawful and illegal.
iv. A declaration that the purported lease of a portion of the land wherein the residential building at No 3 Sobe-Ijagba Road, Ijangba Ondo State is situate by the third Respondent to the Appellant without the consent or authority of the first Respondent is null and void.
v. The sum of N25 Million as compensation to the first Respondent for the unlawful demolition of the residential building situate, lying and being at No 3 Sobe-Ijagba Road by the third Respondent and the Appellant without the consent of the first Respondent.
vi. The sum of N25 Million as compensation to the second Respondent and her siblings for the unlawful exhumation of the corpse of Ohamen Alonge, their mother, that was buried at No 3 Sobe-Ijagba Road, Ijangba Ondo State by the third Respondent and the Appellant.

The case of the first and second Respondents on the pleadings was that the property in dispute belonged to one Dege Agbonkpolor and he begat four children, Ilesanmi Agbonkpolor, the third Respondent, Jimoh Agbonkpolor, the father of first Respondent, Ohamen Alonge (deceased), mother of the second Respondent, and Mrs. Dupe Tunde. It was their case that Dege Agbonkpolor died intestate and that the property in dispute thus became family property and that under Ijagba native law and custom, the male children became the beneficial owners of the property. It was their case that sometime in August 2007, the third Respondent swore to an affidavit at the High Court of Justice in Ifon that he was the sole inheritor of the property in dispute upon the death of Dege Agbonkpolor and that, on the strength of the affidavit, the third Respondent leased a portion of the property in dispute, measuring 20meters by 20 meters, to the Appellant for a period of ten years. It was their case that the third Respondent thereafter chased out the occupants of the property to pave way for the Appellant to demolish the building, exhume the bodies of three persons buried in the house and to construct its mast.

It was the case of the first and second Respondents that the third Respondent sent threatening messages to the first Respondent not to step near the property and that the father of the first Respondent left home over twenty years after receiving death threats from the third Respondent and has not been seen since then. It was their case that three people were buried on the property, Dege Agbonkpolor, Joel Agbonkpolor and Ohamen Alonge, the mother of the second Respondent and who died on 19th of June, 2004, and the three tombs were well cemented with names and dates of burial written thereon. It was their case that on the 1st of May, 2008, the corpses of the three persons buried on the land were exhumed and relocated and that the matter was reported to the Police and that the third Respondent admitted, upon his arrest, that he was the person who exhumed the corpses, but that he did it at the instance of the Appellants.

It was their case that the third Respondent did not share any part of the rents paid by the Appellant for the lease with them and that under Ijagba native law and custom, the first Respondent stepped into the shoes of his father, who is presumed dead, and was entitled to share in the property in dispute. It was their case that they and other descendants of Dege Agbonkpolor suffered damages by reason of the demolition of the building on the land, which did not form part of the lease, and the exhumation of buried persons and they particularized the damages suffered. It was their case that the Appellant did not conduct a diligent search before entering into the lease with the third Respondent.

The records of appeal show that the third Respondent did not file any process to defend the action and did not take part in the proceedings before the lower Court. In its response, the Appellant admitted that the property in dispute belonged to Dege Agbonkpolor and that he begat four children, Ilesanmi Agbonkpolor, the third Respondent and the first son, Jimoh Agbonkpolor, the father of first Respondent and Ohamen Alonge and Mrs. Dupe Tunde, both females. It was its case that when it decided to set up a Base Transreceiver Station (BTS) at Ijagba, it conducted an extensive search for the appropriate location and it found the property in dispute which was deserted, unoccupied and in ruins by reason of neglect and abandonment, and that this led him to the third Respondent. It was its case that it learnt that the third Respondent was the only surviving direct male child of Dege Agbonkpolor, following the disappearance of Jimoh Agbonkpolor for over twenty years and which made the family presume him dead, and that, under the Ijagba native law and custom, only direct male children inherit property, and not female children and/or male grandchildren.

It was the case of the Appellant that it conducted interviews amongst the indigenes of the area to confirm the above as the true position of Ijagba native law and custom on inheritance of property and that even some members of the Agbonkpolor family particularly one Andrew Agbonkpolor and Pa. Vincent Agbonkpolor, the Head of the extended Agbonkpolor family confirmed the position. It was its case that it was based on these findings that it negotiated with and took a lease of the vacant land on the property in dispute from the third Respondent for a period of ten years commencing from the 1st of August, 2007 and that it was handed vacant possession of the leased portion of land by the third Respondent. It denied demolishing any building or exhuming any corpse on the land that it had since constructed the BTS and which had since become operational and it also denied that the first and second Respondents suffered any damage by reason of its occupation of the vacant land.

The matter proceeded to trial and in the course of which the first and second Respondents called three witnesses in proof of their case, and the Appellant called one witness in proof of its defence. At the conclusion of trial, Counsel to the parties filed and adopted their respective final written addresses and, sequel to which, the lower Court entered judgment and it granted the following reliefs in favour of the first and second Respondents:
i. Declaration that the residential building situate, lying and being at No 3 Sobe-Ijagba Road, Ijangba Ondo State is a family property and as such the lease of the land by the third Respondent to the Appellant unilaterally and without the consent of the first Respondent and other members of the family is null and void and of no effect.
ii. Declaration that the demolition of the residential building situate, lying and being at No 3 Sobe-Ijagba Road, Ijangba Ondo State by the third Respondent and the Appellant is unlawful, wrongful and invalid.
iii. The sum of N5 million as compensation to the second Respondent for the unlawful exhumation of the corpse of Ohamen Alonge (the second Respondent’s mother) that was buried in the family’s landed property without the consent and authorization of the second Respondent and the family at large.

The Appellant was dissatisfied with the judgment and it caused its Counsel to file a notice of appeal dated 2nd of December, 2013 and containing five grounds of appeal against it. The records of appeal were compiled and transmitted to this Court on the 4th of March, 2014 and it was deemed properly done by the Court on the 7th of June, 2016. Counsel to the Appellant filed a brief of arguments dated the 22nd of March, 2017 on the 23rd of March, 2017 and the brief of arguments was deemed properly filed on the 12th of November, 2018. Counsel to the first and second Respondents filed their response brief of arguments on the 10th of December, 2018. At the hearing of the appeal, Counsel to the parties relied on and adopted the arguments contained in their respective briefs of arguments as their submissions in the appeal. The third Respondent took no part in the appeal.

Counsel to the Appellant distilled three issues for determination in the appeal and these were:
i. Whether the learned trial Judge rightly shifted the burden of proving Ijagba native law and custom on inheritance on the Appellant to have concluded in his judgment that the land, the subject matter of this appeal, is a family property.
ii. Whether by the totality of the evidence (oral and documentary) placed before the lower Court, the trial Judge was right to have held in his judgment that the Appellant exhumed the corpses buried on the land in dispute as well as demolished the building thereon.
iii. Whether the award of N5 million to the second Respondent as general damages is justified in the circumstances of this case.

In arguing the first issue for determination, Counsel to the Appellant summarized the case of the first and second Respondents on the pleadings and noted that the first and second Respondents, both in their pleadings and evidence, predicated their assertions that upon the death of Dege Agbonkpolor, the property in dispute became family property and vested in his direct male children and that, with the presumption of death of his father, a direct male child, the first Respondent stepped into his shoes to inherit part of the property on the Ijagba native law and custom. Counsel stated that the onus was on the first and second Respondents to prove the Ijagba native law and custom to the satisfaction of the lower Court in order to succeed, but that the lower Court on its own proceeded to find that the property, upon the death of Dege Agbonkpolor, became family property without recourse to Ijagba native law and custom. Counsel stated that the lower Court thereafter placed the burden of proof on the Appellant to prove that by Ijagba native law and custom only the third Respondent, a direct male child, inherited the property to the exclusion of the first Respondent, a male descendant from a presumed dead direct male child.

Counsel stated that this approach of the lower Court negated the established principle of litigation that says that in civil cases, he who asserts the existence of certain facts has the burden of proving those facts and it is only where he proves the facts, that the burden shifts to the other party and he referred to the provisions of Sections 131, 132 and 133 of the Evidence Act and the case of Agbakoba Vs Independent National Electoral Commission (2008) LPELR-232(SC). Counsel stated that it was not the case of the first and second Respondents that the Ijagba native law and custom relied upon by them had attained such notoriety as to be judicially noticed and they thus had the onus of proving same and he referred to the case of Ojemen Vs Momodu (1983) All NLR 132. Counsel stated that where the first and second Respondents failed to prove the existence of the Ijagba native law and custom by credible evidence, the lower Court ought to have dismissed their case and not shift the burden to the Appellant to prove its case that the property was not family property and that the first Respondent had no right to it under Ijagba native law and custom. Counsel stated that the first and second Respondents did not prove the existence of the Ijagba custom relied on and he urged the Court to resolve the first issue for determination in favour of the Appellant.

In arguing the second issue for determination, Counsel stated that the finding of the lower Court that the Appellant was responsible for the demolition of the property on the land in dispute and exhumation of the corpses buried thereon had no root in the evidence led. Counsel stated that none of the plaintiff’s witnesses was an eye witness to the demolition and exhumation and none of them led any credible evidence on the participation of the Appellant in the acts and that, in fact, the first and second Respondents pleaded and gave evidence that the third Respondent admitted being responsible for the exhumation of the corpses. Counsel stated that it was the case of the first and second Respondents that a report of the incident was made to the Police who carried out an extensive investigation into the matter and they led no evidence to show that the Police found that the Appellant participated in the commission of the acts and/or that any staff of the Appellant was implicated or arrested. Counsel stated that there was nothing to predicate the finding of the lower Court against the Appellant on and he urged the Court to resolve the second issue for determination in favour of the Appellant.

With regards to the third issue for determination, Counsel adopted the arguments proffered on the second issue for determination and stated that with the failure of the lower Court to properly establish liability on the part of the Appellant in the demolition and exhumation carried on the property, the lower Court was in error when it awarded damages against the Appellant and that assessment and grant of damages was dependent on establishment of liability and he referred to the case of Neka B. B. B. Manufacturing Company Limited Vs African Continental Bank Ltd (2004) LPELR-1982(SC). Counsel stated further that the second Respondent, in whose favour the damages was awarded, pleaded particulars of damages and failed to adduce cogent evidence in support thereof and that as such the award of damages should be set aside.

Counsel argued in the alternative that should this Court find that the second Respondent was entitled to an award of damages, the sum of N5 million awarded by the lower Court was unreasonably high, considering the nature of the evidence led by the second Respondent and he referred to the case of Access Bank Plc Vs Maryland Finance Company and Consultancy Service (2004) LPELR-7311(CA) on the guide to assessment of damages. Counsel stated that the lower Court erroneously estimated the damages suffered by the second Respondent and that the sum of N5 million awarded should be reduced. Counsel urged the Court to either way resolve the issue for determination in favour of the Appellant.

Counsel concluded his arguments by urging the Court to find merit in the appeal and to allow same, set aside the judgment of the lower Court and to dismiss the claims of the first and second Respondents against the Appellant.

Counsel to the first and second Respondents adopted the three issues for determination formulated by the Counsel to the Appellant. In arguing the first issue for determination noted that the case of the Appellant in his defence before the lower Court was that under Ijagba native law and custom, upon the death of Dege Agbonkpolor, only the third Respondent, the sole surviving male child, to the exclusion of the other children and grandchildren, became the sole owner of the property in dispute. Counsel referred to the case of Union Bank of Nigeria Vs Ozigi (1994) 3 NWLR (Pt 333) 385 in asserting the settled principle that the burden of proving a particular fact is on the party who asserts it and stated that the onus was on the Appellant to prove the existence of the native law and custom relied on and he referred to the case of Temile Vs Awani (2001) FWLR (Pt 62) 1937. Counsel thereafter traversed through the case of the Appellant and stated that the sole witness of the Appellant led no plausible evidence to prove the native law and custom and that the lower Court was thus correct in rejecting the case of the Appellant on the point.

Counsel noted that the lower Court also found that the first and second Respondents too did not prove the Ijagba native law and custom pleaded by them on the inheritance of property in dispute by both the third Respondent and the first Respondent and that it was this basis that the lower Court found that the property devolves on all the children of late Dege Agbonkpolor. Counsel stated that even assuming that the lower Court erred in holding that the Appellant did not prove the native law and custom, the law is that no custom that stands in the way of the Constitution should be allowed to stand, in whatever circumstance, and that the Ijagba native law and custom pleaded by both parties sought to disinherit the female children of Dege Agbonkpolor and it was thus unconstitutional and repugnant to natural justice, equity and good conscience and he referred to the case of Timothy Vs Oforka (2008) 9 NWLR (Pt 1091) 204.

Counsel stated that the main issue in contention between the parties at the trial Court was whether the property in dispute became family property after the death of Dege Agbonkpolor or became the sole property of the third Respondent to the exclusion of the other children and he can deal with it as he felt. Counsel stated that the Appellant led no evidence to rebuff the notorious fact that the property in dispute is a family property and neither did it lead evidence that the property was partitioned amongst the children. Counsel stated that it was not in contest on the pleadings of the parties that the property in dispute was governed by customary law and that the first and second Respondents pleaded and led evidence that the property was family property and that neither the third Respondent nor the Appellant challenged this case of the first and second Respondents and did not make out any contrary case thereto.

Counsel stated that the lower Court was entitled to act of this uncontroverted and unchallenged case of the first and second Respondents that the property was family property and he referred to the cases of Yesuf Vs Adama (2010) 5 NWLR (Pt 1188) 523 and Anigbogu Vs Uchejigbo (2002) 10 NWLR (Pt 776) 472. Counsel stated that the lower Court was thus correct when it held that the property was family property belonging to both the male and the female children and he urged the Court to resolve the first issue for determination in favour of the first and second Respondents.

In arguing the second issue for determination, Counsel stated that the first and second Respondents pleaded facts on the demolition and exhumations carried out on the land and they led evidence that the Appellant commenced construction of its mast on the land in dispute after the demolition and exhumation had taken place and that the demolition and exhumations were done at the instance of the Appellant to enable it construct the mast on the portion of the land where the exhumed bodies were buried. Counsel stated that the Appellant admitted on its pleadings and in the evidence of its witness that it had constructed the mast and same was operational, but that it denied exhuming any bodies from the land in dispute. Counsel stated that while the Appellant’s witness testified that the portion of land they acquired was a vacant portion of land and did not include the ruins of house on the land, the document tendered by the Appellant as Exhibit D indicated that the demolition of an existing mud house needed to be done to build the mast.

Counsel stated that the contents of Exhibit D contradicted the oral testimony of the Appellant’s witness and lent credence to the assertion that the act of demolition that took place on the portion of land the Appellant built the mast was carried out by the Appellant as well as the exhumation of the bodies. Counsel refer to the case of NIDB Vs Olalomi Industries Ltd (2002) 5 NWLR (Pt 761) 532 in asserting that documentary evidence is the best form of evidence and stated that the only reasonable conclusion inferable from the evidence was that it was the Appellant that demolished the house and exhumed the bodies. Counsel urged the Court to uphold the finding of the lower Court on the point and to resolve the issue for determination in favour of the first and second Respondents.

In arguing the third issue for determination, Counsel adopted his arguments on the second issue for determination on the liability of the Appellant and stated that the damages claimed by the second Respondent was in the nature of general damages which award is purely at the discretion of the lower Court which heard the parties and was in a good position to determine the sum that would be reasonable compensation from the circumstances and he referred to the cases Maidara Vs Halilu (2000) FWLR (Pt 19) 433 and Ndinwa Vs Igbinedion (2000) FWLR (Pt 30) 2673. Counsel urged the Court to uphold the award and to resolve the issue for determination in favour of the first and second Respondents.

Counsel prayed the Court to find no merit in the appeal and to dismiss same accordingly and affirm the judgment of the lower Court.

The property in dispute in the matter leading to this appeal is the residential building situate, lying and being at No 3 Sobe-Ijagba Road, Ijangba Ondo State and it was an agreed fact that it originally belonged to one Dege Agbonkpolor and who begat four children, Ilesanmi Agbonkpolor, the third Respondent and the first son, Jimoh Agbonkpolor, the father of first Respondent, and Ohamen Alonge, the mother of the second Respondent, and Mrs. Dupe Tunde, both females. The first complaint of the Appellant in this appeal is against the finding of the lower Court that, upon the death of Dege Agbonkpolor, the property in dispute became the family property of all the children under Yoruba native law and custom and that, in reaching the finding, the lower Court wrongly put the onus of proof on it, instead of on the first and second Respondents who were the claimants.

In the judgment appealed against, the lower Court deliberated thus:
“On the first issue, the germane question is – Is the property in contest a family property? It is settled that the landed property situate Sobe-Ijagba Road, Ijangba originally belonged to one Pa Dege Agbonkpolor who gave birth to four children. They are Ilesanmi Agbonkpolor (1st defendant), Jimoh Agbonkpolor (1st claimant’s father), Ohamen Alonge (2nd claimant’s mother) and Mrs. Dupe Tunde. Jimoh and Ohamen Alonge are deceased. Jimoh gave birth to the 1st claimant while Ohamen gave birth to the 2nd claimant. There is no evidence placed before this Court that the property left behind by Pa Dege Agbonkpolor had been partitioned amongst the children after his demise. Evidence must be led to establish partitioning of land. … How does the concept of family property arise? It arises when the land owner dies intestate and his estate is governed by customary law, such land devolves to his heirs in perpetuity as family land …
In Yoruba custom, the legal title in the family property is vested on all the family members. All members of the family are jointly entitled to the property and that joint interest remains undivided until the property is partitioned or until the family by a conscious act of its accredited representatives has transferred the legal interest to another member or to an outsider …
The law is settled that where the claimants as in this case have asserted that the land purportedly sold is family property the onus shifts to the defendant which asserted the contrary to prove that the land is not family property…”

The lower Court stated that the onus shifted to the third Respondent and the Appellant, who were defendants in the lower Court to prove that the property was not family property and it noted that the third Respondent did not file a defence to rebut the assertion of the claimants that the property sold by him, the third Respondent, to the Appellant was family property. The lower Court thereafter considered the case of the Appellant that under Ijagba native law and custom, the third Respondent, being the only direct male child of Pa Dege Agbonkpolor and head of the family, was entitled to the sole inheritance of the property. The lower Court found that the Appellant did not make out a credible case to support its case and it concluded from there that the property in dispute was family property belonging to all the children, male and female inclusive, under Yoruba native law and custom.

The action in the lower Court was predicated on pleadings. The first and second Respondents filed an amended statement of claim and the Appellant filed a statement of defence.

The Courts have stated over and over that in an action fought on pleadings, the very foundation of the action is the pleadings of the parties. Pleadings are the written statements of the parties setting forth in a summary form the material facts on which each relies in support of his claim or defence, as the case may be. They are the means by which the parties are enabled to state and frame the issues which are in dispute between them and it operates to define and delimit with clarity and precision the real matters in controversy between the parties upon which they can prepare and present their respective cases and upon which the Court will be called to adjudicate between them – Onyiorah Vs Onyiorah (2019) 15 NWLR (Pt 1695) 227, Abdullahi Vs Adetutu (2020) 3 NWLR (Pt 1711) 338, Uzodinma Vs Ihedioha (2020) 5 NWLR (Pt 1718) 529, Amakeze Vs Nze Petroleum Co (Nig) Ltd (2021) 1 NWLR (Pt 1756) 107, Okeke Vs Nwigene (2022) 3 NWLR (Pt 1817) 313.

Now, what was the state of the pleadings of the parties in this case? It is trite law that in determining the case made by a party, a Court must read all the paragraphs of the pleadings of the party together to get a flowing story of the party and not a few paragraphs in isolation and it is the totality of the pleadings that states the case of the party– Onyiorah Vs Onyiorah (2019) 15 NWLR (Pt 1695) 227, Adama Vs K.S.H.A (2019) 16 NWLR (Pt 1699) 501, Multichoice (Nig) Ltd Vs Musical Collecting Society of Nigeria Ltd.Gte (2020) 13 NWLR 1742) 415, Anyalewechi Vs Lufthansa German Airlines (2021) LPELR-55213(CA), Ostankino Shipping Co. Ltd Vs The Owners, The MT Bata (2022) 3 NWLR (Pt 1817) 367.

Reading through the case of the first and second Respondents on their pleadings, the foundation of their case was that upon the death of Dege Agbonkpolor, the property in dispute became family property and that under Ijagba native law and custom, it is the male children, including the first Respondent, a grandchild and child of a direct male child, that are the beneficial owners of the house. The second Respondent who is a female child did not agitate or claim that the ownership of the property devolved on the male and female children. The Appellant countered that under Ijagba native law and custom, it is only the direct male children that inherit and that the third Respondent, being the only direct male child of Dege Agbonkpolor, was the sole inheritor.

It is obvious from the above summation of the pleadings of the parties that the core issue joined was on who inherited the property after the demise of Dege Agbonkpolor and not whether the property became family property belonging to every member of the family. Also, none of the parties pleaded or relied on Yoruba native law and custom. None of the parties pleaded or led evidence that the members of the Agbonkpolor family were of Yoruba extraction and neither of them asserted that the Ijagba native law and custom was the same as the Yoruba native law and custom. The issue of whether or not the property became family property belonging to every member of the family after the demise of Dege Agbonkpolor was decided by the lower Court and the foray into and the reliance placed by the lower Court on the Yoruba native law and custom in resolving the issue was not joined by the parties and it did not emanate from the pleadings. The lower Court exceeded the limits of the pleadings.

It is a firmly established principle of adjudication in a case predicated on pleadings that the parties and indeed the Court are bound by the pleadings filed and exchanged by the parties – Uzodinma Vs Ihedioha (2020) 5 NWLR (Pt 1718) 529, Adamawa State Ministry of Land & Survey Vs Salisu (2021) 2 NWLR (Pt 1759) 1, Eweje Vs O. M. Oil Industry Ltd (2021) 4 NWLR (Pt 1765) 117, Wulangs Vs Central Bank of Nigeria (2021) 16 NWLR (Pt 1802) 195, Imaruagheru Vs Aiguokunrueghian (2021) 18 NWLR (Pt 1808) 307. Where a case is brought before the Court by pleadings and issues are joined on the pleadings filed by both parties, the issues must be tried as settled in the pleadings, and neither the parties nor the Court can go outside the pleading to fish for issues – Offodile Vs Onejeme (2021) 7 NWLR (Pt 1775) 389, Haladu Vs Access Bank Plc (2021) 13 NWLR (Pt 1794) 434, Mekwunye Vs Carnation Registrars Ltd (2021) 15 NWLR (Pt 1798) 1. The Court can only adjudicate on the specific matters in dispute raised in the pleadings of the parties – Ewarawon Vs First Bank of Nigeria Plc (2020) 5 NWLR (Pt 1717) 268, Trade Bank Plc Vs Pharmatek Industrial Projects Ltd (2020) 8 NWLR (Pt 1725) 124.

Further, the relief granted by the lower Court based on its finding made in the course of its voyage into matters outside the pleadings, that is, the declaration that the residential building situate, lying and being at No 3 Sobe-Ijagba Road, Ijangba Ondo State is a family property belonging to both the male and female children of the family was not claimed by any of the parties and neither of them made a case for its award.

It is settled law that a Court has no power to grant any relief that has not been specifically claimed by the parties – Think Ventures Limited Vs Spice and Regler Ltd (2021) 2 NWLR (Pt 1759) 114, Bakari Vs Ogundipe (2021) 5 NWLR (Pt 1768) 1, Offodile Vs Onejeme (2021) 7 NWLR (Pt 1775) 389. Counsel to the first and second Respondents suggested that the lower Court was correct to have granted the relief for the benefit of the male and female children of the family because the relief they claimed which limited the inheritance to only the male children was unconstitutional and repugnant to natural justice, equity and good conscience. This suggestion of Counsel has no foundation in the law. The aphorism “the Court is not a Father Christmas” is a long standing principle of judicial adjudication. The Court and the parties are bound by the reliefs claimed and the Court cannot, on its own, begin to chop and change the reliefs claimed by a party and amend it to what it considers to be the proper relief to be granted – Tilley Gyado & Co (Nig) Ltd Vs Access Bank Plc (2019) 6 NWLR (Pt 1669) 399, Cappa & D’Alberto (Nig) Plc Vs NDIC (2021) LPELR-53379(SC).

Another anomaly that is obvious from the above reproduced excerpt and summary of the deliberations of the lower Court was the shifting of the onus of proof unto the third Respondent and Appellant, defendants in the suit, to prove their assertion of Ijagba native law and custom, without it first interrogating the case of the first and second Respondents on the Ijagba native and custom and finding it established by credible evidence. The first to the fourth claims of the first and second Respondents on their originating processes were for declaratory reliefs.

The law is that a party seeking declaratory reliefs must succeed on the strength of his own case and not on the weakness of the defence, if any. He has an obligation to prove his claims to the satisfaction of the Court notwithstanding any admission made by the defendant. This is because the grant of a declaratory relief is discretionary – MTN Nigeria Communications Ltd Vs Corporate Communication Investment Ltd (2019) LPELR-47042(SC), All Progressives Congress Vs Enugu State Independent Electoral Commission (2021) 16 NWLR (Pt 1801) 1, Obe Vs MTN Nigeria Communications Ltd (2021) 18 NWLR (Pt 1809) 415.

This is particularly more so as the first Respondent was claiming for declaration of ownership of an interest in land; that he is entitled to co-inherit the property in dispute with the third Respondent. It is settled law that in such a claim, the onus is entirely on the claimant and proof of the claim must be established. There must be strong and positive evidence to establish his title. This is so, even if the defendant at the Court of trial admitted the claimant’s claim – Adeniji Vs Adeniji (1972) 4 SC 10, Ezeokonkwo Vs Okeke (1991) 2 NWLR (Pt 173) 331, Jimba Vs AP (Nig) Ltd (1998) 3 NWLR (Pt 581) 273, Temile Vs Awani (2001) 12 NWLR (Pt 728) 726. In such matters, a defendant’s position is that even if he fails to adduce any evidence at all, he is entitled to judgment in his favour where a claimant fails to establish his claim for title by credible evidence; the defendant has no burden of proof – Umeojiako Vs Ezenamuo (1990) 1 NWLR (Pt 126) 253, Ezema Vs Ezeja (1995) 9 NWLR (Pt 419) 300, Dim Vs Enemuo (2009) 10 NWLR (Pt 1149) 353, Luke Vs Rivers State Housing and Property Development Authority (2010) 5 NWLR (Pt 1188) 604.
In an action claiming for a declaration of ownership of an interest in land, the onus is on the claimant to prove his case and until this is done no burden shifts to the defendant who is putting forward a different case of his own. Once the claimant has failed to establish his link with the disputed land, he has failed to discharge the burden of proof placed on him. The law is that there is no burden on the defendant – Awomuti Vs Salami (1978) 3 SC 105, Olowosago Vs Adebanjo (1988) 4 NWLR (Pt 88) 275, Ajibona Vs Kolawole (1996) 10 NWLR (Pt 476) 22, Akanbi Vs Raji (1998) 12 NWLR (Pt 578) 360, Gbadamosi Vs Okege (2011) 3 NWLR (Pt 1233) 175. Where the defendant does not counterclaim in such an action, as in the present case, the onus is on the claimant to first establish a prima facie case before consideration of the case of the defendant can arise – Aromire Vs Awoyemi (1972) 1 SC 1, Nwofor Vs Nwosu (1992) 9 NWLR (Pt 264) 229, Oyedeji Vs Oyeyemi (2008) 6 NWLR (Pt 1084) 484, Iroagbara Vs Ufomadu (2009) 11 NWLR (Pt 1153) 587, Nwokidu Vs Okanu (2010) 3 NWLR (Pt 1181) 362. It is after the claimant has proved his claim satisfactorily that the onus shifts – Kopek Construction Ltd Vs Ekisola (2010) 3 NWLR (Pt 1182) 61.

The lower Court was thus in complete error when it shifted the onus on the Appellant to prove their assertion of Ijagba native law and custom, without it first interrogating the case of the first and second Respondents on the Ijagba native and custom and finding that it was established by credible evidence. It was only after considering and rejecting the case made out by the Appellant on the Ijagba native law and custom that the lower Court proceeded to consider the case of the first and second Respondents on Ijagba native law and custom and it found that they failed to lead credible evidence to establish it. The lower Court stated in the judgment thus:
“The claimants also pleaded that under Ijagba native law and custom, the male children of Dege Agbonkpolor (deceased) are the beneficial owners of the house. Applying the same test enunciated in the cases of Oyewunmi v. Ogungbemi … and Kobina Augu v. Allah …, this Court resolves and holds that the claimants also failed to prove this custom having failed to call witnesses acquainted with the custom in the Court and in the absence of the frequent proof in Court of the particular custom to warrant this Court taking judicial notice of same.”

Now, upon this finding, the lower Court ought to have dismissed the case of the first and second Respondents on the right of first Respondent to partake in the inheritance of the property in dispute. But rather than do so, the lower Court proceeded on a frolic to apply the principles of Yoruba native law and custom, that was not pleaded or relied upon by the first and second Respondents, to grant a relief that the first and second Respondents did not ask for.

It is trite law that it is the duty of the claimant to prove every averment in his pleadings, particularly where issues are duly joined on such pleadings and where no satisfactory evidence is led in proof of any fact in issue, the trial Court would be entitled to dismiss such issue – Obe Vs MTN Nigeria Communications Ltd (2021) 18 NWLR (Pt 1809) 415, All Progressives Congress Vs Obaseki (2022) 2 NWLR (Pt 1814) 273. The first complaint of the Appellant in the appeal is justified and the first issue formulated by the parties for determination in the appeal is resolved in favour of the Appellant.

The second complaint of the Appellant was in respect of the finding that the Appellant was responsible for the demolition of the house and the exhumation of three dead bodies on the property in order to pave the way for the construction of its mast. In making this finding, the lower Court deliberated in the judgment thus:
“The PW1 and the PW2 gave evidence of the building in question. The DW1 testified that the building on the land had gone into ruin when the 2nd defendant acquired it. At another breadth, he testified that they acquired the vacant portion of land. The PW2 who is the 2nd claimant in this action testified that the building on the land was demolished for the purpose of erecting the mast of the 2nd defendant as its base station. Exhibit ‘D2’ is the site plan of base station. On the site plan, it was indicated that an existing mud house is to be demolished. The mud house to be demolished is within the base station site plan. The location of the land leased by the 1st defendant to the 2nd defendant includes the mud house. There is no doubt, the mud house on the site of the base station is the house demolished. In the circumstance, this Court is inclined to believe the evidence of the PW1 and PW2 that the 2nd defendant demolished the house of late Pa Dege Agbonkpolor which was part of the landed property of the deceased leased by the 1st defendant to the 2nd defendant. Exhibit D2 tendered by the defendant lends credence to the evidence of the PW2 as to demolition of the property of late Pa Dege. … Flowing from this premise, this Court finds as of fact that the 2nd defendant demolished the building of late Pa Dege Agbonkpolor being part of the land property of the deceased leased to the 2nd defendant by the 1st defendant.
The PW1 and PW2 also testified to the effect that the bodies of late Pa Dege, that of Joel Agbonkpolor and Ohamen Alonge, mother of the 2nd claimant buried in the building demolished were exhumed by the defendants. This was denied by the 2nd defendant. The 1st defendant filed no defence to deny this averment. The PW3, who was the photographer called to take photographs of remains exhumed testified that he saw bones, decayed clothes, hairs, jaws, teeth littered the ground. That he observed that they were carcasses of dead persons. The evidence of the PW3 corroborates that of PW1 and PW2, particularly that of PW2. I am inclined to believe the evidence of the claimants as to the exhumation of the bodies. This is because the house demolished was where their grandfather Pa Dege Agbonkpolor, 2nd claimant’s mother and Joel Agbonkpolor were buried. The claimants are in the best position to know whether anybody was buried and who was buried in the demolished house, being grandchildren of late Pa Dege Agbonkpolor … For reason of this background, this Court finds as of fact that the decomposed bodies of Pa Dege Agbonkpolor, Joel Agbonkpolor and Ohamen buried in the house were exhumed by the Defendants upon the demolition of the building.”

The case of the first and second Respondents on the pleadings on this issue was that there was a building and three cemented tombs on the property in dispute where three family members were buried, namely: Joel Agbonkpolor, Dege Agbonkpolor and Mrs. Ohamen Alonge, the mother of the second Respondent. It was their case that upon being aware of the lease of the land by the third Respondent to the Appellant, the first Respondent caused a letter to be addressed to the Appellant warning it off the land and that notwithstanding the letter, the Appellant still went ahead to demolish the building and exhumed the three corpses on the land. It was their case that it was on 1st of May, 2008 that people in Ijagba, including themselves, woke up to see that the three corpses had been exhumed and their remains littered the place and that the Appellant had demolished the building prior to that day. It was their case that they reported the incidents to the Police and that investigation was carried out and in the course of which the third Respondent was arrested and he admitted that he exhumed the bodies on the land at the instance of the Appellant.

In his response pleadings, the Appellant denied the case of the first and second Respondents and it was its case that the building on the property was already in ruins as at the time it took the lease of the property and it neither demolished the building nor did it exhume any dead bodies on the land. It was its case that it was handed vacant possession of the portion of the land whereon it constructed its mast by the third Respondent and that no member of its staff was invited by the Police in the course of investigation into the demolition and exhumation and that it was not indicted by Police over the activities.

From this state of the pleadings on the issue, it is elementary that the first and second Respondents had the onus of proving that the Appellant partook in the demolition of building and exhumation of bodies that they alleged took place on the land. The first and second Respondents testified as the first and second plaintiff witnesses and they gave evidence in line with their case on the pleadings, but stated under cross-examination that they were not present during the alleged demolition and exhumation and did not witness the persons who carried them out. They both stated that upon his arrest by the Police, the third Respondent admitted that he exhumed the bodies and that no member of staff of the Appellant was arrested by the Police over the demolition and exhumation and the Appellant was not indicted by the Police. The sole witness of the Appellant gave evidence in line with the case of the Appellant on the pleadings and he tendered as Exhibit D, the site plan that the Appellant caused to be prepared when they acquired the land and which showed that there was a mud house that had to be demolished.

What is obvious from the above summation of the evidence led by the parties on the alleged demolition of building on the land by the Appellant is that the evidence led by the first and second Respondents was thoroughly discredited under cross-examination. It is settled law that such evidence cannot be relied upon by a trial Court to make findings of fact and they require no rebuttal by the other party – Omisore Vs Aregbesola (2015) 15 NWLR (Pt 1482) 205, Mustapha Vs Bulkachuwa (2020) 12 NWLR (Pt 1739) 391. Rather than reject the case of the first and second Respondents on the ground of absence of credible evidence to support same, the lower Court had recourse to the site plan, Exhibit D, tendered by the Appellant and stated that since it was shown thereon that there was a mud house on the land that had to be demolished, it must mean that it was the Appellant that demolished it.

The lower Court completely ignored the case of the Appellant that it was handed vacant possession of the land it built upon by the third Respondent, suggesting that whatever demolition alleged was done by the third Respondent. The use made of Exhibit D by the lower Court was clearly speculative and it amounted to the lower Court conjuring facts to support the case of the first and second Respondents.

It is settled law that a Court cannot decide issues on mere conjecture or speculation, no matter how close what it relies on may seem to be on the facts – Ayoade Vs State (2020) 9 NWLR (Pt 1730) 577, Addo Vs State (2021) 12 NWLR (Pt 1791) 427, AMCON Vs Suru Worldwide Ventures (Nig) Ltd (2022) 2 NWLR (Pt 1813) 163, All Progressives Congress Vs Obaseki (2022) 2 NWLR (Pt 1814) 273. The finding of the lower Court that it was the Appellant that demolished the building on the land was not supported by the evidence on records.

But perhaps more out of place was the finding of the lower Court suggesting that the Appellant took part in the exhumation of the buried corpses on the land. The case of the first and second Respondents both on their pleadings and in the evidence of their witnesses was that it was the third Respondent that exhumed the bodies from the land, but that he said he did so at the instance of the Appellant. They admitted that only the third Respondent was arrested by the Police in connection with the exhumation and that no staff of the Appellant was arrested and that the Appellant was not indicted. In other words, the case of the first and second Respondents was that the act of the third Respondent in exhuming the bodies should be imputed to the Appellant.

The Appellant is a limited liability company and the law is settled that for the legal responsibility for the acts of another to be imputed to it, there must be proof of a relationship of agency or supervisor and subordinate or master and servant between it and that person – Gata Vs Paulosa (Nig) Ltd (1998) 3 NWLR (Pt 543) 574, Shell Petroleum Development Company (Nig) Plc Vs Dino (2007) 2 NWLR (Pt 1019) 438, Salawu Vs Lawal (2006) LPELR-9759(CA), Gitto Costruzioni Generale (Nig) Ltd Vs Jonah (2017) LPELR-43487(CA). Where the evidence of the existence of such relationship is lacking, the legal responsibility cannot be imputed. It is not a consequential deduction made at the discretion of the Court – Shell Petroleum Development Company (Nig) Plc Vs Addico (2015) LPELR-25785(CA). The existence of a relationship of agency or supervisor and subordinate or master and servant between the Appellant and the third Respondent was not pleaded or proved by the first and second Respondents. There was no basis for the finding that the Appellant was responsible for the exhumation of the dead bodies on the land.

The complaint of the Appellant on the second issue for determination is valid and it is resolved in his favour.

The final complaint of the Appellant in the appeal is in respect of the award of damages made against it by the lower Court. Reading through the judgment, the award of damages was predicated on the finding of liability on the part of the Appellant for the exhumation of dead bodies on the land in dispute. With the finding of this Court that the lower Court erred in holding the Appellant liable, in any way, for the exhumation, the award of damages must be set aside. The injury suffered must be attributable to the act of a particular person, before an award of damages can be made against that person – United Cement Co (Nig) Ltd Vs Isidor (2016) All FWLR (Pt 844) 2137, Mujaid Vs Ibadan Electricity Distribution Company (2021) 12 NWLR (Pt 1791) 537. In International Institute of Tropical Agriculture Vs Amrani (1994) 3 NWLR (Pt 332) 296, the Court made the point thus:
“The position of the law is that for a claim for damages to succeed, the plaintiff who is making the claim must have findings in his favour in relation to the reliefs he seeks. In other words, where he fails to prove his case upon which damages is sought as in the instant case then the claim for damages must also fail.”

The third complaint of the Appellant under the third issue for determination is thus also well founded and it is resolved in its favour.

In conclusion, this Court finds the appeal meritorious and it is hereby allowed. The judgment of the High Court of Ondo State, Ifon Judicial Division delivered in Suit No HIF/6/2008 by Honorable Justice S. A. Bola (as he then was) on the 11th of October, 2013 against the Appellant is hereby set aside. The parties shall bear their respective costs of the appeal. These shall be the orders of the Court.

AYOBODE OLUJIMI LOKULO SODIPE, J.C.A.: I have had the privilege of reading in draft, the leading judgment prepared by my learned brother, Habeeb Adewale O. Abiru, JCA; in this appeal.

My learned brother has meticulously dealt with all the issues raised in this appeal and I agree with the reasoning and resolution of the said issues by his Lordship.

The respective cases of the parties in a case fought on pleadings are circumscribed by the pleadings before the Court and the Court is duty bound to ensure that evidence adduced by the parties in support of their cases is not at variance with the said pleadings and base its decision on such evidence only. The instant appeal in my considered view, is one in which this Court can rightly interfere with the evaluation of evidence and findings by the lower Court.

Accordingly, I too find the appeal to be meritorious and I allow same. The judgment of the lower Court delivered in Suit No. HIF/6/2008 on 11/10/2013 as it relates to the Appellant is hereby set aside.

YUSUF ALHAJI BASHIR, J.C.A.: I have read in draft, the lead judgment delivered by my noble brother Habeeb Adewale O. Abiru, JCA. I am in full agreement with the reasoning and conclusion of his lordship that the appeal is meritorious, it is accordingly allowed. Consequently, the judgment of the High Court of Ondo State, Ifon Judicial Division delivered by Justice S. A. Bola on 11th October, 2013 in Suit No: HIF/6/2008 is hereby set aside.

I too order that parties shall bear their respective cost.

Appearances:

Mr. Femi Sarumi For Appellant(s)

Abayomi Ojo with him Bode Akinyemi & S. E. Olusanya for 1st & 2nd Respondents. For Respondent(s)