SHIRA v. SHIRA
(2020)LCN/15541(CA)
In The Court of Appeal
(JOS JUDICIAL DIVISION)
On Friday, April 24, 2020
CA/J/368/2018
Before Our Lordships:
Habeeb Adewale Olumuyiwa Abiru Justice of the Court of Appeal
Mudashiru Nasiru Oniyangi Justice of the Court of Appeal
Boloukuromo Moses Ugo Justice of the Court of Appeal
Between
Dr. Sani Sa’idu Shira APPELANT(S)
And
Mallam Mai Kudi Shira RESPONDENT(S)
RATIO:
WHAT IS AN ISSUE FOR DETERMINATION IN AN APPEAL?
Now, an issue for determination in an appeal is said to be a combination of facts and circumstances including the law applicable thereto which is so crucial that if it is decided one way or the other will affect the fate of the appeal. It is a point which is so critical that if it is decided in favour of a party, such a party is entitled to win the appeal – Okoye Vs Nigerian Construction and Furniture Co Ltd (1991) 6 NWLR (Pt 199) 501, G. Chitex Industries Ltd Vs Oceanic Bank International (Nig) Ltd (2005) 14 NWLR (Pt 945) 392, Ali Vs Osakwe (2011) 7 NWLR (Pt 1245) 68, Nadabo Vs Dabai (2011) 7 NWLR (Pt 1245) 155. HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.
POSITION OF LAW ON ISSUE RAISED FOR DETERMINATION FOR APPEAL
The law is that an issue raised for determination in an appellate Court should be material; it must be such a proposition of law or fact or both so cogent, weighty and compelling that a decision on it in favour of a party to the appeal will entitle him to the judgment of the Court – Ugo Vs Obiekwe (1989) All NLR 566, Kalu Vs Odili (1992) 6 SCNJ 76, Ezekwesili Vs Agbapuonwu (2003) 9 NWLR (Pt 825) 337. HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.
WHAT IS A GRANT?
According to the Black’s Law Dictionary, the word ‘grant’ means to bestow, to confer upon someone other than the person or entity which makes the grant. It means to bestow or confer with or without compensation; a gift or bestowal by one having control or authority over it, as of land or money. A transfer of title by deed or other instrument; transfer of property real or personal by deed in writing; a generic term applicable to all transfers of real property, including transfers by operation of law as well as voluntary transfers; a technical term made use of in deeds of conveyance of land to import a transfer; a deed of an incorporeal interest such as a reversion. A grant is a form of alienation. It moves from the grantor to the grantee – Okoli Vs Ojiakor (1997) 1 NWLR (Pt 479) 48. HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.
POSITION OF LAW ON CLAIM OF DAMAGES FOR TRESPASS TO LAND/PERPETUAL INJUNCTION
It is settled law that where a claimant co-joins a claim for damages for trespass to land with a claim for perpetual injunction to restrain further trespass and he bases the claims of an alleged grant of the land in question, his case is one of ownership of the land in dispute and he thus puts his title in issue and is bound to prove his title to the land in dispute – Nzekwu Vs Nzekwu (1989) 2 NWLR (Pt 104) 373, Ogunleye Vs Oni (1990) 2 NWLR (Pt 135) 745, Registered Trustees of the Apostolic Church Vs Olowoleni (1990) 6 NWLR (Pt 158) 514, Carrena Vs Akinlase (2008) 14 NWLR (Pt 1107) 262, Fayemi Vs Awe (2009) 15 NWLR (Pt 1164) 315, Monkom Vs Odili (2010) 2 NWLR (Pt 1179) 419, Oyeneyin Vs Akinkugbe (2010) 4 NWLR (Pt 1184) 265, Gbadamosi Vs Tolani (2011) 5 NWLR (Pt 1240) 352. HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.
WHETHER COURT/PARTY WILL BE BOUND BY THE RELIEFS SOUGHT ON A MOTION PAPER
It is trite law that a claimant is bound by the reliefs sought on the writ of summons and statement of claim–Kuti Vs Attorney General of the Federation (1985) 2 NWLR (Pt 6) 211, Commissioner of Works, Benue State Vs Devcon Construction Co. Ltd (1988) 3 NWLR (Pt 83) 407, Okoya Vs Santili (1988) 3 SCNJ 83, Osuji Vs Ekeocha (2009) 16 NWLR (Pt 1166) 81. The Court too is bound by the reliefs sought by a party, and cannot go outside them to consider and grant what is not claimed. In Attorney General of the Federation Vs A. I. C. Ltd (2000) 10 NWLR (Pt 675) 293, the Supreme Court, per Mohammed, JSC, made the point thus:
“… I do not have to speak the obvious fact, because our legal system is replete with authorities that a judge has no power to make an order or grant a relief which has not been asked by the plaintiff in his pleadings. This Court once explained fully the absence of jurisdiction to grant such a relief in the case of Etim Ekpenyong & Ors Vs Inyang Effiong Nyong and 6 Ors ( 1975) 2 SC 71 in the following words:
‘…as the reliefs granted by the learned trial judge were not those sought by the applicants, he went beyond his jurisdiction when he purported to grant such reliefs. It is trite law that the Court is without the power to award to a claimant that which he did not claim. This principle of law has, time and again, been stated and re-stated by this Court that it seems to us that there is no longer any need to cite authorities in support of it. We take the view that this proposition of the law is not only good law, but good sense. A Court of law may award less, and not more than what the parties have claimed. A fortiori, the Court should never award that which was never claimed or pleaded by either party. It should always be borne in mind that a Court of law is not a charitable institution; its duty, in civil cases, is to render unto everyone according to his proven claim.’” HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.
DECLARATION OF OWNERSHIP OF LAND
It is settled law that to succeed in a case for declaration of ownership of land, a party must plead and prove the method by which he acquired the said title; ownership of land cannot be claimed without first establishing that ownership – Fasoro Vs Beyioku (1988) 2 NWLR (Pt 76) 263, Nwofor Vs Nwosu (1992) 9 NWLR (Pt 264) 229, Onwugbufor Vs Okoye (1996) 1 NWLR (Pt 424) 252, United Bank for Africa Plc Vs Ayinke (2000) 7 NWLR (Pt 663) 83, Oyeneyin Vs Akinkugbe (2010) 4 NWLR (Pt 1184) 265. A claimant must satisfy the Court as to (a) the precise nature of the title claimed, that is to say, whether it is title by virtue of original ownership, customary grant, conveyance, sale under customary law, long possession, or otherwise; and (b) evidence establishing the nature of title claimed – Obawole Vs Coker (1994) 5 NWLR (Pt 345) 416, Adesanya Vs Aderonmu (2000) 9 NWLR (Pt 672) 370 at 382, Edohoeket Vs Inyang (2010) 7 NWLR (Pt 1192) 25, Obineche Vs Akusobi (2010) 12 NWLR (Pt 1208) 383. HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.
PRINCIPLE OF LAW WHERE A CLAIMANT CLAIMS TITLE OF LAND BY GRANT
Where a claimant claims title by grant, as in the instant case, the Court has to be sure of the nature of grant before a declaration is granted. In other words, where a party relies on and pleads a grant as his root of title, he is under a duty to prove such grant to the satisfaction of the Court – Oni Vs Olokun (1995) 1 NWLR (Pt 370) 189, Oko Vs Okenwa (2010) 3 NWLR (Pt 1181) 406. A grant of land is never presumed. It requires the clearest evidence – Obasi Vs Oti (1967) NMLR 74, Adu Vs Mon (1998) 3 NWLR (Pt 541) 281. HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.
PRINCIPLE OF LAW WHERE A DEFENDANT DOES NOT COUNTERCLAIM IN AN ACTION FOR OWNERSHIP OF LAND
Where a defendant does not counterclaim in an action for ownership of land, also as in the instant case, the onus is on the claimant to first establish a prima facie case before a consideration of the case of the defendant can arise – Oyedeji Vs Oyeyemi (2008) 6 NWLR (Pt 1084) 484, Dim Vs Enemuo (2009) 10 NWLR (Pt 1149) 353, Luke Vs Rivers State Housing and Property Development Authority (2010) 5 NWLR (Pt 1188) 604. 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 and judgment must be entered for 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. HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.
WHAT IS AN EASEMENT?
…..an easement is a right attached to land to utilize another land of different ownership in a particular manner not involving the taking of any part of the natural produce of the land or of any part of its soil or to prevent the owner of the other land from using his land in a particular manner. In legal parlance, the land benefiting from an easement is the dominant tenement while the land burdened by an easement is called the servient tenement – De Facto Bakeries and Catering Ltd Vs Ajilore (1974) 1 All NLR (Pt II) 385, Seismograph Service Nig Ltd Vs Eyuafe (1976) 9-10 SC 135 at 160-161, Okunzua Vs Amosu(1992) 6 NWLR (Pt 248) 416,Olusanya Vs Osinleye(2001) 13 NWLR (Pt 730) 298, Muniyas (Nig) Ltd Vs Ashafa (2011) 6 NWLR (Pt 1242) 85, Olusanya Vs Osinleye (2013) 12 NWLR (Pt 1367) 148. Thus, being a right that confers neither a proprietary nor a possessory interest in the dominant tenement over servient tenement or one that gives the owner of the dominant tenement an exclusive or unrestricted use of any part of the servient tenement, a right of easement cannot sustain a claim for ownership of the land of the servient tenement by the owner of the dominant tenement. HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.
PRICIPLE OF LAW ON A CLAIM IN TRESPASS?
Further, a claim in trespass postulates that the claimant is in possession of the land in dispute at the time of the trespass, since the very essence of trespass per se is injury to possession. Thus, in order to maintain an action in trespass, a claimant must have exclusive possession of the land – Imah Vs Okogbe (1993) 9 NWLR (Pt 316) 159, Ogundipe Vs Attorney General, Kwara State (1993) 8 NWLR (Pt 313) 558, Osadim Vs Tawo (2010) 6 NWLR (Pt 1189) 155, Agboola Vs United Bank for Africa Plc (2011) 11 NWLR (Pt 1258) 375. Proof of exclusive possession is a condition precedent, a sine qua non, to success of a claim for trespass – Adeniji Vs Ogunbiyi (1965) NMLR 395, Adelaja Vs Fanoiki (1990) 2 NWLR (Pt 131) 137, Abioye Vs Afolabi (1998) 4 NWLR (Pt 545) 296, Fagunwa Vs Adibi (2004) 17 NWLR (Pt 903) 544, Tukuru Vs Sabi (2005) 3 NWLR (Pt 913) 544. This is because where a person is not in possession there is nothing in law and in fact for the adverse party to disturb by way of trespass –Akibu Vs Azeez (2003) 5 NWLR (Pt 814) 643 at 670, Oluwole Vs Abubakare (2004) 10 NWLR (Pt 882) 549, Echendu Vs Tanko (2005) 11 NWLR (Pt 936) 281, Fatoyinbo Vs Osadeyi (2009) 16 NWLR (Pt 1168) 605, Skye Bank Plc Vs Akinpelu (2010) 9 NWLR (Pt 1198) 179. HABEEB ADEWALE OLUMUYIWA 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 Bauchi State delivered in Suit No BA/109/2016 by Honorable Justice Kunaza Nangoma Hamidu on the 16th of July, 2018. The Appellant was the claimant in the lower Court and his claims against the Respondent were for:
i. A declaration that the Appellant is the grantee of the Burrow Pit lying and situate near his residence at No 2 Makara Street, Shira-Azare Road, and which is more described on the sketch map annexed to a letter with reference No FMLH&UD/BA/URD/DC/Vol. ¼ dated the 5th day of February, 2015.
ii. A declaration that any entry and/erecting any structure therein by the Respondent and/or any other person without the prior consent and authority of the Appellant constitute trespass.
iii. An order of perpetual injunction restraining the Respondent, his agents, servants, privies, cohorts, representatives or any person deriving authority from him from further trespassing on the Appellant’s granted Burrow Pit.
iv. The sum of N250,000.00 as general damages.
The case of the Appellant on the pleadings in support of the claims was that the Burrow Pit in dispute and situate along Shira-Azare Road belongs to the Federal Government of Nigeria and is close to his residence at No 2, Makara Road along Federal Low Cost in Shira and he applied to the Federal Ministry of Lands, Housing and Urban Development for the grant of an easement over the Burrow Pit through the Office of the Federal Controller of Lands, Housing and Urban Development Bauchi Field Headquarters and that his application was approved and granted. It was his case that the Respondent erected some structures and conducts business on a part of the Burrow Pit and he sent word to the Respondent to vacate the land to enable him fill up the pit and make an access road to and from his house and to landscape the area as instructed by the Federal Ministry of Lands, Housing and Urban Development, but that the Respondent rebuffed him. It was his case that he reported the matter to the Office of the Federal Controller of Lands, Housing and Urban Development Bauchi Field Headquarters and that the officers confirmed that they noticed the presence of the Respondent on the land when they went to measure same in the course of considering the application for easement and that they directed the Respondent to vacate same as he had no authority from the Federal Ministry of Lands, Housing and Urban Development to be there and that they inscribed the word STOP on the structure of the Respondent thereon. It was his case that the Respondent has failed and/or refused to vacate the land.
The case of the Respondent on the pleadings in response was that the Burrow Pit in question arose by reason of excavations done by the Federal Government of Nigeria for the purpose of road construction and that the late Waziri of Shira Local Government was the lawful grantee of the Borrow Pit having derived title thereto from the Federal Government of Nigeria. It was his case that he was granted a portion of the Borrow Pit by the said late Waziri of Shira Local Government about twenty five years ago and another grant of a further portion of the land was made to him about nineteen years ago by the present Waziri of Shira Local Government and that he sand filled the portion of the Burrow Pit granted to him about fifteen years ago to the knowledge of the Appellant. It was his case that about seven years ago, the Appellant requested him to sell a part of the portion of the Burrow Pit granted to him for the purpose of erecting a car park, but he refused and the Appellant reported to the Waziri of Shira Local Government and pleaded that a portion of the land be taken back and sold to him.
It was the case of the Respondent that the Waziri of Shira Local Government inspected the land and refused the request of the Appellant, but however in the spirit of fairness, the Waziri of Shira Local Government granted the Appellant an access road over a part of the Borrow Pit to his house, and which part was opposite his own portion of the land and that a part of his land was demolished for the purpose. It was his case that the Appellant was not satisfied with the decision of the Waziri of Shira Local Government and that the Appellant commenced an action against him in the Chief Magistrate Court, GRA Bauchi and which action was subsequently withdrawn and another one commenced at the Chief Magistrate Court, Games Village, Bauchi. It was his case that he had erected a petrol station on the portion of the Borrow Pit granted to him and had been operating same to the knowledge of the Appellant for at least three years before the commencement of this action and that this action was commenced while the second action before the Chief Magistrate Court Games Village, Bauchi was pending.
The matter proceeded to trial and in the course of which the Appellant called two witnesses in proof of his case while the Respondent testified as the sole defence witness. At the conclusion of the trial, Counsel to the parties were given time to file their respective final addresses, but while Counsel to the Appellant filed his final address, Counsel to the Respondent failed to file a final address. The lower Court after several adjournments closed the right of the Respondent to file an address and Counsel to the Appellant adopted his final address as his final arguments on the matter. The lower Court thereafter entered judgment refusing the claims of the Appellant, but without dismissing them. In its deliberations, the lower Court referred to the case of Olusanya Vs Osinleye in defining what easement is and it continued thus:
“From the plaintiff’s pleadings of claim the borrow pit, subject matter of dispute in this suit, belongs to the Federal Government of Nigeria under the Federal Ministry of Power, Works and Housing to which the plaintiff applied and was approved as in exhibits A and B… Basically the claim of the plaintiff is anchored on Exhibits A and B. As held in the case of Olusanya Vs Osinleye supra, easement can only be granted by the owner of a land.
In the instant case the plaintiff claims that the land belongs to the Federal Government. However, the defendant in his statement of defence claims that the land belongs to the Waziri of Shira who allocated the borrow pit to him. The plaintiff did not adduce evidence before me to prove that the borrow pit belongs to the Federal Government and how it came to own the said borrow pit neither did the defendant lead evidence before me to prove that the borrow pit belongs to the Waziri of Shira.
As I earlier stated that in civil action the plaintiff is to succeed on the strength of his case and not on the weakness of the defence. More so, the plaintiff is only a grantee of the right of easement as in Exhibit A and B and therefore cannot maintain an action against the defendant as the issue of ownership is in dispute. More so the Federal Ministry of Power, Works and Housing was never made a party to this suit to establish its ownership of the borrow pits. In other words, the plaintiff cannot maintain an action against the defendant as title to the land is in issue and I so hold.
Furthermore the approval of easement was granted after the land in dispute had been developed by the defendant while the purported owner of the land in dispute Federal Ministry of Power, Works and Housing stood by and watched. The Federal Ministry of Power, Works and Housing ought to have taken steps to eject the defendant from the land in issue before granting any right of easement to the plaintiff and I so hold.
To order the defendant to vacate the land in issue after developing same and is conducting his business on the said land without determining the ownership of the land in dispute will be unfair and unjust and I so hold. Having said so far, the plaintiff has not proved his case against the defendant to be entitled to the judgment of this Court in his favour and I so hold.
It is in evidence before this Court that there was a meeting held in Shira where the Waziri of Shira granted the plaintiff right of easement over the land in dispute. I hereby order that the parties shall maintain the status quo until the ownership of the borrow pit is determined…”
The Appellant was dissatisfied with the judgment and he caused his Counsel to file a notice of appeal dated the 13th of July, 2018 and containing three grounds of appeal against it. In arguing the appeal before this Court, his Counsel presented a brief of arguments which is dated and was filed on the 17th of December, 2018 and the brief of arguments was deemed properly filed by this Court on the 12th of March, 2019. In his response, Counsel to the Respondent filed a brief of argument dated the 11th of October, 2019 on the 15th of October, 2019 and the brief of arguments was deemed properly filed by this Court on the 15th of October, 2019. Counsel to the Appellant filed a Reply brief of arguments dated the 30th of October, 2019 on the same date. 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 oral submissions in the appeal.
Counsel to the Appellant distilled two issues for determination in the appeal and these are:
i. Whether the Appellant led evidence before the lower Court to prove that the borrow pit belongs to the Federal Government of Nigeria.
ii. Whether the presence of the Federal Ministry of Power, Works and Housing was necessary in the determination of the suit before the lower Court.
In arguing the first issue for determination, Counsel referred to the pleadings of the Appellant and paragraphs of the written depositions of the two claimant witnesses and stated that the Appellant pleaded and led clear and unambiguous evidence to prove that the Federal Government of Nigeria owns the borrow pit in issue and that proof in civil cases is on a preponderance of evidence, and not to the hilt and he referred to the case ofOmotoye Vs ABC (Transport Co) Ltd (2010) All FWLR (Pt 531) 1560. Counsel stated further that the Respondent admitted both in his pleadings and in the testimony as the sole witness that the Federal Government of Nigeria is the owner of the borrow pit and that it is settled law that where the case of a defendant supports the case of a plaintiff, the plaintiff is held to have discharged his onus of proof and he referred to the cases of Tayo Vs Adegboro (2011) All FWLR (Pt 584) 52, Kayili Vs Yilbuk (2015) All FWLR (Pt 775) 378 and Kano Vs The Government, Adamawa State (2015) All FWLR (Pt 775) 345, amongst others.
Counsel stated that the Appellant also proved, and the Respondent admitted, that the Federal Government owed properties around the vicinity of borrow pit and that the Appellant thus satisfied one of the recognized ways of proving title to land; proof of ownership of adjacent or connected land, and he referred to the cases of Divine Ideas Ltd Vs Umoru (2007) All FWLR (Pt 380) 1498 and Aiyeola Vs Pedro (2014) All FWLR (Pt 744) 41. Counsel stated that, additionally, the Appellant led oral and documentary evidence to prove that he was granted a right of easement over the borrow pit by the Federal Government and he thus discharged the burden of proof of him and that the onus shifted to the Respondent. Counsel stated that the Respondent pleaded and led evidence to prove that he was granted the borrow pit by the late and the present Waziris of Shira Local Government and that the burden was thus on the Respondent to lead evidence to show how either the late Waziri or the present Waziri became the owner of the land. Counsel stated that the Respondent led no evidence, oral or documentary, in proof of this fact and he also did not call the present Waziri of Shira Local Government as a witness and that this amounted to withholding evidence under Section 167(d) of the Evidence Act and he referred to the case of Iweka Vs FRN (2011) All FWLR (Pt 588) 981. Counsel stated that the Respondent failed to lead evidence to dislodge the case of the Appellant and he urged the Court to resolve the first issue for determination in favour of the Appellant.
On the second issue for determination, Counsel stated that it is the prerogative of a claimant to determine the defendant in a suit and that the liability of each of the parties to the suit would be determined on strength of the cases presented by them and the applicable law and that it is the claim of a claimant that determines who the necessary party to a suit is. Counsel stated that in the present case, the pleadings and the claim of the Appellant before the lower Court showed that the Federal Government had passed the ownership of the borrow pit in issue to the Appellant and that the Federal Government had no interest in the land after the grant of the easement to the Appellant and was thus not a necessary party to the suit. Counsel stated that assuming ownership of the land was still in dispute, a staff of the Federal Government of Nigeria, gave evidence that the land was owned by the Federal Government and he tendered documents showing that the Federal Government granted an easement to the Appellant, and that this was sufficient.
Counsel stated that the claim of the Appellant was not over ownership of land and that the Respondent did not raise the issue of non-joinder of the Federal Ministry of Power, Works and Housing and that it was the lower Court that raised the issue suo motu and it proceeded to determine same without giving the parties an opportunity to address on it. Counsel stated that the lower Court could competently adjudicate on the cause of action of the Appellant without the joinder of the Federal Ministry of Power, Works and Housing as a party and this meant that the Federal Ministry of Power, Works and Housing was not a necessary party to the action and he referred to the case of Bello Vs INEC (2010) All FWLR (Pt 526) 397. Counsel stated that assuming that the Federal Ministry of Power, Works and Housing was indeed a necessary party to the action, the failure of the Appellant to join the Ministry was not fatal to the case and did not rob the lower Court of jurisdiction to hear and determine the suit and he referred to the case of Azuh Vs Union Bank of Nigeria Plc (2014) All FWLR (Pt 745) 337. Counsel urged the Court to resolve the second issue for determination in favour of the Appellant.
Counsel concluded his arguments by praying the Court to find merit in the appeal and to allow same and to set aside the judgment of the lower Court and find for the Appellant on his claims before the lower Court.
On his part, Counsel to the Respondent distilled one issue for determination in the appeal and it is:
Having regard to the pleadings and evidence led before the trial Court, whether or not the trial Court was right when it held that the Appellant did not prove his case against the Respondent to be entitled to judgment in his favour.
In arguing the issue for determination, Counsel to the Respondent referred to several case law authorities in asserting the established principles of onus of proof in civil litigation, particularly in land matters, that the burden is on a claimant who claims for ownership of land to lead credible and cogent evidence in support of his claim in order to succeed and that such claimant must identify the parcel of land being claimed with accuracy and precision. Counsel stated that the claim of the Appellant before the lower Court was based on a grant as evidenced by the production of title documents, Exhibits A, B and C tendered at trial, and that the relief sought was for ‘a declaration that he is the grantee of a burrow pit lying and situate near his residence…’ Counsel stated that the documents tendered and relied upon by the Appellant in support of his claim, Exhibits B and C, show that what the Appellant applied for and what was granted to him was a right of easement of a property near Federal Low Cost Housing Estate along Shira Azare Federal Highway and not a grant of a burrow pit and that as such they cannot support the relief he sought from the lower Court.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<> Counsel stated that these facts were affirmed by the second claimant witness in his oral evidence and that the Appellant thus failed to lead evidence to establish the interest or right which formed the foundation of the relief sought and he referred to the case ofIlori Vs Ishola (2018) 10 SCM 170. Counsel stated that there was ample evidence before the lower Court that due to the mediation efforts of the Waziri of Shira, the Appellant had a right of access to his residence without interference from the Respondent and the lower Court so found in the judgment and neither was this piece of evidence denied or challenged by the Appellant nor is the finding of the lower Court being contested in this appeal. Counsel urged the Court to uphold the finding of the lower Court that the Appellant failed to prove his claims against the Respondent and to resolve the issue for determination in favour of the Respondent.
Counsel concluded his arguments by urging the Court to find no merit in the appeal and to dismiss same and affirm the judgment of the lower Court.
In the reply brief of arguments, Counsel to the Appellant contested that the issue for determination formulated by the Counsel to the Respondent and the arguments canvassed there under did not arise from the grounds of appeal of Appellant and were not canvassed before the lower Court and that since the Respondent did not cross appeal, the issue for determination and the arguments were incompetent in this appeal and he referred to several case law authorities in asserting the point.
Now, an issue for determination in an appeal is said to be a combination of facts and circumstances including the law applicable thereto which is so crucial that if it is decided one way or the other will affect the fate of the appeal. It is a point which is so critical that if it is decided in favour of a party, such a party is entitled to win the appeal – Okoye Vs Nigerian Construction and Furniture Co Ltd (1991) 6 NWLR (Pt 199) 501, G. Chitex Industries Ltd Vs Oceanic Bank International (Nig) Ltd (2005) 14 NWLR (Pt 945) 392, Ali Vs Osakwe (2011) 7 NWLR (Pt 1245) 68, Nadabo Vs Dabai (2011) 7 NWLR (Pt 1245) 155. The law is that an issue raised for determination in an appellate Court should be material; it must be such a proposition of law or fact or both so cogent, weighty and compelling that a decision on it in favour of a party to the appeal will entitle him to the judgment of the Court – Ugo Vs Obiekwe (1989) All NLR 566, Kalu Vs Odili (1992) 6 SCNJ 76, Ezekwesili Vs Agbapuonwu (2003) 9 NWLR (Pt 825) 337.
Reading through the excerpt of the deliberations of the lower Court in the judgment appealed against as reproduced in the earlier part of this judgment, it is obvious that the core finding of the lower Court was that:
“… the plaintiff is only a grantee of the right of easement as in Exhibit A and B and therefore cannot maintain an action against the defendant as the issue of ownership is in dispute. More so the Federal Ministry of Power, Works and Housing was never made a party to this suit to establish its ownership of the borrow pits. In other words, the plaintiff cannot maintain an action against the defendant as title to the land is in issue and I so hold.”
The complaint of the Appellants in this appeal is that the decision of the lower Court in the judgment and the findings made therein were wrong. The contention of Counsel to the Appellant that the issue for determination formulated by Counsel to the Respondent and the arguments canvassed thereon did not arise from the judgment appealed against and/or from the complaints of the Appellant in this appeal is thus incorrect. In fact, it is the issue for determination formulated by the Counsel to the Respondent that touched on the ratio decidendi of the decision of the lower Court. The two issues for determination formulated by Counsel to the Appellant were on matters peripheral to the ratio decidendi.
Counsel to the Appellant obviously forgot that it is not every fact in dispute or indeed every ground of appeal that raises an issue for determination. The acid test is whether the legal consequences of that ground or fact as framed, if decided in favour of the appellant, will result in a verdict in his favour – Ibori Vs Agbi (2004) 6 NWLR (Pt 868) 78. An issue that is not necessary for determination, or which even if determined in favour of a party, may not end the controversy ought not to be formulated for determination on appeal for it may serve no purpose even if the complaint is upheld in favour of the appellant –Ehimare Vs Emhonyon (1985) 2 SC 49. When the determination of an issue in favour of the party who raised it will not affect the result of an appeal, the issue is of no value – Okereke Vs Nwankwo (2003) 9 NWLR (Pt 826) 592.
This Court agrees with the Counsel to the Respondent that there is indeed only one issue for determination in this appeal and it is:
Whether, on the strength of the pleadings of the parties and the evidence led by them, the lower Court was correct when it found that the Appellant did not make out a credible case to sustain his claims against the Respondent.
This appeal will be resolved on this issue for determination and the arguments of Counsel to the parties in their respective briefs of arguments will be considered there under.
The Appellant sought for two declaratory orders before the lower Court; a declaration that he is the grantee of the Borrow Pit lying and situate near his residence at No 2 Makara Street, Shira-Azare Road, and a declaration that the action of the Respondent in entering into and/or in erecting any structure within the land of Borrow Pit without his prior consent and authority amounted to trespass. The Appellant predicated his claim as “grantee” on a grant of the Borrow Pit made to him by the Federal Government of Nigeria through the Federal Ministry of Power, Works and Housing.
According to the Black’s Law Dictionary, the word ‘grant’ means to bestow, to confer upon someone other than the person or entity which makes the grant. It means to bestow or confer with or without compensation; a gift or bestowal by one having control or authority over it, as of land or money. A transfer of title by deed or other instrument; transfer of property real or personal by deed in writing; a generic term applicable to all transfers of real property, including transfers by operation of law as well as voluntary transfers; a technical term made use of in deeds of conveyance of land to import a transfer; a deed of an incorporeal interest such as a reversion. A grant is a form of alienation. It moves from the grantor to the grantee – Okoli Vs Ojiakor (1997) 1 NWLR (Pt 479) 48.
The Appellant also claimed for damages for trespass to the Burrow Pit and perpetual injunction to restrain further trespass. It is settled law that where a claimant co-joins a claim for damages for trespass to land with a claim for perpetual injunction to restrain further trespass and he bases the claims of an alleged grant of the land in question, his case is one of ownership of the land in dispute and he thus puts his title in issue and is bound to prove his title to the land in dispute – Nzekwu Vs Nzekwu (1989) 2 NWLR (Pt 104) 373, Ogunleye Vs Oni (1990) 2 NWLR (Pt 135) 745, Registered Trustees of the Apostolic Church Vs Olowoleni (1990) 6 NWLR (Pt 158) 514, Carrena Vs Akinlase (2008) 14 NWLR (Pt 1107) 262, Fayemi Vs Awe (2009) 15 NWLR (Pt 1164) 315, Monkom Vs Odili (2010) 2 NWLR (Pt 1179) 419, Oyeneyin Vs Akinkugbe (2010) 4 NWLR (Pt 1184) 265, Gbadamosi Vs Tolani (2011) 5 NWLR (Pt 1240) 352.
Thus, by his claims before the lower Court, the case of the Appellant was for a declaration of ownership of the Borrow Pit lying and situate near his residence at No 2 Makara Street, Shira-Azare Road by reason of the alleged grant made in his favour by the Federal Government of Nigeria through the Federal Ministry of Power, Works and Housing. It is trite law that a claimant is bound by the reliefs sought on the writ of summons and statement of claim–Kuti Vs Attorney General of the Federation (1985) 2 NWLR (Pt 6) 211, Commissioner of Works, Benue State Vs Devcon Construction Co. Ltd (1988) 3 NWLR (Pt 83) 407, Okoya Vs Santili (1988) 3 SCNJ 83, Osuji Vs Ekeocha (2009) 16 NWLR (Pt 1166) 81. The Court too is bound by the reliefs sought by a party, and cannot go outside them to consider and grant what is not claimed. In Attorney General of the Federation Vs A. I. C. Ltd (2000) 10 NWLR (Pt 675) 293, the Supreme Court, per Mohammed, JSC, made the point thus:
“… I do not have to speak the obvious fact, because our legal system is replete with authorities that a judge has no power to make an order or grant a relief which has not been asked by the plaintiff in his pleadings. This Court once explained fully the absence of jurisdiction to grant such a relief in the case of Etim Ekpenyong & Ors Vs Inyang Effiong Nyong and 6 Ors ( 1975) 2 SC 71 in the following words:
‘…as the reliefs granted by the learned trial judge were not those sought by the applicants, he went beyond his jurisdiction when he purported to grant such reliefs. It is trite law that the Court is without the power to award to a claimant that which he did not claim. This principle of law has, time and again, been stated and re-stated by this Court that it seems to us that there is no longer any need to cite authorities in support of it. We take the view that this proposition of the law is not only good law, but good sense. A Court of law may award less, and not more than what the parties have claimed. A fortiori, the Court should never award that which was never claimed or pleaded by either party. It should always be borne in mind that a Court of law is not a charitable institution; its duty, in civil cases, is to render unto everyone according to his proven claim.’”
The question is – whether the Appellant proved his entitlement to the reliefs as claimed? It is settled law that to succeed in a case for declaration of ownership of land, a party must plead and prove the method by which he acquired the said title; ownership of land cannot be claimed without first establishing that ownership – Fasoro Vs Beyioku (1988) 2 NWLR (Pt 76) 263, Nwofor Vs Nwosu (1992) 9 NWLR (Pt 264) 229, Onwugbufor Vs Okoye (1996) 1 NWLR (Pt 424) 252, United Bank for Africa Plc Vs Ayinke (2000) 7 NWLR (Pt 663) 83, Oyeneyin Vs Akinkugbe (2010) 4 NWLR (Pt 1184) 265. A claimant must satisfy the Court as to (a) the precise nature of the title claimed, that is to say, whether it is title by virtue of original ownership, customary grant, conveyance, sale under customary law, long possession, or otherwise; and (b) evidence establishing the nature of title claimed – Obawole Vs Coker (1994) 5 NWLR (Pt 345) 416, Adesanya Vs Aderonmu (2000) 9 NWLR (Pt 672) 370 at 382, Edohoeket Vs Inyang (2010) 7 NWLR (Pt 1192) 25, Obineche Vs Akusobi (2010) 12 NWLR (Pt 1208) 383.
Where a claimant claims title by grant, as in the instant case, the Court has to be sure of the nature of grant before a declaration is granted. In other words, where a party relies on and pleads a grant as his root of title, he is under a duty to prove such grant to the satisfaction of the Court – Oni Vs Olokun (1995) 1 NWLR (Pt 370) 189, Oko Vs Okenwa (2010) 3 NWLR (Pt 1181) 406. A grant of land is never presumed. It requires the clearest evidence – Obasi Vs Oti (1967) NMLR 74, Adu Vs Mon (1998) 3 NWLR (Pt 541) 281. Where a defendant does not counterclaim in an action for ownership of land, also as in the instant case, the onus is on the claimant to first establish a prima facie case before a consideration of the case of the defendant can arise – Oyedeji Vs Oyeyemi (2008) 6 NWLR (Pt 1084) 484, Dim Vs Enemuo (2009) 10 NWLR (Pt 1149) 353, Luke Vs Rivers State Housing and Property Development Authority (2010) 5 NWLR (Pt 1188) 604. 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 and judgment must be entered for 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.
The Appellant called two witnesses and tendered three documents as Exhibits A, B and C in proof of his case. It is clear from the totality of the evidence led by the Appellant that what he applied for and what was granted to him by the Federal Government of Nigeria through the Federal Ministry of Power, Works and Housing was a right of easement over the Borrow Pit; a right to create an access road to his residence through the Borrow pit, and not a grant of the Borrow pit. The second claimant witness, the Zonal Town Planning Officer with the Federal Ministry of Power, Works and Housing at the Bauchi Field Headquarters, was emphatic in his evidence under cross-examination that the Appellant was only granted a right of easement over, and not ownership of the Borrow Pit and that the right was temporary and not permanent. These facts were confirmed by the contents of Exhibits B and C.
Now, an easement is not in itself an incorporeal hereditament in the sense that it is capable, like other forms of personal property, of being purchased or sold by anybody; it is rather a right appurtenant to a corporeal hereditament, a right which is enjoyed as part of a real property. The term easement has been defined as a right annexed to land to utilize or enjoy another land owned by another person in a particular manner and it confers on its owner no proprietary or possessory right in the land affected, but merely imposes a definite and limited restriction upon the proprietary rights of the owner of the land. It is an interest in land owned by another person, consisting in the right to use or control the land or an area above or below it for a specific limited purpose, such as to cross it for access to a public road.
In other words, an easement is a right attached to land to utilize another land of different ownership in a particular manner not involving the taking of any part of the natural produce of the land or of any part of its soil or to prevent the owner of the other land from using his land in a particular manner. In legal parlance, the land benefiting from an easement is the dominant tenement while the land burdened by an easement is called the servient tenement – De Facto Bakeries and Catering Ltd Vs Ajilore (1974) 1 All NLR (Pt II) 385, Seismograph Service Nig Ltd Vs Eyuafe (1976) 9-10 SC 135 at 160-161, Okunzua Vs Amosu(1992) 6 NWLR (Pt 248) 416,Olusanya Vs Osinleye(2001) 13 NWLR (Pt 730) 298, Muniyas (Nig) Ltd Vs Ashafa (2011) 6 NWLR (Pt 1242) 85, Olusanya Vs Osinleye (2013) 12 NWLR (Pt 1367) 148. Thus, being a right that confers neither a proprietary nor a possessory interest in the dominant tenement over servient tenement or one that gives the owner of the dominant tenement an exclusive or unrestricted use of any part of the servient tenement, a right of easement cannot sustain a claim for ownership of the land of the servient tenement by the owner of the dominant tenement.
Further, a claim in trespass postulates that the claimant is in possession of the land in dispute at the time of the trespass, since the very essence of trespass per se is injury to possession. Thus, in order to maintain an action in trespass, a claimant must have exclusive possession of the land – Imah Vs Okogbe (1993) 9 NWLR (Pt 316) 159, Ogundipe Vs Attorney General, Kwara State (1993) 8 NWLR (Pt 313) 558, Osadim Vs Tawo (2010) 6 NWLR (Pt 1189) 155, Agboola Vs United Bank for Africa Plc (2011) 11 NWLR (Pt 1258) 375. Proof of exclusive possession is a condition precedent, a sine qua non, to success of a claim for trespass – Adeniji Vs Ogunbiyi (1965) NMLR 395, Adelaja Vs Fanoiki (1990) 2 NWLR (Pt 131) 137, Abioye Vs Afolabi (1998) 4 NWLR (Pt 545) 296, Fagunwa Vs Adibi (2004) 17 NWLR (Pt 903) 544, Tukuru Vs Sabi (2005) 3 NWLR (Pt 913) 544. This is because where a person is not in possession there is nothing in law and in fact for the adverse party to disturb by way of trespass –Akibu Vs Azeez (2003) 5 NWLR (Pt 814) 643 at 670, Oluwole Vs Abubakare (2004) 10 NWLR (Pt 882) 549, Echendu Vs Tanko (2005) 11 NWLR (Pt 936) 281, Fatoyinbo Vs Osadeyi (2009) 16 NWLR (Pt 1168) 605, Skye Bank Plc Vs Akinpelu (2010) 9 NWLR (Pt 1198) 179.
It is settled law that the right to an easement is inclusive and not exclusive and, as stated earlier, does not grant the right to an exclusive and unrestrictive use of a piece of land – Okunzua Vs Amosu supra, Olusanya Vs Osinleye supra and Muniyas (Nig) Ltd Vs Ashafa supra. It cannot thus sustain a claim in trespass. This is particularly more so in the present case as the Appellant admitted in his pleadings and in his evidence that the Respondent was, and had been, in possession of portion of the Borrow Pit ever before he was granted the right of easement and that this was to the knowledge of the officers of the Bauchi Field Office of the Federal Ministry of Power, Works and Housing and that apart from warning the Respondent and directing him to vacate the land, the officers of the Federal Ministry of Power, Works and Housing did not eject the Respondent therefrom.
The Respondent also made out an unchallenged case, both on his pleadings and in his evidence, that prior to the grant of the right of easement, the Appellant already had a right of access to his residence through the Borrow Pit and that this was at the instance of the Waziri of Shira and that the right of access was opposite his own structures on a portion of the Borrow Pit. Thus, at no time either prior to the grant of the right of easement or sequel thereto did the Federal Ministry of Power, Works and Housing grant the Appellant exclusive possession of the Borrow Pit and neither is it correct that the Appellant’s right of easement was disturbed or tampered with by the Respondent’s possession of portion of the Borrow Pit.
The finding of the lower Court that, on the pleadings of the parties and the evidence led by them, the Appellant did not make out a credible case to sustain his claims cannot be faulted. The claims were mischievous, frivolous, vexatious and totally misconceived. This appeal is without merit and it is hereby dismissed. The lower Court ought to have dismissed the case of the Appellant outright, instead of making ambivalent final orders. In view of the failure of the Respondent to cross appeal or file a Respondent’s notice against the final orders of the lower Court, the judgment of the High Court of Bauchi State delivered in Suit No BA/109/2016 by Honorable Justice Kunaza Nangoma Hamidu on the 16th of July, 2018 is affirmed as made. The Respondent is awarded the cost of the appeal assessed at N150,000.00. These shall be the orders of the Court.
MUDASHIRU NASIRU ONIYANGI, J.C.A.: I read in draft before now the judgment just delivered by my learned brother, HABEEB ADEWALE OLUMUYIWA ABIRU, JCA in this appeal.
I agree with the reasoning and conclusion reached that the Appellant failed to make a credible case to sustain his claims before the trial Court and hence this appeal is meritless and should be dismissed.
I also dismiss the appeal and abide by the consequential orders therein made in the lead judgment including the order for cost against the Appellant.
BOLOUKUROMO MOSES UGO, J.C.A.: I agree
Appearances:
Gyang Zi with him, R. T, Yilwatdo and S. D. Chuwang For Appellant(s)
K. S. Mahmood For Respondent(s)