ZANNA LAISU KAZALMA & ANOR v. BABA MODU MALA GADDI & ANOR (2013)

ZANNA LAISU KAZALMA & ANOR v. BABA MODU MALA GADDI & ANOR

(2013)LCN/5967(CA)

In The Court of Appeal of Nigeria

On Friday, the 8th day of February, 2019

CA/J/206/2017

RATIO

LAND LAW: DECLARATION OF TITLE TO LAND: ACTS OF LONG POSSESSION: POSITION OF THE LAW ON PROOF OF OWNERSHIP OF LAND BY ACTS OF LONG POSSESSION

“The lower Court fell into grave error when it awarded title to the Respondents on the ground of long possession. This was not the root of title pleaded by the Respondents and it amounted to the lower Court making out a case for the Respondents different from that made by them on the pleadings. The lower Court possessed no right or power to do so -Okafor Vs Abumofuani (2016) 12 NWLR (Pt 1525) 117, Sogunro Vs Yeku (2017) 9 NWLR (Pt 1570) 290. The lower Court obviously allowed itself to be misled by the submission of Counsel to the Respondents that the case of the Respondents was predicated on long possession. The lower Court apparently forgot that the submission of Counsel cannot take the place of pleadings – Agi Vs Peoples Democratic Party (2017) 17 NWLR (Pt 1595) 386. Additionally, the lower Court failed to exercise the required caution in granting declaration of title on the basis of long possession. The Courts have stated over the years that long possession should not be used to ground a claim for a declaration of title and it should only be used as a shield of defence and not as a weapon of attack – Da Costa Vs Ikomi (1968) All NLR 382, Olayioye Vs Oso (1969) All NLR 271, Agboola Vs Abimbola (1969) All NLR 277, Salami Vs Williams (1973) 11 CCHCJ 75, Akibu Vs Opaleye (1974) 11 SC 189, Atanda Vs Ajani (1989) 3 NWLR (Pt 111) 511, The Nigerian Union of Journalists Vs Military Governor, Lagos State (1995) 3 NWLR (Pt 385) 603, Akinkunmi Vs Sadiq (2001) 2 NWLR (Pt 696) 101, Ige Vs Fagbohun (2001) 10 NWLR (Pt 721) 468, Ndukuba Vs Izundu (2007) 1 NWLR (Pt 1016) 432, Ajikanle Vs Yusuf (2008) 2 NWLR (Pt 1071) 301. Thus, a trial Court must be very circumspect in granting ownership of land in favour of party on ground of long possession. Such long possession must be adverse and must be imputable to the knowledge of others – Suleiman Vs Johnson (1951) 13 WACA 213, Ige Vs Fagbohun (2001) 10 NWLR (Pt 721) 468, Eresia-Eke Vs Orikoha (2010) 8 NWLR (Pt 1197) 421. It must be exclusive, it must be visible and it must be continuous – Adejumo Vs Olawaiye (1996) 1 NWLR (Pt 425) 436 and Ogunko Vs Shelle (2004) 6 NWLR (Pt 868) 17.” Per ABIRU, J.C.A.

LAND LAW: DECLARATION OF TITLE TO LAND: A PARTY CLAIMING TITLE TO LAND MUST SUCCEED ON THE STRENGTH OF HIS CASE

“It is trite law that in an action for declaration of title to land, a party claiming title to land must succeed on the strength of his case and not on the weakness of the other party’s case. Where this onus is not discharged, the weakness of the other party’s case will not help him and the proper judgment is for the other party – Ugoji Vs Onukogu (2005) 16 NWLR (Pt 950) 97, Ashiru Vs Olukoya (2006) 11 NWLR (Pt 990) 1, Njoku Vs Registered Trustees of the Congregation of the Holy Ghost Fathers (2006) 18 NWLR (Pt 1011) 239, Usung Vs Nyong (2010) 2 NWLR (Pt 1177) 83, Ogunjemila Vs Ajibade (2010) 11 NWLR (Pt 1206) 559. Where a claimant’s claim to a piece of land in dispute is predicated on ownership, the onus is on him to prove and establish his ownership – Elegushi Vs Oseni (2005) 14 NWLR (Pt 945) 348. The claimant must prove to the satisfaction of the Court that he has a better title than the defendant and the standard of proof is on a balance of probabilities – Abaye Vs Ofili (1986) 1 NWLR (Pt 15) 134, Ugwunze Vs Adeleke (2008) 2 NWLR (Pt 1070) 148, Eyo Vs Onuoha (2011) 11 NWLR (Pt 1257) 1, Momoh Vs Umoru (2011) 15 NWLR (Pt 1270) 217. This onus generally does not shift and must be discharged by clear, emphatic, satisfactory and cogent evidence – Kaiyaoja Vs Egunla (1974) 12 SC 55, NITEL Plc Vs Rockonoh Property Co. Ltd (1995) 2 NWLR (Pt 378) 473, Ezinwa Vs Agu (2004) 3 NWLR (Pt 861) 431, Yusuf Vs Adegoke (2007) 11 NWLR (Pt 1045) 332. Where a defendant does not counterclaim in an action for declaration of title, 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 – 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, 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 – 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, Dike Vs Okolodo (1999) 10 NWLR (Pt 623) 359, Olisa Vs Asojo (2002) 1 NWLR (Pt 747) 13, Sosan Vs HFP Engineering (Nig.) Ltd (2004) 3 NWLR (Pt 861) 546. Now, it is settled law that to succeed in a case for declaration of title, 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. The law is that to succeed in a claim of ownership of land, the Court must be satisfied 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.” Per ABIRU, J.C.A.

PLEADINGS: PARTIES AND COURTS ARE BOUND BY PLEADINGS

“The question for resolution is whether the Respondent pleaded the manner by which they acquired title to the property in dispute and proved same by cogent and credible evidence. And it is commonsensical that the starting point for a consideration of the question is, and must be, the pleadings of the parties before the lower Court. This is because 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 – Aminu Vs Hassan (2014) 5 NWLR (Pt 1400) 287, Mbanefo Vs Molokwu (2014) 6 NWLR (Pt 1403) 377 at 418A-C, Corporate Ideal Insurance Ltd Vs Ajaokuta Steel Co. Ltd (2014) 7 NWLR (Pt 1405) 165 at 188A-B, Anyafulu Vs Meka (2014) 7 NWLR (Pt 1406) 396 at 424G. Dovetailing from the above is the principle that asserts that parties are bound by their pleadings and cannot be allowed to make a case outside that contained in their pleadings – Reptico S. A. Geneva Vs Afribank Nigeria Ltd (2013) 14 NWLR (Pt 1373) 172, Phillips Vs Eba Odan Commercial & Industrial Company Ltd (2013) 1 NWLR (Pt 1336) 618, Osoh Vs Unity Bank Plc (2013) 9 NWLR (Pt 1358) 1. Similarly, the lower Court and the appellate Courts are bound by the pleadings of the parties and neither of them is allowed to make out or consider a case not made out on the pleadings in favour of any of the parties – First Bank of Nigeria Plc Vs Songonuga (2007) 3 NWLR (Pt 1021) 230, Akpan Vs Udoh (2008) 3 NWLR (Pt 1075) 590, Afolabi Vs Western Steel Works Ltd (2012) 17 NWLR (Pt 1329) 286, Julius Berger (Nig) Plc Vs Ogundehin (2014) 2 NWLR (Pt 1391) 388.” Per ABIRU, J.C.A.

JUSTICE

ADZIRA GANA MSHELIA Justice of The Court of Appeal of Nigeria

UCHECHUKWU ONYEMENAM Justice of The Court of Appeal of Nigeria

HABEEB ADEWALE OLUMUYIWA ABIRU Justice of The Court of Appeal of Nigeria

Between

1. ZANNA LAISU KAZALMA
(The Secretary, Borno Emirate Council)
2. BORNO EMIRATE COUNCILAppellant(s)

AND

1. BABA MODU MALA GADDI
2. BABA YARALLA MALA GADDI
(Suing for themselves and on behalf of Mala Gaddi family)Respondent(s)

HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.(Delivering the Leading Judgment): This appeal is against the judgment of the High Court of Borno State delivered by Honorable Justice A. Z. Mussa in Suit No BOHC/MG/CV/36/2016 on the 27th of April, 2017.

The Respondents were the plaintiffs in the lower Court and their claims against the Appellants were for a declaration of ownership of the property lying and being at Limanti Ward, behind Old Prison Yard, measuring approximately 714.55 square meters, damages for trespass and perpetual injunction. The case of the Respondents in the lower Court was that they are the surviving children of late Mala Gaddi and that their father purchased the property in dispute sometime in 1937 from one Alhaji Kyarimi and settled therein with his family and that the property is presently bounded on the western side by a road known as Shehu Sanda Kura Road, on the eastern side by a small access passage, on the southern side by a property belonging to one Ya Aisa and on the northern side by a property belonging to person popularly known as Oga Boda. It was their case that when their father came to Maiduguri together

with Shehu Sanda Shehu Kyarimi in 1937, he was, as the Mala of Borno, offered an official house at Budum area of Maiduguri, but their father rejected the house and purchased the property in dispute and which at the time was an empty plot of land measuring 400 square meters and with a tent on top. It was their case that their late father expanded the property by purchasing the neighbouring properties of Yakindin, Ya Umma and Ya Kaka and that he erected a building thereon and lived therein with his family.

It was the case of the Respondents that on the death of their father in 1940, the property devolved on their mother and the four children and that after the rightful entitlement of their mother amounting to one eighth of the property was given to her, the four sons, including the two of them, occupied the property and that their late father was buried on the property. It was their case that their two brothers are deceased leaving two of them aged seventy nine years and seventy six years respectively and that they were both born in the said property and have lived therein for over seventy years without any hindrance or confrontation from anyone and have

remained in undisturbed possession of same. It was their case that in 2009 they leased a portion of the property to a company called Emerging Markets Telecommunication Services Ltd (Etisalat) for fifteen years and the company erected a telecommunication mast thereon. It was their case that recently, the second Appellant served them with a notice to quit the property through the first Appellant in the mistaken belief that the property belonged to the Emirate Council and that the Appellants had since then mobilized building materials to the land and caused the second Respondent to be arrested by the Police. It was their case that the Appellants did not at anytime own the property and they had no right to the property.

The case of the Appellants in response was that the property in dispute measuring 750 square meters belonged to the second Appellant and that the portion of land was cleared and built by Shehu Abubakar Garba Ibn Ibrahim in 1907 to house his servants as the property of the second Appellant. It was their case that when Shehu Sanda Kura succeeded Shehu Abubakar Garba in 1922, he housed his servant Mala Haruna in the property and that when Shehu

Sanda Kyarimi succeeded Shehu Sanda Kura in 1937, he housed Mala Gaddi, the father of the Respondents, who came with him in the property, knowing it to be the official house of the second Appellant. It was their case that when Mala Gaddi died in 1944, Shehu Sanda Kyarimi housed his servant Mala Haya in the property in dispute and that Mala Haya resided in the property for thirty years until his death. It was their case that upon the death of Mala Haya, the Respondents sought for and were granted permission to occupy the house by late Ya Maira Yakura, the leader of the women of Borno Emirate Council, on a permissive basis and that late Ya Maira Yakura also granted a portion of the land of the property to one Nana Bawa Kura Shehuram who constructed one room thereon and stayed therein until she vacated same in 2009.

It was the case of the Appellants that during the reign of Shehu Mustapha Umar El-Kanemi, the property was renovated by the construction of a fence and the addition of a lobby and that in the reign of Shehu Abubakar Ibn Umar Garba El-Kanemi all the properties of the second Appellant, including the property in dispute, were compiled and

registered and the property in dispute was covered by Maiduguri Metropolitan Council Customary Certificate of Occupancy No BO MMC/Land/12305. It was their case that the father of the Respondents never purchased the property in dispute and the property never devolved on the Respondents as inheritable estate and that the property has always been in the control and possession of the second Appellant. It was their case that it was the late Ya Maira Yakura that granted the lease of portion of the property to Etisalat and she instructed that the name of the senior brother of the Respondents, Baba Kolo Mala, be used to formalize the lease.

It was the case of the Appellants that when Etisalat made the first payment of N2.25 Million as five years rent, it was cashed by Baba Kolo Mala and Alhaji Abba, the District Head of Old Maiduguri and taken to late Ya Maira Yakura who in turn took the money to Alhaji Abubakar Ibn Umar Garba Al-Amin El-Kanemi, the present Shehu of Borno. It was their case that it was refusal of the Respondents to remit the rents for second five years paid by Etisalat to the second Appellant despite repeated demands because Ya

Maira Yakura who put them in possession of the property was dead, that led to the Appellants issuing them the quit notice to vacate the house. It was their case that the action was premature and incompetent as no pre-action notice was issued by the Respondents.

The matter went to trial and the Respondents testified as the two plaintiff witnesses while the Appellants called five witnesses in proof of their defence. At the conclusion of the trial, Counsel to the parties filed and adopted written addresses containing their final arguments and the lower Court entered judgment in favour of the Respondents and granted their claims, save the claim for damages for trespass.

The Appellants were dissatisfied with the judgment and they caused their Counsel to file a notice of appeal dated the 28th of April, 2017 and containing five grounds of appeal against it. In arguing the appeal before this Court, Counsel to the Appellants filed a brief of arguments dated the 20th of June, 2017 on the 21st of June, 2017. The Respondents, on their part, filed a brief of arguments dated the 11th of October,

2018 and the brief of arguments was deemed properly filed and served by the Court on the same 11th of October, 2018. Counsel to the Appellants filed a Reply brief of arguments dated the 19th of October, 2018 on the 25th of October, 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.

Counsel to the Appellants distilled five issues for determination in this appeal and these were:
i. Whether the trial Court was right in declaring title to the house in dispute to the Respondents without the root of title pleaded established.
ii. Whether the trial Court was right in considering acts of possession to declare title to the house in dispute to the Respondents.
iii. Whether the trial Court was right in disregarding the written statement on oath of the first Appellant in its judgment.
iv. Whether the trial Court properly evaluated the evidence of the parties before the Court.
v. Whether the judgment is not against the weight of evidence.

In arguing the first issue for determination, Counsel to the Appellants stated that the root of title

to the property in dispute pleaded by the Respondents on their pleadings was purchase of the property by their father from one Alhaji Kyranmi and the purchases of the neighbouring properties from Yakindin, Ya Umma and Ya Kaka for the purpose of expanding the property. Counsel stated that to succeed on their claim for declaration of ownership of the property in dispute, the Respondents were under obligation to prove their pleaded root of title and he referred to the cases of Orunengimo Vs Egebe (2007) 11 MJSC 138 and Registered Trustees of the Diocese of Aba Vs Nkume (2002) FWLR (Pt 90) 1270. Counsel stated that to establish the sales of the property and of the neighbouring properties to their father, the Respondents had the onus of calling as witnesses the persons who allegedly sold the properties to their father and the persons who witnessed the transactions and he referred to the casesBuba Vs Bukar (2003) FWLR (Pt 183) 38 and Adedeji Vs Oloso (2007) All FWLR (Pt 356) 310.

Counsel stated that the Respondents failed to call any of the persons alleged to have sold the properties to their father as witnesses and neither did they call any person who

witnessed the alleged transactions and as such they failed to prove their root of title and he again referred to the case of Adedeji Vs Oloso supra. Counsel stated that it was wrong of the lower Court in the circumstances to rely on long possession to found title to the land in the Respondents because the law is that where the root of title pleaded by a party is not established, long possession of the property by the person cannot establish title in his favour and he referred to the cases of Registered Trustees of the Diocese of Aba Vs Nkume supra, Dabo Vs Abdullahi (2005) 5 MJSC 57 and Oyadare Vs Keji (2005) 4 MJSC 172. Counsel urged the Court to resolve the first issue for determination in favour of the Appellants.

On the second issue for determination, Counsel reiterated the arguments on the first issue for determination and stated further that there was clear evidence before the lower Court in the testimonies of the first and second defence witnesses that the Appellants were in control and possession of the property and that it was the Appellants that put the father of the Respondents in the property in 1937 and that the house

was superintended by late Ya Maira Yakura (the Woman Leader of the second Appellant) on behalf of the second Appellant and she allowed the Respondents and other persons to reside in the property from time to time and she leased a portion of the property to Etisalat. Counsel stated that the evidence of the witnesses was not challenged and that the lower Court was thus wrong to have relied on the doctrine of long possession to declare the Respondents the owners of the property and he referred to the case of Olusanya Vs Osinleye (2013) All FWLR (Pt 693) 1930. Counsel urged the Court to resolve the second issue for determination in favour of the Appellants.

With regards to the third issue for determination, Counsel stated that the lower Court fell into error in expunging the witness statement of the first Appellant on the ground that it was not sworn before a person duly authorized to take oath and that a look at the witness statement shows that it was sworn before the Commissioner for Oaths on the 30th of June, 2016 and it was duly signed and stamped by the Commissioner for Oaths. Counsel stated that Section 112 of the Evidence Act relied upon by the lower Court in expunging

the witness statement talks about an affidavit sworn to before the person seeking to rely on it, or before his legal practitioner or before a partner or clerk of his legal practitioner and that there was no evidence before the lower Court that the witness statement was sworn before the legal practitioner of the first Appellant or before a partner or clerk of the legal practitioner. Counsel stated that moreover there is a clear distinction between an affidavit and a witness statement and that a witness statement does not mean the same thing as an affidavit within the meaning of the Evidence Act and he referred to the case of Lambert Vs Okujagu (2015) All FWLR (Pt 808) 652. Counsel urged the Court to resolve the third issue for determination in favour of the Appellants.

Counsel argued the fourth and the fifth issues for determination together and stated that the lower Court failed to properly evaluate and appraise the evidence led by the parties and put them on an imaginary scale to determine which evidence to believe or reject and that all the lower Court did was to summarize the evidence of the witnesses and the addresses of Counsel and then make its

findings without considering the evidence. Counsel stated that while it is correct that evaluation of evidence is the function of a trial Court, the law is that an appellate Court will interfere with evaluation of evidence carried out by a trial Court and re-evaluate the evidence where the findings made by the trial Court are not supported by the evidence led and are thus perverse and he referred to the cases of Oha Vs Uzoma (2015) All FWLR (Pt 790) 1232 and Abah Vs Owei (2015) All FWLR (Pt 780) 1346.

Counsel stated that had the lower Court properly evaluated the evidence led by the parties and put them on an imaginary scale, it would not have declared title in the property in dispute in the Respondents in view of the abundant evidence in the testimonies of both the Respondents and the witnesses of the Appellants that it was the Appellants that put the father of the Respondents into possession of the property in 1937 and who had maintained the property and exercised control over who stayed in or used portion of the property from time to time. Counsel stated that the lower Court would also not have placed any reliance on the witness statement of the second

Respondent who admitted in open Court that he was not the one who signed the witness statement and would have seen that there were material contradictions in the evidence led by the Respondents in chief and under cross examination and the law is that a witness who gives materially inconsistent evidence on oath is not entitled to honour of credibility and should not be believed and he referred to the case of Fubara Vs INEC (2010) All FWLR (Pt 544) 176. Counsel urged that the fourth and fifth issues for determination should be resolved in favour of the Appellants.

Counsel concluded his arguments by praying the Court to find merit in the appeal and to allow same and set aside the judgment of the lower Court.

In his response, Counsel to the Respondents formulated two issues for determination in the appeal and these were:
i. Whether or not from the totality of evidence adduced by the Respondents they were able to prove valid titles that can warrant them the grant of the reliefs sought before the trial Court.
ii. Whether or not the trial Court properly evaluated the evidence adduced before it by both parties to arrive at a just decision.<br< p=””>

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Counsel to the Respondents argued both issues together and he referred to the cases of Nkado Vs Obiano (1997) 5 NWLR (Pt 503) 3, Ajiboye Vs Ishola (2008) 2 MJSC 208 and Oni Vs Johnson (2015) 4 CAR 273 in reiterating the five recognized ways of establishing title to land and stated that proof of one of the five ways suffices to prove title to land. Counsel stated that the Respondents pleaded and led un-contradicted evidence to prove long possession and enjoyment of the property in dispute and possession of connected or adjacent house in circumstances that rendered it probable that he owned the property in dispute. Counsel stated that documentary evidence is the best form of evidence to prove a piece of fact and that the deed of lease executed in favour of Etisalat and which was admitted in evidence without challenge strengthened the case of the Respondents on possession. Counsel stated that the Appellants failed to lead any cogent or credible evidence of their ownership of the land and did not thus give the lower Court any reasonable or convincing reason to warrant the lower Court dismissing the claims of the Respondents.

Counsel stated that the Respondents proved the three essential elements for success in the claims; namely (i) the nature of the title in respect of which the declaration is sought; (ii) the extent and boundaries of the land with definitive certainty; and (iii) establishing the title to the satisfaction of the trial Court and he referred to the case of Onisese Vs Oyeleye (2008) All FWLR (Pt 446) 1826. Counsel stated that the Respondents placed before the lower Court the nature of the title upon which they sought for a declaration and it is in evidence that father of the Respondents is the owner of the house having purchased the property and the adjoining properties from their owners and that the evidence led by the Respondents were convincing and reliable and it preponderated over the evidence of the Appellants and warranted the grant of their reliefs by the lower Court. Counsel urged the Court to resolve the two issues for determination in favour of the Respondents.

Counsel concluded his arguments by praying the lower Court not to find any merit in the appeal and to dismiss same and uphold the judgment of the lower Court.

Reading through the records of appeal, particularly

the pleadings of the parties, the evidence led at trial, the judgment of the lower Court and the notice and grounds of appeal, as well as the arguments of Counsel in their respective briefs of arguments, it is the view of this Court that there is only one issue for determination in this appeal. It is:
Whether, on the pleadings and the evidence led by the parties, the lower Court was correct in finding that the Respondents made out a credible case to sustain their claims for declaration of ownership of the property in dispute and for perpetual injunction to restrain trespass.

This appeal will be resolved on this sole issue for determination and the entire arguments of Counsel to the parties will be considered and resolve under the issue for determination.

In deliberating on the claims of the Respondents, the lower Court stated in the judgment thus:
On the issue whether having regard to the pleadings the claimants have proved their title to the house in dispute, the claimants learned counsel contended that the claimants have proved their title by long possession and by act of subleasing part of the

property in dispute. While the defendants learned counsel argued that the claimants have not established their title by traditional history.
On this note I hold the view that the claimants have established their title by long possession. The claimants father was in occupation of the said house since 1937-1940. It is also in evidence before this Court that the claimants were born in the house in dispute and up to date they are still in occupation of same. Even though the defendants witnesses stated that there was a time the claimants were ejected out of the house by the defendants but it was not stated when and why they were ejected out.
If the contention of the defendants is true, why did the defendants allow the claimants to stay up to the decades? Certainly the house does not belong to the defendants and this is why they were not removed from the house. If it is true that the house is the official residence of the servants of Shehus, i.e. Mala, why allowing the claimants to be there
I therefore hold the view that the house does not belong to the Emirate Council. Therefore, I hereby enter judgment in favour of the claimants.

This appeal arose out of a land dispute and the claim of the Respondents before the lower Court was for declaration of title to the property in dispute. It is trite law that in an action for declaration of title to land, a party claiming title to land must succeed on the strength of his case and not on the weakness of the other partys case. Where this onus is not discharged, the weakness of the other partys case will not help him and the proper judgment is for the other party Ugoji Vs Onukogu (2005) 16 NWLR (Pt 950) 97, Ashiru Vs Olukoya (2006) 11 NWLR (Pt 990) 1, Njoku Vs Registered Trustees of the Congregation of the Holy Ghost Fathers (2006) 18 NWLR (Pt 1011) 239, Usung Vs Nyong (2010) 2 NWLR (Pt 1177) 83, Ogunjemila Vs Ajibade (2010) 11 NWLR (Pt 1206) 559. Where a claimants claim to a piece of land in dispute is predicated on ownership, the onus is on him to prove and establish his ownership Elegushi Vs Oseni (2005) 14 NWLR (Pt 945) 348. The claimant must prove to the satisfaction of the Court that he has a better title than the defendant and the standard of proof is on a balance of probabilities Abaye Vs Ofili (1986)

1 NWLR (Pt 15) 134, Ugwunze Vs Adeleke (2008) 2 NWLR (Pt 1070) 148, Eyo Vs Onuoha (2011) 11 NWLR (Pt 1257) 1, Momoh Vs Umoru (2011) 15 NWLR (Pt 1270) 217. This onus generally does not shift and must be discharged by clear, emphatic, satisfactory and cogent evidence Kaiyaoja Vs Egunla (1974) 12 SC 55, NITEL Plc Vs Rockonoh Property Co. Ltd (1995) 2 NWLR (Pt 378) 473, Ezinwa Vs Agu (2004) 3 NWLR (Pt 861) 431, Yusuf Vs Adegoke (2007) 11 NWLR (Pt 1045) 332. Where a defendant does not counterclaim in an action for declaration of title, 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 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, 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

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, Dike Vs Okoloedo (1999) 10 NWLR (Pt 623) 359, Olisa Vs Asojo (2002) 1 NWLR (Pt 747) 13, Sosan Vs HFP Engineering (Nig.) Ltd (2004) 3 NWLR (Pt 861) 546.
Now, it is settled law that to succeed in a case for declaration of title, 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. The law is that to succeed in a claim of ownership of land, the Court must be satisfied 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.

The question for resolution is whether the Respondent pleaded the manner by which they acquired title to the property in dispute and proved same by cogent and credible evidence. And it is commonsensical that the starting point for a consideration of the question is, and must be, the pleadings of the parties before the lower Court. This is because 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 Aminu Vs Hassan (2014) 5 NWLR (Pt 1400) 287, Mbanefo Vs Molokwu (2014) 6

NWLR (Pt 1403) 377 at 418A-C, Corporate Ideal Insurance Ltd Vs Ajaokuta Steel Co. Ltd (2014) 7 NWLR (Pt 1405) 165 at 188A-B, Anyafulu Vs Meka (2014) 7 NWLR (Pt 1406) 396 at 424G.
Dovetailing from the above is the principle that asserts that parties are bound by their pleadings and cannot be allowed to make a case outside that contained in their pleadings Reptico S. A. Geneva Vs Afribank Nigeria Ltd (2013) 14 NWLR (Pt 1373) 172, Phillips Vs Eba Odan Commercial & Industrial Company Ltd (2013) 1 NWLR (Pt 1336) 618, Osoh Vs Unity Bank Plc (2013) 9 NWLR (Pt 1358) 1. Similarly, the lower Court and the appellate Courts are bound by the pleadings of the parties and neither of them is allowed to make out or consider a case not made out on the pleadings in favour of any of the parties First Bank of Nigeria Plc Vs Songonuga (2007) 3 NWLR (Pt 1021) 230, Akpan Vs Udoh (2008) 3 NWLR (Pt 1075) 590, Afolabi Vs Western Steel Works Ltd (2012) 17 NWLR (Pt 1329) 286, Julius Berger (Nig) Plc Vs Ogundehin (2014) 2 NWLR (Pt 1391) 388.
The case of the Respondents on their pleadings was that their father purchased the property in dispute in 1937 from

one Alhaji Kyarimi and that at the time of purchase the property was an empty land with a single tent and with an area of not more than 400 square meters and that their father subsequently expanded the property gradually by purchasing the neighbouring houses from their respective owners, Yakindin, Ya Umma and Ya Kaka. It was their case that their father remained in possession of the property until his death in 1940 and that the property thereafter devolved on them and that they have retained possession of the property since then.
It is obvious from the pleadings of the Respondents that the mode of acquisition of title to the property in dispute pleaded by them was purchase of the property, and of adjoining properties, by their late father. The possession of the property by their father and their subsequent possession thereof were pleaded as derivatives of their ownership of the property by purchase. The law is settled that where a claimant pleads a primary method of acquiring title, such as, traditional history or purchase, and he also pleads acts of ownership and possession which are dependent on that main method of acquiring title, he cannot succeed if he fails

to prove that main method of acquiring title to land. In such a case, the acts of possession and ownership are done because, and in pursuance, of the ownership. Such alleged acts of possession, dominion and the like are merely derivative from the title or ownership of the land in dispute Odofin Vs Ayoola (1984) 11 SC 72, Ogungbemi Vs Asamu (1986) 3 NWLR (Pt 27) 161, Fasoro Vs Beyioku (1988) 2 NWLR (Pt 76) 263, Irolo Vs Uka (2002) 14 NWLR (Pt 786) 195, Ezinwa Vs Agu (2004) 3 NWLR (Pt 861) 431, Ezukwu Vs Ukachukwu (2004) 17 NWLR (Pt 902) 227, Dabo Vs Abdullahi (2005) 7 NWLR (Pt 923) 181, Elegushi Vs Oseni (2005) 14 NWLR (Pt 945) 348, Adedeji Vs Oloso (2007) 5 NWLR (Pt 1026) 133, Yusuf Vs Adegoke (2007) 11 NWLR (Pt 1045) 332, Nwokidu Vs Okanu (2010) 3 NWLR (Pt 1181) 362, Oko Vs Okenwa (2010) 3 NWLR (Pt 1181) 406. In Lawal Vs Olufowobi (1996) 10 NWLR (Pt 477) 177, Belgore, JSC put the point thus at page 188 A-B:
The root of title, in cases like the one now on appeal, once pleaded as raison detre for the presence of the person pleading must be proved to the satisfaction of the Court. Because if the root of title depended upon is

defective or remains unproved, the possession claimed is illusory and it may in the end be an act of trespass. The appellants failed to prove their root of title, their traditional history on the land having failed to hold any water. Thus if the pleaded root of title is not established by evidence as is the case here it is a futile exercise to go into the issue of possession or acts of ownership.
No amount of use or the length of period of usage could confer ownership of land on such a user and it behoves such a party to prove his title in the first place in order to justify the use to which the land in dispute had been put to. Enjoyment of a land in dispute cannot precede title nor can it indicate same Registered Trustees of the Apostolic Faith Mission Vs James (1987) 3 NWLR (Pt 61) 556, Nwaeseh Vs Nwaeseh (2000) 3 NWLR (Pt 649) 391, Yusuf Vs Adegoke (2007) 11 NWLR (Pt 1045) 332, Olubodun Vs Lawal (2008) 17 NWLR (Pt 1115) 1. Thus, acts of ownership and possession can only properly be considered where the root of title is pleaded and established by cogent and convincing evidence Orlu Vs Gogo-Abite (2010) 8 NWLR

(Pt 1196) 307, Odunukwe Vs Ofomata (2010) 18 NWLR (Pt 1225) 404, Gbadamosi Vs Okege (2011) 3 NWLR (Pt 1233) 175, Ogunleye Vs Jaiyeoba (2011) 9 NWLR (Pt 1525) 339.
This principle was reiterated by the Supreme Court in Oyadare Vs Keji (2005) 7 NWLR (Pt 925) 571 when the Court held that where a claimant for title to land who pleads traditional history fails to prove his root of title by that means, he cannot turn round to rely on acts of ownership and possession to prove his title to the land because once the foundation of his title, the traditional history, has failed, there would be nothing on which to found acts of ownership. Similarly, the Court Of Appeal in Irawo Vs Adedokun (2005) 1 NWLR (Pt 906) 199 said that if a pleaded root of title is not established by evidence, to examine evidence of possession or acts of ownership that ought to have been exercised by the party laying claim to that root of title, as the Court was being urged, would be an exercise in futility and that since the traditional history which was the foundation had failed any consequential acts or claims would have no leg to stand on. In other words, it is only after a

partys root of title as pleaded has first been established to the satisfaction of the Court that any consequential acts following there from can be looked at with a view to seeing whether they will avail the party claiming.

Thus, the fundamental question in this appeal is whether the Respondents led cogent and credible evidence to prove the method of acquisition of title to the property in dispute pleaded by them, i.e. purchase of the property. There are two clear and distinct ways in which land can be properly and rightly sold, validly acquired and legally transferred in Nigeria. These are either (i) under customary law; or (ii) under the received English law. Each method of sale has its peculiar incidents and formal requirements and failure to observe these incidents of sale may invalidate the purported sale Folarin Vs Durojaiye (1988) 1 NWLR (Pt 70) 351, Iragunima Vs Uchendu (1996) 2 NWLR (Pt 428) 30, Ezeogu Vs Onwuchekwa (1997) 4 NWLR (Pt 502) 689, Njoku Vs Dikibo (1998) 1 NWLR (Pt 534) 498, Ojelade Vs Soroye (1998) 5 NWLR (Pt 549) 284, Buraimoh Vs Karimu (1999) 9 NWLR (Pt 618) 310, Commissioner for Lands & Housing Kwara State Vs Atanda (2007) 2 NWLR (Pt 1018) 360.<br< p=””>

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In order to transfer an absolute title under native law and custom, there must be payment of money and delivery of the land which must be done in the presence of witnesses. In other words, before there can be a valid sale under native law and custom, the three elements or requirements are: (i) payment of purchase price; (ii) the purchaser is put in possession by the vendor; (iii) in the presence of witnesses Cole Vs Folami (1956) SCNLR 180, Egonu Vs Egonu (1978) 11-12 SC 111, Folarin Vs Durojaiye (1988) 1 NWLR (Pt 70) 351, Okonkwo Vs Okolo (1988) 2 NWLR (Pt 79) 632, Nzekwu Vs Nzekwu (1989) 2 NWLR (Pt 104) 373 at 409, Ngene Vs Igbo (1991) 7 NWLR (Pt 203) 358, Ibemere Vs Unaegbu (1992) 4 NWLR (Pt 235) 390, Anaeze Vs Anyaso (1993) 5 NWLR (Pt 291) 1, Omidiran Vs Owolabi (1994) 6 NWLR (Pt 350) 361, Iragunima Vs Uchendu (1996) 2 NWLR (Pt 428) 30. The presence of witnesses is not only or merely of evidential value and this is because since writing is foreign to customary law and transactions, the presence of witnesses gives the transaction not only solemnity, but also validity Odibendi Vs Okolie (2010) 13 NWLR (Pt 1210) 45. Where there is sufficient

evidence of payment of purchase price coupled with the delivery of possession of the land to the purchaser in the presence of witnesses, a solid and valid sale under customary law is established Ogunyanwo Vs Oluwole (2009) 16 NWLR (Pt 1167) 391.
The party must plead and prove that the sale was concluded in the presence of witnesses and the names of these witnesses should also be pleaded as well as the fact that they witnessed the actual delivery or handing over of the land to the purchaser – Lawson Vs Afani Continental Co. Ltd (2002) 2 NWLR (Pt 752) 585, Orunengimo Vs Egebe (2007) 15 NWLR (Pt 1058) 630, Nwofor Vs Obiefuna (2011) 1 NWLR (Pt 1227) 205, Obi Vs Onyemelukwe (2011) 1 NWLR (Pt 1228) 400. Failure to plead and prove any of the ingredients is fatal to the case of the party Yashe Vs Umar (2003) 13 NWLR (Pt 838) 465, Adedeji Vs Oloso (2007) 5 NWLR (Pt 1026) 133.
With respect to sale under the received English Law, the law is that in order to constitute a transfer of title by purchase, there must be a valid sale, payment of money accompanied by acknowledgement of receipt and there must be either a

conveyance executed in favour of the purchaser to invest him with legal title or entry into possession by the purchaser to give him equitable title to the land – Folarin Vs Durojaiye (1988) 1 NWLR (Pt 70) 351, Ejiniyi Vs Adio (1993) 7 NWLR (Pt 305) 320, Iragunima Vs Uchendu (1996) 2 NWLR (Pt 428) 30, Buraimoh Vs Karimu (1999) 9 NWLR (Pt 618) 310, Olowoake Vs Salawu (2000) 11 NWLR (Pt 677) 127, Eya Vs Qudus (2001) 15 NWLR (Pt 737) 587, West African Cotton Ltd Vs Yankara (2008) 4 NWLR (Pt 1077) 323. It is a well settled principle that the payment of purchase price coupled with being in possession thereof in a sale of land under English law confers an equitable title upon a purchaser which enables him to call for a document of title and the title so acquired is capable of defeating subsequent purchasers Yaro Vs Arewa Construction Ltd (2007) 17 NWLR (Pt 1063) 333, Ugwunze Vs Adeleke (2008) 2 NWLR (Pt 1070) 148, Ezenwa Vs Oko (2008) 3 NWLR (Pt 1075) 610, West African Cotton Ltd Vs Yankara (2008) 4 NWLR (Pt 1077) 323, Eleran Vs Aderonpe (2008) 11 NWLR (Pt 1097) 50, Agboola Vs United Bank for Africa Plc (2011) 11 NWLR (Pt 1258) 375.
Reading through the length and breadth of the

pleadings of the Respondents and the evidence led by both of them at the trial, they neither pleaded nor led evidence to prove the essentials ingredients of a sale under either customary sale or the received English law. They did not plead or prove payment of purchase price for the property in dispute by their father and the persons who witnessed the purchase transactions alleged by them. They thus failed to prove the primary mode of acquisition of the property in dispute pleaded by them and their claim for declaration of title must fail.

The lower Court fell into grave error when it awarded title to the Respondents on the ground of long possession. This was not the root of title pleaded by the Respondents and it amounted to the lower Court making out a case for the Respondents different from that made by them on the pleadings. The lower Court possessed no right or power to do so Okafor Vs Abumofuani (2016) 12 NWLR (Pt 1525) 117, Sogunro Vs Yeku (2017) 9 NWLR (Pt 1570) 290. The lower Court obviously allowed itself to be misled by the submission of Counsel to the Respondents that the case of the Respondents was predicated on long possession. The

lower Court apparently forgot that the submission of Counsel cannot take the place of pleadings Agi Vs Peoples Democratic Party (2017) 17 NWLR (Pt 1595) 386.
Additionally, the lower Court failed to exercise the required caution in granting declaration of title on the basis of long possession. The Courts have stated over the years that long possession should not be used to ground a claim for a declaration of title and it should only be used as a shield of defence and not as a weapon of attack Da Costa Vs Ikomi (1968) All NLR 382, Olayioye Vs Oso (1969) All NLR 271, Agboola Vs Abimbola (1969) All NLR 277, Salami Vs Williams (1973) 11 CCHCJ 75, Akibu Vs Opaleye (1974) 11 SC 189, Atanda Vs Ajani (1989) 3 NWLR (Pt 111) 511, The Nigerian Union of Journalists Vs Military Governor, Lagos State (1995) 3 NWLR (Pt 385) 603, Akinkunmi Vs Sadiq (2001) 2 NWLR (Pt 696) 101, Ige Vs Fagbohun(2001) 10 NWLR (Pt 721) 468, Ndukuba Vs Izundu (2007) 1 NWLR (Pt 1016) 432, Ajikanle Vs Yusuf(2008) 2 NWLR (Pt 1071) 301. Thus, a trial Court must be very circumspect in granting ownership of land in favour of party on ground of long possession. Such long

possession must be adverse and must be imputable to the knowledge of others Suleiman Vs Johnson (1951) 13 WACA 213, Ige Vs Fagbohun (2001) 10 NWLR (Pt 721) 468, Eresia-Eke Vs Orikoha (2010) 8 NWLR (Pt 1197) 421. It must be exclusive, it must be visible and it must be continuous Adejumo Vs Olawaiye (1996) 1 NWLR (Pt 425) 436 and Ogunko Vs Shelle (2004) 6 NWLR (Pt 868) 17.
In the instant case the Appellants pleaded and led unchallenged evidence in the testimonies of the third and fourth defence witnesses that the Respondents vacated the property in dispute upon the demise of their father and that the house was given by Shehu Sanda Kyarimi to one Mala Haya to reside in and that it was on the death of the said Mala Haya that the Respondents were permitted to return to the property by one late Ya Maira Yakura, the Woman Leader of the Borno Emirate Council. The Appellants also pleaded and led unchallenged evidence in the testimony of the third defence witness that, whilst the Respondents were in possession of the property, late Ya Maira Yakura granted a portion of the land of the property to one Nana Bawa Kura Shehuram who constructed one room thereon and

stayed therein for twenty years until she vacated same in 2010. The first Respondent admitted under cross-examination that late Ya Maira Yakura was like a mother to them in respect of the property and that she superintended over the property and was a member of the Borno Emirate Council. These show that the Respondents possession of the property was not exclusive and continuous. It cannot thus support a case of title by long possession.

The finding of the lower Court that the Respondents established title to the property in dispute by long possession is perverse and unsustainable. This Court finds merit in the appeal and it is hereby allowed. The judgment of the High Court of Borno State delivered by Honorable Justice A. Z. Mussa in Suit No BOHC/MG/CV/36/2016 on the 27th of April, 2017 is hereby set aside. The claims of the Respondents in the lower Court are dismissed. The Appellants are awarded the costs of this appeal assessed at N30,000.00. These shall be the orders of the Court.

ADZIRA GANA MSHELIA, J.C.A.: I have read in advance, the lead Judgment just delivered by my learned brother

Abiru, J.C.A. All the issues raised in this appeal have been fully discussed. I entirely agree with his reasoning and conclusion that this appeal has merit and is allowed. I endorse all the consequential orders made in the Lead Judgment including that on costs.

UCHECHUKWU ONYEMENAM, J.C.A.: I have had the advantage of reading in advance the leading judgment delivered by my learned brother HABEEB ADEWALE OLUMUYIWA ABIRU, JCA. I agree with the conclusion reached thereat in allowing the appeal. I also set aside the judgment of the High Court of Borno State delivered on 27th April, 2017 by A.Z. Mussa, J. in Suit No. BOHC/MG/CV/36/2016.
I abide by the order as to costs.

Appearances:

S.M. GimbaFor Appellant(s)

T.A. Lenkat holding the brief of H. M. HussainiFor Respondent(s)

Appearances

S.M. GimbaFor Appellant

AND

T.A. Lenkat holding the brief of H. M. HussainiFor Respondent