Legalpedia Citation: (2024-02) Legalpedia 39007 (CA)

In the Court of Appeal

Holden At Makurdi

Fri Feb 16, 2024

Suit Number: CA/MK/148/2015

CORAM

Cordelia Ifeoma Jombo-Ofo Justice, Court of Appeal

Biobele Abraham Georgewill Justice, Court of Appeal

Ibrahim Wakili Jauro Justice, Court of Appeal

PARTIES

YUSUF ABDULKARIM SULEIMAN

APPELLANTS

1. MALLAM ALALAKPE BAHAGO
2. BARR. MUSA BABA PANYA
3. MR. ALID KADIRI

RESPONDENTS

AREA(S) OF LAW

APPEAL, CONSTITUTIONAL LAW, EVIDENCE, LAND, PRACTICE AND PROCEDURE

SUMMARY OF FACTS

The Appellant, as Claimant, commenced this action before the lower Court, claiming a declaration that his late father, Abdulkarim Suleiman, had legally and lawfully purchased the land in dispute from the 1st Respondent at the rate of N700,000.00 in the year 2000 (and left it to him as an inheritance) and was therefore entitled to exclusive, quiet, and peaceful enjoyment and occupation of the same against all the Respondents, their privies, agents, and assigns. He claimed the father was in possession between 2000 and 2005.

The 2nd Respondent also Counter-Claimed for title to the land in dispute, while the case of the 3rd Respondent was that he purchased the land in dispute from one Shekpelo Autain in 1978, and which transaction was reduced into writing. The 3rd Respondent later in the year 2002 applied and obtained from the Government of Nasarawa State the Statutory Right of Occupancy No. NS 8210 over the land in dispute, which was tendered in evidence as Exhibit D3. He was therefore entitled to the declaration of title to the land in dispute as Counter-Claimed by him. He claimed to have carried out several acts of physical possession on the land in dispute, including planting several economic trees, as well as conveying parts of the land to several people who had already developed, built, and are occupying their land without any disturbance.

The lower Court delivered its judgment, in which it dismissed the claims of the Appellant as Claimant against the Respondents as Defendants and granted the Counter-Claim of the 2nd and 3rd Respondents against the Appellant, hence the appeal.

HELD

Appeal dismissed

ISSUES

1. Whether the holding of the lower Court categorizing the land in dispute into three compartments was not contrary to the pleadings of parties, observations during visit to locus in quo and thereby occasioned a miscarriage of justice?
2. Whether the lower Court act, to wit: amending the pleadings of the 2nd & 3rd Respondents suo motu, without affording the parties the opportunity to address it on same does not amount to denial of fair hearing/miscarriage of justice?
3. Whether the lower Court act, to wit: expunging Exhibit 3, a sale agreement pleaded to evidence transaction of purchase of the land in dispute by the Appellant’s father was justifiable in law?
4. Whether the lower Court properly evaluated the respective cases of the parties as per their pleadings and evidence before it in reaching its conclusions and decisions?
5. Whether the failure of the lower Court to consider the 2nd and 3rd Respondents’ Counter – Claim separately after dismissing the Appellant's claim did not occasion a miscarriage of justice?
6. Whether the lower Court’s failure to resolve all the issues raised by the parties did not occasion a miscarriage of justice?

RATIONES DECIDENDI

SUBMISSIONS – WHERE THERE ARE NO SUBMISSIONS IN SUPPORT OF ISSUES FORMULATED FOR DETERMINATION

My lords, even a cursory look at the submissions in the Appellant’s brief would reveal that there are no submissions therein in support of issues seven and eight as distilled in the Appellant’s brief from Grounds 1 and 18. In law, such issues on which no submissions were made in the Appellant’s brief are deemed as abandoned, and therefore, liable to be struck out without any much ado as going to no issues in the consideration and resolution of the live issues in the appeal. – Per B. A. Georgewill, JSC

COURTS – CONDUCT OF COURTS IN PROCEEDINGS – THE NEED FOR THE OBSERVANCE OF THE PRINCIPLES OF FAIR HEARING

…the fundamental question of observance of the principles of fair hearing by every Court established by law due to the devastating consequences on the proceedings and decisions of a Court afflicted by the virus of breach of the right to fair hearing. See Ade v. Action Aid International Foundation (Nig.) Ltd/GTE (2023) LPELR – 59609 (CA). See also Lead Securities & Investment v. Elizabeth & Anor. (2022) LPELR – 58280 (CA).

Secondly, the need for a Court of law to refrain from descending into the arena of conflicts between the parties by raising and deciding issues suo motu without affording the parties the opportunity to address the Court on such issues raised suo motu. See Sterling Bank Plc. v. Aminu (2022) LPELR – 58174 (CA); APC v. Maggaji & Ors (2022) LPELR – 59247 (CA). – Per B. A. Georgewill, JSC

PLEADINGS – DUTY OF THE COURT AND PARTIES ONCE PLEADINGS ARE ORDERED, FILED, AND EXCHANGED

Now, it is true, and as aptly submitted by learned counsel for the Appellant, that in law, once pleadings are ordered, filed, and exchanged, the parties and the Courts are bound by the pleadings so filed. Thus, evidence must be led in accordance with the pleadings, and therefore, any evidence led not in conformity with the pleadings, and/or on facts not pleaded would go to no issue, and any decision based on facts not pleaded would amount to the Court setting up a different case for the parties. See Anyanwu v. Iwuchukwu (2000) LPELR – 514 (SC). See also Igbinokpogie v. Ogedegbe (2001) LPELR – 1445 (SC); Kano v. Oyelakin (1993) LPELR – 1662 (SC); Adeosun v. The Governor of Ekiti State & Ors (2012) LPELR – 7843(SC); Akinterinwa v. Oladunjoye(2000) 6 NWLR (Pt. 659) 92; Oniah v. Onyiah (1959) 1 NWLR (Pt. 99) 514; Ojo-Osagie v. Adonri (1994) 6 NWLR (Pt. 349) 131; Ugo v. Obiekwe (1989) 1 NWLR (Pt. 99) 566.

Thus, a trial Court would have no business substituting its perception on a visit to locus in quo in place of the evidence led by the parties, and treating it as a finding of fact where no such evidence was led before it. In law, a visit to locus in quo does not empower a trial Court to substitute pleaded facts and evidence with its own perception at the visit to locus except evidence of same is given either in Court or at the locus by a witness. See Shekse v. Plankshak (2008) LPELR – 3042 (SC). – Per B. A. Georgewill, JSC

AMENDMENT – MEANING OF AMENDMENT

In law, the word ‘amendment’ means a formal revision or addition proposed or made to a statute, constitution, pleadings, order, or other instrument; specifically, a change by addition, deletion, or correction; especially, an alteration in wording or the process of making such a revision. I find no such action or decision, as would have amounted to an amendment, in the judgment of the lower Court merely by reason of the categorization of the vast area of land claimed and counter-claimed for the ease of identification of the portions covered by each of the claim and counterclaims. See Uchiv & Anor v. Sabo & Anor (2016) 16 NWLR (Pt. 1538) 264 @ p. 330. – Per B. A. Georgewill, JSC

TITLE TO LAND – WAYS OF PROVING TITLE TO LAND

In law, a Claimant, as well as a Counter-Claimant, who seeks a declaration of title to land must, if he must succeed, prove that his title to the land in dispute in one or more of the five ways of proof of title to land, namely:

1. By Traditional evidence;

1. By Production of document of title;

1. By Proving acts of ownership, such as selling, leasing, renting out or farming on all or part of the land, extending over a sufficient length of time, or which are numerous and positive enough as to warrant the inference that the person is the true owner;

1. By proving acts of long possession and enjoyment of the land, and

1. By proof of possession of connected or adjacent land in circumstances rendering it probable that claimant is also owner of such adjacent land.

See Idundun v. Okumagba (1976) 1 NMLR 200. See also Aremu v. Chukwu (2012) 3 NWLR (Pt. 1288) 587 @ pp. 621 – 622. – Per B. A. Georgewill, JSC

ADMISSION – WHETHER FACTS ADMITTED NEED FURTHER PROOF

It is the law that facts admitted need no further proof. See pp. 84 – 87, 103, 110 and 399 of the Record of Appeal. See also Popoola V. Owena Press Ltd (2011) 52 WRN 85; Ameh V. Ameh (2011) 8 WRN 85; Ogboriefon v. Ogboriefon (2011) 23 WRN 159. – Per B. A. Georgewill, JSC

DOCUMENT – WHERE A PURCHASER OF LAND RELIES ON A DOCUMENT OF PURCHASE OF LAND AS PROOF OF TITLE TO LAND

Thus, In law, where a purchaser of land relies on a document or transaction of purchase of land as proof of title to land, then if such a document, being a registrable instrument, is not duly registered as required by law, it would not be admissible in evidence as document of title, though it can still be admitted in evidence as evidence of payment of purchase price.

But, where a purchaser of land relies on a transaction document, not in proof of title but, as evidence of payment of purchase price for land to the vendor, then such a document need not be registered to be admissible in evidence in proof of equitable interest in land.

In the latter case, the purchaser has acquired an equitable interest in the land, which depending on the circumstances is as good as a legal estate.

See Tijani v. Akinwunmi (1990) 1 NWLR (Pt.125) 237; Chief Joseph Adidapo Alibaloye v. Mr Abavohi Akogun & Ors (2015) LPELR – 25267 (CA); Okoye v. Dumez Nigeria Ltd. (1985) 1 NWLR (Pt. 4) 783; Registered Trustees of Apostolic Faith Mission v. James (1987) 3 NWLR (Pt. 61) 556; Hamidu v. Saha Ventures (2004) 7 NWLR (PT.873) 618; Agboola v. UBA Plc(2011) NWLR (Pt.1258) 376; Ambassador Vahava Kwande & Anor v. Vice Marshal Mouhtar Mohammed (Rtd.) & Ors (2014) LPELR – 2257S (CA); Ogunbambi v. Abowab (1951) 13 WACA 22; Emavworhe Etajata & Ors v. Peter Igbini Ologbo & Anor (2007) LPELR – 1171(SC). – Per B. A. Georgewill, JSC

SUBMISSION – WHETHER SUBMISSION OF COUNSEL CAN TAKE THE PLACE OF PLEADINGS

My lords, in law, submission of counsel, no matter how brilliant, cannot take the place of pleading nor supply facts neither pleaded nor led in evidence by the parties.

I find all the copious and brilliant submissions of learned counsel for the Appellant on the position of the law that a land sales agreement, depending on the pleadings, can be admissible in evidence as evidence of receipt of purchase price and/or to support equitable title where backed with possession, and which is as good a legal title as trite but do not avail the Appellant on his pleadings and evidence led thereon before the lower Court as in the Record of Appeal.

See Tijani v. Akinwunmi (1990) 1 NWLR (Pt.125) 237. See also Chief Joseph Adidapo Alibaloye v. Mr Abavohi Akogun & Ors(2015) LPELR – 25267 (CA); Okoye v. Dumez Nigeria Ltd. (1985) 1 NWLR (Pt. 4) 783; Registered Trustees of Apostolic Faith Mission v. James (1987) 3 NWLR (Pt. 61) 556.

– Per B. A. Georgewill, JSC

RECEIPT – MEANING OF RECEIPT

Now, what is a receipt in law? In the very old English case of Bowes v. Foster (1858) 27 LJ. Ex. 262 @ p. 266, it was stated inter alia thus:

“To constitute a receipt of anything there must be a person to receive and a person from whom he receives, and something received by the former from the latter and that something must be a sum of money.”

See also General Council of the Bar (England) v. Inland Revenue Commissioners (1907) 1 KB 462 @ pp. 471 – 472 and 476 – 478; Mr. Frank Anyi & Ors v. Chief Henry Ayaode Akande (2017) LPELR – 41973 (CA).

– Per B. A. Georgewill, JSC

UNREGISTERED RECEIPT – WHETHER AN UNREGISTERED RECEIPT IS AN ADMISSIBLE EVIDENCE TO PROVE OR ESTABLISH TITLE

In Tewogbade v. Obadina (1994) 4 NWLR (Pt 338) 326 @ p. 356, the Supreme Court had stated inter alia thus:

“An unregistered receipt evidencing payment of the purchase price in respect of land, even though it may ex-facie qualify an instrument within the context of the provision of the Land Instrument Registration Law is not admissible evidence to prove or establish title”.

See also Seidu v. AG. Lagos State (1987) 2 NWLR (Pt. 21)165; Nwaogu v. Atuma, (2013) 11 NWLR (Pt. 1364), 117 @ pp. at 136 – 137; Alelu v. Eze (2015) 13 NWLR (Pt. 1475) 74 @ pp. 94 – 95; Gbinijie v. Odji (2011) 14 NWLR (Pt.1236) 103 @ p. 129; WAC Ltd v. Yankara (2008) 4 NWLR (Pt. 1077) 323 @ p. 339.

– Per B. A. Georgewill, JSC

EVIDENCE – DUTY OF A CLAIMANT SEEKING DECLARATION OF TITLE TO LEAD CREDIBLE EVIDENCE TO ESTABLISH THE ROOT OF TITLE

In law, it is not just enough for a Claimant seeking a declaration of title to land to merely lead evidence to trace his title to a particular person, and leave it there. He must go beyond that to lead credible evidence to establish the root of title of that person, otherwise, his claim to title must fail.

See Kareem v. Ogunde (1972) 1 SC 182; Grace Madu v. Dr. Bertram Madu (2008) SC 267; Emy J. Bila Auta v. Chief Milly Ibe (2003) 7 SC 129; Dike v. Okoloedo (1999) 10 NWLR (Pt. 623) 359; Otanma v. Youdubagha (2006) 2 NWLR (Pt. 964) 33; Fajimi v. Suberu (2012) LPELR – 8005 (CA); Ifayinminu v. Fadayomi (2014) LPELR – 22717 (CA).

– Per B. A. Georgewill, JSC

NON-EST FACTUM – WHERE A PLEA OF NON-EST FACTUM IS RAISED BY A PARTY

In law, whenever the plea of non est factum, not my act, is raised by a party, the law is that in order to succeed on such a defense, the person making the plea must establish that the document signed is of a different character, class or nature from the one he intended to sign.

Where however, the basis for this plea is founded on an allegation bordering on crime, then, in addition to the character of the document and notwithstanding whether the proceedings in which it was raised was civil, it must be proved beyond reasonable doubt as required by law before it could avail such a party.

See Section 135(1) of the Evidence Act 2011. See also Foster v. Makinnon (1869) LR. 4 CP 704, cited in Nigerian Law of Contract by I. E. Sagay @ pp. 277 – 280; Oluwa v. Adewale (1964) NMLR 17; Awosile v. Sotunbo (1992) 5 NWLR (Pt. 243) 314; Adedipe v. Frameinendur (2012) 24 WRN 120 @ p. 130; Otukpo v. John (2012) 38 WRN 1 @ p. 8.

– Per B. A. Georgewill, JSC

APPEAL – MEANING OF AN APPEAL – CONDUCT OF PARTIES IN AN APPEAL

In law, an appeal is simply a continuation of the case as fought before the trial Court, and no party would be allowed to plead and prove one case at the trial and attempt to prove another case on appeal. – Per B. A. Georgewill, JSC

POSSESSION – CONDUCT OF COURT IN ASCRIBING DE JURE POSESSION WHERE TWO PARTIES CLAIM POSSESSION OF LAND

It is settled law that where two parties claim possession of land, such as the Appellant and the 3rd Respondent, the law ascribes de jure possession to the one that has a better title, and so it is as between the Appellant, who is not in possession of the land in dispute and who had at the commencement of the suit before the lower Court sought an order of interlocutory injunction against the 1st, 2nd and 3rd Respondents, alleging that they were in possession of the land in dispute, which he termed wrongful possession.

– Per B. A. Georgewill, JSC

POSSESSION – WHERE A PARTY ESTABLISHES POSSESSION BY CREDIBLE EVIDENCE

The lower Court was therefore, right when it found for the 2nd and 3rd Respondents, who clearly established by credible evidence that they were in possession of the respective areas of the land in dispute as counter-claimed by them. This finding is in accord with the trite position of the law that possession, which is ninth-tenth of the law, where proved, is good title against the whole world safe the one with the better title to the land, of which the Appellant is not, having failed to prove the better title he claimed.

– Per B. A. Georgewill, JSC

TITLE TO LAND – WHERE A CLAIMANT WHO FAILS TO ESTABLISH TITLE TO LAND BY DOCUMENT OF TITLE CAN LATER RELY ON ACTS OF OWNERSHIP AS A WAY OF PROVING TITLE TO LAND

Now, in law where a Claimant for title to land, such as the Appellant, fails to prove his root of title to the land in dispute as pleaded and relied upon by him, as in the instant case, vide document of title as in Exhibit 3, he cannot turn around to rely on acts of ownership and possession to prove his title to the land claimed because in law such acts are no longer acts of ownership but are termed as acts of trespass. Thus, a claim to possession of land will fail where the possession sought to be protected arises from a radical title, as claimed by the Appellant, that cannot withstand the acid test of title.

– Per B. A. Georgewill, JSC

STATUTORY RIGHT OF OCCUPANCY – THE EFFECT OF THE GRANT OF STATUTORY RIGHT OF OCCUPANCY

However, it is now settled law that once a person is granted a Statutory Right of Occupancy in and over a parcel of land, he is entitled to hold same to the exclusion of any other person unless and until the Right of Occupancy is set aside by a Court of law, since in law, so long as it remains valid and subsisting, it extinguishes all prior existing rights in respect of land over which it is granted.

– Per B. A. Georgewill, JSC

COURTS – CONDUCT OF APPELLATE COURTS TO THE CORRECT FINDINGS OF THE TRIAL COURT

In law, an appellate Court should not interfere, and must be wary of interfering, with the correct findings of the trial Court. I make bold to state that it is not really the business of an appellate Court to embark on a fresh appraisal of the evidence where the trial Court has unquestionably evaluated and appraised same.

– Per B. A. Georgewill, JSC

CASES CITED

STATUTES REFERRED TO

1. Constitution of the Federal Republic of Nigeria 1999 (as amended)

 

2. Evidence Act 2011
3. Land Use Act 1978
4. Land Instrument Registration Law of Northern Nigeria 1963
   

   CLICK HERE TO READ FULL JUDGEMENT