Alh. Ali Na Baba-iya V. Mustapha Mai Sikeli & Ors (2005)

LawGlobal-Hub Lead Judgment Report

KEKERE-EKUN, J.C.A.

This is an appeal against the judgment of the High Court of Kano State, delivered on 21st June, 2004, in Suit No. K/660/99.

The facts that gave rise to this appeal as can be determined from the record of the trial court and the briefs of the parties are as follows:-

Sometime in 1977, the appellant purchased a piece of land from one Alhaji Mustapha Abubakar otherwise known as Mustapha Soron Dinki. The said property was covered by certificate of occupancy No. KN2053. In 1981, as a result of political riots in Kano, the ministry of land and survey was burnt down resulting in the loss of all documents of title filed therein including the appellant’s certificate of occupancy No. KN2053. Subsequently, the appellant was issued with a new certificate of occupancy No. LKN/CON/AG/RC/85/6 to replace the destroyed one. The appellant testified that he remained in peaceful possession of the land in dispute until 1997, when the respondents trespassed thereon destroying his crops and removing the property beacons. It was the appellant’s case that in spite of various warnings by the village and district heads of the area and a letter from the ministry of land and survey Kano State confirming his title to the property, the respondents persisted in their acts of trespass. The respondents in their defence contended that the property in dispute had been acquired along with others in the area by the Kano State Government in 1987 for overriding public interest and that it had been granted to the Dawaki-Dakata community (to which they belong) for the construction of a school, a Friday mosque and a market. They also contended that the appellant had received and signed for compensation in respect of his acquired land.

By paragraph 26 of his statement of claim dated 2019199 (page 22 of the printed record) the appellant sought the following reliefs:-

(a) A declaration that the plaintiff is entitled to all that piece or parcel of land situate at Dakata in the former Waje district now Nassarawa Local Government Area of Kano administrative area consisting of 0.6109 hectares covered by statutory certificate of occupancy No. LKN/CON/AG/RC/85/6.

(b) The sum of N200,000.00 being special and general damages for trespass committed by the defendants on (sic) various times and dates between 1997 and 1999, when the defendants wrongfully and unlawfully entered the plaintiff’s land at Dakata and destroyed the crops planted on the said farm land and removed all the boundary pillars executed by the Plaintiff on the said land together with all the property beacons.

(c) A perpetual injunction restraining the defendants, their agents, servants and or any other person or persons claiming through them or any of them from continuing with the aforementioned acts of destruction of the plaintiff’s crops and use of the said land.

At the conclusion of the trial during which both parties called witnesses and tendered documents in support of their respective cases the learned trial Judge dismissed the appellant’s claims and entered judgment for the respondents at page 74 of the printed record as follows:-

“Consequently, I hereby order that having been satisfied with the evidence before this court that the plaintiff’s land has been compulsorily acquired by the government and as being part of the land allocated for building of a Mosque at D/Dakata, the community can proceed to build its mosque on the acquired land, including that of the plaintiff. Nevertheless, I also order that the plaintiff should be paid his compensation adequately as was done to the others whose lands were acquired together with his own.

Judgment for the defendants.”

The appellant being dissatisfied with this judgment has appealed to this court by his notice of appeal dated 29th June, 2004, consisting of six grounds of appeal. In his brief of argument, the appellant formulated 5 issues for determination as follows:-

1. Whether on the basis of the pleadings filed and evidence adduced by the parties the trial court was right to declare that the title of the appellant over the property in dispute had been revoked by the Kano State government and proceed to allocate the said land to the Dawakin Dakata community, who were not a party to the action.(Ground One).
2. Whether a mere reference to “sit file” by DW4 in his evidence was enough for the trial Judge to conclude that the title of the appellant has been revoked for public purpose and compensation paid to him by the government.

(Grounds two and three).

3. In view of the evidence before the trial Judge whether it was correct for the trial Judge to declare that exhibits 6A and 6B conferred title to the respondents. (Ground four).
4. Whether in the absence of any note in the record of proceedings as to what happened when the visit was made to the locus in quo the trial Judge could still proceed and make some crucial observations of fact not supported by evidence. (Ground Five).
5. Whether the failure of the trial Judge to even make a glance to an elaborate written address submitted on behalf of the appellant amounted to a denial of fair hearing. (Ground Six).

The respondents in their brief of argument formulated four issues for determination as follows:-

1. Whether based on the pleaded facts and the evidence at the lower court there was justification in the judgment and order of the lower court to wit that plaintiffs farm land having been acquired for community development at Dawaki Dakata i.e. building of a central mosque, the plaintiff is entitled to be compensated just like other farm owners whose farms were equally acquired in the same area.
2. What are the legal implications of exhibits 6A and 6B vis-a-vis the certificate of occupancy earlier on issued to the plaintiff or the interest flowing from the said certificate of occupancy.
3. Whether the trial Judge introduced his observation during his visit to the land in dispute, while delivering judgment.
4. Whether failure of the trial court to refer to the addresses of the counsel renders the judgment of the trial court null and void.

When this appeal was heard on 3rd May, 2005, learned Counsel for the appellant, Mr. Mustapha Bulama, adopted the appellant’s brief dated 6th September, 2004, and filed the same day and urged us to allow the appeal. Mr. Murtala Musa, learned Counsel for the respondents adopted the respondents’ brief dated 8th February, 2005, and deemed filed on 24th February, 2005, by order of this court and urged us to dismiss the appeal.

I have examined the issues formulated by both the appellant and the respondent. I observe that the appellant’s issue number three is distilled from ground four of the notice of appeal. The appellant’s complaint is that the learned trial Judge was in error to have declared that exhibits 6A and 6B conferred title on the respondents. A ground of appeal must be derived from the decision appealed against. See: Obatoyinbo v. Oshatoba (1996) 5 NWLR (Pt. 450) 531 at 549; I.C.B Nig. Ltd. v. Ademuwagun (2005) 7 NWLR (Pt. 924) 275 at 288. There is nowhere in the entire judgment that the learned trial Judge declared that exhibits 6A and 6B conferred title on the respondents. I therefore hold that the appellant’s ground four and issue three formulated thereon are incompetent and are accordingly struck out. The respondent’s issue number three, which is also formulated from ground four of the notice of appeal is equally incompetent and hereby struck out.

The remaining issues formulated by the appellant shall be adopted for the determination of this appeal. Issues one and two shall be taken together followed by issues four and five (re-numbered three and four respectively).

In support of the first issue, learned Counsel for the appellant submitted that parties are bound by their pleadings and are not entitled to go outside their pleadings and the issues joined therein to set up a different case. He relied on: Olohunde v. Adeyoju (2000) 6 SCNJ 470 at 490; (2000) 10 NWLR (Pt.676) 562 African Continental Seaways Ltd. v. Nigerian Dredging Road and General Works Ltd. (1977) 5 SC. 235 at 250. He submitted that from the evidence adduced through his witnesses and the exhibits tendered at the trial the appellant had discharged the burden placed on him pursuant to section 137 of the Evidence Act Cap. 112 laws of the federation of Nigeria, 1990, by proving his title to the property in dispute. He submitted that the findings of the learned trial Judge at page 72 lines 13-20 of the printed record confirm that the appellant had proved his title. The portion of the judgment reads thus:-

“It is not in dispute that the witnesses of the plaintiff and the plaintiff himself have testified that the plaintiff bought the plot in dispute from one Alhaji Mustapha Soron Dinki, and obtained a Certificate of Occupancy on it. The plot is situate at Dawakin Dakata. It is also noted that as the plaintiff owns the said plot in the said area so are also hundreds of other owned lands in the same area. Plaintiff by this action is alleging that the defendants are therefore trespassers in his land …”

Learned Counsel submitted that the burden of proving the issues raised by the defendants in paragraphs 5, 8, 9, 13, 14 and 18 of their joint statement of defence (pages 95-99 of the printed record) lies on them by virtue of section 137(2) of the Evidence Act. He cited the following cases:- Motanya v. Elinwa (1994) 7 SCNJ 615 at 621; (1994)7 NWLR (Pt.356)252 at 259 Songhai Ltd. v. U.B.A. (2004) F.W.L.R. (Pt.189) 1244 at 1259-60 H-A. He submitted further that the evidence of two of the defence witnesses, DW3 and DW4 support the appellant’s case.

Learned Counsel for the appellant referred to the Land use Act 1978 Cap. 202 laws of the federation of Nigeria, 1990, particularly sections 2 and 28 (6) thereof and submitted that the power of revocation of title under the Act is vested in the governor of the State. He referred to several cases in which the provisions of section 28 (6) of the Act have been interpreted: Obikoya & Sons Ltd. v. Governor of Lagos State & Anor. (1987) 1 NWLR (Pt.50) 385; L.S.D.P.C.; Ors. v. Foreign Finance Corporation (1987) 1 NWLR (Pt.50) 413, A.G. Bendel State v. Aideyan (1989) 4 NWLR (Pt.ll8) 646; Provost B LACOED v. Edun (2004) All FWLR (Pt.201) 1628; (2004) 6 NWLR (Pt.870) 476. Relying on these authorities, he submitted that where there is an acquisition of property by the government such acquisition must be clearly and specifically stated and communicated to the holder of the title to afford him an opportunity to challenge it if necessary. He submitted that the procedure is mandatory and must be strictly complied with. He relied on:- Provost LACOED v. Edun (supra) at 1649 F-G and 1650-1651 F-A.

He noted that there is nowhere in the evidence of the respondents that the Kano State government testified that the appellant’s title had been revoked for overriding public interest. He referred to the evidence of PW4, who also testified as DW4 to the effect that the appellant’s title as contained in the certificate of occupancy no. LKN/CON/AG/RC/85/6 (exhibit 2) is valid and subsisting. He noted that the respondents did not tender any instrument of revocation at the trial. It was argued on behalf of the appellant that the learned trial Judge considered matters extraneous to the pleadings and evidence before him in arriving at his decision. He referred to page 73 line 24 of the printed record in this regard.

Learned Counsel also contended that the trial Judge had no power to make an order in respect of the Dakata community, which was not a party to the proceedings. He relied on: Awoniyi v. AMORC (2000) 6 SCNJ 141 at 149; (2000) 10 NWLR (Pt.676) 522. He noted that there was no statutory certificate of occupancy tendered in respect of the title of the respondents or the Dakata community to the land in dispute.

With regard to the second issue learned Counsel for the appellant referred to the evidence of DW4 at page 56 of the record wherein he referred to a document called a “suit file” that is opened at the Ministry of works and physical Planning, Kano State, when land is given to a community for public purpose. He noted that the respondents did not plead any facts relating to a suit file in their joint statement of defence and that the witness did not state whether such a file had been opened in respect of the Dakata community. He submitted that being a public document the suit file ought to have been produced for examination by the court. Furthermore, he submitted that a suit file cannot be a substitute for a notice of revocation under the land use Act nor could it replace a right of occupancy under the Act. He referred to sections 9, 46(2)(a) and 51 of the Land use Act and submitted that there is no provision in those sections for a suit file as an instrument of title. He submitted that the failure of the respondents to plead or produce the suit file robbed the learned trial Judge of the jurisdiction to pronounce on it and to hold that it is a document of title and on that basis to order that compensation be paid to the appellant. He argued that the order for the payment of compensation to the appellant by the trial Judge amounts to an admission of his title.

He urged the court to resolve issues one and two in the appellant’s favour.

On the first issue for determination, learned Counsel for the respondents submitted that, while it is not in dispute that the appellant used to have a farm on the land, which he stated is now referred to as Dawaki Dakata Friday mosque land, it is contended by the respondents that upon the creation of layouts for both residential and commercial purposes at Dawaki Dakata there is no room for farmland at Dawaki Dakata any longer. He referred to exhibits 6A and 6B and exhibit 4 (the land file tendered by the appellant) and submitted that at page 17 of exhibit 4 (page 155-156 of the printed record) the details of the appellant’s certificate of occupancy appear as item 20 on the list of persons whose land was acquired and that item 31 of the same list contains the appellant’s name as one of those who had received compensation. He submitted that this shows that the appellant was aware of the acquisition of his land and that he received compensation for it. He submitted that during cross-examination the appellant admitted receiving compensation for one farmland only.

Learned Counsel submitted that the appellant failed to prove that his certificate of occupancy was subsisting at the time his land was acquired or at the time of this action.

He also submitted that the argument that parties are bound by their pleadings is irrelevant in this appeal as there is no appeal against the use of facts that were not pleaded.

He submitted that the onus is on the appellant to prove his case and not to rely on the weakness of the defence. He relied on: Akanbi Agbeje & 2 Ors. v. Chief Agba Akin Ajibola & 2 Ors. (2002) 9 NSCQR 1; (2002) 2 NWLR (Pt.750) 127. He submitted that the appellant could not deny communication of the revocation of his title to him having regard to the presence of his name on the list of persons paid compensation in exhibit 4. He submitted that all the authorities cited by the appellant’s counsel on revocation of a certificate of occupancy are distinguishable from the specific facts of this case.

At page 7 of the respondents’ brief, learned Counsel argued that the appellant’s original certificate of occupancy had been cancelled as shown at page 167 of the printed record and that there was no proof of reallocation. This issue does not arise from the judgment appealed against having regard to the finding of the learned trial Judge at page 72 lines 13- 18 reproduced earlier in this judgment. The submissions of learned Counsel in this regard shall be disregarded.

In response to the appellant’s contention that the learned trial Judge had no jurisdiction to make any orders in favour of the Dawaki Oakata community, who were not parties to the suit, learned Counsel for the respondents submitted that the respondents had clearly pleaded in their joint statement of defence that they were acting in the interest of their community and that the land being claimed by the appellant was part of land meant for the construction of a central Mosque for Dawaki Dakata community. He noted that the appellant did not file a reply to the statement of defence.

No arguments were offered on behalf of the respondents in response to the appellant’s issue number two. He urged the court to resolve the first issue against the appellant.

The Supreme Court in Idundun v. Okumagba (1976) 9-10 SC.227, laid down five methods by which ownership of land may be established, namely:-

1. By traditional evidence.
2. By production of documents of title which are duly authenticated.
3. By acts of selling, leasing, renting out all or part of the land, or farming on it or on a portion of it.
4. By acts of long possession and enjoyment of the land.
5. By proof of possession of connected or adjacent land in circumstances rendering it probable that the owner of such connected or adjacent land would, in addition, be the owner of the land in dispute.

It was held in: Abel Nkado & Ors. v. Ozulike Obiano & Anor. (1997) 5 SCNJ 33; (1997) 5 NWLR (Pt.503 ) 31 that, the onus on the plaintiff is discharged, if he establishes anyone of the five methods. It is also settled that in an action for declaration of title the plaintiff must succeed on the strength of his own case and not on the weakness of the defence, although he may take advantage of the defendant’s evidence where it supports his case. See: Onwugbufor & Ors. v. Okoye & Ors. (1996) 1 SCNJ 1; (1996) 1 NWLR (Pt.424) 252. Thus, the general onus of proof is on the party who asserts his right. However, by section 137 (2) of the Evidence Act the Onus shifts to the adverse party once the party asserting his right has adduced sufficient evidence that ought reasonably to satisfy a jury that the fact sought to be proved has been established. See: Motanya v. Elinwa (1994) 7 NWLR (Pt.356) 252 at 259 E-F.

The relevant paragraphs of the appellant’s pleading in respect of which evidence was led at the trial to establish his title to the land in dispute are paragraphs 1-15 of the statement of claim (pages 1920 of the printed record). For ease of reference the said paragraphs are reproduced hereunder:-

1. “The plaintiff is a business man and resides at no. 265 Koki quarters within the jurisdiction of this honourable court.
2. The defendants are all resident in Dakata area of Nassarawa Local Government Area of Kano State, and are equally resident within the jurisdiction of this Honourable Court.
3. That sometime in 1977, the plaintiff negotiated with one Alhaji Mustapha Abubakar otherwise, known as Mustapha Soron Dinki for the purchase of a piece of land belonging to the said Alh. Mustapha Soron Kinki at Dakata covered by the certificate of occupancy no. KN2053.
4. That at the end of negotiation the plaintiff agreed to purchase the land for the consideration of N10,000.00 (Ten Thousand Naira) only.
5. That consequent to the said agreement the said Mustapha Abubakar applied to the Ministry of land and survey for consent to assign the said property to the plaintiff and consent for the same was conveyed through a letter dated 13th July, 1997.
6. That the deed of assignment between the plaintiff and the said Mustapha Abubakar was finally registered as no. 296 at page 296 in volume 11 (miscellaneous) of the land registry in the office at Kano.
7. That since the assignment of the said land to the plaintiff, the plaintiff took immediate possession of the said land and started to exercise effective control over the said area.
8. That the area covered by the said piece of land is 0.6109 hectares and marked on the ground by property beacons nos. KB1600, KB599, KB598 and KA8247.
9. That the plaintiff on taking possession of the land erected an identification mark on all the four corners of the said land. The plaintiff used blocks and cement to erect the said land identification marks and the breakdown of the expenses incurred for the said exercise is as follows:-

(1) Sand, four trips at the rate of N 1,200 per tipper full of sand – N5,200.00

(2) 50 blocks of 9″ at N40 each – N2,000.00

(3) Gravel 1/2 tipper load – N 1,200.00

(4) Cement 2 bags – N 600.00

(5) Labour – N3.900.00

N12.900.00.

10. That the plaintiff after acquisition of the said land, gave it out to one Muhammad Sanusi Rangaza to use the place for farming of Millet and Beans each farming year.
11. That the said certificate of occupancy no.2053 remained as the title document over the said property till 1981, when there was a political riot in Kano, during which period political thugs went on rampage and destroyed many government buildings and property and also set ablaze the ministry of land and survey where all documents pertaining to the land transaction in Kano including that of the plaintiff were all burnt down.
12. That as a result of the said rampage the Kano State Government issued directive to all land owners to rectify their certificate of occupancy by means of filing all the documents in their possession at the ministry of land and survey with a view to opening a fresh file and issuance of a new certificate of occupancy.
13. That as a result of this development the plaintiff filed all his title document in his possession in respect of certificate of occupancy No. KN 2053 at the Ministry of Land and Survey and as a result of which a new file was open (sic) for him in respect of the area covered by certificate of occupancy no. KN 2053.
14. That after complying with all the request (sic) of the government and making a clear verification, a new certificate of occupancy no. LKN/CON/AG/RC/85/6 was issued to him in place of certificate of occupancy No. KN 2053. The said new certificate also contains the same sketch of the area of land covered by the old certificate of occupancy No. KN 2053 and all the property beacons mentioned in paragraph 8 above.
15. That the peaceful possession of the plaintiff (sic) tenancy as granted under the said certificate was not disturbed, until in 1997, when the defendants encroached and trespassed into the said land and drove away the plaintiff representatives, and destroyed all the crops planted for that season and removed all the property beacons and the comer signs erected by the plaintiff on the said land. The plaintiff claims the expenses of development as narrated in paragraph 9 above as special damages”.

The relevant paragraphs of the respondents’ joint statement of defence in reply to the pleading above can be found at pages 95-98 of the printed record in paragraphs 5, 8, 9, 13, 14 and 18 as follows:-

(5) “In further answer to paragraphs 3 – 10 of the statement of claim, the defendants aver that the entire area in dispute was acquired by the Kano State Government in 1987, and compensation were paid to those who had farms on the land in dispute among other lands in the entire Dawakin Dakata, Waje District, Kano. That the portion where the Mosque now resides belongs largely to one Idrisa Tafida and others, including the plaintiff, but that they were all paid compensation and that they signed for same and collected their compensation. A document evidencing payment of compensation by the Kano State, dated 12th November, 1987, is pleaded and will be relied upon by the defendants.

(8) Paragraph 15 is equally denied and the plaintiff is put to the strictest proof of the averments contained in the paragraph. Defendants will however, contend at the hearing that the entire community of Dawakin Dakata applied in 1986 for plots of land to erect a school, a Friday Mosque, and a market, and same was granted and this led to the revocation of some titles over agricultural farm lands/commercial and a layout TP/UDB/175 and TP/UDB/162 were made out and their previous owners were paid compensation vide LPKN/265CO/20/87 on voucher number SUR/J/11/30/78 dated 11th December, 1987. All the documents herein referred to are pleaded.

(9) Further to the above paragraph the defendants aver that the representatives of Directorate of Land and Regional Planning sent for Mallam Abdul-Rauf and Shehu to show the lands for the Mosque, market and primary school to the representatives of the Dawakin Dakata community in accordance with the numbers of plots. The said primary school has since been in use, since 1997. That the school was meant to occupy plots 83, 84, 85 and 86. The market to occupy plot 75, 76, 77, 78 and 79 whereas the Friday Mosque is to occupy plot 80.

(13) Paragraph 20 is denied and the plaintiff is put to the strictest proof of the fact that the letter of 22nd April, 1998, was actually delivered to the appropriate authority of Directorate of Land and Regional Planning. And further in denying paragraph 21, the defendants aver that the letter, dated 11th August, 1998, was fabricated by the plaintiff with the assistance of his friends at the Directorate of Land and Regional Planning and that 1st defendant was never warned not to encroach on any land or the land in dispute.

(14) That defendants deny paragraph 22 and aver, that there was no confirmation that the land in dispute or any land belonged to the plaintiff, and there was no warning issued to any of the defendants in respect of the land in dispute or any land at all.

(18) That the disputed land was allotted for community development by the government of Kano State to the knowledge of the plaintiff and all other person who were interested in any land in the area, but only the plaintiff has so far taken the community leaders to court even though Alh. Kalama Ali had taken some of the defendants to the police, over a similar dispute”.

At the trial, the appellant testified in support of his case and called three other witnesses. He also tendered exhibits marked 1-4 respectively. The first and second defendant testified in their defence and called two other witnesses. They tendered exhibits marked 5, 6A and 6B respectively.

From the pleadings above and the evidence led at the trial by the appellant and his witnesses and from the exhibits 1-4 tendered, the appellant relied on his certificate of occupancy no. LKN/CON/AG/RC/85/6 and other documents to establish his title. The deed of assignment pleaded in paragraph 6 of the statement of claim was tendered as exhibit 1 (page 27 of the record); the appellant’s new certificate of occupancy no. LKN/CON/AG/RC/85/6 pleaded in paragraph 14 of the statement of claim was tendered as exhibit 2 (page 28 of the record); a letter dated 11th August, 1998, pleaded in paragraphs 20 and 21 of the statement of claim, from the ministry of land and survey Kano addressed to the secretary, Dawakin Dakata community Kana, confirming the appellant’s title was tendered as exhibit 3 (page 29 of the record); the land file in respect of exhibit 2, pleaded in paragraph 13 of the statement of claim, was tendered by PW4, Assistant Chief Land Officer with the Ministry of Land and Physical Planning, Kano as exhibit 4 (page 42 of the record). PW3, Yakubu Gwaram testified as to alleged acts of trespass on the land by the defendants.

At this stage it is pertinent to consider the provisions of Section 137(1) and (2) of the Evidence Act relating to the burden of proof.

Section 137 provides:-

(1) “In civil cases, the burden of first proving the existence or non-existence of a fact lies on the party against whom the judgment of the court would be given if no evidence were produced on either side, regard being had to any presumption that may arise on the pleadings.

(2) If such party adduces evidence which ought reasonably to satisfy a jury that the fact sought to be proved is established, the burden lies on the party against whom judgment would be given if no more evidence were adduced; and so on successively, until all the issues in the pleadings have been dealt with.

Applying these provisions to the case before the trial court, at the conclusion of the appellant’s case he had discharged the onus of first proving the facts necessary to establish his title to the land in dispute. This is borne out by the finding of the learned trial Judge at page 72 lines 13-20 of the printed record reproduced earlier in this judgment where he stated inter alia:-

“It is also noted that as the plaintiff owns the said plot in the said area so are also hundreds of others owned (sic) lands in the same area”.

The appellant had also led evidence to show that the respondents had trespassed on his land.

By virtue of section 137(2) of the evidence Act the onus then shifted to the respondents to establish the facts pleaded in paragraphs 5, 8, 9, 13, 14 and 18 of their joint statement of defence.

From the pleading in these paragraphs the onus was on the respondents to prove:-

(a) That the Kano State Government acquired the entire area in dispute in 1987 for overriding public interest.

(b) That the appellant was paid compensation for the acquisition of his land and that he signed for and collected it.

(c) That pursuant to the said acquisition, layouts of the land were made out vide plan nos. TP/UDB/175 and TP/UDB/162

(d) That the letter dated 11th August, 1998, pleaded by the appellant as confirming his title was fabricated.

It was argued on behalf of the appellant that the respondents failed to adduce any evidence to support their assertion that the Kano State Government had revoked the appellant’s title through acquisition of the land in dispute. In reply, learned Counsel for the respondents relied on certified true copies of two layout plans nos. TP/UDB/162 (exhibit 6A) and TP/UDB/175 (exhibit 6B) tendered through DW3, a principal planning officer with KASEPPA. DW3 testified at page 53 of the printed record that exhibit 6A is for an industrial/commercial layout in the north west of Dakata village while exhibit 6B is for a residential layout. Learned counsel referred to the evidence of DW4, Assistant Chief Land Officer at the Ministry of Works, Land and Physical Planning, Kano to the effect that land is usually first acquired by the government before it is laid out and contended that exhibits 6A and 6B can only be confirmation of the revocation of the appellant’s title over the land in dispute. He also relied on certain pages of exhibit 4 (the land file in respect of the appellant’s title), which it is contended contains the list of those whose property were acquired and their signatures upon receipt of compensation in respect thereof.

With due respect to learned Counsel, this argument appears to be putting the cart before the horse. The layouts referred to and the compensation allegedly paid all flow from the assertion that the Kano State Government acquired the appellant’s land for overriding public purpose. In order to discharge the onus on them in this regard the respondents had a duty to prove that the appellant’s land was acquired in the first instance.

Section 28 (1), (2) (b), (6) and (7) and section 29(1) of The land use Act Cap. 202 LFN 1990, provide as follows:-

28 (1): It shall be lawful for the governor to revoke a right of occupancy for overriding public interest.

(2) Overriding public interest in the case of a statutory right of occupancy means:

(b) the requirement of the land by the government of the State or by a local government in the State, in either case for public purposes within the State, or the requirement of the land by the Government of the Federation for public purposes of the Federation.

(6) The revocation of a right of occupancy shall be signified under the hand of a public officer duly authorised in that behalf by the governor and notice thereof shall be given to the holder.

(7) The title of the holder of a right of occupancy shall be extinguished on receipt by him of a notice given under subsection (6) of this section or on such later date as may be stated in the notice.

Section 29 (1): If a right of occupancy is revoked for the cause set out in paragraph (b) of subsection (2) of section 28 of this Act or in paragraph (a) or (c) of subsection (3) of the same section, the holder and the occupier shall be entitled to compensation for the value at the date of revocation of their unexhausted improvements.

In order to prove that the appellant’s land was acquired by the Kano State Government, the respondents who were relying on this assertion must prove not only that the land was acquired pursuant to section 28 (1) and (2) of the land use Act, but also that subsections (6) and (7) of that section were duly complied with. See: Dantsoho v. Mohammed (2003) 6 NWLR (Pt.817) 457.

Section 44 of the Act provides for the manner in which service of the relevant notice should be made. This section must also be shown to have been complied with. It was held in: Obikoya & Sons Ltd. v. Governor of Lagos State (1987) 1 NWLR (Pt. 50) 385 at 403-404, that under the Land Use Act, the issuance and service of the notice of revocation expressly stating under which of the provisions of the Act the acquiring authority proposes to act is mandatory as it is in compliance with the owner’s constitutional right to be heard before his right is revoked. See also A.G. Bendel State & 2 Ors. v. Aideyan (1989)4 NWLR (Pt.118) 646. I have examined the printed record thoroughly. The respondents did not adduce any evidence to show that the requirements of the law were complied with. No notice of revocation of the appellant’s title was tendered before the trial court. The fact that the land in the area in dispute was laid out as per exhibits 6A and 6B does not constitute proof that the appellant’s land was acquired by the Kano State Government. This view becomes more relevant when considered alongside the evidence of PW4, the Assistant Chief Land Officer at the Ministry of Land and Physical Planning Kano (who incidentally also testified for the respondents as DW4) at page 42 of the record, where he stated that exhibit 2, the appellant’s certificate of occupancy no. LKN/CON/ AG/RC/85/6 is valid and subsisting. At page 57 of the record when he testified for the respondents as DW 4 he reiterated, under cross-examination, his earlier evidence that exhibit 2 is a valid certificate. He went further to state that exhibit 2 had not been cancelled.

There was no evidence led to support the pleading in paragraph 13 of the statement of defence that the letter from the Directorate of Land and Regional Planning confirming the appellant’s title was fabricated. In addition, the witnesses subpoenaed by the respondents (DW3 and DW4) gave evidence in support of the appellant’s case.

It was held in: A. G. Bendel State & 2 Ors. v. Aideyan (supra) at 667 per Nnaemeka-Agu, JSC that:

“There can be nothing like a de facto acquisition: any such purported acquisition outside, or not in complete compliance with the provisions of a law with the above safeguards is completely null and void.”

The respondents also relied on certain pages of exhibit 4 (the land file tendered by the appellant) for their assertion that the appellant received compensation for his acquired land. I have examined pages 17 and 18 of exhibit 4 (pages 155-156 of the record) referred to by learned Counsel for the respondents and find that there is nothing in exhibit 4 to indicate that the land in dispute covered by certificate of occupancy no. LKN/CON/AG/RC/85/6 was acquired or that any compensation was paid in respect thereof. At page 155 of the record, there is no entry against no. 20 except the title nos. i.e. CON/AG/RC/85/6 and KN 2053. At page 156, there is nothing against item No. 31 to show that the land referred to therein is the land covered by certificate of occupancy no. LKN/CON/AG/RC/85/6. The respondents clearly failed to discharge the onus on them to prove that the Kano State Government had compulsorily acquired the land in dispute.

In the circumstances, there was no basis for the finding of the learned trial Judge that the government had compulsorily acquired the land. I agree with learned Counsel for the appellant that the learned trial Judge erred in law, when he made the following order at page 74 lines 17-22 of the record:-

“…I hereby order that having been satisfied with the evidence before this court that the plaintiff’s land has been compulsorily acquired by the Government and as being part of the land allocated for building of a mosque at D/Dakata the community can proceed to build its mosque on the acquired land, including that of the plaintiff.” (Italics mine)

As submitted by learned Counsel for the appellant, the respondents were sued in their individual capacities. The Dawakin Dakata community was not a party to the action and the respondents did not have a counter claim before the court. The position of the law is clear. The court has no jurisdiction to make any order in respect of a party not before it. It also has no jurisdiction to grant a relief not sought by a party. See: Awoniyi v. AMORC (2000) 6 SCNJ 141 at 155; (2000) 10 NWLR (Pt.676) 522; Bola Ige v. Omololu Olunloyo Ors. (1984) 1 SC. 258; (1984) 1 SCNLR 158. In the instant case, the trial Court could either grant the appellant’s prayers or dismiss them. It had no jurisdiction to grant any reliefs in favour of the defendants who did not counter claim or in respect of the Dawaki Dakata community, which was not a party to the suit.

In view of my finding in respect of the first issue to the effect that the respondents failed to prove that the appellant’s title had been revoked in accordance with the relevant provisions of the Land Use Act it follows that the second issue must also be resolved in favour of the appellant. Accordingly, issues one and two are resolved in favour of the appellant.

With regard to the third issue, it was argued on behalf of the appellant that in the course of the judgment, the learned trial Judge referred to observations he made, during his visit to the locus in quo when there was no record of what transpired at the locus in the record of proceedings of the court. Learned Counsel for the appellant submitted that this contravened the provisions of section 77(a) of the Evidence Act. He argued that the learned trial Judge had put himself in the position of a witness and had arrived at a conclusion based on his personal knowledge of the matter. He urged this court to declare the proceedings at the locus ill quo as recorded by the learned trial Judge as irregular and to set it aside. He relied on the case of: Ejidike v. Obiora (1951)13 WACA 270 at 274.

In reacting to this issue, learned Counsel for the respondent submitted that the visit to the locus was at the instance of DW1 and that the said DW1 pointed out the land allocated for the central mosque and the portion of it that gave rise to the action before the court. He contended that these facts were already evidence and that was why no record was made at the time of the visit. He contended further that the portion of the judgment complained of was only a recounting of the testimony of DW1 by the court.

The portion of the judgment complained of can be found at page 73 lines 10-21 as follows:-

“I visited the locus in quo together with counsel to both parties and also the defendants also a representative of the plaintiff. At the locus, I saw the portion allocated for the various projects mentioned. I was also shown the plot of the plaintiff adjacent it (sic) to the wall of the proposed Mosque. I saw that the school had already been built and with students attending as confirmed by a witness and members of the community. The hospital has also been built, but the plot is there. However, they have started building the Mosque and stopped because of this case. All these developments were carried out in the confiscated lands”.

The appellant’s complaint is that there is no record of this visit to the locus in the record of proceedings. I have examined the printed record. At page 45 thereof, at the close of the proceedings on 3/12/03, the suit was adjourned for a visit to the locus to be conducted on 5/12/03. There is however no record of proceedings for 5/12/03. The next record is of the proceedings of 18/12/03 when the evidence of DW2 and DW3 was taken.

It is correct as submitted by learned Counsel for the respondents that where at the time the court embarks on the visit to the locus all the parties as well as their witnesses have testified and the sole purpose of the inspection is to clear doubt as to the accuracy of the pieces of evidence at the locus there would be no need for oath taking or cross-examination with regard to the proceedings at the locus in quo. See: Okunrinmeta v. Agitan (2002) 2 NWLR (Pt.752) 565 at 581 B-E. However, this is not to say that no record of the proceedings or inspection conducted at the locus in quo need be made. This is because by virtue of section 77 (d) (ii) of the Evidence Act the visit to the locus and the proceedings or inspection thereat form part of the trial and the trial Judge has a duty to observe the rules of practice and procedure of the court as well as the law of evidence. See: Igwe Vs Kalu (2002) 5 NWLR (Pt.761) 678 at 730 C-D. Certainly, there ought to be a record of notes taken by the trial Judge at the inspection. In the instant case, not all the witnesses had concluded their evidence at the time the suit was adjourned for the visit to the locus. It is evident from the portion of the judgment reproduced above that witnesses other than those who had testified before the court gave evidence during the visit. I refer to the reference to “witnesses and members of the community” in the portion of the judgment reproduced above. Clearly, the learned trial Judge assumed the position of a witness with regard to the visit to the locus in quo. This was certainly irregular. I therefore resolve the third issue in favour of the appellant.

The final issue for determination in this appeal is whether the failure of the learned trial Judge to consider the written address submitted on behalf of the appellant amounted to a denial of fair hearing. I am of the view that this issue has become academic, having regard to the resolution of issues one, two and three in the appellant’s favour.

In conclusion, this appeal succeeds. The judgment of the High Court of Kano State, delivered on 21st June, 2004, in Suit no. K/660/99 is hereby set aside and in its place judgment is hereby entered in favour of the appellant. I hereby:-

(a) Grant the declaration sought by the plaintiff;

(b) Award the sum of N50, 000.00 as general damages for trespass in favour of the plaintiff against the defendants, no evidence having been led at the trial to prove the claim for special or exemplary damages and make an order restraining the defendants, their agents, servants and or any other person claiming through them from continuing with the destruction of the plaintiff’s crops and use of the plaintiff’s land.

I award costs of N5,000.00 in favour of the appellant as costs in the High Court and N5,000.00 as costs in this appeal respectively against the respondents.

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Other Citations: (2005)LCN/1800(CA)