Alhaji Muraino Rabiu & Ors V. T.A. Hammond Projects Ltd & Ors (2007)
LawGlobal-Hub Lead Judgment Report
ISA AYO SALAMI J.C.A.
This is an appeal brought by the plaintiffs against the decision of Longe, J., sitting in Ikeja Judicial Division of the High Court of Lagos State, delivered on 18th day of July, 1999, dismissing the plaintiffs’ claim in its entirety. The plaintiffs were dissatisfied with the decision and, being aggrieved, have appealed to this court on four original and one additional grounds of appeal.
Briefs of argument, in accordance with the practice and procedure of this court, were filed and exchanged at the appellants’, respondents’ as well as appellants’ reply briefs of argument.
At the hearing of the appeal, learned counsel for plaintiffs (hereinafter referred to as appellants) adopted and placed reliance on the appellants’ and appellants’ reply briefs of argument. He elaborated on the briefs. Learned counsel for defendants (herein after referred to as respondents) adopted and relied on the respondents’ brief of argument.
Respondents gave a notice of intention to rely on a preliminary objection, challenging the competence of the appeal. The preliminary objection, which was canvassed in both the respondents’ and appellants’ reply briefs, was taken and argued at the hearing of the appeal. Grounds 3(b) and the additional ground of appeal were found incompetent and were consequently struckout. Appellants’ issues 2, and 5 which derived from the grounds of appeal already struckout were also struck-off. Issue 3 was struck out because it was not identified from any ground of appeal.
The appellants’ formulated issues which survived the severe onslaught on them are issues one, four and six which are set out immediately hereunder seriatim –
- Whether the learned trial judge properly directed himself as to the burden of proof having regard to the nature of the issues placed before him and the claims concern reliefs for an order for declaration as to customary tenancy damages for trespass and injunction.
- Whether or not the trial judge was correct in making recommendations in this judgment when such recommendations are not enforceable against the Defendant/Respondent.
- Whether or not on the principle of ubi jus ubi remedium the trial judge was correct in not awarding damages to the Appellant against the Respondent.
The respondents in their joint brief formulated a single issue which is recited immediately here under for determination –
“Whether or not the plaintiffs made out a case for trespass against the 1st Defendant/Respondent herein in the circumstances of this case.”
In arguing the appeal, learned counsel for appellants, in the appellants brief, after a lengthy narration submitted that payment of tribute is not a desideratum for there to exist customary tenancy. He further contended that this was not a case where the plaintiff/appellants must prove payment of tribute to their overlord, the community. He cited the case of Makinde vs Akinwale (2002) 2 NWLR (pt 645) 435, 438-439.
Learned counsel for appellants referred to the finding of the learned trial judge that customary right must first be shown to have been granted by someone before further holding that there was no where, either in the pleadings and evidence of the plaintiffs, was it shown that there was “grant of the land in dispute to the plaintiffs or to their ancestors as customary tenants”. Learned counsel then argued that this was not a case where they had to prove their grantor but to endorse the finding of the learned trial judge at p239 of the record where the learned trial judge held that the plaintiffs need not to be granted the land, the fact that they were members of the community legitimized their possession. He then submitted that Ibeshe community could be taken as their implied grantor.
He finally submitted that allocation of communal land or family land to a member of the community or family is the equivalent of a grant. He relied on the case of Aghomeji vs Bakare (1998) 9 NWLR (pt564) 1.
On behalf of the respondents, their learned counsel contended, in the respondents’ brief of argument, that the court found on the showing of the appellants that they are not customary tenants which finding counsel submitted was sufficient to result in the dismissal of their case. He cited in support the cases of Nwafor vs Nwosu & Another (1992) 9 NWLR (pt 264) 229, 240 and Ohiaeri & Another vs Akabeze and Others (1992) 2 NWLR (pt221) 1, 27.
Learned counsel for respondents contended that the appellants’ argument that even though they failed in establishing a case as customary tenants the learned trial judge having found that they were allotees ought to have entered judgment in their favour as such was misconceived. Learned counsel for respondents urged court not to resolve this issue in favour of appellants
The appellants’ claims before the trial court are for-
(a) An order of declaration that the plaintiffs are customary tenants on a parcel of land situate and lying at Eti Okun Ibeshe in the Badagry Division of Lagos State having inherited such right from their respective ancestors.
(b) An order of injunction against the defendants, their servants, agents, or privies from moving into or committing any acts of trespass on the said land.
(c) The sum of N50,000.00 being damages for trespass.”
(Underlining mine)
The plaintiffs pleaded and led evidence in support of their claim as customary tenants. At the end of the case for both parties, learned trial judge, Longe, J., in a reserved and considered judgment, reasoned as follows
“I have read the facts and the evidence adduced in support of that crucial point about customary tenancy. I have also considered the submission of all the learned counsel on the point. One word I found very operative in the use of the phrase “customary tenancy is the word “grant” There is no where in the pleading or evidence of the plaintiffs in which it can be said there was a grant of the land in dispute either to the plaintiffs or to their ancestors as customary tenants.
From all the principles of law and the instances cited even by their own very learned counsel the plaintiffs do not fall into the correct defunction of customary tenants viz-a-viz the land. Secondly, the plaintiffs too fail in two other ways.
Firstly they pleaded they are customary tenants by inheritance and also by grant (see paragraph 5 of their amended statement of claim, 1st plaintiff who testified only testified about his own interest as having inherited the area from his father. No evidence is led about how other plaintiffs acquired their own customary tenancy and none of them testified.
Secondly, it seems the plaintiffs case is based on some legal absurdity. The plaintiff and every body in the case admits the two salient facts that the land belongs to the community and that the plaintiffs are part of the community. One then wonders whether plaintiffs as part of the community can also be landlords to themselves acquiring customary tenancy on a land that belongs to them jointly with the whole community.
It is my finding therefore in this case that the plaintiffs have failed jointly and severally to prove they are customary tenants on the land in dispute.”
(underlining mine)
The appellants curiously enough failed or neglected or refused to appeal against the decision that they are not customary tenants. They appear satisfied with being regarded as allotees of tile land rather than as customary tenants, the interest which was not claimed either in their writ of summons or amended statement of claim.
The submission of the learned counsel for appellants predicated on the finding of the learned trial judge that the allocation to them as members of Ibeshe community legitimise their possession and in effect the community should be taken as their grantor is misconceived. Allocation to the appellants as members of the Ibeshe community does not make them customary tenants. It constitutes them merely as allotees of their respective portions of family land. The incidence of the two holdings, allotees and customary tenant are different. The interest or right acquired in the two, though occupational right customary tenancy cannot be terminated save with forfeiture order by the court whereas the interest of an allotee of family property cannot be forfeited. A member of a family can only demand partition where there has been persistent refusal by the head of family or by some members of the family to allow other members of the family to enjoy their rights under native law and customs in the family land then the court can exercise its power to order partition. See Lopez v. Lopez 5 NLR 50, 54 and Agbomeji vs Bakare (1998) 9 NWLR (pt 564) 1 cited in the appellants’ brief of argument which is not the case here.
The appellants claimed and pleaded that they were customary tenants but led evidence that they were allotees of family or community land. I agree with learned counsel for respondents that learned counsel for appellants failed to appreciate the basis of the judgment of learned trial judge. Learned trial judge rightly, in my view, found that appellants were not customary tenants contrary to their pleadings. This much was conceded by them in the evidence adduced in support of their claim and the submissions of their legal practitioner before the trial court. Parties and indeed the court are bound by the pleadings where trial are by pleadings; and to permit a party to contend in his testimony contrary to its pleadings is to allow it to make a case different from its pleadings at the trial. Such evidence the court is bound to regard as extraneous to the issues joined by the parties. George v. Dominion flour Mills Ltd (1963) 1 All NLR 71, 78-79 George v. U.B.A Ltd (1972) 8/9 SC 264; Emegokwe v. Okadigbo 1973 4 SC 113.
Furthermore, it is fundamental principle of our jurisprudence that a party cannot deviate from his pleadings. A party would therefore not have been taken to have established any evidence deviating form his pleadings and as such would not be taken to have joined issue on the form of occupational right by allotment of community land not pleaded but sought to be supported by evidence in endeavour to anticipate the evidence properly adduced by the respondents. Odofin v. Ayoola (1984) 11 SC 72, 116; Mogaji v. Cadbury Nig. Ltd (1985) 2 NWLR (pt 7) 393, 430-1.
The evidence led by the appellants that they were allotees and not customary tenants which was pleaded by them goes to no issue. The learned trial judge ought to have discountenanced same and struck out their pleadings; the facts averred therein should be deemed abandoned. Where issues are joined on any averment in the pleadings but no evidence is led to support such averments, the consequence is that such averment, in the pleading, would either be struckout or dismissed as it is deemed abandoned. Vide Balogun v. Amunbikanhun (1985) 3 N.W.L.R (pt 11) 27 and Alao v. Akano (2005) All F.W.L.R (pt 264) 799, 814.
The reliefs sought in the amended writ of summons and repeated in the amended statement of claim had been recited earlier in this judgment. The reliefs prayed for in those processes were trespass, and injunction predicated upon the premise that the appellants were customary tenants. There is no alternative claim for a declaration that the appellants were allotees of family or community land. The appellants having failed or refused to seek a declaration that they were allotees of the Ibeshe community land, learned trial judge had no power to dabble into the issue, not to talk of making consequential order pursuance of existence of such occupational right. It is settled that trial courts are required to restrict themselves strictly to the issues raised by the parties in their pleadings. To act otherwise might well result in denial of Justice to one or the other of the contesting parties. See African Continental Seaways Ltd v. Nigerian Dredging Roads and General Works Ltd (1977) 5 SC 235, 248; Kalio and Ors v. Kalio (1975) 2 SC 15; NIPC Ltd. v. Thompson Organisation and Ors (1969). All NLR 138. George and Ors v. Dominion Flour Mills Ltd (supra), Metalimpex v. A.G Leventis and Co Ltd (1976) 2 SC 91 and Odiase & Another v. Agho & Others (1973) 11 SC 71, 77 where the supreme court stated as follows –
Indeed we would agree in principle with the general proposition enunciated by Lord Wrenbury in Wilson v. United Counties Bank Ltd (1920) A.C 102 at page 143 he said:
“It is certainly a statutory principle that a court of Justice should confine itself to adjudicating upon the questions raised by the parties litigant to the exclusion of other questions which they do not advance.”
Learned trial judge respectfully failed to limit himself to the questions raised by the parties in their pleadings to the exclusions of other questions. A court has no competence to grant reliefs not claimed except they are within the confines of orders that can properly be construed as consequential orders which the orders made by the learned trial judge in the instant appeal are not. It is therefore abundantly clear that a court can only grant a relief sought by a party and to the exclusion of any other order or orders made outside it which must be set aside. See Akinbobola v. Plisson Fisko Nig Ltd (1991), NWLR (pt. 167) 270, 278; Dipcherima v. Ali (1974) 12 SC 45; Awosile v. Sotunbo (1986) 3 NWLR (pt 27) 471, 478; Jonah Kalio & Ors v. Chief M. Kalio (1975) 2 SC 15, 20, and Ekpeyong & Ors v. Iyang Effiong Nyang & Others (1975) 2 S.C. 71, 80 where the Supreme Court stated the principle as follows
“it should always be borne in mind that a court of law is not a charitable institution; its duty, in civil cases, is to render unto everyone according to his proven claim,”
See also Okubula v. Oyagbola (1990) 4 NWLR (Pt.147) 723; Bola Ige v. Olunloyo (1984) 1 S.C. 258 and Ransome Kuti vs. A.G of Federation (1985)2 N.W.LR (pt 6) 211.
The appellants’ argument that being allotees the court should have found for them should be discountenanced. It was not their case in the court below. Their claims in the trial court were declaratory relief, trespass and injunction based on the premise that they were customary tenants which the court peremptorily rejected. That, to my mind, is the end of their case notwithstanding the finding of the trial court suo motu that they were allotees. It is not the business of the court to descend unto the arena to make a case for a party or formulate its own case contrary to the pleadings or evidence before it and then proceed to determine its own postulation of the case different from the case of the parties.
The judgment of the court must be based on the pleadings and admissible evidence. See University of Calabar v. Okon J. Essien (1996) 12 SCNJ 304, Adeniyi v. Adeniyi & Others (1972) 4 SC 10,17; Cardoso v. Executor of Doherty 4 WACA 35, 45; Dr Orizu v. Anyaeebunam (1978) 5 SC 21, 86 and thereby permitting the party or parties to approbate and reprobate: Amida v. Oshoboja (1984) 7 SC 66; 80-81.
The appellants enjoy only occupational right as it is settled that family land remains property of the family not withstanding allotment. An allotment of a portion of family land to a member of the family does not in any way vest the ownership in the allotee as would entitle him under native law and custom to a declaration of title to the portion allotted to him: Sule Langbe v. Rufai Imale (1959) WRNLR 325; 1959 SCNLR 640, Olagun v. Ogunsanya (1970) 1 ALL NLR 223. The appellant however have occupational right to occupy and use the land but cannot alienate it without the consent of the family. It must be stressed that irrespective of the length of time the allotee might have stayed on the land, or what improvement he had carried out on the land, the occupational right granted to him can never ripen into full ownership: Shelle v. Asojon (1957) 2 FSC 65; (1957) SCNLR 286 and Adagun v. Fagbola 11 NLR 110, 111.
The right of occupation acquired is transferable by inheritance to his successors.
See Tongi v. Kulil 14 WACA 331. 332 where the erstwhile West Africa Court of Appeal held thus-
“…. Once land has been allocated to a member of the tribe by the tribal authorities such member acquires a right to occupy the land which is transferable to his ancestor.”
The appellants as allotees are entitled to their possession of the portion of the community land apportion to them. Mere membership of the community make their possession legitimate. They can protect it not only against strangers but also against even the chief, Oba or head of family. Bamgboshe v. Oshoko (1988) 2 NWLR (pt 78) 509 and Nzekwu Nzekwu (1989) 2 NWLR (pt104) 373. It is equally true that a party can succeed in his claim for injunction and trespass even though his claim for declaratory relief is dismissed as in the instant case. See Amakror v. Obiefuna (1974) 1 All N L R 119, 126, Oluwi v. Eniola (1967) N M L R 339, 340, Olaloye v. Balogun (1990) 5 N W L R (pt 148) 24, 39-40 and Khalil and Dibbo Transport Ltd v. S.T. Odumade (2007) 7 S C (pt. 1) 6, 75 and Lagbe v. Imale (supra). But two factors operate against the consideration of this point. Firstly the issue under which the matter was canvassed was one of the issues that fell as casualties to the respondents attack on the competence of the appeal. The point was raised and canvassed in appellants’ issue 3 which was not one of the surviving issues.
On the facts and evidence which were presented and accepted by the learned trial judge there was a power of attorney given to and held by Oba of Ibeshe for and on behalf of the community including the appellants in a representative capacity. It was on the uncontradicted or undenied or unchallenged evidence that it was on the strength of the power of attorney that the land in dispute was leased to the first respondent. The appellants have not denied the validity of the power of attorney. It is, therefore, doubtful if they can now be permitted to approbate and reprobate. It is even admitted by them that persons representing their own compound in Ibeshe were cosignatories to the Deed of Lease to the first defendant/respondent. Indeed, evidence before the court below and this court further demonstrate that some of the appellants were parties to a previous disposition of other portions of the same community land under and pursuance of the said power of attorney. Learned trial judge rightly, in my view, apparently acting on the principle that the appellants are not entitled to approbate and reprobate held the Deed of Lease to the first respondent for and on behalf of the community to be valid. There is no appeal against this finding which, therefore, subsists. See Ibero & Another v. Ume-Ohana (1993) 2 N W L R (pt.277) 510, 530, and Chukwunta v. Chukwu 14 WACA 341, 342 where it was held as follows –
“….. A mere proposal to refer the land dispute for inter-tribal settlement inquiry, not followed by any inquiry has set, or can set, aside a solemn judgment of the District Officer’s court. Furthermore, exhibit 4 nowhere stated that the judgment of the District Officer had, on review, been set aside.
In the circumstances, the judgment of the District Officer stands and is still in full force.”
See also Timitimi v. Amabebo 14 WACA 374.
The appellants, having not appealed the finding of the learned trial judge upholding the validity of the lease to the first respondent of the community land by the remaining respondents the claim for injunction and trespass does not avail the appellants.
It follows that the first respondent was lawfully put on the land in dispute. It, therefore, is in lawful possession or it is on the land with the consent of the community inclusive of the appellants. Consequently, no right of the appellant is violated to justify the remedies sought by them in this action. The principle of ubi jus uhi remedium touted in issue 3 does not avail the appellants. The appellants failed to establish any right to which the court could provide a remedy. The principle merely enjoins the court to provide a remedy where a right is made out. The remedy would only avail the appellants if they had established a right in this case that the respondents trespassed on the land in dispute.
See Packer v. Packer (1954) p 15, 22; Bello & Others v. A.G Oyo State (1986) 12 SC 1,69; Ashby v. White 1703 2 Ld Raym 938 and Irene Thomas & Others v. The Most Reverend Timothy O. Olufason (1986) 1 NWLR 669, 689. The appellants having failed to show that the respondents were unlawfully on the land cannot make any claim against them.
In the course of discussing appellants issue 1, their subsisting issue 4 now renumbered 2 was disposed of. Learned trial judge is incompetent to formulate a case for the parties and then proceed to determine its own proposition.
Having resolved the two appellants, enduring issues against them the grounds from which they derived fail and are dismissed.
The appeal equally fails and is dismissed with costs assessed at N10,000.00 in favour of all the respondents jointly and severally.
Other Citations: (2007)LCN/2450(CA)
