Iyabo Ajagunna (Substituted for Tawakalitu Wuraola Fabunmi (Deceased)) V. Moses Amusan (2002)
LawGlobal-Hub Lead Judgment Report
ONALAJA, J.C.A.
The plaintiff now respondent in this appeal sued originally as defendant Tawakalitu Wurola Fabunmi Ile-Ife High Court of Osun State wherein there were exchanges and deliveries of pleadings which were amended with the result that the trial was concluded on amended statement of claim, amended statement of defence and reply to amended statement of defence.
As it is trite law that the particulars of claim set out in the statement of claim supersedes the particulars of claim set out in the writ of summons the claims of plaintiff/respondent are discernible in paragraph 34 of the amended statement of claim thus:-
“34. Where of the plaintiff claims against the defendant a declaration that he (the plaintiff) is entitled to be granted the customary right of occupancy of the farmland situate, lying and being at Ebe Okuta, Kola village via Modakeke Oramiyan (now He North) Local Government Area, Oyo State five thousand Naira (N5,000,00) general damages for trespass and injunction perpetually restraining the defendant, her agents, servants and/or privies from further committing any act of trespass on the said farmland.”
To substantiate his claim plaintiff/respondent called 4 witnesses apart from himself and through a licensed surveyor a survey plan of the disputed land admitted in evidence and marked exhibit A. The area in dispute was verged blue in exhibit A.
The gist or fulcrum of plaintiff’s case was as averred in paragraphs 5a and b amended statement of claim as follows:-
“(5a) Adekunle, the ancestor of the plaintiff was the first man to settle on the land in dispute for the purpose of hunting and farming about 100 years ago.
(5b) The plaintiff had been the lawful owner of the farm-land in dispute long before the promulgation of the Land Use Act of 1978.”
Plaintiff traced his genealogy from Adekunle his progenitor and ancestors who acquired the land by settlement and undisturbed long possession that covered a period of over 100 years and that the land did not belong to the defendant, nor her vendor through purchase of her land from her vendor Lawani Omidoyin and plaintiff denied vehemently that he was a customary tenant of the said Lawani Omidoyin. Plaintiff/respondent that since his ancestor settled on the land more than 100 years ago no member of his family and himself ever paid any Ishakole or tribute to any person in respect of the disputed land.
The defendant apart from herself also called 4 other witnesses through him exhibit B which was a survey plan of the disputed land in suit HIF/22/86 between Madam Wuraola Fabunmi as plaintiff therein but defendant in the judgment that gave rise to this appeal and Awawu Abike, Moses Amusan and Festus Adeyeye Williams as 1st, 2nd and 3rd defendants respectively.
The defendant in this appeal tendered in Ile-Ife High Court her land purchase agreement made on 4th day of February, 1974 between Mr. Lawani Glori and defendant in respect of piece or parcel of land described in the land purchase agreement admitted in evidence and marked exhibit C as follows:-
“The vendor is seized of a piece of land situate, lying and being of Kola Famia Road, Modakeke, Ile-Ife,
Western State of Nigeria measuring ten acres or thereabout bounded on all the four sides by the vendors’ land and having guaranteed his unencumbered title thereto hereby agrees to sell and does (sic) sell and the purchaser hereby agrees to buy and does (sic) buy the aforesaid piece of land for the sum ofN200.00 (two hundred Naira) the receipt whereof the vendor hereby acknowledges. The vendor in consideration of the above hereby undertakes to execute normal conveyance of the said piece of land whenever purchaser shall call upon him to do so.
The vendor hereby vouchsafes that the sale is an absolute sale of piece of land which he is the absolute owner and in possession and further agrees to save harmless and keep indemnified the said purchaser against all losses, costs, charges, damages and expenses which the said purchaser may sustain, pay or be put to by reason of or as a direct or indirect results of any adverse claims made by any person or persons in respect of the said piece or parcel of land covered by these presents.”
The defendant in support of her defence tendered in evidence the proceedings and judgment of Ife Grade C1 Customary Court Ile-Ife in suit No. 148/76 between Awawu Abike (F) of Aiyegunle (on behalf of her sick brother Adekanmi Ayobami owner of the farm and Madam Tawa Ajonbadi (F) of Modakeke He which was tendered in evidence and marked exhibit “D”.
It was the defendant’s case that the land in dispute was part of the land sold to her by Lawani Omidoyin covered by exhibit C whom she assumed to be landlord of plaintiff/respondent sometimes in 1974.
Exhibit D was a judgment between the defendant and the boundary persons to the land in dispute as claimed by the plaintiff.
At the conclusion of trial learned counsel to the plaintiff/respondent and the defendant addressed the learned trial Judge who later after a review and evaluation of both the oral and documentary evidence adduced before him delivered his judgment on the 4th day of July, 1990 as shown at pages 46-56 of the record of appeal he granted declaration to customary right of occupancy in favour of plaintiff/respondent. The learned trial Judge found the plaintiff/respondent to be in possession of the land in dispute which possession was disturbed by the defendant, as a result of which he found the defendant liable in trespass and awarded the sum of N300.00 as damages against the defendant. Having found defendant liable in trespass, the learned trial Judge granted the order of injunction against defendant and restrained her from committing further acts of trespass on the said land in dispute.
The defendant was dissatisfied with the said judgment as a result of which she lodged an appeal to this court through her notice of appeal filed at pages 56A and 56B of the record of appeal. She formulated three grounds of appeal because of the complaints made by plaintiff/respondent against the three grounds of appeal they are set out as follows:-
“3. Grounds of Appeal:
(1) The judgment is against the weight of evidence.
(2) The trial court erred in law when he failed to consider prima facie the title of the plaintiff before considering the title of the defendant.
(3) The trial court erred in law when he allowed the plaintiff’s claim when the plaintiff failed to discharge the onus of better title to the land.”
The defendant is hereinafter referred to in this judgment as defendant/appellant. The appellant served her notice of appeal on the respondent. With the leave of court appellant sought and was granted leave to file four additional grounds of appeal consequently appellant raised in all seven grounds of appeal. She furnished particulars in respect of grounds 4-7 of the additional grounds of appeal.
Appellant served the notice of appeal on plaintiff/respondent after which on the 27th day of October, 1995 in accordance with the rules of this court she filed her defendant/appellant’s brief of argument which she relied upon in argument of the appeal. In the Court of Appeal Tawakalitu Wuraola Fabunmi died being an action in rem which survived her with the leave of this court Iyabo Ajagunna was substituted to carryon the appeal before this court. Appellant’s brief of argument was served on plaintiff/respondent. After the service of appellant’s brief of argument the respondent with the leave of court filed on 20th Feb., 2001, respondent’s brief of argument which was relied upon in argument of the appeal.
In accordance with the rules and practice of this court that in raising issues for determination in brief of argument that the issues must be based and correlate with the grounds of appeal at page 3 of appellant’s brief of argument, appellant raised the under-mentioned issues as the issues for determination in this appeal:-
“3. Issues for determination
3.01 Whether the learned trial Judge on the totality of evidence before him was right in favour of the plaintiff.
(Original grounds 1,2,3 and additional ground 1).
3.02 Whether the learned trial Judge was right in his treating exhibit D as if it was a piece of evidence before him which he can use in any way or manner he liked different from the purpose it was intended to prove. (Additional ground 2).
3.03 Whether the learned trial Judge was right in his application of section 36 of the Land Use Act in favour of the plaintiff as a customary tenant to deprive his landlord, the defendant, of her rights to the land in dispute.
(Additional ground 3)
3.04 Whether the learned trial Judge was justified in making use of exhibit D in favour of the plaintiff to make for him, a case different from what he made out at the trial and on his pleadings. (Additional ground 4).
Respondent set out in detail all the 7 grounds of appeal and reflected in particular to grounds 4-7 wherein he furnished the particulars. He attacked grounds 2 and 3 as incompetent in that appellant failed to state the particulars of error as required by Order 3 rule 2(2) Court of Appeal Rules, 1981 (as amended in 1981) that:
“3. rule 2(2) if the grounds of appeal allege misdirection or error in law the particulars and the nature of the misdirection or error shall be clearly stated,”
Judicially interpreted in Agnes Emecheta v. Alphonsus Ugwueze Ogueri & Anor. (1998) 12 NWLR (Pt. 579) page 502 at 519 by the Court of Appeal wherein it was held:-
“(22) On validity of incorporating particulars in grounds of appeal
Although it is customary, in practice, that where a ground of appeal alleges error or misdirection the particulars of the error or misdirection are furnished under a separate heading, it is also acceptable and not contrary to the provision of Order 3 rule 2(2) Court of Appeal Rules to have the particulars incorporated in the ground of appeal. In the instant case, although grounds 1 and 3 have not particularised the error and misdirection alleged therein they have the particulars incorporated and embedded in them. They are not in violation of Order 3 rule 2(2) of the Court of Appeal Rules as amended and are therefore competent (Shahimi v. Akinola (1993) 5 NWLR (Pt. 294) page 434 referred to and applied.
Per ONALAJA, J.C.A. at page 520 paragraphs C-E:
“Be that as it may, we now proceed to look critically and in-depth at ground 1 and to state that it complains of error in law and did not give the particulars separately. The complaint of the error in law is the application about auctioneer’s notice prescribed by Auctioneers Law and whether it was properly interpreted or applied by the learned trial Judge. We are of the view and opinion that the particular was inbuilt, incorporated and embedded in the ground 1 of the ground of appeal. This incorporation leads us to conclude that there has been non-violation of Order 3 rule 2(2) Court of Appeal Rules, 1981 (as amended) and that the said ground 1 is valid and competent.
As for ground 3 which complains about misdirection, we adopt the same approach in our consideration
of ground 1 and to say unequivocally that the misdirection was built within the ground. We therefore hold that ground 3 is competent and valid.”
Atuyeye v. Ashamu (1987) 1 NWLR (Pt. 49) page 267 SC see further Tavershima M. Hambe & Anor. v. Agber Hueze & 2 Ors. (2001) 4 NWLR (Pt. 703) page 372 at 385-391 SC. Aderounmu v. Olowu (2000) 4 NWLR (Pt. 652) page 253.Applying the above to grounds 2 and 3 there is no gain saying that the particulars were not furnished but an in depth look as directed in the above authorities shows that the particulars were embedded in the two grounds. Ground 2 raised the issue as to weight of evidence ground 3 raised the issue of consideration of the onus of proof, it is for this reason that I deliberately set out above grounds 2 and 3 which respondents attacked for non-compliance with Order 3 rule 2(2) of the Court of Appeal Rules for the reason that the particulars are embedded in the grounds the complaints are hereby rejected.
Respondent adopted issue 3.02 formulated by appellant whilst respondent raised the under-mentioned as issues for determination as follows:-
“(ii) Whether the learned trial Judge was justified in making use of exhibits “D” along with other exhibits before the court the way he did in his judgment.
(iii) Whether the consideration of section 36(1)(2) and 3 of the Land Use Act of 1978 was fatal to the judgment of the learned trial Judge.”
Issue 1 in appellant’s brief of argument is similar to issue 1 in respondents’ brief of argument and succinctly put whether the learned trial Judge was right to have entered judgment in favour of respondent having regard to the totality of the evidence adduced before him.
Appellant contended that respondent’s case from his pleadings was reliance on settlement by his progenitor and long possession which was not properly and validly established before the learned trial Judge. The appellant’s case was that she purchased the land in dispute vide exhibit C from Lawani Omidoyin who owned a large tract of land out of which 10 acres of land was an island within Lawani Omidoyin’s land was sold to her with the result that Omidoyin’s unsold land to her formed boundaries of the 10 acres sold to appellant.
The appellant contended that respondent was a customary tenant of Lawani Omidoyin as a result in exhibit D and respondent with all his witnesses were estopped from denying the fact that respondent was a tenant of Lawani Omidoyin. Appellant’s argument in considering the issue of weight of evidence dovetailed into issue 3 that the learned trial Judge deviated from the purpose to which exhibit D was tendered. That the attitude of the learned trial Judge was used to favour and assist respondent whilst used to disfavour appellant and for a purpose for which exhibit D was not tendered by appellant. Exhibit B was the survey plan in suit IDF/22/86 by appellants against respondent and other two persons alleged being customary tenants of Lawani Omidoyin. Apart from tendering exhibit B no further pieces of evidence was led but a comparison of exhibit B and the land in dispute and without a composite plan on mere description showed that the description and features are different from exhibit A. It is my view that the learned trial Judge more especially when the claim and judgment connected with IDF/22/86 were not laid or put before the learned trial Judge who rightly rejected that appellant who has the onus failed woefully to establish that respondent was customary tenant to Lawani Omidoyin, which appellant contended was established by exhibit D.
Appellant submitted that respondent did not establish that he was entitled to the grant of customary right of occupancy when the evidence of the traditional history was inconclusive contrary to the rule in Kodinlinye v. Mbanefo Odu (1935) 2WACA 336 at 337. As the evidence of traditional evidence was inconclusive exhibit D established as evidence in recent times the contrary applying the case of Abinabina v. Enyimadu 12 WACA 171 at 174 this court should resolve issues 1 and 2 in appellant’s brief of argument. Appellant adopted the above argument to also cover the issue 3.02 about exhibit D and to resolve it in favour of appellant by allowing the appeal.
Respondent submitted that the learned trial Judge on the totality of evidence adduced before him was right to have entered judgment in favour of respondent who predicated his case on traditional evidence of settlement and long possession from his ancestors and through his siblings without any break through tracing the genealogy to the radical title owner – settlement was decided in Moses Uzochukwu & Ors. v. Madam Amachalu & Ors. (1997) 7 SCNJ 238 at 246- 247. At pages 8-9, of respondent’s brief of argument submitted on exhibits B, C and D did not assist appellant but established that the parcels of land litigated therein were not the same as in exhibit A and exhibit D did not operate as estoppel rather it reinforced the conclusion of the learned trial Judge to enter judgment in favour of respondent which conclusion was not perverse thereby to resolve issues 3 DI and II supra against appellants and to dismiss the appeal.
As from the pleadings appellant did not join issue with respondent on claims 2 and 3.
As respondent claimed declaration to customary right of occupancy the onus on appellant are laid down in sections 135, 136 and 137 Evidence Act, Cap. 112, Laws of the Federation of Nigeria judicially interpreted that the plaintiff (respondent in this appeal) who claimed declaration to customary right to occupancy must succeed on the strength of his case and not the weakness in defendant’s case (appellant in this appeal). The exception to this rule is that where the facts in defendant’s case support plaintiff’s case the latter can use that piece of evidence or fact is to establish his case.
In the consideration it is trite that the consideration shall be placed on facts pleaded in their pleadings as both the court and the parties are bound by the pleadings as unpleaded facts go to no issue. Respondent submitted that appellant in her amended statement of defence did not contest legs (b) and (c) of the plaintiff/respondent’s claim before the lower court or attack the two reliefs in this appeal it should be deemed to have been accepted or admitted the judgment of the learned trial Judge relating to the two reliefs of damages and perpetual injunction.
It is trite law that where parties testified before the trial court and called witnesses before the learned trial Judge accepts or rejects the evidence of either side, the learned trial Judge is enjoined to set up an imaginary judicial scale of justice by putting the pieces of evidence adduced by the plaintiff and putting the pieces of evidence of the defendant on the other side of the imaginary scale of justice and weigh both together not by the numbers of witnesses called by the parties but giving them probative value is what is meant under our adversarial system of jurisprudence that civil case is decided on preponderance evidence of probability Mogaji v. Odofin (1978) ‘be SC 91 at 96’9798; Okulate v. Awosanya (2000) 2 NWLR (Pt. 646) page 530 SC.
There are five ways of establishing title to land in Nigeria before the Land Use Act and after the promulgation. Establishment of one out of the five ways is sufficient in law. Idundun v. D. E. Okumagba (1976) 1 NMLR 200 at 210 SC, (1976) 9 -10 SC 227; Adesanya v. Aderounmu (2000) 9 NWLR (Pt. 672) page 370 SC; Olohunde v. Adeyoju (2000) 10NWLR (pt. 676) page 562 Sc.; Ogun v. Akinyelu (1999) 10 NWLR (Pt. 624) page 671 CA.
One method is by traditional evidence which in the instant appeal respondent relied on first settlement by his ancestor whether first settlement can grant declaration to customary right of occupancy was considered in the following cases Akuru v. Olubadan in Council (1954) 14WACA 523; Bellow Adedibu, Mogaji Iba Oluyole & Anor. v. Latunji Ajimoti Olofa (1968) NMLR 462. The above cases re-echoed and considered exhaustively in the judgment of the Supreme Court in Lawani Alli & Anor. (For themselves and on behalf of Oroye family) v. Chief Gbadamosi Abasi Alesinloye & 8 Ors. (2000) 6 NWLR (Pt. 660) page 177 at 203, 206, 209 and wherein it was held as follows:-
- On what plaintiff relying on grant or original settlement on land must establish –
A plaintiff who relies on grant or original settlement of land is only required to establish such grant or first settlement to the satisfaction of the trial court and this he can do whether or not this is accompanied by the exercise of dominion over the land in dispute, an exercise which on its own may be sufficient to establish title to land. In the instant case, where the appellants led enough evidence of Opeagbe’s possession of and settlement on the land in dispute, it is grossly incorrect for the Court of Appeal to suggest that they neither pleaded nor led evidence of the acquisition of the land in dispute by Opeagbe. (Odofin v. Ayoola (1984) 11 SC 72; Kuma v. Kuma 5 WACA 4 referred to.) (Pp. 203-204, paras. G-A; 206, paras. C-D)
- On whether title to land can be declared on evidence of settlement alone –
Where traditional evidence, including evidence of first settlement is satisfactorily placed before the court and is accepted, title to the land can be declared on such evidence of tradition alone. (Odofin v. Ayoola (1984) 11 SC 72; Oluyole v. Olofa (1968) NWLR 462 referred to.) (P. 209, paras. D-E)
- On meaning of “original acquisition of land by settlement under customary law” –
“Original acquisition of land by settlement under customary law” means no more than first occupation or
original settlement on land for whatever purpose. In the instant case, the learned trial Judge was satisfied
with the appellants’ evidence on acquisition by first settlement on the land in dispute by Opeagbe and that
the latter granted the same land under customary law to Oroye. He was entitled to make an award of title to the land in dispute in favour of the appellants. (P. 209, paras. F-G)
- On need for claimant for title to land based on traditional history to plead devolution by naming successive descendants –
To support traditional history in a claim for title to land pleadings must aver successive descendants. In the instant case, the pleadings by the respondents did not aver successive descendants and therefore would not qualify to support their traditional history (Pp. 220-221, paras. H-D)
- On need to plead and prove title to land in accordance with custom of a family or community where it is based on tradition –
Where the origin of a grantor’s title is based on tradition, it has to be averred on the pleading and proved by evidence in accordance with the custom of a particular family or community unless title has been admitted. (Mogaji v. Cadbury (Nig.) Ltd. (1985) 2 NWLR (Pt. 7) 393; Ogunleye v. Oni (1990) 2 NWLR (Pt. 135) 745 referred to.) (Pp. 223-224, paras. H-A)
- On whether there can be other original owners where claimant pleads settlement –
Where a claimant does not plead that he acquired land by conquest or grant but by settlement, there can be no question of original owners. In the instant case, to say that there must be proof of how Opeagbe acquired title from the original owners of the land in dispute as held by the Court of Appeal is a misconception of the pleading that Opeagbe settled on the land. He therefore became the original owner by settlement. (P. 217, paras. A-C).”Respondent pleaded the settlement in paragraph 5a of the amended statement of claim and in paragraphs 6, 7, 8 & 9 traced the undisturbed possession from Adekunle his ancestor through inheritance to respondent as further pleaded in paragraphs 9-13 amended statement of claim in paragraph 8 thus:-
“8. Akinyooye also farmed on the farmland for about twenty (20) years before Amusan inherited it from him and Amusan had practices his farming on the same farmland undisturbed (sic) by anyone for about twenty (20) years before he finally handed over the farmland to the plaintiff for caretaking about twenty-three (23) years ago.
The plaintiff has worked on the farmland in dispute for about (20) years before his father David Amusan died in March, 1983., 10….., 11….
- After the death of David Amusan, the plaintiff in this suit inherited the farmland in dispute according to Yoruba native law and custom.
The late David Amusan and the plaintiff never paid any annual tribute (“Ishakole”) to any body in respect of the farmland in dispute before.”
The respondent pleaded in paragraphs 8 and 9 of the reply to the amended statement of defence as follows:-
“(8) The plaintiff has not at anytime admitted being a tenant to the vendor of the defendant in this case.
The plaintiff avers that his own farmland at Ese Okuta, Kola village, is different from Awawu Abike’s farmland.”
“(1) The defendant denies paragraphs 3, 4, 5, 5(a), 5(b), 6, 7,8,9,10,11,12,13,14,18,19,20,21,22,23,24,25,
26, 27, 28 to 34 and puts the plaintiff to the strictest proof thereof.
(2) By a purchase receipt made on the 4th day of February, 1974 the defendant bought a piece of land situate lying and being at Kola village Famia Road, Modakeke, Ile-Ife measuring about 10 acres and the defendant relies on the purchase receipt in proof of payment and title to the land.
(5) The defendant by this purchase is the owner of the land situate lying and being at Kola village, Famia Road, Modakeke, Ile-Ife.
(6) The vendor of the defendant Lawani Omidoyin permitted the plaintiff to cultivate seasonal crops as tenant on the land and informed them when he sold the land to the defendant.
(23) The plaintiff as a witness in the said case admitted being a tenant to the vendor of the defendant, one Lawani Omidoyin and the defendant shall rely on this fact.
(24) The defendant also plead that the plaintiff is estopped
from denying this issue at the trial of suit.
(25) The defendant also plead the evidence of the vendor of the defendant, Lawani Omidoyin now deceased in the said suit No. 148/76 in proof of purchase by the defendant.
(26) The defendant pleads ownership of the land in dispute by purchase.”
After reviewing the evidence of the respondent, appellant and their witnesses the learned trial Judge at page 53 of the record of appeal stated and found as follows:-
“I am in no doubt, therefore that the plaintiff’s land was not part of what was sold to the defendant by Lawani and the attempt by the defendant to annex the same is a “try on” as is also evidenced by the uneasiness noticed in the way the defence witnesses testified.” I accept the plaintiff’s case as regards settlement and user of the land in dispute and reject the defendants’ claim that the plaintiff’s farmland formed part of what Lawani Omidoyin sold to her. The plaintiff is therefore entitled to a declaration of title to a customary rights of occupancy in respect of the land in dispute against the defendant.”
The above were findings of fact that after consideration and evaluation of the evidence of the parties based on their pleadings the learned trial Judge concluded and found as a fact that respondent’s land now in dispute as shown in exhibits A and B were not the same parcels of land but different parcels of land and that exhibit A was not covered by exhibit C and not portion of the land sold by appellants’ vendor to the appellant. The findings were findings of fact, after an appraisal of the pleadings and the evidence adduced by the parties I found that the conclusions of the learned trial Judge were borne out from the pleadings and the evidence as an appellate court I found the findings of fact not to be perverse. I therefore affirm the judgment by the learned trial Judge that the land in dispute verged blue in exhibit A was not part or portion of land sold by Lawani Omidoyin to appellant this finding rejected the defence of the appellant and showed that appellant failed woefully in her defence that the land in dispute was owned by her through purchase by exhibit C.
In any event exhibit C would not confer title on appellant but was evidence of purchase, but if coupled with possession could only grant her equitable interest as receipt is unknown to customary law of sale of land Cole v. Folami (1956) SCNLR 180; Ojukpan v. Orovuyovbe (1967) NMLR 287; Olowoake v. Salawu (2000) 11 NWLR (Pt. 677) page 127 CA; Buraimoh v. Karimu (1999) 9 NWLR (Pt. 618) page 310 CA; Sofolahan v. Folakan (1999) 10NWLR (Pt.621) page 86 CA; Ogunbambi v. Abowab (1951) 13 WACA 222.For a trial Judge to grant or refuse declaration for customary right of occupancy is an exercise of judicial discretion which is to be exercised judicial and judiciously. Before an appellate court can interfere with the exercise of judicially discretion by the trial court, the appellate court must be satisfied that the grant was unsound or based on wrong principle of law Elendu v. Ekwoaba (1995) 3 NWLR (Pt. 386) page 704 CA; Elendu v. Ekwoaba (1998) 12 NWLR (Pt. 578) page 320 SC. After a careful and cool calm view of the exercise of the judicial discretion by the learned trial Judge in this instant appeal the conclusion was based on sound principle of law thereby this court has no legal basis or justification to interfere with the grant of declaration of right of occupancy to respondent as in my view from the pleadings and evidence adduced based on them the learned trial Judge exercised his judicial discretion in the grant in accordance with sound principle of law.
From the foregoing issue 1 in appellant’s brief of argument is unmeritorious and is resolved against the appellant leading to a dismissal of the appeal based on this issue.
Issues 2 and 4 in appellant’s brief of argument raised whether exhibit D operated as estoppel against respondent as to the evidence adduced against respondents therein and whether the learned trial Judge made proper use in the evaluation of evidence more in favour of respondent to the disfavour of appellant.
It is trite law that evidence given in a previous judicial proceedings by a witness can only be used in a subsequent trial to cross-examine the witness no more no less and it is of no higher evidential value Alade v. Aborishade (1960) SCNLR 398; Bayol v. Ahemba (1999) 10NWLR (Pt. 623) page 381 SC, Folarin v. Durojaiye (1988) 1 NWLR (Pt. 70) page 351 SC, Njoku v. Dikibo (1998) 1 NWLR (Pt. 534) page 496 CA.
I have carefully considered the arguments advanced by appellant on issues 2 and 4 in appellants’ brief of argument and also similar issues 2 and 4 raised in respondents’ brief of argument. Applying the principle of law and the authorities stated above as to what use a previous testimony can be put in subsequent proceeding is to cross-examine as to credit appellant misfired as the previous statement was made not by respondent, so the contention of appellant lacks substance and devoid of any merit, so also the use of exhibit D as estoppel when the learned trial Judge found as a fact that the land litigated in exhibit D was not the same land as the land in dispute covered by exhibit A. There is therefore no substance on this issue which is devoid of any merit. Issues 2 and 4 are resolved against appellant as lacking in substance and devoid of any merit. The appeal on issues 2 and 4 being unmeritorious are dismissed on the two Issues.
The learned trial Judge having found as a fact that respondent was not a customary tenant of the vendor of the appellant upon which appellant predicated her case as stated by the learned trial Judge, the invocation, and interpretation of section 36(1 )(2)(3) of the Land Use Act, 1978 arose when at page 53 of the record of appeal that after which the learned trial Judge went on voyage of discovery on a matter upon which the parties did not join issues in their pleadings under the rule of pleadings in Lewis & Peat (Nig.) Ltd. v. Akhimien (1976) All NLR (Pt. 1) page 460, (1976) 7 SC 157; Acme Builders Ltd. v. KSWB (1999) 2 NWLR (Pt. 590) page 288 Sc. The learned trial Judge stated that-
“Even if I have found that plaintiff was a customary tenant of Lawani Omidoyin in respect of the farmland in dispute and that the same was part of what was sold by Lawani Omidoyin to the defendant my decision would not have been different. This is because of the provisions of section 36(1)(2)(3) of the Land Use Act, 1978.”
raised the issue of bindingness of pleadings alluded to above that unpleaded fact goes to no issue Abimbola George & Ors. v. Dominion Flour Mills Ltd. (1963) 1 All NLR page 71 SC, (1963) 1 and 2 SCNLR 117; Ferdinand George & Anor. v. UBA Ltd. (1972) 8 – 9 SC 264; UBA Ltd. v. Ademuyiwa (1999) 11 NWLR (Pt. 628) page 570 CA. More also a court is not competent to grant or award to a party what was not asked for Ekpenyong v. Nyong (1975) 2 SC 71.
The non-issue of section 36 Land Use Act, 1978 was hypothetical, academic and speculative the court settles issues properly raised as courts are not given to speculation, hypothetical and academic issues Chief R. O. Nkwocha v. Governor of Anambra State & Anor. (1984) 6 SC 362-419, (1984) 1 SCNLR 634, Chief O. O. Okulaja & 6 Ors. (For themselves and entire members of Agaigi Ruling House) v. Timothy Adeilo Adefulu & 17 Ors. (1992) 5 NWLR (Pt. 244) page 752 at 765 CA; M. Olu Bello v. Bamidele Fayose & 2 Ors. (For and on behalf of Fagbamila Falae family) (1999) 11 NWLR (Pt. 627) page 510 at 517 SC; Onyesoh v. Nnebedun (1992) 3 NWLR (Pt. 229) page 315 SC; Spencer & Anor. v. Williams & Ors. 24 LTR 513 at 516.Applying the above to the instant appeal the learned trial Judge should not have embarked on his voyage of discovery, the parties did not raise the matter in their pleadings the attitude of the learned trial Judge on a non-issue was a miscarriage of justice but in my view it did not amount to substantial miscarriage of justice to vitiate this appeal.
For the above reasons the appeal lacks substantial merit and hereby dismissed by me. As costs follow the event I award the sum of N5,000.00 (Five thousand Naira) in favour of respondent against appellant.
Other Citations: 2002)LCN/1154(CA)
