ISSUE: ACTION AGAINST ACQUISITION OF LAND-Whether a challenge to acquisition of land can be deduced or inferred by the Court; Whether where a party claims ownership of land improperly acquired it is incumbent on the party to seek for an order setting aside the alleged acquisition and to plead and prove facts justifying the setting aside of the acquisition(Issue is mine)
PRINCIPLE:
“The complaints of the Appellant under this issue for determination invite this Court to examine the evaluation of the evidence of the parties carried out by the lower Court. It is settled that a trial Court has two duties in respect of the evidence led by parties in a trial. The first is to receive into its records all the relevant evidence, and this is called perception. The second is to thereafter weigh the evidence in the context of the surrounding circumstances, and this is evaluation. A finding of fact by a trial Court involves both perception and evaluation – Wachukwu Vs. Owunwanne (2011) 14 NWLR (Pt. 1266) 1; Ogundalu Vs. Macjob (2015) LPELR-24458 (SC); Eze Vs. State (2018) 11 NWLR (Pt. 1630) 353; Otigbah Vs. Uwanaka (2020) 16 NWLR (Pt. 1749) 1; Yankey Vs. Austin (2021) 1 NWLR (Pt. 1757) 227.
It is the primary responsibility of a trial Court to evaluate the evidence presented by parties before it, ascribe probative value to the evidence and then come up with a decision. The law is that where the records of proceedings show that a trial Court assessed the evidence produced before it and accorded probative value to them and placed them side by side on an imaginary weighing scale before coming to a conclusion and making a finding of fact on side of the evidence that tilts the scale, such a finding must be accorded due weight so long as it is not unreasonable and not perverse. In other words, an appellate Court will not interfere with the evaluation of evidence carried out by a trial Court and will not substitute its own views for that of the trial Court unless the conclusion reached from the facts is perverse – Faleye Vs. Dada (2016) LPELR-40297 (SC); Enukora Vs. Federal Republic of Nigeria (2018) 6 NWLR (Pt. 1615) 355; TSKJ (Nig) Ltd. Vs. Otochem (Nig) Ltd. (2018) 11 NWLR (Pt. 1630) 330; Edwin Vs. State (2019) 7 NWLR (Pt. 1672) 551; Mohammed Vs. State (2020) LPELR-52451 (SC).
In other words, an appellate Court will only interfere with the evaluation of evidence carried out by a lower Court and embark of a re-evaluation of the evidence led by the parties where an appellant visibly demonstrates the perversity of the findings made by the lower Court by showing that the lower Court (i) made improper use of the opportunity it had of seeing and hearing the witnesses; or (ii) did not appraise the evidence and ascribe probative value to it; or (iii) drew wrong conclusions from proved or accepted facts leading to a miscarriage of justice. Where an appellant fails to do so, an appellate Court has no business re-evaluating the evidence and interfering with the findings of the lower Court – Kale Vs. Coker (1982) 12 SC 252 at 371; Oke Vs Mimiko (No 2) (2014) 1 NWLR (Pt. 1388) 332 at 397-398; Busari Vs. State (2015) 5 NWLR (Pt. 1452) 343 at 373; Amadi Vs. Attorney General of Imo State (2017) 11 NWLR (Pt. 1575) 92; ABC (Transport Co.) Ltd. Vs. Omotoye (2019) LPELR-47829 (SC); Adamu Vs. Federal Republic of Nigeria (2021) 12 NWLR (Pt. 1790) 377.
In Hanatu Vs. Amadi (2020) 9 NWLR (Pt. 1728) 115, the Supreme Court at page 132 D-G explained the position of the law thus: “An appeal is an invitation to the superior Court to review the decision of the lower Court and enter a decision that the Court below ought to have reached. The appellate procedure is a grievance procedure. The appeal Court does not substitute its discretion or opinion for that of the Court below from which the appeal emanates. In the appeal procedure, it is incumbent on the appellant to show how the Court below erred or was wrong in the decision appealed against. By virtue of Section 168(1) of Evidence Act, 2011, there is a presumption in favour of the correctness of the decision appealed against and the burden of showing the contrary is on the appellant. This presumption enjoins the appellant to demonstrate how wrong in terms of evidence as well as both procedural and substantive laws the decision appealed against was.”
The contention of the Appellant was that the first Respondent did not make out a case either on the pleadings or on the evidence led challenging the acquisition of the parcel of land in dispute by the Kano State Government, and that her case was on the adequacy of the compensation given to her and that as such the lower Court was in error in declaring the acquisition of the land invalid and in proceeding therefrom to grant the claims of the first Respondent.
The starting point for the consideration of the complaint of the Appellant must be the pleadings of the parties. The Courts have stated over and over that in an action fought on pleadings, the very foundation of the action is the pleadings of the parties. Pleadings are the written statements of the parties setting forth in a summary form the material facts on which each relies in support of his claim or defence, as the case may be. They are the means by which the parties are enabled to state and frame the issues which are in dispute between them and it operates to define and delimit with clarity and precision the real matters in controversy between the parties upon which they can prepare and present their respective cases and upon which the Court will be called to adjudicate between them – Aminu Vs. Hassan (2014) 5 NWLR (Pt. 1400) 287; Corporate Ideal Insurance Ltd. Vs. Ajaokuta Steel Co. Ltd. (2014) 7 NWLR (Pt. 1405) 165 at 188 A-B; Anyafulu Vs. Meka (2014) 7 NWLR (Pt. 1406) 396 at 424 G; Amakeze Vs. Nze Petroleum Co. (Nig) Ltd. (2021) 1 NWLR (Pt. 1756) 107.
Dovetailing from this, is the principle that where a fact in the pleadings of a party is admitted by the other party, either because it is expressly admitted or because it is impliedly admitted by the omission to traverse it expressly, it ceases to be in controversy between the parties and no evidence is required or admitted to prove such fact, and accordingly, only those facts which are expressly traversed on the pleadings will remain in issue between them. In other words, when parties have in their pleadings agreed on some facts, there is no issue in dispute between them on such agreed matters. There is no dispute on a fact which is admitted – Onobruchere & Anor. Vs. Esegine & Anor. (1986) 2 SC 385; Bunge Vs. Governor, Rivers State (2006) 12 NWLR (Pt. 995) 573 at 599-600 B-A and Akande Vs. Adisa (2012) 15 NWLR (Pt. 1324) 538.
On the pleadings, the first Respondent narrated how she purchased the land in dispute in the year 2000 for N120,000.00 and applied for and was issued with a Customary Right of Occupancy dated the 6th of June, 2000 over the parcel of land by the Nassarawa Local Government Authority. She pleaded that she thereafter applied to the second Respondent for the conversion of the Customary Right of Occupancy to a Statutory Right of Occupancy and she made all necessary payments and a file was opened in her name by the second Respondent. She averred that second Respondent communicated with the Chairman of the Nassarawa Local Government Authority in furtherance of her application and that she continued to pursue the issuance of the Statutory Right of Occupancy only to discover that the Appellant had been issued with Certificates of Occupancy by the second Respondent over some of the plots of land in dispute.
The case of the second and third Respondents was that in the course of processing the application of the first Respondent for conversion of her Customary Right of Occupancy over the land in dispute to a Statutory Right of Occupancy, it was discovered that the parcel of land fell within portions of land that the Kano State Government had earlier acquired and designed as commercial layouts. They pleaded that they brought this fact to the knowledge of the first Respondent and made offers to compensate her for the land by allocating 50% of the plots carved out of the parcel of land to her and that she was allocated Plots Nos. C2 to C7, but that the first Respondent demanded for more plots of land. They averred that they were unable to accede to the request because the additional plots of land she demanded had been granted to other persons in 2001 and a series of meetings held was unable to resolve the differences.
The Appellant reaffirmed that in the course of processing the application of the first Respondent for conversion of her Customary Right of Occupancy over the land in dispute to a Statutory Right of Occupancy, it was discovered that the parcel of land fell within Plan No TP/KAS/243A contain a vast portion of land that the Kano State Government had acquired from several individuals for designation into residential and commercial layouts and he reiterated the case of the second and third Respondents was on the compensation approved for the first Respondent.
The first Respondent did not file a reply to the statement of defence of the second and third Respondents but she did file one to the statement of defence of the Appellant and wherein she denied accepting the offer of compensation of six plots of land and she averred that she consistently insisted on being given her parcel of land comprising Plots Nos. C1 to C10 on the layout and that she was never informed that any portion of the ten plots of land had been occupied by anyone.
This was the state of the pleadings upon which the matter proceeded to trial. What is obvious from these facts is that the first Respondent was aware of the fact of the acquisition of the land in dispute by the Kano State Government before she commenced the present action and nowhere in her statement of claim or in her reply pleadings did she aver facts challenging the fact of the acquisition and neither did she pray the lower Court for an order setting aside the said acquisition of the land. It is settled that the fact of a challenge to the acquisition of land cannot be deduced or inferred. It must be expressly pleaded. It is presumed that compulsory acquisition of land by government is regular because non-compliance with the laws of the State will not be presumed, but if it exists, it is for the party complaining to plead and prove such non-compliance, this is embodied in the Latin maxim omnia presumuntur, rite esse acta and it is apparent from Section 168 of the Evidence Act – Integrated Rubber Products Ltd. Vs. Oviawe (1992) 5 NWLR (Pt. 243) 572; Ononuju Vs. Attorney General, Anambra State (1998) 11 NWLR (Pt. 573) 304.
The law is that where an appropriate authority improperly exercises a power given to it under a statute and creates a state of affairs which a proper exercise of that statutory power would ordinarily create, that state of affairs cannot be ignored and treated as if it did not exist because it came about by an improper exercise of power. A party contending against the state of affairs created by the improper exercise of the statutory power must advance the facts of the improper exercise of that power in support of an action to nullify the state of affairs so created and to set aside the exercise of the power by the authority. In Teniola Vs. Olohunkun (1999) 5 NWLR (Pt. 602) 280, Ayoola, JSC, at 298 explained the point thus: “Where in the exercise of statutory power, grants of statutory rights of occupancy have been made, without want of authority or capacity, the Court will not treat the grants as if they have not been made and proceed to determine the rights of the parties as if those grants have ceased to be in existence. There may be circumstances in which there are facts which, if established by evidence, may justify the exercise of the Court’s discretion to set aside a grant of right of occupancy… The facts which may justify the setting aside of a grant of right of occupancy cannot be used as defence in an action in trespass when the grant which vested exclusive possession in the holder had not itself been set aside. The proper thing to do is to advance those facts in an action to set aside the grant.
In my judgment, the plaintiff’s counsel was right in his submissions that the judgment of the Court of Appeal should be affirmed since the rights of occupancy granted to the plaintiff have not been revoked and there has been no action to have them set aside. The requirement that a party who challenges the validity of a grant of statutory right of occupancy should take steps to set such aside, rather than ignore it and behave as if it does not exist, is by no means a mere technicality… To treat the grant as annulled when no such remedy has been sought in the action and to hold that the party challenging the grant has a right to enter the land as if the holder of a right of occupancy had at no time been granted to the plaintiff, cannot at all be right.”
This statement of the law was reiterated and applied by the Supreme Court in the case of Dabo Vs. Abdullahi (2005) 7 NWLR (Pt. 923) 181 at 204-205. The Land Use Act empowers the Governor of Kano State to acquire land and a proper exercise of the power of acquisition extinguishes all rights and interests in the land acquired. Therefore, where a party claims ownership of a parcel of land which is said to have been acquired, it is incumbent on the party to seek for an order setting aside the alleged acquisition and to plead and prove facts justifying the setting aside of the acquisition. The party cannot just plead his case of ownership the land and ignore the said acquisition simply because he believes that the acquisition was improperly done. Where a party fails to do so, he will be treated as having not joined issues on the issue of acquisition of the land.
This is in furtherance of the principle that where a claimant fails to file a reply to answer or contest material averments in a statement of defence which have not been taken care of by the averments in the statement of claim, he would be deemed not to have joined issues on the averments in the statement of defence – Adeleke Vs. Aserifa (1986) 3 NWLR (Pt. 30) 575; Mba Vs. Agu (1999) 12 NWLR (Pt. 629) 1; Iwuoha Vs. NIPOST Ltd. (2003) 8 NWLR (Pt. 822) 308; Attorney General, Abia State Vs. Attorney-General, Federation (2005) 12 NWLR (Pt. 940) 452.
The failure of the first Respondent to aver facts challenging the fact of the acquisition of the land in dispute pleaded by the second and third Respondents and to pray the lower Court for an order setting aside the said acquisition of the land meant that she did not contest the acquisition of the land in dispute. The state of the pleading thus supports the assertion of Counsel to the Appellant that the grievance of the first Respondent was not with the acquisition of the land in dispute, but with the adequacy of the compensation given.
It is correct that the first Respondent stated in her evidence that she was not served with a revocation notice and the records of appeal show that her Counsel vigorously canvassed the issue of the impropriety of the acquisition of the land in dispute in his final written address. It is an established principle of adjudication that parties are bound by their pleadings and any fact that emerges from matters that are not pleaded go no issue and should be discountenanced – Phillips Vs. Eba Odan Commercial & Industrial Company Ltd. (2013) 1 NWLR (Pt. 1336) 618; Idachaba Vs. University of Agriculture, Makurdi (2021) 11 NWLR (Pt. 1787) 209; Haruna Vs. Abuja Investment & Property Development Co. Ltd. (2021) 15 NWLR (Pt. 1798) 133; Bayero Vs. Agundi (2021) 16 NWLR (Pt. 1802) 347.
Thus, parties are not allowed to raise issues of facts in the address of their Counsel which were not raised or agitated on the pleadings as address of Counsel does substitute for pleadings – Buraimoh Vs. Bamgbose (1989) All NLR 669; Okwejiminor Vs. Gbakeji (2008) 5 NWLR (Pt. 1079) 172; Ayanwale Vs. Odusami (2011) LPELR-8143 (SC).
Similarly, the Courts are bound by the pleadings of the parties and should not consider an issue not raised by the parties on the pleadings – First Bank of Nigeria Plc Vs. Songonuga (2007) 3 NWLR (Pt. 1021) 230; Akpan Vs. Udoh (2008) 3 NWLR (Pt. 1075) 590; Afolabi Vs. Western Steel Works Ltd. (2012) 17 NWLR (Pt.1329) 286; Julius Berger (Nig) Plc Vs. Ogundehin (2014) 2 NWLR (Pt. 1391) 388. The law is that the Court is bound to limit and confine itself to the case presented and issues raised by both parties and it has no duty to formulate cases for the parties – Eweje Vs. O. M. Oil Industry Ltd. (2021) 4 NWLR (Pt. 1765) 117; Offodile Vs. Onejeme (2021) 7 NWLR (Pt. 1775) 389; Wulangs Vs. Central Bank of Nigeria (2021) 16 NWLR (Pt. 1802) 195. The lower Court had no business in this case voyaging, as it did in the judgment, on the question of whether or not the acquisition of the land in dispute followed the procedure laid down in Section 28 of the Land Use Act and Section 44 of the 1999 Constitution.
But perhaps more erroneous was the order made by the lower Court declaring the acquisition of the land by the Kano State Government invalid. No such relief was sought or prayed for by the first Respondent. It is settled that the parties and the Court are bound by the reliefs claimed in the action. A case is fought on the reliefs sought and the reliefs put the cause of action of a party in specific demanding language. An action stands or falls on the reliefs sought – Otun Vs. Otun (2004) 14 NWLR (Pt. 893) 381; Africa Prudential Registrars Plc Vs. Macaulay (2020) 18 NWLR (Pt. 1755) 1 and Ehinle Vs. Ikorodu Local Government (2021) 1 NWLR (Pt.1757) 279. Therefore, a Court cannot grant a relief not claimed by the parties on the pleadings – Think Ventures Ltd. Vs. Spice & Regler Ltd. (2020) 2 NWLR (Pt. 1759) 114; Offodile Vs. Onejeme (2021) 7 NWLR (Pt. 1775) 389; Cappa and Dalberto (Nig) Plc Vs. NDIC (2021) 9 NWLR (Pt.1780) 1; Uyo Local Government Vs. Akwa Ibom State Government (2021) 11 NWLR (Pt.1786) 1.
Further, apart from the pleadings, the documentary evidence before the lower Court also support the contention of Appellant that the grievance of the first Respondent was not with the acquisition of the land in dispute, but with the adequacy of the compensation given. The parties were agreed that in response to the application of the first Respondent for a statutory right of occupancy over the land in dispute, the second Respondent addressed a letter dated 1st September, 2005 to the first Respondent and that the first Respondent responded thereto by a dated 11th September, 2005. Both letters were tendered in evidence by the parties. The second Respondent’s letter read, in part, thus:
RE: APPLICATION FOR STATUTORY RIGHT OF OCCUPANCY NO. KN/CON/COM/2001/09
I am directed to refer to the above subject matter and inform you that a total of six (6) commercial plots (C2 to C7) at Hotoron Arewa Layout covered by Plan No. TP/KAS/243 have been earmarked for your resettlement.
You are therefore requested to acknowledge the above to enable further appropriate action.
The response letter of the first Respondent read, in part, thus:
RE: APPLICATION FOR STATUTORY RIGHT OF OCCUPANCY NO. KN/CON/COM/2001/09
I write to acknowledge receipt of the attached letter on the above matter which I was privileged to collect from the Ministry of Land and Physical Planning, Kano on the 7th of September, 2005.
I wish to express my profound gratitude to the Hon. Commissioner for the effort he is putting in to resolve this issue.
I was informed in the said letter that I have been earmarked a total of six (6) commercial plots (C2 to C7) at Hotoron Arewa Layout covered by Plan No. TP/KAS/243 for resettlement.
With due respect, I however wish to make a special request to Your Excellency. Taking into consideration the size of the original land in question for which I initially applied for the Statutory Right of Occupancy, I would request Your Excellency to approve as resettlement for me Commercial Plots Nos. C1 – C10, all of which are contained within the original land in question. The rest of the land unfortunately would be forfeited. Please see attached plan.
I pray my request be considered and approved so as to put to rest the issue of the resettlement on this land. (underlining for emphasis)
Now, it is trite law that in the construction of documents the primary rule is that effect should be given to the literal contents in their ordinary way as they appear on the documents and that anything which does not appear ex facie on such documents should not be imported into them – The Northern Assurance Co. Ltd. Vs. Wuraola (1969) LPELR-25562 (SC); Ogbunyiya Vs. Okudo (1979) 6-9 SC 32; Union Bank of Nigeria Plc Vs. Ozigi (1994) 3 NWLR (Pt 333) 385; Lewis Vs. United Bank for Africa Plc (2016) 6 NWLR (Pt.1508) 329. Applying these principles to the above documents, it is evident that prior to the commencement of this action, the engagements between the first Respondent and the second and third Respondents were focused not on the validity of the acquisition of the land in dispute, but on the adequacy of the plots of land being offered for resettlement. This, perhaps, was what guided the first Respondent into not challenging the acquisition of the land in dispute in the action in the lower Court.
The findings made by the lower Court on the impropriety of the acquisition of the land in dispute by the Kano State Government and the order made declaring the acquisition invalid are hereby set aside. It is settled law that once there is a compulsory acquisition of land, the title of the former owner becomes extinguished by reason of the acquisition – Yusuf Vs. Oyetunde (1998) 12 NWLR (Pt.574) 483; Akinboye Vs. Adeko (2011) 6 NWLR (Pt.1244) 415. Therefore, in Adegbite Vs. Amosu (2016) 15 NWLR (Pt.1536) 405, the Supreme Court held that a person can only maintain an action in respect of land acquired by government if he can show that he successfully challenged the acquisition which was later revoked.
The failure of the first Respondent to seek for and plead facts supporting the nullification and setting aside of the acquisition of the land in dispute by the Kano State Government removed the ‘wind from the sail’ of her claim for declaration of ownership of the land in dispute. The finding of the lower Court that the first Respondent made out a credible case to sustain her claims was not supported by the pleadings and evidence led by the parties. It is perverse and it is hereby set aside. The first issue for determination is resolved in favour of the Appellant.” Per ABIRU, JCA.