Alhaji Uba Garba V. Alhaji Bala Mahmudu Yakasai (2005)

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BABA ALKALI BA’ABA, J.C.A.

This is an appeal against the judgment of the Kano State High Court, sitting at Kano Judicial Division, holden at Kano, presided over by Aliku, J, delivered on 1st of June, 1998. The respondent who was the plaintiff at the trial court, took out a writ of summons against the appellant who was the defendant claiming the following reliefs:

“1. A declaration that he is the rightful owner of plot No.512 situate, lying and being at Baban Giji Quarters in Kano and covered by Certificate of Occupancy No.LKN/RES/86/1577.

2. A declaration that the occupancy permit No.5339 acquired by the defendant through one Alhaji Adamu Ado, purporting to be in respect of the said plot No.512, situate, lying and being at Baban Giji Quarters, Kano, is forged, null, void and of no effect whatsoever.
3. A mandatory injunction directing the defendant to uproot and evacuate the structures and fixtures he has now erected on the said plot No. 512, Baban Giji quarters, Kano.
4. A perpetual injunction restraining the defendant his agents and or servants from trespassing into the said land again.
5. And the sum of N200,000.00 (Two hundred thousand Naira only), being damages for trespass and injurious use of the land.”

Pleadings were ordered filed and exchanged by the parties.

The trial court at page 3 of the printed record on 11/3/91, deemed the statement of claim dated 26/2/91 filed on 27/2/91, before pleadings were ordered as having been properly filed and served and granted 60 days to the appellant, who was the defendant within which to file his statement of defence. I observed that at pages 72 – 74, that there is an undated Amended Statement of Claim, but there is nowhere in the printed record where the order granting leave to amend the statement of claim was made, hence, the original statement of claim contained at pages 115 – 116 dated 26/2/91, is the one recognized by the court upon which the action was heard.

It is now well settled that in civil proceedings commenced at the High Court, parties are bound by their pleadings and any evidence which is at variance with the averments in the pleadings goes to no issue and should be disregarded by the court. See George & ors. vs. Dominion Flour Mills Ltd. (1963) 1 S.C.N.L.R 117, 1 All N.L.R 71 at 77; Emegokwue vs. Okadigbo (1973) 4 S.C.113 and Orizu vs. Anyaegbunam (1978) 5 S.C. 21.

The burden of proof in a civil case, is on the plaintiff who had made a positive assertion to prove it by evidence. See Vulcan Gases Ltd. vs. Gesellschaft for Industries Gas Refining (2001) 9 NWLR (Pt.719) 610 at 667. It follows therefore, that the importance of pleadings in a civil case can not be over emphasised, hence, the averments in both the statement of claim and the statement of defence that I consider relevant are hereby reproduced below.

I consider paragraphs 3, 4, 5, 6, 7, 8 of the statement of claim dated 27/2/91, contained at pages 115 – 116 of the printed record relevant and are as follows:

“3. The plaintiff is the owner of a piece of land situate, lying and being at Babban Giji Quarters, Kano and is more is particularly known and referred to as plot No.512.

4. That the plaintiff was issued with both letter of grant and Certificate of Occupancy in respect of the said plot No.512 situate at Babba Giji Quarters, Kano. The said letter of grant and certificate of occupancy No.LKN/RES/86/ 1577 issued on the name of the plaintiff are hereby pleaded and will be relied upon at the trial.
5. That sometime in December, 1989, the plaintiff visited the said plot No.512 and discovered some structures thereon which were later explained to belong to the defendant.
6. That when the plaintiff confronted the defendant he said that the plot of land belongs to him as he has purchased same from one Alhaji Adamu Ado, and even brought out occupancy permit No.5339 allegedly issued in respect of the plot No.512. The said occupancy permit No.5339 is hereby pleaded and, the defendant is hereby put on notice to produce the same at the hearing of this action.
7. That as a result of the averments contained in paragraph 6 above the plaintiff wrote a letter of complaint to the Commissioner of Police in charge of the State D.I.I. and pleaded with him to investigate the issue. The said letter written by the plaintiff on the 14th of December, 1989, is hereby pleaded and will be relied upon at the hearing of this action.
8. That consequent upon the plaintiff’s complaint the Commissioner investigated the matter at the land and survey division of the Military Governor’s office Kano, where it was confirmed that the said occupancy permit No.5339 allegedly issued in respect of plot No.512 at Babban Giji is doubtful as no record exist for it, and that the only occupancy permit No.5339 that was issued from that office was in respect of plot No.1049 situate at Goron Dutse and owned by one Alhaji Kabiru Abdullahi. The Photostat copy of the letter written by the then land and survey division of the Military Governor’s office on the 6th of March, 1990, with reference No.RES/81/1761/26 to the Commissioner of Police in charge of Directorate of investigation is hereby pleaded and will be relied upon at the trial of this action.”

The appellant who was the defendant at the trial court filed his statement of defence dated and filed on 27/5/91 and I consider paragraphs 3, 4, 5, 6, 7, 8, 10, 11 and 15 relevant in the determination of this appeal. They are as follows:

“3. The defendant deny paragraphs 3 and 4 of the statement of claim and put the plaintiff to the strict proof of the averments contained thereon.

4. With reference to paragraphs 3 and 4 of the statement of claim the defendant aver that the said plot 512 was allocated to one Alhaji Adamu Ado, sometime in 1982. The occupancy permit issued in the name of the said Alhaji ado dated 22/11/82 is hereby pleaded.
5. With further reference to paragraphs 3 and 4 of the statement of claim the defendant aver that he acquired title from the said Alhaji Adamu Ado, sometime in 1983 and thereafter, took possession of the said plot of land and has since being exercising maximum acts of control over the said plot of land. The purchase receipt issued in the name of the defendant is hereby pleaded and will be relied upon at the trial of this action.
6. The defendant deny paragraph 5 of the statement of claim and aver that the plaintiff did not visit the said plot of land in December, 1989, or at any time at all in or prior to 1989.
7. The defendant admit paragraph 6 of the statement of claim and further aver that he completed the building on the said plot 512 situate at Babban Giji quarters, Kano as far back as July, 1988.
8. The defendant is not in a position to deny or admit the contents of paragraph 7 of the statement of claim but put the plaintiff to the strict proof of same.
9. With reference to paragraph 8 of the statement of claim, the defendant aver that the occupancy permit number 5339 issued over plot number 512 Babban Giji quarters, Kano, is genuine as same was issued by the proper authority and not doubtful as alleged in paragraph 8 of the statement of claim.
10. With further reference to paragraph 8 of the statement of claim the defendant aver that investigation conducted at the land and survey division of the Military Governor’s office, Kano, shows that plot 512 Babban Giji quarters, Kano was never allocated to the plaintiff.
11. With further reference to paragraph 10 of the statement of claim the defendant aver that he completed the erection of the building as far back as July, 1988, and has been residing there without hinderance from the plaintiff or anybody at all.

Whereof the defendant say the plaintiff’s claim is frivolous, vexatious, an abuse of legal process and ought to be dismissed with substantial cost.”

At the trial court, two witnesses testified for the respondent and tendered 9 documents in evidence in support of the case of the respondent, while three witnesses testified on behalf of the appellant and tendered 3 documents in support of the appellant’s case at the trial court. The evidence adduced by the parties is contained at pages 10 – 54 of the printed record. At the conclusion of the evidence and address by their counsel, the learned trial Judge at pages 88 – 89, inter alia held:

“The oral evidence of both P.W2 and P.W2 as well as Exhibit A, E, E, G, H and J (the file in respects of RES/86/1577) particularly, the report of investigation made by the land and survey directorates dated 6/3/90 addressed to the Commissioner of Police, Kano, which was earlier tendered for identification and subsequently tendered in exhibit 1 strengthen ownership of plot 512 on the plaintiff and on the other hand, the oral testimony of PW2 and the letter of 6/3/90 contained in Exhibit 1 indicate that occupancy permit exhibit C, relates to plot No.1049 at Goron Dutse and is granted to one Alhaji Kabiru Abdullahi and not to Alhaji Adamu Ado (DW3) and that occupancy permit 5339 (Exhibit C) for plot 512 at Babban Giji is doubtful.