Dodo Dabo V. Alhaji Ikira Abdullahi (2005) LLJR-SC

Dodo Dabo V. Alhaji Ikira Abdullahi (2005)

LAWGLOBAL HUB Lead Judgment Report

ONU, J.S.C.

This is an appeal from the judgment of the Kaduna division of the Court of Appeal (Coram: Isa Ayo Salami, Victor A. O. Omage and Joseph J. Umoren, JJ.C.A.) delivered on the 5th of December, 2000 in Appeal No. CA/K10/99 wherein the learned Justices unanimously dismissed the appellant’s appeal against the judgment of Umaru Adamu, J. of the Kaduna High Court. The action was commenced as suit No. KDH/ KAD/132/90 in the High Court with the appellant as the defendant while the respondent was the plaintiff.

The facts of the case briefly stated are that by his writ of summons contained on pages 1 to 3 of the record, the respondent claimed against the appellant for a declaration of title, an injunction and N10,000 general damages for trespass on the plot of land covered by statutory certificate of occupancy No. 8764.

The appellant for his part, filed a statement of defence in which he claimed that he was granted a customary right of occupancy over the piece of land in 1968 by the Sarkin Kakuri Bwari, and that he continued to occupy the piece of land and built a house thereon until 1977, when the house was demolished by the Government of Kaduna State as being an illegal structure. His petition for compensation was rejected and instead the Government promised him an alternative plot.

When he waited in vain for the alternative plot, he searched for another piece of land and applied for it, but again, he was informed that it was allocated to another person. When, however, he became aware that the place where his house had been demolished would be made an area for small scale industries by the Government of Kaduna State, he applied that the piece of land where his house had been demolished be allocated to him to enable him set up a block industry.This application was not approved. However, the Kaduna State Government granted the piece of land to the respondent.

The appellant further stated that while waiting for the approval of his application to the State Government, he equally approached the Kaduna Local Government which then issued him a certificate of occupancy (exhibit 5) over the piece of land on which he commenced development only to be stopped by the respondent on the ground that he, the respondent, had been granted the piece of land by the Kaduna State Government.

The appellant then claimed in his pleading that the respondent’s statutory certificate of occupancy No. 8764 (exhibit 2) was not properly issued as due processes were not complied with; consequent upon which an Assistant Chief Lands Officer had recommended to the Chief Lands Officer the withdrawal of respondent’s said certificate of occupancy.

The appellant’s pleading concluded with averments that his right of occupancy (exhibit 5) granted by the Kaduna Local Government still subsisted, thus constituting a better title with a claim for N50,000 as general damages for trespass against the respondent.

The respondent had filed a reply and a defence to the counterclaim in which he denied that neither the alleged customary grant of 1968 (exhibit 3) nor the Local Government Certificate of Occupancy (exhibit 5) were over the piece of land in dispute, and further that the piece of land in dispute was within an urban area within the meaning of the Land Use Act.

The respondent testified and tendered exhibits 1 and 2, the statutory certificate of occupancy No. NC.8764. On the appellant’s part, contrary to his pleading that he was given the land in 1968 by the Sarkin Kakuri Gwari, in his testimony, he backdated the alleged gift to 1963.

Issues turned in the course of the trial on some discrepancies in exhibit 2, the statutory certificate of occupancy, particularly as to the reference in the schedule of exhibit 2 of the piece of land being in “Rigachikun in Kaduna Local Government.”

As to this discrepancy, the appellant’s witnesses, to wit; DW3, DW4 and DW5, all staff of the Bureau of Lands and Survey, Kaduna State, confirmed that the locus in quo as being synonymous with the land identified as exhibit 2 and identical to the land appellant was disputing with the respondent.

It is instructive to note that the appellant under cross-examination conceded that it is the same piece of land where his house was demolished in 1977 by the Kaduna State Government as being an illegal structure (for which he was advised to approach either, Kachia or Kaduna Local Government for alternative plot) that he is presently disputing ownership with the respondent.

The appellant had submitted only two issues for determination in his address at the trial court, namely:

(a) Whether exhibit 2, Kaduna State certificate of occupancy issued to the plaintiff was properly issued.

(b) Whether by exhibit 2 alone without any other evidence of ownership that plaintiff can succeed in his claim against the defendant.

The learned trial Judge in his judgment first considered the issue of irregularities in the process of issuing exhibit 2, the statutory certificate of occupancy harped on by appellant, and held that the said irregularities could not nullify exhibit 2 and that the Governor lawfully exercised powers conferred on him under section 5(1)(a), of the Land Use Act to issue exhibit 2.

The learned trial Judge next considered the issue of the schedule in exhibit 2 describing the land as being in Rigachikun and held that since all relevant documents regarding the grant showed the land to be at Kakuri in Kaduna Local Government and since DW5 had also explained that the piece of land is not in Rigachikun, the reference to Rigachikun was a mistake which could not have the basis of attacking the authenticity of exhibit 2.

The learned trial Judge after considering appellant’s exhibits 3 and 5 and discountenancing them on the grounds that:

(a) No evidence was adduced to link the exhibit with the plot in dispute.

(b) That exhibit 3 did not describe the plot of land, and

(c) That exhibit 3 was written in Hausa and there was no translation of same in English …

he went ahead in respect of the exhibit to hold that the land in dispute being within an urban area, the Kaduna Local Government lacked power to issue same.

The learned trial Judge after further considering the case of both sides, held that the appellant had no valid documents to support his claims of title and that he had no cogent and valid defence. That the respondent satisfactorily proved his case and entered judgment granting all the claims of the respondent.

There was no appeal against the holding by the trial Judge that the Governor lawfully exercised powers conferred on him under the Land Use Act in issuing exhibit 2.

Being dissatisfied with the decision, the appellant appealed to the Court of Appeal sitting in Kaduna (hereinafter referred to as the court below) which proceeded to dismiss the appeal and thereby affirming the judgment of the trial court premised on the following grounds;

(a) That the testimony of the appellant’s witnesses, to wit. DW4 and DW5, supported the case of the respondent:-

(i) as to the validity of exhibit 2.

(ii) as to the identity of the land over which exhibit 2 was issued.

(iii) as to the priority of the grant to the respondent over that of the appellant.

(b) That the plaintiff had discharged the burden of proof required of him.

(c) That the court below could not in the absence of precise identity of the appellant’s land which is supposed to have prior interest consider his defence.

(i) That there was no counter-claim by the appellant regarding his prior customary interest and for the statutory certificate of occupancy (exhibit 2) to be set aside,

(d) That exhibit 3 not having been translated into English could not speak for itself and so its contents were inadmissible.

(e) That exhibit 3 being a document purporting to transfer interest in land was not under seal.

(f) That exhibit 3 purports to transfer an interest in land and was consequently a registrable document which however was not registered.

(g) That in respect of exhibit 5, the Local Government Certificate of Occcupancy

(i) The land over which the Local Government made the grant was not certain.

(ii)The Land over which exhibit 5 was issued is within an urban area.

(iii) That the said piece of land had already been granted to the respondent by the Government of Kaduna State.

The appellant still not satisfied with the decision of the lower court, appealed to this court on ten grounds, four of which were original and six additional, the latter by leave of court. However, the appellant abandoned ground one of the grounds.

The appellant formulated four issues as arising for determination, viz:

1. Whether in view of the irregularities and violation of the Land Use Act the Court of Appeal was in error when it affirmed that exhibit 2 was validily issued. This issue is distilled from Grounds 2, 4 and 6.
2. Had the learned Justices of the Court of Appeal considered the evaluation of evidence as done by the trial Judge would they have affirmed the judgment in favour of the respondent This issue is formulated from grounds 3, 8 and 9.
3. Whether the issuance of exhibits 1 & 2 extinguished the prior existing rights of the appellant to the use and occupation of the land which the respondent acknowledged. This issue flows from grounds 5 and 10.
4. Even if exhibit 2 was rightly held to have been validly issued, did the said exhibit really confer title on the respondent to the land in dispute which is situate along Kachia road by Television Bye-Pass, Kaduna

This issue is formulated from Ground 7.”

The respondent for his part submitted the following four issues as arising for the effective determination of this appeal, to wit:

“(a) Whether the Court of Appeal properly affirmed the validity of exhibit 2 and the fact that the Governor lawfully exercised his powers to issue same.

(b) Whether the court was right when it affirmed that exhibit 2 was over the piece of land in dispute.

(c) If the answer to ‘a’ and ‘b’ above are in the affirmative, whether in the circumstances, on the authority of Teniola v. Olohunkun (1999) 4 SCNJ 92, (1999) 5 NWLR (Pt.607) 280, the appeal ought to be dismissed.

(d) Whether the Court of Appeal was right to have affirmed the judgment of the trial court.”

Treatment of the issues.

In my consideration of the four issues formulated above, I feel inclined to stick to the four distilled by the respondent as follows: –

Issue No. one, distilled from grounds 6 and 10 asks:

Whether the Court of Appeal properly affirmed the validity of exhibit 2, the statutory certificate of occupancy and the fact that the Governor lawfully exercised his powers to issue same.

The appellant’s main argument as can be seen from his pleading, the evidence and his brief, is that there are procedural irregularities prior to the issue of exhibit 2, of particular note, he referred to the alleged absence of Ministry of Commerce and Industry and Kaduna State Urban Planning and Development Authority reports before the Governor issued exhibit 2, and that because of these lapses, exhibit 2 is invalid.

The appellant could not however, show whether these reports were required by law and to be mandatorily complied with by the Governor before he could issue a statutory certificate of occupancy. He merely stated in his brief (see page 6 thereof) that -they were necessarily required and that the Assistant Chief Lands Officer had recommended the revocation of exhibit 2. True enough, the trial court had considered these alleged lapses, evidence of which was given by DW4 (Malaki Tyeji, Principal Estate Officer), with Bureau of Lands and Survey Kaduna State, DW5 (Philip Skimong, Director of Administration) but had also noted that the recommendation of the Assistant Chief Lands Officer were addressed to the Chief Lands Officer (his immediate superior) who did not accept them.

The trial court also considered the fact that both DW4 and DW5 stated that the Governor was not bound by such recommendations before it came to the conclusion that such lapses could not nullify exhibit 2. For these reasons, I agree entirely with the respondent’s submission that the court below was right to have affirmed the validity of exhibit 2 on these grounds. In the same vein, I accept the respondent’s submission that the power of the Governor to issue statutory certificates of occupancies is statutorily provided for in section 5 (1) (a) of the Land Use Act, Cap. 2002, Laws of the Federation, 1990 (now Cap. 5, Laws of the Federation, 2004) under section 5(1)(a) which provides:- ,

“(1) It shall be lawful for the Governor in respect of land, whether or not in an urban area to –

(a) grant statutory rights of occupancy to any person for all purposes.”

This is because an exercise of statutory power cannot be held to be invalid unless it is shown that the exercise is contrary to the statute. See Okafor v. Attorney-General, Anambra State (1992) 2 NWLR (Pt.224) 396 (1992) 6 SCNJ (Pt. 11) 219 at page 234 line 35. Mere administrative procedures meant to guide the exercise of statutory powers, it ought to be stressed, cannot be elevated to the level of mandatory statutory requirement.

The appellant’s brief at page 7 thereof has introduced an entirely new issue to the effect that the prior advice and recommendation of the Land Use and Allocation Committee was neither sought, obtained nor made available to the Governor.

Since the issue was neither pleaded nor raised in the trial court, nor further claimed in the lower court, its introduction in this court without leave is therefore incompetent. The appellant cannot raise a fresh point which was not raised, tried and considered and pronounced upon by the courts. See Ikeanyi v. A.C.B. (1997) 2 SCNJ 93 at 108 and 110, (1997) 2 NWLR (Pt.489) 509 and Adelaja v. Alade (1999) 6 NWLR (Pt.608) 544, (1999) 4 SCNJ 4, SCNJ 225, I therefore agree with the respondent that the argument on this issue be and is hereby discountenanced. Furthermore, the appellant having failed to show that the Governor acted contrary to law in issuing exhibit 2, the trial court correctly, in my view, held and the court below properly affirmed, that exhibit 2 was validly issued and that the Governor lawfully exercised his powers under the Land Use Act (ibid).

The respondent’s contention that the argument of the appellant on this issue to the effect that what is in issue is whether the appellant’s prior existing rights were extinguished, is not relevant to the issue under consideration and should therefore equally be discountenanced, appellant’s submission at page 6 of his brief to the effect that the real question in controversy is whether the Governor was bound to receive and consider recommendations made to him before issuing a certificate of occupancy is not the real issue in controversy. This is because, as shown in the judgment of the trial court (see page 176 of the records) the recommendation to withdraw exhibit 2 by the Assistant Chief Lands Officer did not go far; it stopped at the Chief Lands Officer who did not accept same. Hence, the issue of the Governor being bound to receive and consider such recommendation (which did not come to him in the first place) did not arise. In fact, even if such recommendation had reached the Governor he could not have been bound by the same. From the foregoing, I am of the view that the answer to issue No.1 be and is answered in the affirmative.

Issue II

Whether the Court of Appeal was right when it affirmed that exhibit 2 was over the piece of land in dispute.

In response to the appellant’s contention on this issue, the respondent submitted firstly, that the question of which piece of land and what location exhibit 2 relates to is one of fact.

Therefore, it is next argued, that there are concurrent findings of the courts below that exhibit 2 relates to the land in dispute. The principle of law, it is next argued, is germane and has been restated several times that the Supreme Court will not disturb concurrent findings of fact made by the lower courts where such findings are supported by sufficient evidence. Such findings, it is argued, can only be disturbed where they are shown to be perverse, citing in support thereof the cases of Oladele v. Anibi (1998) 9 NWLR (Pt.567) 559, (1998) 7 SCNJ 24 at 29; U.A.C. v. Fasheyitan (1998) 11 NWLR (Pt.573) 179, (1988) 7 SCNJ 179 at 183 and Nkwo v. Iboe (1998) 7 NWLR (Pt.558) 354, (1998) 6 SCNJ 73 at 81.

The question therefore, it is further contended, is whether, the concurrent findings of the two courts below that exhibit 2 is over the land in dispute is supported by sufficient evidence. Additionally, it is argued, how could there be abundant evidence to support such findings To begin with, it is pointed out, a perusal of the pleadings shows clearly that the appellant recognised that a statutory certificate of occupancy had been issued the respondent over the piece of land in dispute, hence the appellant closed his pleadings with statements to the effect that the respondent’s right of occupancy was not proper, because due process was not followed and that his own i.e. (appellant’s right of occupancy) still subsisted and was a better title.

It is pertinent to note that the appellant in his testimony had conceded that he was aware that the piece of land in dispute had been allocated to the respondent by the Kaduna State Government. The appellant being aware of this fact, it is pointed out, had petitioned the Permanent Secretary, Kaduna State Ministry of Lands about what he described as double allocation of the same plot; double in the sense that appellant also had a Local Government Certificate. The appellant under cross-examination similarly agreed that it was the same piece of land where his house was demolished in 1977 that he is presently disputing with the respondent.

Furthermore, three witnesses called by the appellant, namely, DW3, DW4 and DW5 who were staff of the Bureau of Lands and Survey, Kaduna State, confirmed that the land granted the respondent via exhibit 2 was the same land the appellant was claiming. See the evidence of DW3, DW4 and DW5 at pages 96, 111 and 118 respectively of the records. In the face of these pieces of evidence, the appellant made heavy weather of the reference in the schedule to exhibit 2 of the land “being in Rigachikun in Kaduna Local Government” and submitted that exhibit 2 could not therefore be over the land in dispute. In doing so, the appellant had carefully quoted only the first part of the schedule to exhibit 2 and ignored the rest of the schedule which further located the piece of land in the ground by property beacons Nos. KDB.2329, KDB.2317, KDB.2318 and KDB.2319.

The appellant clearly failed to advert to the facts that the visit of the trial court to the land in dispute at Kachia Road, Kakuri established the above property beacons on the ground. Be it noted that the trial court had concluded at the locus in quo that it is the same land granted the respondent vide exhibit 2 that the appellant was claiming.

Furthermore, the schedule to exhibit 2 clearly states that the piece of land granted therein is more particularly described as a piece of land as shown on Kaduna Sheet 109. A look at exhibit 2 indicates that the sketch drawn from Kaduna Sheet 109 (supra), clearly fixes the piece at Kachia Road, Kakuri.

DW3, DW4 and DW5 therefore considered that the reference to Rigachikun was clearly a mistake which could be corrected as the respondent had applied for a piece of land at Kachia Road, made a sketch of same and it was from the application and sketch that exhibit 2 was eventually issued.

DW3 had with emphasis and particularity stated as follows:

“The sketch map was by plaintiff showing Ungwan Television Kaduna South. The plaintiff’s application was processed to certificate level… By looking at or observing the schedule and sketch in the certificate one will be able to trace where the piece of land is situate ..”

In the ensuing cross-examination, the witness stated as follows:-

“Rigachikun is not in Kaduna Local Government. The schedule describe sketch in Kaduna Street 109. The sketch attached referred to street 109 … Here the sketch is more accurate. The sketch is not showing a piece of land in Rigachikun …

The insertion of Rigachikun in the schedule is a mistake.

This is a mistake that can be corrected … ”

DW4 equally stated that the appellant and the respondent applied for the same piece of land, the appellant’s application being made in March, 1982 while the respondent’s own was on 1/4/82, but that it was the respondent that was granted the land.

DW5 also agreed that respondent applied on 1/4/82 and that he submitted a sketch which is on page 3 of exhibit 7. He then stated on page 118 of the records as follows:

“By this sketch, I would say the land located at Kachia Road therefore is not located at Rigachikun … It is from the application and sketch that eventually the plaintiff was issued certificate of occupancy. There is a conflict between schedule and title deed, the conflict is resolved by reference to the file and made necessary corrections.

The title deed prints have an edge over the schedule.The title deed print is reproduction of Kaduna Sheet 109. The title deeds print carries more accurate description than schedule. The title deed print refers generally to the area where the defendant also applied. It does not show piece of land in Rigachikun area. The description on the schedule must have been a mistake … ”

From the foregoing, I agree with the respondent that copious evidence was adduced on which the trial court relied in holding that exhibit 2 was over the piece of land in dispute and on which the court below affirmed the finding. Afortiori, I am in agreement with the respondent that it is sufficient evidence to support the concurrent finding of the two lower courts on this issue and that same not being perverse, ought not to be disturbed, but rather affirmed.

It is the appellant’s contention that in the circumstances only the Governor could amend exhibit 2 and that there is no case for rectification before the court. With due respect, the issue here is not correction of exhibit 2 but rather one of showing on the balance of probability that exhibit 2 is over the piece of land in dispute. This, I agree with the respondent, had been abundantly demonstrated in argument. The appellant has argued at page 2 of his brief that the identity of the land in dispute was not in issue; that it was settled and agreed upon by both parties. I am in entire agreement with this submission and to further add that it ought not to be an issue before this court as well.

For the above reason, I have no hesitation in answering the second issue as herein canvassed in the affirmative.

Issue III

This issue postulates that if the answer to Issues I and II above are in the affirmative, whether in the circumstances, on the authority of Teniola v. Olohunkun (1999) 5 NWLR (Pt.602) 280 at 298, (1999) 4 SCNJ 92, the appeal ought to be dismissed.

As the consideration of this issue hinges on an affirmative answer to the first and second issues, then appellant’s appeal will be brought squarely within the four walls of the decision of this court in the case of Teniola v. Olohunkun (supra) 92 at page 103.

In that case, the respondent had relied on the statutory certificate of occupancy in his claim. The appellant contended that the certificates relied upon by the respondent were irregular and unlawfully obtained as the appellant had a customary right of occupancy over the land prior to the statutory grant to the respondent.

However, the appellant did not counter-claim to set aside the grant to the respondent.

Ayoola, JSC delivering the leading judgment held at page 103 as follows: –

“The grants to the plaintiff were made in exercise of statutory power vested in the Governor … 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. A party cannot however, rely on such facts as justification for entering on land, subject of the grant against the wish of the holder, while the grant subsisted and had not been set aside. The facts which may justify the setting “aside of a grant of rights 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 grants … 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 has at no time been granted to the plaintiff cannot at all be right. .. ”

The appellant’s case herein falls within the four comers of this decision. He (appellant) had been aware that the respondent had been granted a right of occupancy over the piece of land in dispute by the Kaduna State Government since 1984. He took no visible steps and even when a claim was filed against him, he did not counterclaim to have the grant to the respondent set aside. See also Saude v. Abdullahi (1989) 4 NWLR (Pt. 116) 387 at 416 (per Obaseki, JSC); Dabup v. Kolo (1993) 9 NWLR (Pt.317) 254, (1993) 12 SCNJ 1 at page 2 1 (per Ogundare, JSC) and Titiloyo v. Olupo (1991) 7 NWLR (Pt. 205) 519 at 530.

I agree with the respondent that upon the above authorities, the consideration of any other issue or issues in this appeal will be merely an academic exercise – an exercise this court would not indulge in because their out come (if decided one way or the other), would neither confer benefit on, nor injure any of the parties, but merely, expose or expound the law. See Adelaja v. Alade (supra) at page 245; and Eperokun v. University of Lagos (1986) 4 NWLR (Pt.34) 162. In the instant case, the appellant having not counter-claimed to set aside exhibit 2, the court below, in my view properly ought to have affirmed the judgment of the trial High Court. This appeal ought therefore to be dismissed.

Accordingly, I answer this issue in the affirmative.

Issue iv

This issue asks whether the Court of Appeal was right to have affirmed the judgment of the trial court.

I agree with the respondent’s submission that the court below properly affirmed the judgment of the trial court in view of the fact that he (respondent) had discharged the burden of proof that lay on him whereas the appellant for his part could not mount any credible defence to tilt the scale. In a matter like this, judgment is given to the party with the better title.

Indeed, on whether the respondent had discharged the burden of proof required of him, I agree with him that on his claim based on a statutory certificate of occupancy which confers exclusive possession, the respondent need do no more than produce and tender the statutory certificate of occupancy and show that same is over the piece of land in dispute.

By a long line of decided cases by the Supreme Court, it is now trite and settled law that there are five different ways of establishing title to land as enunciated in:

1. Idundun v. Okumagba (1976) 10 SC 227 at 246 (per Fatayi Williams, JSC as he then was)

2.Teniola v. Ohunkun (supra) and

3.Odofin v. Ayoola (1984) 11 SC 72 to the effect that proof of anyone of them is sufficient to establish title.

Thus, in the instant case, the respondent having produced exhibit 2 – the statutory certificate of occupancy, – had clearly discharged the burden required of him.

Having discharged the burden of proof on his part, the burden shifted to the appellant to rebut his(respondent’s) case. In the first place and as demonstrated under issue III above, the appellant having not filed a counter-claim to set aside the respondent’s exhibit 2, his defence necessarily must fail.

In the second place, the concurrent finding of both the High Court and the Court of Appeal on the admissibility and evidential value of appellant’s exhibit 3, has not been challenged by way of appeal to this court. That being the case, the fact remains that the appellant cannot rely on same herein in the Supreme Court. Where a party has not challenged a finding by way of appeal, that finding stands vide Leventis Technical v. Petrojessica (1999) 6 NWLR (Pt.605) 45, (1999) 4 SCNJ 121 at 127; Iseru v. Catholic Bishop (1997) 3 NWLR (Pt.495) 517, (1997) 4 SCNJ 10 at 115.

As exhibit 3 is the alleged customary ownership of the piece of land in dispute, all appellant’s alleged acts of possession (which are not even conceded) derive from exhibit 3, the alleged grant in 1968 by the Sarkin Kakuri Gwari. The law is equally settled that where the radical title pleaded is not proved, it is not permissible to support a non-existent root of title with acts of possession. It is not permitted to substitute a root of title that has failed, with acts of possession which could have derived from that root. See Odofin v.Ayoola (supra) 116 and Ndukwe v. Acha (1998) 6 NWLR (Pt.552) 25, (1985) 5 SCNJ at 28 at 38-39.

The appellant in relying on the grant to him by the Sarkin Kakuri Gwari completely failed to advert to the decision of this court in the case of Gankon v. Ugochukwu (1993) 6 NWLR (Pt.297) 55, (1993) SCNJ (Pt. 2) pages 272-275 which placed a burden on the appellant to show the authority and capacity of the Sarkin Kakuri Gwari to make the grant. The Land Tenure Law then in force in 1968, particularly by section 38(1) Cap. 59, Laws of Northern Nigeria, was considered by this court which held that it must be shown that the district Head comes within the definition of native authority in section 38(1) as a condition precedent to make the grant. See also section 2 of the native authority Law, Cap. 77, Laws of Northern Nigeria, 1963 which was equally considered. Both lower courts discountenanced appellant’s exhibit 5, the Local Government Certificate of Occupancy. The appellant has equally not appealed against this concurrent finding to this court, that finding equally stands. The combined effect is that the appellant is bereft of any iota of defence whatsoever. The appellant moreover put forward some strange argument in his brief to the effect that his root of title and prior possession were independent of exhibits 3 and 5 and that quite aside from these two exhibits, the appellant relied on his oral grant in 1963.

Be it noted that the appellant had pleaded in paragraph 5(1) of his amended statement of claim that in 1968 he was granted the piece of land by the Sarkin Kakuri Gwari evidenced by exhibit 3. In his evidence-in-chief, however, he now backdated his alleged grant to 1963. I agree with the respondent’s submission that appellant must be held bound by his pleading and that evidence of an oral grant in 1963 clearly is contrary to the pleading and goes to no issue. Clearly too, exhibit 3 is the appellant’s root of title. By his pleading and admissible evidence followed by his argument that his oral grant is independent of exhibit 3 clearly amounts to an afterthought.

The respondent having discharged the onus of proof required of him and the appellant for doing nothing to rebut his (respondent’s case) the court below, rightly, in my view, properly affirmed the judgment of the trial court. In the result, my answer to issue IV is in the affirmative.

In conclusion, this appeal fails and it is accordingly dismissed with N10,000 costs to the respondent.

SC.81/2001