FRUIT TROPIC IND. LTD v. AMODU & ORS (2020)

FRUIT TROPIC IND. LTD v. AMODU & ORS

(2020)LCN/14032(CA)

In The Court Of Appeal

(LAGOS JUDICIAL DIVISION)

On Thursday, March 26, 2020

CA/L/613/2015

Before Our Lordships:

Joseph Shagbaor Ikyegh Justice of the Court of Appeal

Tijjani Abubakar Justice of the Court of Appeal

Ugochukwu Anthony Ogakwu Justice of the Court of Appeal

Between

FRUIT TROPIC INDUSTRIES LIMITED APPELANT(S)

And

1. MR. YAKUBU AMODU 2. MR. GANIYU AMODU 3. MR. BASIRU AMODU (Suing As Administrators Of The Late Alhaji Adio Adesinu Amodu) 4. SIKIRU ADENIJI AMOLEGBE 5. FATTAH AYINLA AMOLEGBE 6. TIJUDEEN ADEOLA AMOLEGBE 7. ABDULLAH AMOS AMOLEGBE (Suing For And On Behalf Of Themselves And The Children And Beneficiaries Of The Late Alhaji Yusuf Alabi Amolegbe) RESPONDENT(S)

RATIO

WHETHER OR NOT PLEADINGS ARE READ IN CONVENIENT INSTALMENTS

I am of the respectful opinion that pleadings like judgments are not read in convenient instalments but in a holistic/harmonious manner to gather the totality of what the pleader intends to convey and/or has indeed conveyed by the pleadings. Consequently, to determine whether an admission is made by the pleader in the pleadings by way of general or evasive traverse, the defendant’s pleading must be considered as a whole and not just by taking each of the paragraphs of the statement of defence in isolation vide Mulima v. Usman (2014) 16 NWLR (pt. 1432) 160 and the other relevant cases (supra) cited by the appellant. PER IKYEGH, J.C.A.

WHETHER OR NOT THE COURT IS ENTITLED TO JETTISON EVIDENCE WRONGLY ADMITTED

I am of the considered opinion that the Court below was entitled to jettison or expunge evidence that was wrongly admitted even if it had been admitted without objection in the course of its judgment as the piece of evidence, Exhibit DF6, deed of assignment, a registrable instrument was tendered for the purpose of establishing title to land; and being an instrument affecting interest in land its non registration rendered it inadmissible in evidence in any event, or made it totally inadmissible in law vide the cases (supra) and the statute (supra) cited on the issue. Not having registered Exhibit DF6, the deed of assignment, the Court below was right to expunge/exclude it and, rightly placed no reliance on it as an evidence of title to land vide Agboola v. UBA Plc (2011) 11 NWLR (pt.1258) 109, Nwadinobi and Anor. v. Monier Construction Coy. Nig. Ltd. (2016) 1 NWLR (pt. 1494) 429 at 455 following Agbi v. Ogbeh (2006) NWLR (pt. 990) 65, Onochie v. Odogwu (2006) 6 NWLR (pt. 975) 65, Dagaci of Dere v. Dagaci of Ebwa (2006) 7 NWLR (pt. 976) 382. PER IKYEGH, J.C.A.

WHETHER OR NOT LAND UNDER ACQUISTION CAN BE VALIDLY SOLD BY ITS ORIGINAL OWNER(S)

I agree. It is trite that land under acquisition cannot be validly sold by its original owner(s) vide Akinboye and Anor. v. Adeko (supra), following Yusuf v. Oyetunde (1998) 12 NWLR (pt. 579) 483. It follows from the sound finding (supra) that the deed of assignment, Exhibit DF6, passed nothing to the appellant as the seller, the Salami Oke Family, had nothing to pass on the doctrine of nemo dat quod non habet (one cannot give what one does not have). See Gbadamosi v. Akinloye (2013) 15 NWLR (pt. 1378) 455, Adelaja v. Fanoiki (1990) A NLR 217, Ibrahim v. Osunde (2009) S.C. (pt.11) 81. PER IKYEGH, J.C.A.

PRINCIPLES TO BE OBSERVED IN FIXING COST

Order 49 Rule (1) and (2) of the Rules of the Court below stipulates the principle to be observed in fixing costs as follows —
“(1) In fixing the amount of costs, the principle to be observed is that the party who is in the right is to be indemnified for the expenses to which he has been necessarily put in the course of proceedings, as well as compensation for his time and effort in coming to Court. Such expenses shall include:
(a) the cost of legal representation and assistance of the successful party to the extent that the Judge determines that the amount of such cost is reasonable;
(b) the travel and other expenses of parties and witnesses to the extent that the Judge determines that the amount of such expenses is reasonable, and such other expenses that the Judge determines ought to be recovered, having regard to the circumstances of the case;
(2) When costs are ordered to be paid, the amount of such costs shall, if practicable, be summarily determined by the Judge at the time of delivering the judgment or making the order. “
The rules of the Court below (supra) entitled it to determine the quantum of costs, summarily, in its judgment. When something is to be done summarily it is meant to be done immediately or instantly or on the spot/spur of the moment without paying attention to the normal process that should be followed but confining oneself to the main points of the thing to be done, not the details. (Oxford Advanced Learner’s Dictionary 6th Edition 1200).
The Supreme Court while treating the principle of award of costs in the case of N.N.P.C. v. Clifco Nigeria Ltd. (2011) 10 NWLR (pt.1255) 209 at 234 – 235 held –
“The award of costs is entirely at the discretion of the Court. Costs follow the event in litigation. It follows that a successful party is entitled to costs unless there are special reasons why he should be deprived of this entitlement. In making an award of costs, the Court must act judiciously and judicially. That is to say with correct and convincing reasons. (Anyaegbunam v. Osaka (1993) 5 NWLR (pt. 249) 449; Obayagbona v. Obazee (1972) 5 SC 247)”.
The general principle therefore is that costs which follow the event should be awarded to a successful party (unless the successful party misbehaved in the course of the proceedings); and that the award of costs being discretionary, the Court awarding the costs must exercise the discretion judicially and judiciously. See the case of G.K.F. Investment Nigeria Limited v. Nigeria Telecommunications Plc (2009) 7 S.C.N.J. 92 at 119 — 120 following the cases of The Queen v. The Governor in Council, Western Region, Ex Parte Kasalu Adenaiya [1962] 1 A.N.L.R. 300, 1962] 1 S.C.L.R. 442; Lawal v. Ijale [1967] 5 N.S.C.C. 94; Obayagbona v. Obazee (1992) 5 S.C. 241, Mazin Engineering Ltd. v. Tower Aluminum (Nig). Ltd [1993) 6 S.CN.J. (pt. 11) 176 at 190, Union Bank of Nigeria Ltd. & Anor. v. Nwaokolo [1995) 6 N.W.L.R. (pt. 400) 127 at 149; [1995) 4 S.CNJ. 93 and Mrs. F. K. Douglas v. Dr. M.C.A. Peterside [1994) 3 N.W.L.R. (pt. 330) 37 at 52 CA.

JOSEPH SHAGBAOR IKYEGH, J.C.A. (Delivering the Leading Judgment): The appeal is from the judgment of the High Court of Lagos State (the Court below) whereby it declared that the respondents are entitled to a grant of a statutory right of occupancy in respect of the piece or parcel of land located at Mile 10, Lagos — Ikorodu Road, Ojota, Ikeja, by virtue of deed of conveyance registered as 97/97/1331 and released to the respondents by the Lagos State Government in a letter dated 13.06.1975; the Court below also awarded N10,000, general damages for trespass against the appellant together with an order of perpetual injunction restraining the appellant and its privies, servants or agents from further trespass to the disputed land; as well as an order of possession to the respondents in respect of the said piece of land; and costs of N75,000 against the appellant in favour of the respondents.

The respondents’ case at the Court below albeit, in brief, was hinged on a deed of conveyance as their original root of title to the land which was subsequently compulsorily acquired by the Lagos State Government and was upon application by the respondents,

released thereof to the respondents which the appellant allegedly trespassed upon sparking the present litigation.

On the other hand, the appellants’ case shrink to the fact that it purchased the same parcel of land from one Salami Oje (some-time in August, 2005) whose title was rooted in the Supreme Court Judgment in Suit No. 193/1921 and executed in Suit No. M/305/2004; that thereafter the Isioku/Amushan family joined in Suit No. M/305/2004 and terms of settlement were executed by the parties and registered in the Lagos State Lands Registry as 13/13/2189; and that the appellant had not been able to process its title to the land, as the land in dispute has been acquired by Lagos State Government by a publication in the official Gazette No. 51 Volume 16 dated 20.10.1983, on account of which the Lagos State Government refused to release the land to the appellant.

The Court below accepted the version of the respondents and entered judgment in the terms summarised (supra) in the discourse. Not unnaturally, the appellant was dissatisfied with the judgment and filed a notice of appeal with eight (8) grounds of appeal on 08.05.15 contesting the said

judgment.

The appellant filed its brief of argument on 18.09.15 in which reliance was placed on the cases of Woluchem v. Gudi (1981) 5 SC 291, Mini Lodge Ltd. v. Ngei (2009) 18 NWLR (pt.1173) 254 at 283, Eyo v. Onuoha (2011) 11 NWLR (pt. 1257) 1 at 45 — 46, Otanma v. Youdubagha (2006) 2 NWLR (pt. 964) 337, Odunze v. Nwosu (2007) 13 NWLR (pt. 1050) at 52, Idundun v. Okumagba (1976) 1 NWLR 200, Fasoro v. Beyioku (1988) 2 NWLR (pt. 76) 263, Obineche v. Akusobi (2010) 12 NWLR (pt. 1208) 383 at 408 – 409, Mogaji v. Cadbury Nig. Ltd. (1985) 2 NWLR (pt. 7) 393, Alli v. Alesinloye (2000) 6 NWLR (pt. 660) 177 and Section 131 (1) of the Evidence Act 2011 (Evidence Act) for the contention that the respondents, as claimants, were to succeed on their own case and not on the weakness of the appellant’s case in establishing title to the disputed parcel of land by either or some of the five possible ways of proving title to land which, in the present case, appeared to be by production of documents of title duly authenticated, as the respondents’ root of title to the disputed land.

Proceeding on the contention (supra), the appellant submitted that since the basis of the

respondents’ case at the Court below was a letter releasing the disputed parcel of land to them by the Lagos State Government dated 13.06.75, Exhibit U, which was not authenticated in that it had no survey plan attached to it to show the extent of the land released, nor was it duly gazette, the respondents did not prove their case which should have been dismissed by the Court below.

It was also submitted that the deed of conveyance, Exhibit DF6, which is a private document was admitted in evidence without objection and suffered no legal defect, therefore the Court below should not have disregarded it in its judgment; more so, Exhibit DF6 was predicated on Exhibit DF5, a Supreme Court judgment in Suit No. 193/21, High Court of Lagos Ruling in Suit No. M/305/04, Terms of Settlement dated 25.11.05, Warrant of Possession and Form O dated 15.04.05.

The appellant argued in the brief that although costs follow the event, the award of N75,000 costs in the case was not based on evidence to enable the Court below determine the issue of costs which were, in the circumstances, excessive, punitive and arbitrary when there was no evidence that the trial of the

matter was unduly delayed by the appellant, therefore the award of the costs of N75,000 should be viewed as punishment to the appellant and a bonus to the respondents which, according to the submission of the appellant, is contrary to established principles for the award of costs and should be set aside vide Order 49 Rule 1(1) of the High Court of Lagos State (Civil Procedure) Rules, 2012 (Rules of the Court below) and the cases of Rewane v. Okotie-Eboh (1960) S.C.N.L.R. 461 at 467, Ero v. Tinubu (2012) LPELR 7869, Akinbobola and Sons Ltd. v. Plisson Fisko (Nig.) Ltd. (1991) 1 NWLR (pt. 167) 270, A. C. B. v. Ajugwo (2011) LPELR 3637.

The appellant rounded-up its submission by urging that the appeal should be allowed and the decision of the Court below set aside, because the respondents have not established their entitlement to the grant of a statutory right of occupancy in respect of the land allegedly released to them by letter dated 13.06.1975; because the appellant, as defendant at the Court below, had no burden to establish the release of land to its predecessor-in-title, as its root of title was the certificate of execution (Form O) and the

subsequent deed of assignment, Exhibit DF6.

The respondents filed their brief of argument on 05.02.16, but it was deemed as properly filed by order of the Court on 09.03.20. The respondents prefaced their arguments in the brief by relying on the cases of FBN Plc v. Maiwada (2013) 5 NWLR (pt. 1348) 444, Debayo and Sons Ltd. v. Gomez (2011) 10 NWLR (pt. 1255) 332 at 342 and Order 6 Rule 2(1) of the Court of Appeal Rules 2011 (now 2016 Rules of the Court) to contend that the notice of appeal is the foundation and substratum of the appeal and that an appeal is a continuation of the original action by way of rehearing therefore the parties are bound by the grounds of appeal as argued in the briefs of argument.

The respondents went on to contend that from its 1st amended statement of claim found in pages 425 — 429 of the record of appeal (the record) particularly paragraphs 19 — 22 thereof and the witness statement on oath of one Alhaji Yusuf Alabi Amolegbe contained in pages 8 — 12 of the record particularly paragraphs 21 — 23A thereof, the respondent pleaded and testified to the public acquisition of the land and its subsequent

release to their progenitors and/or predecessors-in-title by the Government of Lagos State; while the appellant by its 2nd amended statement of defence contained in pages 469 — 472 of the record particularly paragraphs 2, 16 and 17 thereof and the additional written statement on oath of one Augustine N. Okafor contained in pages 308 — 310 of the record particularly paragraph 15 thereof, the appellant only made a general traverse of the respondents’ pleadings and, also, testified in the same mode without specifically debunking the respondents’ plea as to the release from government acquisition of the disputed land insisting thereby, by plain implication, that the disputed portion of land was still under acquisition by the Lagos State Government, therefore the insufficient traverse and terse evidence in support thereof should be deemed to be an admission of the respondents’ case that the disputed portion of land was released to them by the Lagos State Government citing in aid the cases of Adeleke v. Aserifa (1986) 3 NWLR (pt. 30) 575 at 576, Bongo v. Gov. Adamawa State (2013) 2 NWLR (pt. 1339) 403 at 440 – 441, Mogaji v. Odofin (1978) 4 S.C. 91.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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The respondents also contended that considering that both parties agreed that the disputed land was the subject of acquisition which had extinguished the title of the previous owner(s) of the land, the Court below properly evaluated the evidence by placing it in the imaginary scale to hold that the respondents discharged the burden of proof by their oral and documentary evidence in Exhibits A, B, C, T, U and V that they had title to the disputed land by virtue of the release of the land to them by the Lagos State Government that had compulsorily acquired it citing in aid the cases of Mogaji v. Odofin (supra), Buraimoh v. Bamgbose (1989) 3 NWLR (pt. 109) 352, Idundun v. Okumagba (1976) NMLR 200.

The respondents further contended that even though the deed of assignment, Exhibit DF6, was admitted in evidence without objection, being a registrable instrument which was unregistered and/or not endorsed with the Governor’s consent, the Court below was right to expunge it on the footing that inadmissible evidence wrongly admitted can be expunged by the Court in its judgment or even on appeal citing in aid the cases of Agboola v. UBA Plc (2011) NWLR (pt.1258)

375, Brossette Mag. Nig. Ltd. v. Ilemobola Ltd. (2007) 14 NWLR (pt.1053) 109 at 151, Osigwelem v. INEC (2011) 9 NWLR (pt.1253) 425 at 451, Fasina v. Ogunkayode (2005) 12 NWLR (pt.938) 47 at 159 160 and 162, ANPP v. Usman (2008) 12 NWLR (pt.1100) 1 at 91.

The respondents went on to contend that Exhibit DF6 having not been consented to by the Governor of Lagos State, the Court below was right in holding that it was no evidence of proof of title to the disputed land citing in aid Section 22 of the Land Use Act; and that at best Exhibit DF6 was admissible to prove the contractual transaction between the parties mentioned therein and as evidence of payment of money as held by the Court below in part of its judgment in page 673 of the record.

The respondents also contended that the rejection of Exhibit DF6 in evidence was not enough to overturn the judgment of the Court below, as the appellant did not show that it occasioned a miscarriage of justice; and, that, it was also insignificant to the case vis-à-vis the “overwhelming” evidence of the respondents that the land was released to them by the Lagos State Government citing in aid the cases of

Omomeji v. Kolawole (2008) 14 NWLR (pt.1106) 180 at 202, Osigwelem v. INEC (supra) at 451, 456, Kubor v. Dickson (2013) 4 NWLR (pt.1345) 534 at 579.

The respondents further argued that the Court below was right to hold in part of its judgment contained in page 670 of the record that the land in dispute is outside the land covered by the Supreme Court judgment as the said holding was supported by the evidence of the CW4 and CW7.

The respondents reasoned that since the action commenced in 2007 and closed with the judgment of the Court below delivered on 20.03.15 the costs of N75,000 was not excessive vide Order 49 Rule 1 of the Rules of the Court below entitling the Court below to summarily determine the quantum of costs in its judgment.

The respondents then made general submissions to the effect that since the appeal challenged only the issue of release of the land from government acquisition by Lagos State Government, the appellant has therefore conceded and accepted the other findings of fact made by the Court below which should not be disturbed as the said unchallenged findings are not perverse and are based on the demeanour and credibility

of the witnesses which the Court below had the exclusive advantage of watching in the witness-box citing in aid the cases of Koya v. UBA Plc (1997) 1 NWLR (pt.481) 251 at 266, Adebesin v. State (2014) 9 NWLR (pt.1413) 609 at 639, Sule v. Nigerian Cotton Board (1981) 6 SC 105, N.N.P.C. v. Clifco (Nig.) Ltd. (2011) 10 NWLR (pt.1255) 209 at 233, Peterside v. Fubara (2013) 6 NWLR (pt.1349) 156, Obiazikwor v. Obiazikwor (2008) 8 NWLR (pt.1090) 551 at – 532, Nlewedim v. Uduma (1995) 6 NVVLR (pt.402) 383 at 397, Ogundalu v. Macjob (2015) 8 NWLR (pt.1460) 96 at 116; upon which the respondents urged that the appeal should be dismissed with substantial costs.

The appellant filed its reply brief on 18.02.20, but it was deemed as duly filed on 09.03.20, in which the appellant referred to paragraphs 16, 17 and 18 of the 2nd amended statement of defence contained in page 479 of the record and the entire 2nd amended statement of defence to contend that when read together it shows issues were joined on the release from government acquisition of the land in dispute vide Akaose v. Nwosu (1997) 1 NWLR (pt.482) 478, Kabiawu v. Thompson (2014) LPELR 23258, Eke v. Okwaranyia

(2001) 12 NWLR (pt.726) 181 at 203.

The reply brief also contended that the acquisition of the land was gazetted in Gazette No. 51 Volume 16 of 20.10.83, therefore any “purported” release must be by Official Gazette, showing Exhibits T, U and V are not instruments of release or evidence of valid root of title vide Bakare v. Omoge and Ors. (2018) LPELR 45339; and that even if (without conceding) that the land was released to the respondents, the land released created a new title to the land and did not revive the previous title the respondents allegedly had to the land before its acquisition by the Lagos State Government as the acquisition extinguished the previously existing interest of any holder in the land vide Sobande v. Igbokwe (2016) LPELR – 40321, Elemoro and Anor. v. Abiodun (2014) LPELR – 23195, Gbadamosi and Ors. v. Akinloye and Ors. (1998) 12 NWLR (pt.579) 485 at 493, Archibong v. Utin (2012) LPELR — 7907.

The reply brief added that as the appellant allegedly purchased the land from the Salami-Oje family of Ojota in August, 2005, whose predecessors-in-title were granted possession of the land pursuant to a Supreme Court judgment in

Suit No. 193/1921 and subsequent writ of possession vide paragraphs 5, 6, 8 and 14 of the 2nd amended statement of defence contained in pages 469 — 471 of the record, the alleged release of the land which created a new title cannot stand in face of the said averments and evidence for the appellant thereof together with the various acts of possession exercised by the appellant thereon which, it was submitted, destroyed the respondents’ root of title that was built on Exhibits T, U and V as these Exhibits do not qualify as instruments of release or valid root of title for the respondents who did not therefore prove their case as to shift the burden of proof to the appellant, as was wrongly held by the Court below; upon which the appellant urged that the appeal should be allowed.

The respondents’ senior counsel observed in oral argument that the reply brief rehashed the arguments in the appellant’s brief and should be disregard in consequence.

A passionate look at the reply brief disclosed that the appellant did not rehash or regurgitate the arguments in the appellant’s brief in the reply brief. I think the reply brief considered objectively

endeavoured to answer the fresh or new points raised by the respondents in their brief which makes the reply brief wholesome and/or without blemish and in compliance with Order 19 Rule 5(1) of the Rules of the Court, dealing with the requirement or contents of a reply brief.

having been duly acquired by the Lagos State Government vide Official Gazette No. 51 Volume 16 dated 20.10.83, the respondents have no interest whatsoever in the said land and that only the Lagos State Government has interest in the disputed land thus denying on the other side of the coin that the disputed land was released to the respondents and divested the Lagos State Government of her interest in it as the acquiring authority.

The 2nd amended statement of defence thus met the minimum requirement of sufficient traverse or challenge to the respondents’ case that Lagos State Government did not divest herself of interest in the disputed land by way of release to the respondents. The substance of the allegation being the release of the interest of the Lagos State Government in the disputed piece of land which the appellant denied by the totality of its 2nd amended statement of defence, I am prepared to ignore the respondents’ contention that the appellant had by its pleadings made general traverse of the statement of claim on the issue and should be deemed to have admitted that segment of the respondents’ case on the pleadings. See Order 17 Rule (1) and

(2) of the then Rules of the Court below (2012 Rules applicable to the case) where it is stated that a statement of defence shall be a statement in summary form and shall answer the point of substance for it to be a good statement of defence.

At any rate, the respondents by their extant 1st amended statement of claim in pages 425 — 429 of the record had pleaded in the tail-piece thereof that —
“WHEREOF the Claimants’ claim from the defendant are as follows:
(1) DECLARATION that the Claimants are entitled to the grant of a statutory right of occupancy in respect of the piece or parcel of land situate, lying and being at Mile 10, Lagos-Ikorodu Road, Ojota, Ikeja Division, Lagos State verged “red” in the survey plan no SEW/1077 made by M.A. Seweje on 3rd March 1971 which is the same as plan No. L&UC3611 attached to the deed of conveyance registered as 97/97/1331 and released to Claimants vide the Lagos State Government letter dated 13th June, 1975″.

It is clear from the portion (supra) of the 1st amended statement of claim that the principal relief the respondents, as the claimants at the Court below, sought in the action was

declaratory.
It is now trite and familiar that declaratory relief(s) cannot be granted even on admission in the pleadings of the defendant, nor by default of pleadings by the defendant, but by solid evidence tendered by the claimant demonstrating convincingly that the claimant is entitled to the declaratory relief sought before such relief will be granted by the Court vide the cases of Motunwase v. Sorungbe (1988) 4 NWLR (pt.92) 90, Udo v. Cross River State Newspapers and Anor. (2002) FWLR (pt.104) 665 at 701, Ezeokonkwo and Ors. v. Nwafor Okeke (2002) 5 S.C. (pt.1) 44 at 61, Bello v. Eweka (1981) 1 S.C. 101.

Accordingly, I am chary to agree with the respondents that there was an admission by the appellant in the pleadings that the disputed land was transferred to them by the Lagos State Government. I respectfully express the opinion that, assuming without agreeing, that such admission was deemed to have been made in the 2nd amended statement of defence, the mainstay of the action being grounded in a declaratory relief (supra), judgment could not have been entered on it on the pleadings and/or the relief would not be taken to have been established on

the pleadings to entitle the respondents to judgment on that basis.

The Court below made the finding of fact

that —
“The Defendant has not been able to discredit or debunk the testimony of the Claimants witnesses neither did it challenge Exhibits G and J the composite plans tendered by the Claimants showing the parcel of land awarded to Salami Oje in Suit No. 193/192/ marked as ‘A’ to be outside the portion in dispute.
The position of the law regarding unchallenged and unrebutted evidence is that the trial Court has little or no choice but to accept the unchallenged evidence placed before it by Claimants if it was not discredited by the Defendant during cross-examination. Monkom Vs. Odili (2010) 2 NWLR (pt.1179) 419.”

The respondents made heavy storm of the fact that the appellants did not challenge the said finding of fact in the appeal, so it should be taken as binding on the parties. But ground one of the notice of appeal contained in pages 714 — 715 of the record challenged the said finding and was argued under issue 1 of the appellant’s issues for determination contained in page 6 of the appellant’s brief of argument. The contention that the said finding was not appealed against is, accordingly, untenable and is hereby most

respectfully rejected.

At any rate, the parties did not dispute the identity of the land in their pleadings, so the identity of the land was not a live issue in the case vide Ezeudu and Ors. v. Obiagwu (1986) 2 NWLR (pt.21) 209 to the effect that the identity of land will be in issue, if and only if, the defendant in their statement of defence made it one — that is, if the defendant disputed specifically or frontally either the area or the size or the location of the features shown on the plaintiff’s plan. And having regard to the fact that no issue was joined on the identity of the land in dispute, it became clear that the land in dispute was known to the respondents and the appellant and required no further proof.

More significantly, DW1, a surveyor in the office of the Surveyor General of Lagos State testified on subpoena in page 464 of the record as a neutral witness, unedited, that —
“By DF3 the land claimed by claimant and defendant are the same.’’

The piece of evidence (supra) from the neutral witness, DW1, settled the issue of identity of the land which was known to the parties and required no further proof,

in my view.

It has to be borne in mind that both parties were at one or in agreement that the Lagos State Government owned the land upon its valid acquisition by her. The Court below also held so in its judgment which was not challenged in the appeal. There is therefore no gainsaying it that the acquisition of the land gazetted by the Lagos State Government assuredly indicated the Lagos State Government had obtained a Land Certificate in respect of the land acquired by her and compensation therefore paid which vested title to the land in the Lagos State Government vide Atunrase and Ors. v. Federal Commissioner for Works and Housing (1975) A.N.L.R. 331, Lion Buildings Ltd. v. Shadipe (1976) 12 S.C. 135 at 149 following Esin v. Abasi and Ors. (1963) All N.L.R. 407.
It inexorably follows that the said valid acquisition had extinguished the previously existing interest in the land of any former owner of the land and that only by excision and release of any part thereof by the Lagos State Government to any person that that person would have a new root of title to the land by grant through the acquiring authority, the Lagos State Government vide

Sobande v. Igbokwe (supra) and the other cases (supra) cited in the appellant’s written case. See also the case of Akinboye and Anor. v. Adeko (2011) 6 NWLR (pt.1244) 415 at 442 per the lead judgment prepared by Okoro, J.C.A., (now J.S.C.) where His Lordship held that once there is valid compulsory acquisition of land, the title of the former owner becomes extinguished by the reason of the acquisition.

Exhibit T which originated from the Lagos State Government reads –
“7,300 Acres Government Acquisition Area Ikeia Division
I am directed to refer to your letter of 18th May, 1972 in connection with the above acquisition, and to inform you that the Government has decided to allow owners of land lying within the acquired area, whose proposed land uses confirm with the Ministry’s zoning map of the area, to develop their parcels of land, on conditions that they pay to Government a sum of #200 per acre per annum as development charges. This rate will be subject to revision every ten years.
You have submitted a claim to this Ministry for 3,025 acres of land within the acquired area, and your proposed use of the land conforms with the type of development which

the Ministry has planned for the area. I am directed to inform you that the development charge payable in respect of this parcel of land (3,025 acres) is per annum.
You will be allowed to commence development on the land as proposed on payment of the above amount. Please indicate if you accept this condition, if so, you are requested to forward your cheque for the above amount. The cheque should be made payable to the Permanent Secretary, Ministry of Works and Planning and crossed. This concession will be automatically withdrawn if you fail to pay this charge within six months from the date of this letter.
Please note that this concession has been granted without prejudice to any counter claims which may at any time arise after the date of this letter.
(Dr. F.O. Akinyemi),
Chief Town Planning Officer,
For Permanent Secretary.”

Exhibit T (supra) triggered Exhibit U, the letter of release dated 13.06.75, which reads as follows –
“7.300 Acres Government Acquisition Area. Ikeia Division
1. I am directed to refer to your undated petition but received in this Ministry on 6th February, 1975, in connection with the above issue,

and to inform you that the release of your parcel of land (3.025 acres) is now granted under the conditions contained in our previous letter of release No. TP/C/1OO/1O of 22nd June 1972.
2. You are, therefore, required to indicate your acceptance of the condition contained in our previous letter referred to above.
3. Please note that this concession has been granted without prejudice to any counter-claims which may at any time arise after the date of this letter.
4. A copy of my letter referred to above is attached for easy reference”.
(My emphasis).

The underlined portion of Exhibit U (supra) underscored the fact that the Lagos State Government released the 3.025 acres of land to the respondents in acknowledgment of the respondents’ previous ownership of the land so released. The release in Exhibit U therefore created a new root of title by grant in favour of the respondents vide Sobande v. Igbokwe (supra), Akinboye and Anor. v. Adeko (supra).
The respondents accepted the letter of release, Exhibit U, and resumed possession of the disputed parcel of land. I think it is a judicially noticed fact that a letter of release or

allocation is normally given to an allottee before a formal lease is executed vide the case of United Nigeria Company Ltd. v. Nahman (2000) FWLR (pt. 27) 1988 at 200. Exhibit U, the grant, therefore created a new root of title by grant, in favour of the respondents which is one of the five possible/acceptable methods of proving title to land vide the pioneer case of Idundun v. Okumagba (1976) 9-10 S.C. 227.
Accordingly, and in my respectful opinion, the fact that there was no evidence to show that the release of the land to the respondents by the Lagos State Government was not gazetted would not vitiate the release vide by analogy the case of The Governor of Oyo State and Ors. v. Oba Olalade Falayan (1995) 9 S.C.N.J. 20 at 70 to the effect that the failure to gazette an act such as the appointment of a Commission of Inquiry by the gazetting authority would not affect the validity of the act as to render it null and void which can be treated as an irregularity having no effect on the act and/or proceedings and the report based thereon.

In the present case, the appellant conceded that the Lagos State Government did not accede to its request that the land

be excised and released or granted to it, therefore the Court below was right in holding in part of its judgment in page 670 of the record and page 672 thereof that —
“The issue of acquisition and release of the disputed land is very germane to this case.
The Defendant’s DW1 stated that acquisition was in 1969. However, the Defendant have failed to show that land was released to their vendors after acquisition. As submitted by the Defendant’s counsel acquisition extinguishes the title of any person with land under acquisition.
Therefore as at 1969 the title of Salami Oje predecessors in title and title of the vendors of Defendant had been extinguished. The question is when was the land released back to the Salami Oje Family or the predecessors in title of Salami Oje or the Isioku-Amushan family.
Acquisition affected 7,300 acres of land and the disputed land falls with this 7,300 but the Claimants have been able through Exhibits T, U & V to show that after acquisition 2.841 acres was released to them. The Defendants have failed to show that excision was made to the family they claim are their predecessors in title and from whom

they bought the land…….
On the issue of acquisition a party cannot sell what he does not have. It is trite that once there is compulsory acquisition of land the title of the former owner becomes extinguished. Thus without any proof or evidence that Salami Oje’s land was released back to him or his predecessors in title Salami Oje had no title to pass to the Defendant in 2005 notwithstanding the Ruling of the Court in M/305/2004. The law is that land which is under acquisition cannot be validly sold by its original owner.”

contained in pages 474 — 478 of the record. There is no evidence that the consent of the Governor of Lagos State was first had and obtained to perfect the deed of assignment, Exhibit DF6, dated 09.08.05. Section 22 of the Land Use Act 1978 provides that —
“It shall be lawful for the holder of statutory right of occupancy granted by the Governor to alienate his right of occupancy of any part thereof by assignment, mortgage, transfer of possession, sublease or otherwise howsoever without a consent of the Governor first had and obtained.” (My emphasis).
The non compliance with Section 22 of the Land Use Act (supra) made the transaction contained in the deed of assignment, Exhibit DF6, unlawful and inchoate and passed no title to the land intended to be assigned by it to the appellant. The Court below was, accordingly, right in holding in its judgment that the respondents established better title to the disputed land.

is in the right is to be indemnified for the expenses to which he has been necessarily put in the course of proceedings, as well as compensation for his time and effort in coming to Court. Such expenses shall include:
(a) the cost of legal representation and assistance of the successful party to the extent that the Judge determines that the amount of such cost is reasonable;
(b) the travel and other expenses of parties and witnesses to the extent that the Judge determines that the amount of such expenses is reasonable, and such other expenses that the Judge determines ought to be recovered, having regard to the circumstances of the case;
(2) When costs are ordered to be paid, the amount of such costs shall, if practicable, be summarily determined by the Judge at the time of delivering the judgment or making the order. “
The rules of the Court below (supra) entitled it to determine the quantum of costs, summarily, in its judgment. When something is to be done summarily it is meant to be done immediately or instantly or on the spot/spur of the moment without paying attention to the normal process that should be followed but confining oneself

to the main points of the thing to be done, not the details. (Oxford Advanced Learner’s Dictionary 6th Edition 1200).
The Supreme Court while treating the principle of award of costs in the case of N.N.P.C. v. Clifco Nigeria Ltd. (2011) 10 NWLR (pt.1255) 209 at 234 – 235 held –
“The award of costs is entirely at the discretion of the Court. Costs follow the event in litigation. It follows that a successful party is entitled to costs unless there are special reasons why he should be deprived of this entitlement. In making an award of costs, the Court must act judiciously and judicially. That is to say with correct and convincing reasons. (Anyaegbunam v. Osaka (1993) 5 NWLR (pt. 249) 449; Obayagbona v. Obazee (1972) 5 SC 247)”.
The general principle therefore is that costs which follow the event should be awarded to a successful party (unless the successful party misbehaved in the course of the proceedings); and that the award of costs being discretionary, the Court awarding the costs must exercise the discretion judicially and judiciously. See the case of G.K.F. Investment Nigeria Limited v. Nigeria Telecommunications Plc (2009) 7 S.C.N.J. 92 at

119 — 120 following the cases of The Queen v. The Governor in Council, Western Region, Ex Parte Kasalu Adenaiya [1962] 1 A.N.L.R. 300, 1962] 1 S.C.L.R. 442; Lawal v. Ijale [1967] 5 N.S.C.C. 94; Obayagbona v. Obazee (1992) 5 S.C. 241, Mazin Engineering Ltd. v. Tower Aluminum (Nig). Ltd [1993) 6 S.CN.J. (pt. 11) 176 at 190, Union Bank of Nigeria Ltd. & Anor. v. Nwaokolo [1995) 6 N.W.L.R. (pt. 400) 127 at 149; [1995) 4 S.CNJ. 93 and Mrs. F. K. Douglas v. Dr. M.C.A. Peterside [1994) 3 N.W.L.R. (pt. 330) 37 at 52 CA.
According to the apt expression by Lord Halsbury, L.C., in the old English case of Sharp v. Wakefield (1891) A.C. 173 at 179 cited with approval (and appropriately too, in my opinion) by Reed, Ag. S. P.J., in the case of The Chairman of the Board of Inland Revenue v. Joseph Rezcallah and Sons Ltd. (1961) N.R.N.L.R. 32 at 37 to act with discretion in judicial proceedings means to act according to the rules of reason and justice, not according to private opinion; according to law, and not humour, not arbitrary, vague, and fanciful but legal and regular and within the limit to which an honest man competent to the discharge of his judicial

office ought to confine himself.

Looking at the record, as I am entitled to do, it is clear that the writ was issued on 02.07.07 vide page 1 of the record and judgment was delivered in the action on 07.05.15, time-range of close to 8 years, in which numerous appearance were made and a host of witnesses taken together with the tendering of documents in evidence.
The litigation was therefore protracted with avalanche of documents frontloaded and filed putting the respondents to expenses which the Court below was deemed and/or reasonably presumed to have had in mind by its recourse to the record vis-à-vis the backdrop of the modalities/parameters on the award of costs enumerated in Order 49 Rule (1) of the Rules of the Court below to award the N75,000 costs in the circumstances of the case. So, in my considered opinion, the Court below was right in deciding the issue of costs summarily in its judgment in accordance with Order 49 Rule (1) and (2) of its own Rules. See Mekwunye v. Emirates Airlines (2019) 9 NWLR (pt. 1677) at 235 and 242.
Consequently, I consider the award of N75,000 costs modest, evenhanded and/or moderate/conservative; not as

a punishment to the appellant or outrageous or gargantuan or on the high side or as a bonus to the respondents. The said award was, accordingly, a judicious and judicial exercise of discretion by the Court below which I am slow to disturb vide Mekwunye v. Emirates Airlines (supra) at 236 — 237. I therefore perceive no substance in the argument that the costs of N75,000 awarded by the Court below amounted to wrongful exercise of discretion by the Court below and hereby reject the appellant’s argument on costs.

In the final analysis, I find no merit in the appeal and would dismiss it and affirm the well considered judgment of the Court below (Taiwo, J.) with N500,000 costs to the respondents against the appellant.

TIJJANI ABUBAKAR, J.C.A.: My learned brother Joseph Shagbaor Ikyegh JCA, granted me the privilege of reading in draft the lead Judgment just delivered in this appeal. I adopt the Judgment as mine. I have nothing extra to add.

UGOCHUKWU ANTHONY OGAKWU, J.C.A.: The leading judgment of my learned brother, Joseph Shagbaor Ikyegh, JCA, which has just been just been delivered was made available to me in draft.

Having also read

the Records of Appeal and the briefs of argument filed and exchanged by the parties, I am allegiant to the manner in which the issues for determination were resolved in the leading judgment.

I adopt the reasoning and conclusion in the leading judgment as mine and equally dismiss the appeal for being bereft of merit. I abide by the order as to costs.

Appearances:

Mr. N. Agetu For Appellant(s)

Mr. O. Enitan SAN with him, Messrs A. Sanya, J. D. Briggs, O. Anuodo and O. Olajide For Respondent(s)