MRS. OLUFUNMILAYO AKIBOYE & ANOR v. ISHOLA ADEKO (2011)

MRS. OLUFUNMILAYO AKIBOYE & ANOR v. ISHOLA ADEKO

(2011)LCN/4286(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 9th day of February, 2011

CA/L/403/04

RATIO

COMPULSORY ACQUISITION OF LAND: EFFECT OF THE COMPULSORY ACQUISITION OF LAND ON THE TITLE OF ITS FORMER OWNER

It is beyond doubt that once there is a compulsory acquisition of land, the title of the former owner becomes extinguished by the reason of the acquisition and when the acquired land or part of it is returned as in this case, a new root of title by grant will be created. It is the decision of the Apex Court that, land, which is under acquisition, cannot be validly sold by its original owner. See Yusuf v. Oyetunde (1998) 12 NWLR (pt.579) 483 PER JOHN INYANG OKORO, J.C.A.

GENERAL DAMAGES: WHETHER GENERAL DAMAGES NEED BE SPECIFICALLY PLEADED OR PROVED BEFORE IT CAN BE AWARDED TO ASSUAGE A LOSS WHICH FLOWS NATURALLY FROM THE DEFENDANT’S ACT

The Apex Court has held that general damages may be awarded to assuage such a loss which flows naturally from the Defendant’s act. Also, that it need not be specifically pleaded. It arises from inference of law and need not be proved by evidence. See Yalaju- Amaye v. A.R.E.C. Ltd. (1990) 4 NWLR (pt.145) 422 at 45L paras A-B; Incar v. Benson Transport Ltd, (1975) 3 SC 117. PER JOHN INYANG OKORO, J.C.A.

GENERAL DAMAGES: WHETHER GENERAL DAMAGES CAN BE ACCURATELY CALCULATED

It is also trite that general damages unlike special damages are generally incapable of substantially exact calculation. They are presumed by the law to be the direct and probable consequence of the act complained of. See Odulaja v. Haddad (1973) 11 SC 351. PER JOHN INYANG OKORO, J.C.A.

MEASUREMENT OF GENERAL DAMAGES: WHETHER THE MEASUREMENT OF GENERAL DAMAGES IN TERMS OF MONEY CAN ONLY BE DECIDED BY THE JUDGE

The supreme court in yalaju-Amayife v. A.R.E.C, Ltd. (supra) stated that the measure of general damages in terms of money is for the Judge to decide. It is always necessary for the Judge to make his own assessment of the quantum of such damage. PER JOHN INYANG OKORO, J.C.A.

DOCTRINE OF LIS PENDENS: PURPOSE OF THE DOCTRINE OF LIS PENDENS

The doctrine of Lis pendens has evolved for the purpose of preventing parties from fraudulently seeking to overreach the decision of courts granting title to the opposing party on the basis that he has divested himself of the title before the decision of the court is reached. lf a purchaser chooses to purchase a property, subject of litigation, from one of the litigants during pendency of the litigation, he does so, at his own risk and if it turns out that the person from whom he bought has no title or was adjudged at the end of the pending action not to be the owner, he takes as he finds it. See: Ogunsola v. N.I.C.O.N (1991) 4 NWLR (Pt 188) 762 at 771. PER ADZIRA GANA MSHELIA, J.C.A.

JUSTICES

ADZIRA GANA MSHELIA Justice of The Court of Appeal of Nigeria

JOHN INYANG OKORO Justice of The Court of Appeal of Nigeria

MOHAMMED AMBI-USI DANJUMA Justice of The Court of Appeal of Nigeria

Between

1. MRS. OLUFUNMILAYO AKIBOYE
2. MR. M. A. O. AKIBOYE Appellant(s)

AND

ISHOLA ADEKO Respondent(s)

JOHN INYANG OKORO, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Judgment of the Lagos State High Court in Suit No. TD/1200/94 delivered by A. O. Williams, J. on 13th February, 2004. The Appellants who were Plaintiffs at the court below, had claimed against the Respondent herein as follows: –
“(a) A declaration of title to all the portions of land known as No.55/57, Ipaja Road, and more particularly described as portion marked “B” in Survey Plan No. SW/L/1145/IB, measuring 6,747.188 sq. meters as Ebenezer Bankole Beckley’s family property,
(b) A declaration that any purported sale, if any to the Defendant is null and void and of no effect whatsoever,
(c) An injunction restraining the Defendant, h is servants, agents or privies from remaining or laying claim to the said parcel of family land and;
(d) Cost”.
The defendant filed a defence and counter claim to the action. At the trial, the 1st Appellant told the court that the land in dispute belongs to her having been given to her by her grandfather, the late Ebenezer Bankole Beckley who died in 1965. It was however in 1981 that she noticed that the Respondent had trespassed into the land. She waited till 1994 when she filed this suit. On his part, the Respondent led evidence to prove that he purchased the land, the subject matter of this suit from the Ebenezer Bankole Beckley’s family in 1975 but that the Federal Government of Nigeria compulsorily acquired the entire land in the neighbourhood including the land in question. The Respondent thereafter regularized his holding and became a lessee of the Federal Government of Nigeria.
At the conclusion of the trial and address of counsel the learned trial Judge entered Judgment for the Respondent and granted all the reliefs sought in the counter claim. The claim of the Appellants, were thus dismissed. The Appellants, being dissatisfied with the stance of the court below, filed this appeal. In an amended Notice of Appeal filed on 2/6/06 by the leave of a this court granted on 31/5/06, six grounds of appeal were filed out of which the learned counsel for the Appellant has formulated four issues for the determination of this appeal. The issues, as contained in the brief settled by J. O. Usama Esq. of counsel for the Appellants, are: –
“( 1) Whether the learned trial Judge was right in holding that the sale of Plaintiff’s family land as evidence (six) in Exhibit D5 is voidable,
(2) Whether the learned trial Judge was right in holding that mere existence and/ or admission of the existence of the publication of Notice to acquire land Exhibit D1 without more, determines the interest of the Plaintiff’s family in the land in dispute,
(3) Is Exhibit D12(1) (the lease) not void being caught by the doctrine of lis pen de ns.
(4) Whether the pleadings and evidence before the court justify the findings and holding of the learned trial Judge that the defendant’s counter claim succeed “.
Four issues are also distilled by Folami Fashe Esq., the learned counsel for the Respondent as contained in the brief filed by him. They are:-
“1. Whether the learned trial Judge was wrong in holding that the Defendant had established a prima facie grant or alienation of the land on dispute to him by the Beckley family through Exhibit D5 (the Beckley family Purchase Receipt) Grounds 1 & 2 of the Appellants Amended Notice of Appeal.
2.Whether the learned trial Judge was wrong in holding that the Appellants having admitted the existence of Exhibit “D1″ particularly Government Notice of Acquisition No 344 of 1976, at page 346 (the fact) had been established that there had been an acquisition of the land in dispute.
3. whether the learned trial Judge was wrong in holding that the case of the Respondent was not caught by doctrine of lis pendis.
4. Whether the learned trial judge erred in Law in granting all the reliefs in the counter claim of the Defendant/ Respondent”.
At the hearing of this appeal on 24/11/10, the learned counsel for the Respondent drew attention of the court to the fact that he had filed Notice of Preliminary objection, which said Notice and the argument in support thereof are contained on pages 2-4 of the Respondents’ brief. In response to the said Notice and arguments, the Appellants filed a reply brief. It is now trite that where a Preliminary objection is raised in a matter, such preliminary objection ought to be treated and addressed first before delving into the main suit or appeal.

I shall therefore first resolve the issues raised in the Notice of Preliminary Objection.
In the said Notice, the Respondent states : –
“TAKE NOTICE that at the hearing of this Appeal, the Respondent herein will raise preliminary objection to issue No. 1in the Appellant Brief of Argument filed by the Appellants in this appeal on the ground that the said issue is incompetent, same not having been distilled from any of the Appellants’ grounds of appeal as contained in the Amended Notice of appeal dated 2nd day of June/ 2006.
AND FURTHER TAKE NOTICE that the Respondent will raise objection to ground No. 3 of the Appellants’ Amended Ground of Appeal on the ground that the said ground does not arise from the Judgment of the lower Court. ”
On page 4 of the Appellants’ brief, the learned counsel for the Appellant has stated in paragraph 5.01 that issue one as distilled by him is tied to grounds 1 & 2 in the Amended Notice of Appeal. It is now well settled that an issue for determination must arise from or relate to a ground or grounds of appeal filed by the Appellant.
Where an issue for determination is not predicated on any ground of appeal, the issue becomes incompetent and is liable to be struck out. See Osinupebi v. Saibu (1982) 7 SC 104; Owhonda V. Ekpechi (2003) 17 N.W.L.R. (pt.848) 326 at 351-352 paras. C-D, H-A.
In the instant case, as was rightly submitted by the learned counsel for the Respondent, issue one in the Appellants’ brief does not flow from any of the grounds of appeal filed. Grounds 1 & 2 which issue I is alleged to have been distilled from have nothing to say about a void or voidable sale of land. Rather, the two grounds relate to burden of proof. Let one briefly reproduce the two grounds (without their particulars) for ease of reference.
“GROUND I
The learned trial Judge erred in law in holding that the burden of proof that Messrs E. B. Beckley (Jnr.) and Edwin Beckley are the legal and accredited representatives of Beckley family are not on the Defendant.
Having regards to the state of pleadings, her ladyship said “I do” believe the learned counsel for the Plaintiffs appears to have placed the burden on the Defendant to prove that Messrs E. B. Beckley (Jnr.) and Edwin Beckley are the legal and accredited representations on the Defendant. I beg to differ.
GROUND 2
Learned trial Judge erred in law in holding that Defendant has established a prima facie grant when her ladyship said “the burden of proof of particular facts always shifts throughout civil proceedings”. The fact that the original ownership of the land in dispute belongs to Plaintiff’s family having been established, the burden shifts to Defendant to prove that these has been an alienation to him. This the Defendant did by producing his receipt Exhibit D5″.
Clearly, grounds 1 & 2 relate to issue of burden of proof and has nothing to do with issue as to whether the sale is void or voidable as issue one is couched. I am unable to agree with the learned counsel for the Appellant when he submitted on page 2 of his reply brief that “a combination of grounds one and two raised an issue touching on the capacity and authority of the vendor to sell 1st Appellants’ family land in the light of the particulars of errors”. As I said, the two grounds speak of burden of proof only. Accordingly, issue one flows from no ground of appeal and is hereby struck out.
As regards ground of appeal no. 3, with due respect to the learned counsel for the Appellant, the statement made by the learned trial Judge as touching Exhibit D 1 does not amount to a decision of that court as it was not the reason on which the Judgment was based. At best it was an obiter dictum.
An obiter dictum is an opinion expressed or a statement made by a court which does not affect its decision in a suit. See Akibu v. Oduntan (2000) 13 N.W.L.R (pt.685) 446; Owhonda v. Ekpechi (Supra).

In view of the fact that both the Appellants and the Respondents admitted in their pleadings that the said land was acquired via Exhibit D1, it was not really a finding of fact by the learned trial Judge when she said that both parties had admitted this in their pleadings. It was in fact a review of the facts as presented by the parties. It has to be noted that the parties did not join issues on this point. Therefore, there can be no valid complaint over a review of evidence by the trial court in which it made no findings of fact or on which no decision was reached. see Adike vs. obiareri (2002) 4 N.W.L.R. (pt.758) 537 at 584 paras G-H, 595 paras A-B.
To buttress the above position taken as regards this ground of appeal, the learned trial Judge at pp.442-443 of the record states as follows:-
“I must at this juncture state that the submission of the Plaintiffs in respect of the acquisition are misconceived. Indeed the Plaintiffs cannot in this action be asking this court to nullify the acquisition. I agree with the learned counsel for the defendant that this court ca n not make any pronouncement on the validity or legality of the acquisition without the Federal Government having been joined as a party.
……Therefore, all the submissions on the fact that compensation was not paid or that the rand was not being used for public purpose, or which support the plaintiff’s challenge of the acquisition go to no issue. They do not assist the court and will be discontinued”.
Clearly, the court below refused to be dragged into any controversy as to whether the acquisition was legal or not. A distinction has to be drawn between the fact accepted by both parties that there was acquisition, a fact which the learned trial Judge rehearsed in her Judgment, and the controversy introduced by the Appellants as to whether the acquisition was for public use which the court refused to entertain as the Federal Government of Nigeria was not made a party in this suit.
I need to emphasise that although any affirmation of fact embodied in the Judgment of a court may loosely be referred to as a finding on that fact, the term “finding of fact” is more appropriately employed to describe an affirmation of fact made after considering evidence.

But whereas in this case, no evidence of any kind had been pleaded before the court, it will be an abuse of language to talk of finding of fact. This is much more so as the validity or otherwise of the said acquisition was not an issue before the court below. See Fointrades Ltd. V. universal Association co. Ltd. (2002) 8 NWLR (pt.770) 699.
From the foregoings therefore, I agree with the learned counsel for the Respondent that ground 3 is incompetent, same being based on mere review of the facts and not on the decision of the court below’ Ground 3 is accordingly struck out. It follows that issue 2 in the Appellant’s brief and issue 2 in the Respondent’s brief which were formulated from ground three are also struck out as no issue can be formulated from an incompetent ground of appeal.
Again, looking at the Respondent’s issue one, it does not flow from grounds 1 & 2 allegedly distilled from. So, the same virus that afflicted the Appellant’s issue has done incalculable damage to Respondents’ issue 1. The said issue is hereby struck out since it does not flow from any ground of appeal. The preliminary objection hereby succeeds and is accordingly upheld. I am now left with two issues ie issues 3 and 4 in both the Appellants and Respondents brief and they are the same. I shall determine this appeal on these two issues. Issue 3 relates to the doctrine of lis pendens. The issue is whether the learned trial Judge was wrong in holding that the case of the Respondent was not caught by the doctrine of lis pendens. It was the submission of the Appellants’ counsel that the processing of Exhibit D12(1) did not start in 1993 as held by the learned trial Judge in view of the fact that DW2 testified that he was invited to regularize his stay on the land in dispute by the Federal Government on 20/12/94. That this implies that any application submitted before 20/12/94 was invalid, hence the Respondent completed another form in 1995. That in view of the fact that this suit was filed at the lower court in April, 1994 and the Respondent entered appearance in May, 1994, the lease, made by the Federal Government of Nigeria in 1999 in favour of the Respondent, was made during the pendency of this suit and as such, is caught by the said doctrine.
Learned counsel further contended that the Respondent having concealed this fact that an action was pending in court as to the ownership of the land in dispute, the subject matter of the regularization or lease from the Federal Government, was done with a view to changing the nature of the action and evidence to support it. He urged this court to declare Exhibit D12(1) void and of no effect whatsoever having been obtained pendent lite.
In response, the learned counsel for the Respondent submitted that the grant of lease to the Respondent by the Federal Government as shown in Exhibit D12(1) during the pendency of suit no. ID/1200/94 at the High Court was not caught by the doctrine of lis pendens. He further submits that the doctrine itself does not operate to make a transfer of interest in property the subject of litigation during the pendency of litigation void itself. Rather, that the law simply makes the party who acquires or purports to acquire interest in the property to take such property subject to the outcome of the litigation, referring to the case of oronti vs. onigbanjo (2004) 17 N.W.L.R. (pt.903) p.601 at 618-619; Bua v. Dauda (1999) 12 N.W.L.R. (pt.629) 59 at 73.
It was his further submission that the grant of the lease during the pendency of suit no. ID/1200/94 is a perfection of the Respondents’ title to the land he acquired in 1975 by purchase through the Appellant’s family Head and not an acquisition of fresh interest on the land. That the application of the doctrine of lis pendens is therefore excluded in the circumstance. He urged this court to hold that the grant of the lease of the land to the Respondent by the Federal Government of Nigeria, though occurred during the pendency of the action of the High Court, was not caught by the doctrine of lis pendens.
Let me, by way of definition explain that the doctrine of lis pendens as expressed in the Latin maxim lis pendent lite nihil innovetur, means that nothing should change during the pendency of an action. This doctrine has evolved for the purpose of preventing parties from fraudulently seeking to overreach the decision of courts granting title to the opposing party on the basis that he has divested himself of the title before the decision of the court is reached. It has, long been held that where a litigation is pending between a plaintiff and the Defendant as to the right of a particular estate, ‘the necessities of mankind require that the decision of the court in the suit shall be binding not only on the litigants but also upon those who derive the under them by alienation made pending the suit whether such alienee had , or had not, notice of the pending proceedings. See Bellamy v. Sabine (1857) 26 L.J (N.S) Equity Report 797; Sorrer v. carpenter (1728) 2p.wins
482. The doctrine enunciated in the two cases cited above was given approval by the supreme court in ogundaini v. Araba (1978) 6-7 SC 55 at 78 per Idigbe, JSC as follows:-
“the doctrine of lis pendes prevents effective transfer of right in any property which is the subject-matter of an action pending in court during the currency in court of the action The law does not allow to litigant parties or give to them during the currency of litigation involving any property rights in such property (ie the property in dispute) so as to prejudice any of the litigating Parties”.
see also ogunsola v. NICON (1991) 4 N.W.L.R. (pt.188) 762.

From the facts of the instant case can it be said that alienation took place during the pendency of this suit at the High Court? Strictly speaking, the Respondent acquired title in this property in 1975 having purchased same from E. B. Beckley (Jnr.) and Edwin Beckley, principal members of E. B. Beckley (Snr.) family who died in 1965. To the best of my knowledge, that is the title that is being challenged and in view of the fact that the suit was filed in 1994 and Judgment given in 2004, it cannot be said that the doctrine of lis pendens applies in the circumstance. The acquisition of the property in 1975 took place long before the Appellants commenced this suit in 1994. This title is evidenced in Exhibit D5.
The Appellant failed to show that this acquisition was made pendente lite.
A party claiming the benefit of the doctrine of lis pendens in a matter has the burden to show:
(i) That there is in fact an alienation pendente lite;
(ii) That there has been a successful termination (that is, in Judgment or order) of the pending suit at the time the alienation is made; and
(iii) That the alienation pendente lite has prejudiced or affected the other party.
see oronti v. onigbanjo (2004) 17 NWLR (pt.903) 601.

The Appellants in the instant case not only lost the case at the court below but also failed to show that the Respondent acquired title to the property during the pendency of suit no. ID/1200/94.
The Appellants had contended that what happened between the Respondent and the Federal Government of Nigeria between 1993 and 2001 was acquisition of title to the property via Exhibit D12(1). I do not think so. The exercise is termed regularization of interest in land and this regularization presupposes that an Applicant already has a valid title to the property. Indeed, a valid title is a pre-requisite for the regularization. The Respondent has stated clearly that the process started in 1993 and terminated in 2001. Thus, the regularization exercise started before the commencement of the suit and ended during the pendency of the said suit.
I think the Appellants mixed up issues here. There is a clear distinction between acquisition of title in the property and the issue of regularization between the Respondent and the Federal Government. It is clear that the Federal Government, after acquiring the land (including the land in dispute), invited persons in possession to regularize their stay on the land. One of the conditions was the presentation of a valid title. The Respondent presented the document showing that he purchased it from the Appellants. It was based on this that the Government allowed him to continue to stay on the land. The Respondent did not acquire title to the property in 2001 but regularized his stay on the land with the Federal Government. I do not intend to say more on this as the case between the parties and the Federal Government is not before this court. The learned trial Judge did so well in refusing to delve into the merit or demerit of the acquisition of the land by the Federal Government since the Government is not a party to this suit.
Be that as it may, as was earlier stated by this court, the doctrine of lis pendens is never intended nor is it made to operate to nullify the sale of property that is the subject matter of litigation. If a third party chooses to purchase the property, the subject matter of litigation, from one of the litigants during the pendency of the litigation, he does so at his own risk. If it turns out that the person from whom he bought had no title or was adjudged at the end of the pending action not to be the owner, he takes as he finds. where the Defendant alienates during the pendency of a suit, and the result is that the claim of the plaintiff succeeds, the Judgment will overreach such alienation. If the transferor of the property to a purchaser loses the suit, the purchaser loses it too. The summary of what I am trying to say is that the contract entered into by a third party who purchases a property that is subject of litigation during the pendency of this suit is not void but that sale or alienation shall abide by the outcome of the suit. See Bua v. Dauda (1999) 12 NWLR (pt.629) 59; Barckleys Bank Nig. Ltd. v. Ashiru (1978) 6 & 7 SC 99.
The Appellants in this case, should concentrate their energy in the matter between them and the Respondent and not that between the Respondent and the Federal Government of Nigeria which, in my opinion is a different ball game.
The Summary of all I have been saying on this issue is that the doctrine of lis pendens does not apply to the acquisition of the property by the Respondent from the Appellants’ family which took place in 1975. Secondly, that the regularization of the possession of the Respondent of the land in dispute by the Federal Government does not amount to acquisition of title but regularization, simpliciter.
Thus, the acquisition cannot be said to have been made during the pendency of suit no. ID/1200/94. This issue, in the circumstance does not avail the Appellants at all. It is accordingly resolved against them.
The last issue is whether the pleadings and evidence before the court justify the findings and holding of the learned trial Judge that the Defendant’s (now Respondent) counter claim succeeds. Learned counsel for the Appellants submitted on this issue that whereas the Appellants tendered Exhibit P2 as their legal title to the land in dispute, the Respondent tendered Exhibit D5 which was issued and executed by a vendor who is not the legal and accredited representative of the Appellants’ family and therefore void. That the evidence shows that the Respondent is not the owner and/or in possession of the land in dispute as at the time he applied for Exhibit D12(1). He submits further that where there is dispute as to who is in possession of the piece of land, the party with a better title is deemed to be in possession of the land and that proof of ownership is prima facie proof of possession. He relies on the case of Goddy Umeobi v. Chief Otukoya (1978) All NLR 140 at 153. It was his final contention in this issue that the Appellants have a better title to the land in view of their registered conveyance Exhibit P2 and so were in possession.
Learned counsel further submitted that the size of the land shown in Exhibit D2A Survey plan, is 2 acres whereas Exhibit D5 shows one acre of land, yet the learned trial Judge granted relief No. 1 of the counter claim based on Exhibit D2A which is 2 acres. He opined that the error in this Judgment is that the learned trial Judge relied on Exhibit D5 which is just one acre in granting relief on one of the counter claim. That the Respondent is entitled to only one acre, if any, On the award of N5,000.00 general damages to the Respondent, learned counsel submitted that the award of the said sum was not based on legal evidence of probative value adduced for the establishment of actionable wrong, citing and relying on the cases of Ibrahim v. Mohammed (2003) FWLR (pt.156) 902 paras G-H and Adekunle v. Rockview Hotel Ltd. (2004) FWLR (pt.188) 1037 at 1094 paras F-G. In his response, the learned counsel for the Respondent submitted that the finding of the learned trial Judge for the Respondent on the question of ownership and/or possession was based on the evidence of purchase of the land from the Beckley family through Exhibit D5, the testimony of DW2 and the 1st Appellant’s evidence on Oath that she noticed the presence of the Defendant on the land since 1981. It was his view that since this evidence is uncontroverted, Uncontradicted and inherently credible, the court below was right in giving credibility to it. He cites the case of Mainagge v. Gwamma (2004) 14 NWLR (pt.893) 323 at 325.
on the difference between the content of Exhibit D5 and Exhibit D2A, he submitted that the Respondent has adequately in his evidence told the court that after buying the land in Exhibit D5 in 1975, he bought two additional plots in 1988 from one Oyebola Ganiu Aremu which accounts for the lands of Exhibit D2A.
On the issue of damages, the learned counsel for the Respondent submitted that, it is trite that damages will be awarded to assuage such loss which flows naturally from the act of the adversary as assessed by the trial Judge based on the ordinary expectation of a reasonable man, relying on the Case of Yalayu-amaye v. A.R.E.C. Ltd. (1990) 4 NWLR (pt.145 – 422) at 430-431.
He urged the court to resolve this issue against the Appellant.
The reliefs sought by the Respondent in his counter claim are as follows:
“(a) A declaration that the Defendant is the person entitled to the statutory right of occupancy of all that parcel of land situate at and known as No.55/57 Ipaja Road, Agege Lagos State.
(b) A perpetual injunction restraining the Plaintiffs, their agents or privies from coming into or in any other way interfering with (the Defendant’s) peaceful possession of the land.
(c) General damages in the sum of N 5,000.00”.
The learned trial Judge, while entering Judgment for the Respondent on the counter claim, had this to say on page 454 of the record :-
“As I have found above, the Defendant has established that before the acquisition of the land in dispute, he was in possession and he had an equitable interest by virtue of his receipt (Exhibit D5) coupled with possession. From this arises an equitable interest capable of being connected with a legal estate by specific performance. See Ogunbambi v. Abowab.
In addition to this, the Defendant has obtained a lease from the Federal Government, which to me amounts to the necessary connection to create a legal estate for him”.
The learned trial Judge went on at page 456 to shed more light on the basis of upholding the case of the Defendant as follows:-
“In the particular circumstance of this case, the Certificate of Occupancy obtained by the Defendant is based on the sale of the property in dispute to him by Bankole Beckley Jnr. in 1975, not on a sale made during the pendency of a litigation, and the defendant made his application to regularize his possession in 1993, before this action commenced”.
From the above findings of the learned trial Judge, it is crystal clear that it was based on actual evidence adduced before the court. The Respondent gave evidence that after he pa id for the land in 1975 and obtained Exhibit D5, he was let into possession immediately by Bankole Beckley Jnr., the head of the Beckley family. Tragedy however struck in 1976 when the Federal Government of Nigeria issued Exhibit D1 Notice of acquisition of the land in dispute among other properties. He persisted and persevered till 2001 when the Federal Government granted him a lease to stay on the land as was done to other persons who were in possession of their various properties not used immediately by the Government. It is instructive to note that the Appellants admitted that they saw the Respondent in possession of the land in 1980 but did nothing till 1994 when they instituted this action. The Respondent even built houses on the disputed land.
These were actions not taken at night or overnight. The question is, why did the Appellant wait inordinately before moving to challenge the Respondent several years after they became aware of the transaction between some principal members of their family and the Respondent?
The evidence of the Respondent on how he acquired the land is uncontradicted and is inherently credible.

It is trite that when evidence given by one party is not contradicted or controverted by the other party who has the opportunity to do so and such evidence is not inherently incredible and does not offend any rational conclusion or state of physical things, the court should accord credibility to such evidence.

I am of the firm view that the learned trial Judge was right in according credibility to the Respondents’ evidence. see Mainagge v. Gwamma (2004) 14 NWLR (pt.893) 323; Omoregbe v. Daniel Lawani (1980) 3-4 SC 108; Okoebor v. Police Council (2003) 12 NWLR (pt.834) 444; Asafa Foods Factory Ltd. vs. Alraine Nig. Ltd. (2002) 12 NWLR (pt.781) 353.
The point has to be made that while it is never in dispute that Exhibit P2 tendered by the Appellants was proof of the radical title to the land in dispute being in the Appellants’ family prior to the purchase by the Respondents through Exhibit D5 in 1975 and the subsequent acquisition of the land in 1976 through Exhibit D1, the Appellant’s family interest in the land abated upon the issuance of Exhibit D5 and the ceding of possession to the Respondent in 1975 by Bankole Beckley Jnr. See ogunbambi v. Abowab (1951) 13 WACA 223.
In view of the fact that both the Appellants and the Respondent have accepted that Exhibit D1 was genuinely issued ie., Notice of acquisition by the Federal Government, I am of the view that upon the issuance of Exhibit D1 in 1976, all the interests including that of the Respondent in the land became extinguished. See Section 20 of the Public Lands Acquisition (Miscellaneous Provision) Act 1976, Section 31 of Land Use Act, Cap 202 Laws of the Federation 1990. It is beyond doubt that once there is a compulsory acquisition of land, the title of the former owner becomes extinguished by the reason of the acquisition and when the acquired land or part of it is returned as in this case, a new root of title by grant will be created.
It is the decision of the Apex Court that, land, which is under acquisition, cannot be validly sold by its original owner. See Yusuf v. Oyetunde (1998) 12 NWLR (pt.579) 483.
The contention by the learned counsel by the Appellants that the Appellants were in possession and remain owners of the land in dispute when Exhibit D12(1) was issued, to me, is misconceived as at that time title in the property was in the Federal Government.
On the difference between the size of the land as described in Exhibit D5 and D2A, the Respondent had earlier stated in his evidence in Chief that he bought the land shown in Exhibit D5 in 1975 and later in 1988 he paid for two plots of land to one Oyebola Ganiu Aremu who had earlier bought the two plots of land in front of the land of the Respondent. The documents of title of Oyebola Ganiu Aremu were surrendered to the Respondent and were admitted in evidence without objection. See p.295 and 296 of the Record of Appeal.
On the issue of general damages awarded by the learned trial Judge, I think the learned counsel for the Appellants has confused general damages with special damages which needs to be pleaded and proved specifically.

It is wrong to take into consideration in the award of general damages, matters which should be considered in the award of special damages. See also Dumez vs. ogboli (1972) 3 SC 1.96; W.A.S.A. vs. Kalla (1978) 3 SC 21.
In the instant case, I think the award of N5,000.00 by the learned trial Judge as general damages is minimal and I have no reason to upturn it. It flows naturally from the conduct of the Appellants.
on the whole, I am of the firm view that the court below was right in holding that the Respondent proved his counter claim against the Appellants and entering Judgment for the Respondent as per the counter claim, was based on evidence led before that court. This issue accordingly is hereby resolved against the Appellants.
The inevitable outcome of this appeal is that there is no merit in the appeal. Same is accordingly dismissed. I uphold the decision of the court below in both the main claim and the counter claim. I award cost of N30,000.00 in favour of the Respondent

ADZIRA GANA MSHELIA, J.C.A.: I have had a preview of the judgment read by my learned brother Okoro, J.C.A. I agree with his reasoning and the conclusions arrived thereat. I only wish to add few words in agreement.

In the instant case the grant of the lease during the pendency of Suit No ID/1200/94 is a perfection of the Respondents’ title to the land he acquired in 1975 by purchase through the appellant’s Family Head and not an acquisition of fresh interest on the land. The acquisition of the property took place long before the Appellants commenced this suit in 1994. This title is evidenced by Exhibit D5. I agree with my learned brother that it cannot be said that the doctrine of Lis pendens applies in the circumstance.
For these and the fuller reasons given by my learned brother in his lead judgment, I too dismiss the appeal as same is devoid of merit. I abide by all other consequential orders made in the lead judgment, inclusive of costs.

MOHAMMED AMBI-USI DANJUMA, J.C.A.: I have been privileged to read before now the lead Judgment just rendered by my lord Okoro, J.C.A. and I agree entirely that the ground 3 of the Notice of Appeal and the 2nd issue of the respective parties raised there from are incompetent. The Ground No. 1 stems from an obiter dictum i.e. a review of facts of the case as made at the trial court and never stemmed from a decision or part of the decision of the court. Both grounds 1 and 2 had no issue distilled there from that was competent and ought be struck out. Secondly, the doctrine of lis pendelites does not operate to defeat a title that had vested before the institution of litigation in reference, nor does it operate to void a title rather it only makes a title acquired during the pendency of a suit subject to the outcome of the suit thereof.
I would, however, wish to add for emphasis that it is becoming the trend or vogue that litigants tend to approach the courts to nullify transactions relating to land particularly where public acquisitions are involved without first joining the acquiring public authority as parties. This practice, in my view is a violation of the constitutional right of fair hearing and against the accepted axiom that declaratory reliefs as to title cannot be granted on exparte applications without a hearing. see WALLEISTEIN us. MOIR 1965 ALL ER…

It is also trite that no declaration against a person or authority can be made without affording him the benefit of a hearing. See 36 of the 1999 Constitution, F.R.N.

Accordingly and on the above reasoning and the fuller and sound reasoning contained in the lead Judgment, I also agree that the entirety of the decision of the trial court including the portion that allowed the counter claim should be upheld. Appeal is dismissed and the Judgment of the lower court is upheld in the manner done by the lead Judgment, inclusive of the order as to costs.

Appearances

J. O. Usama Esq.For Appellant

AND

Folami Fashe Esq. with Toyin Adebayo (Miss)For Respondent