DUMEZ NIGERIA PLC v. HIS HIGHNESS J. A. ADEMOYE & ORS (2014)

DUMEZ NIGERIA PLC v. HIS HIGHNESS J. A. ADEMOYE & ORS

(2014)LCN/7725(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 25th day of June, 2014

CA/B/154/2006

RATIO

LAND LAW; REVOCATION OF RIGHT OF OCCUPANCY; IN WHAT INSTANCE CAN THE GOVERNOR REVOKE A RIGHT OF OCCUPANCY AND WHAT WILL AMOUNT TO OVERRIDING PUBLIC INTEREST
It is beyond doubt that the Land Use Act did not come to destroy what was in existence prior to its promulgation. See: Haruna vs. Ojukwu (1991) 7 NWLR (pt. 202) 207 @ 225. Indeed, the combined effect of Sections 34 and 36 of the Land Use Act are the preservation of existing rights by deeming same as having been granted by the operation of the Act. That being so, it is therefore clear that the only valid means the government can divest a right holder – either customary Right of Occupancy or Statutory Right of occupancy must be by revocation and acquisition as provided in Sections 28 and 29 of the Land Use Act. Section 28 (1) of the Land Use Act is explicit on the only reason the government can revoke any right of occupancy. It provides thus:
Section 28(1): “it shall be lawful for the Governor to revoke a right of occupancy for overriding public interest.”

For purposes of clarity, Section 28(3)(a) – (d) provides for what will amount to overriding public interest in the case of a customary rght of occupancy.
28(a) “The requirement of the land by the government of the State by Local Government in the State, in either case for public purpose within the State, or the requirement of the land by the government of the Federation for public purposes of the Federation.
(b) The requirement of the land for mining purposes or oil pipelines or for any purpose connected therewith.
(c) The requirement of the land for the extraction of building materials.
(d) The alienation by the occupier by sale, assignment, mortgage, transfer of possession, sub-lease, bequest or otherwise of the right of occupancy without the requisite consent or approval.”

Further, since the purpose for which a revocation and acquisition is intended is germane for validity of the acquisition, Section 51 of Land Use Act defines “public purposes” thus:
(a) For exclusive Government use or for general public use.
(b) For use by any body corporate directly established by law or by any body corporate registered under the Companies and Allied Matters Act as respects which the Government own shares, stocks or debentures.
(c) For or in connection with sanitary improvements of any kind.
(d) For obtaining control over land contiguous to any part or over land the value of which will be enhanced by the construction of any railway, road, or other public work or convenience about to be undertaken or provided by the government.
(e) For obtaining control over land required for or in connection with development of telecommunication or provision of electricity
(f) For obtaining control over land required for or in connection with mining purposes.
(g) For obtaining control over land required for or in connection with planned urban or rural development or settlement.
(h) For obtaining control over land required for or in connection to economic, industrial or agricultural development.
(i) For educational or other social service. per. SOTONYE DENTON WEST, J.C.A.

EVIDENCE: BURDEN OF PROOF; WHICH OF THE PARTIES HAS THE BURDEN TO PLEAD AND PROVE VALID REVOCATION OF THE RIGHT OF OCCUPANCY

At this juncture, it must be stated that it is trite law that he who asserts must bear the burden of proving what he asserts. Therefore, a Defendant who relies on plea of revocation and acquisition must bear the burden of proving same. In this respect, this court in N.E.W. Ltd. vs. Denap Ltd. (1997) 10 NWLR (pt. 526) @ 526 held thus:
“The plea of revocation involves acknowledgement of the existence of a right of occupancy prior to that act of revocation. The burden to plead and prove valid revocation of the right of occupancy therefore rests on that party alleging such revocation in this case the defendant.” per. SOTONYE DENTON WEST, J.C.A.

EVIDENCE: BURDEN OF PROOF; WHICH OF THE PARITIES HAS THE BURDEN OF IDENTIFYING WITH SUFFICIENT CLARITY THE IDENTITY OF THE LAND TO WHICH HIS CLAIM RELATES
It is elementary in law that the burden of identifying with sufficient clarity the identity of the land he is claiming is squarely placed on the claimant. In the case of Mr. Taiwo Ilari Ogun vs. Mr. Moliki Akinyelu & Ors. (2004) 12 SCNJ 196 @ 211 paragraph 15 – 20, the Supreme Court held thus:
“In an action for declaration of title to land, the onus is on the plaintiff to establish with certainty the identity of the land to which his claim relates.
This he can do in one of two ways, viz, by oral evidence describing with such degree of accuracy the said parcel of land in a manner that will guide in producing a survey plan of the said land. See: Baruwa vs. Ogunsola (1938) 4 WACA 159. Another way and perhaps a better way of proving the identity and extent of the land claimed is by the plaintiffs filing a survey plan reflecting all the features of the land showing clearly the boundaries. See Awoye vs. Owodunni (no. 2) (1987) 2 NWLR (pt. 57)
Expatiating further on this principle, the Supreme Court at 211 – 212 paragraph 35
– 5 opined as follows:
“The law is settled that a plaintiff seeking a declaration of title to land has the initial and primary burden of proving clearly and unequivocally the precise area to which the claim relates. But this burden will not exist where the identity of the land in dispute was never a question in issue.
The question of the identity of the land as an issue will only arise where the defendant raises it in his Statement of Defence or in his testimony.”
See further Fatunde vs. Onwoamanam (1990) 2 NWLR (pt. 5132) 322; Ezeudo vs. Obiagwu (1986) 2 NWLR (pt. 21) 208. per. SOTONYE DENTON WEST, J.C.A.

Before Their Lordships

SOTONYE DENTON WESTJustice of The Court of Appeal of Nigeria

MOJEED ADEKUNLE OWOADEJustice of The Court of Appeal of Nigeria

CORDELIA IFEOMA JOMBO-OFOJustice of The Court of Appeal of Nigeria

Between

DUMEZ NIGERIA PLCAppellant(s)

AND

1. HIS HIGHNESS J. A. ADEMOYE
2. CHIEF A. A. AKINTANTE
3. MR. JOHN AKINTOPE
(Suing for themselves and on behalf of Akintope family of Odigbo/Otu)
4. ONDO STATE GOVERNMENTRespondent(s)

SOTONYE DENTON WEST, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of Hon. Justice O. A. Adegbehingbe of the High Court of Ondo State sitting at Ore Judicial Division delivered on 13th March, 2006 granting the claims of the Plaintiffs (hereinafter called the Respondents). The Respondents as Plaintiffs at the trial court brought this action via Writ of Summons filed on 19/4/2002 and Statement of Claim filed on 17/10/2002. On 4/3/2003, the Respondents filed an Amended Statement of Claim, while the appellant as defendant at the trial court filed their Amended Statement of Defence on 19/4/2003. Reacting, the Respondents, on 3/5/2003 filed their Reply to the Amended statement of Defence. Suffice to say that on the above stated processes, the case was ventilated at the trial court. By the said Writ of Summons and the Amended Statement of Claim, the Respondents claimed against the Appellant as follows:
1. Court declaration that the Plaintiffs are the persons entitled to be granted the certificate of customary right of occupancy over the parcel of land currently in possession of the 1st Defendant situated, lying and being at Otu Costain, Odigbo Local Government Area of Ondo State of Nigeria.
2. Court declaration that any purported leasehold and/or right of occupancy purportedly granted the 1st Defendant by the 2nd Defendant and/or any person and/or body, entity over the parcel of land without the prior knowledge and/or consent of the Plaintiffs is wrongful, unlawful, unconstitutional and void having failed to follow the due process of law.
3. Twenty Five Million Naira (N25m) being special and general damages for trespass, for accumulated arrears of rent payable over the parcel of land and loss of use of same since the parcel of land had been in an unlawful and/or forceful occupation/possession of the 1st Defendant several years ago.
4. An order of perpetual injunction restraining the 1st Defendant whether by herself or servants, agents or otherwise from committing further acts of trespass over the plaintiffs’ parcel of land aforesaid.

SUMMARY OF FACTS
The case of the Appellant is that the land in dispute was at all times material to this case under the control of Ondo State Government (formerly Government of Western Region of Nigeria). That in 1972, the Ifesowopo Local Government Council allocated the land in dispute to it and it paid the necessary fees and was granted a customary Right of Occupancy. Later, the area of Otu-Costain was made an urban area, it applied and was granted by Ondo State Government a statutory right of occupancy. That it never dealt with or recognized the 1st – 3rd Respondents as owners or its landlord as it did not acquire its title from them. There is no tenancy relationship between them either. Alternatively, that even if the 1st – 3rd Respondents were ever on the land in dispute, the Respondents’ action therein is statute barred as the action was brought after the period stipulated by the Limitation Law of Ondo State.

On the other front, the case of the Respondents is that they are customary owners of the land in dispute, having inherited same from their great grandfather AKINTOPE, who also inherited same from his father JOMULEJE, the original founder/settler of a larger parcel of land. That the land subject matter of this appeal was never acquired by the Government of Western Region or its successor Ondo State Government at any time to warrant allocation of same to the Appellant without their consent.

The parties filed and exchanged pleadings and the matter proceeded to trial. The 1st – 3rd Respondents called three witnesses and tendered 1 (one) exhibit in support of their case while the Appellant called two witnesses and tendered 8 (eight) exhibits. At the conclusion of trial and after listening to oral address of respective counsel, the learned trial Judge in a considered judgment delivered on 13th March, 2006 gave judgment in favour of the Respondents.

Being dissatisfied, the Appellant filed Amended Notice of Appeal dated and filed on 3rd of March, 2008, containing five (5) ground of appeal. In compliance with the rules of this court, the parties filed and exchanged briefs of argument. The Appellant’s amended brief of argument is undated but filed on 10/1/2013 but deemed properly filed on 22/1/2013; and settled by NASIR RUNMONKUN (ESQ.) while the Respondents’ Brief of Argument is dated and filed on 25/1/2013 and was settled by A. F. ADEJAYAN (ESQ.). The appellant also filed an undated Reply Brief on 7/2/2013, settled also by NASIR RUNMONKUN (ESQ.)

At the hearing of the appeal on 3/4/2014, NASIR RUNMONKUN (ESQ.) adopted the Appellant’s brief of argument and reply brief and urged us to set aside the judgment of the trial court. While A. F. Adejayan (Esq.) of counsel, adopted the Respondents’ brief of argument and urged us to uphold the judgment of the trial court.

The Appellant vide its Brief of Argument formulated the following three issues for resolution of this appeal thus:
1. Whether the learned trial Judge was correct in holding that the land occupied by the Appellant was never acquired by Government before it was granted to the Appellant.
2. Whether the learned trial Judge was correct in holding that Section 6(2) of the Limitation Law, CAP 61, Laws of Ondo State 1978 does not avail the Appellant so as to bar the 1st – 3rd Respondents’ right of action.
3. Whether the learned trial Judge was correct in holding that the 1st-3rd Respondents had successfully established the identity of the land they are claiming.

On the other hand, the respondents distilled three issues for resolution of this appeal as follows:
1. Whether the identity of the adjudged land is put in issue and/or in dispute between parties in this case.
2. Whether the adjudged land was acquired by the 4th Respondents to warrant it’s been transferred to the Appellant.
3. Whether the claim of the 1st – 3rd RESPONDENTS is caught by the Limitation Law, Vol. III, CAP 61, Laws of Ondo State, 1978.

Obviously, the three issues as formulated by the respective parties are identical as conceded by the Respondents’ counsel. I shall without much ado, resolve this appeal on the three issues as distilled by the Appellant.

ARGUMENT ON ISSUES
ISSUE ONE:
“Whether the learned trial Judge was correct in holding that the land occupied by the appellant was never acquired by Government before it was granted to the appellant.”

In arguing this issue, learned counsel for the Appellant reiterated the Appellant’s argument at the trial court that the 1st – 3rd Respondents had no locus standi to bring this action at the time this suit was commenced because the land occupied by the Appellant, subject matter of this appeal did not belong to them, same having been acquired by the Government, who in turn granted same to the Appellant. Counsel argued that the finding of fact at page 149 of the record of appeal by the learned trial Judge to the effect that the Plaintiffs’ allegation that 2nd Defendant had abandoned the acquisition process was proved is perverse as there was no evidence on record to support the allegations. He referred to Bozin vs. State (1985) 2 NWLR (pt. 465) to submit that the court cannot without any evidence established before it choose to believe any fact or state of affair without any evidence adduced.

Counsel submitted that the onus is on the 1st – 3rd Respondents to show that the acquisition process was abandoned and they had failed to do so especially in the face of Exhibits D7 and D8 tendered by the Appellant which the 1st – 3rd Respondents could not controvert. Counsel argued that there was nowhere the Respondents as Plaintiffs at the High Court stage of this matter challenged the authenticity of Exhibit D7 or deny that the letter was prepared by them. Counsel submitted that Exhibit D7 is a letter written by the 1st Respondent who is presently the head of the 1st – 3rd Respondents’ family. That in Exhibit D7, the 1st Respondent stated that the Government of old Western Region of Nigeria had acquired the land occupied by the Appellant from their family but that the compensation paid was inadequate. Counsel therefore argued that this is a clear proof that the 1st – 3rd Respondents had knowledge of and indeed received notice of Government acquisition of the parcel of land occupied by the Appellant. Counsel referred to paragraph 33 of the Respondents’ Amended Statement of Claim at page 45 – 46 of the record of appeal to submit that 1st-3rd Respondents admitted that they actually applied for compensation in respect of the acquisition. Counsel further argued that the learned trial Judge did not evaluate or make any specific finding on the legal effect of Exhibit D7 since according to counsel the 1st – 3rd Respondents did not deny that Exhibit D7 was prepared by the 1st Respondent, counsel stated that the court did this when it erroneously shifted the burden of establishing the truth of the purported withdrawal of the acquisition referred to in paragraph 31 and 33 of the plaintiffs/respondents’ Amended statement of Claim. Further, counsel submitted that the court wrongly exercised judicial discretion by trying to ascertain whether or not the acquisition of the land in dispute was actually abandoned by Government as no evidence was led in that regard. Counsel submitted that Exhibits D7, D8 and evidence of DW2 added up to show that the land in dispute was acquired firstly by Government of Old Western Region and in 1995 by Ondo State Government. It is argued that there is no evidence that 1st – 3rd Respondents applied for compensation to Government, which was refused. Counsel relied on Edosa v. Zaccala (2006) ALL FWLR (pt. 306) 880 to submit that the decision of the trial court to consider whether or not compensation was paid to the 1st – 3rd Respondents upon acquisition is speculative and an erroneous basis for arriving at its decision since the duty of court is to consider the cold fact or evidence before it and not fiction or imagined evidence. He relied on Stephen Ideigboe & Sons Ltd. vs. Anenih (2003) FWLR (pt. 149) 1418. Counsel reiterated that merely stating that no compensation was paid is no sufficient proof of abandonment of acquisition process. It is said that the court should have considered whether or not the acquisition notice was valid and what effect it would have had on the interest claimed by the 1st – 3rd Respondents.

Counsel argued that no court action was commenced by the 1st – 3rd Respondents to set aside the acquisition by Government and therefore that the authenticity of Exhibit D7 and the evidence of State Land Officer remain uncontroverted. Counsel further submitted that the evidence of DW2 – Land Officer and the submission of the Solicitor General of Ondo State representing the 4th Respondent corroborated each other that the land in question was acquired. He argued that curiously, counsel for the 1st – 3rd Respondents did not put any question to DW2 for the purpose of controverting same. It is submitted that the trial court did not make any finding that either the Old Western Region or Ondo State Government failed to comply with statutory conditions for a valid acquisition. On that premise, counsel submits that that would have been the only basis upon which the court would have arrived at its finding that the land was not properly acquired. Counsel relied on Dabo v. Abdullahi (2005) FWLR (pt. 255) 1039 as authority that an exercise of statutory power cannot be held invalid unless it is shown that the exercise is contrary to the statute. Therefore, counsel submit that the finding by the trial court that the acquisition was abandoned is contrary to evidence before it and amounts to making a case for the 1st – 3rd Respondents. Counsel called in aid Eke vs. Okwarania (2001) FWLR (pt. 51) 1974 @ 1975 to state that when a state of fact is relied on, it is not enough to allege it simply without setting out the subordinate facts which are means of proving it. Counsel submits that the learned trial Judge ought to have considered whether or not 4th Respondent had capacity to and validly acquired the property in dispute through Exhibits D3 and D8. Otherwise, said counsel, the court would not have concluded that Exhibit D3 had no relevance to the land in dispute. Further, said counsel, 1st – 3rd Respondents led no evidence in proof of their averments in paragraphs 28 and 29 of the Amended Statement of Claim. That parties agree there is no non-compliance by government with the provisions of the Land Use Act or the Acquisition Law of Ondo State. Counsel then referred to page 89 of the record to show that DW1 led evidence to the effect that the land in question was acquired for public purpose and granted to the Appellants by government to exploit granite for the construction of ORE-BENIN road project. At this juncture, counsel referred to the definition of “public purpose” at Section 51(d) and (g) of the Land Use Act and Section 28(3) (c) to the effect that a customary right of occupancy can be revoked for overriding public purpose which includes land required for extraction of building materials. Therefore, counsel called in aid Lawson vs. Ajibulu (1997) 6 NWLR (pt. 507) 14 as authority that government can acquire land for public purpose and grant same to a private company for the purpose of carrying out on behalf of the state any public purpose under the Land Use Act. Counsel attacked the conclusion of the learned trial Judge that Appellant’s failure to produce a gazette to show acquisition is fatal to its case as grossly erroneous. It was further submitted that acquisition is complete when notice of same is issued and served on the holder and compensation paid. Counsel submit that by Section 28(6) and (7) of the Land Use Act, revocation of an interest in land is deemed complete upon; (a) publication of a Government Notice by a duly authorized personnel (b) service of the said Notice upon the holder of the said property. Counsel submits that Exhibits D3 and D8 duly complied or satisfied this requirement. Counsel relied on Baba Iya vs. Sikel (2005) ALL FWLR (pt. 269) 1230 to submit that in order to prove acquisition by government, it must be shown that both Sections 2(1) and (2) and 28 (6) of Land Use Act are duly complied with. To this end, counsel called in aid the cases of Foreign Finance Corp. vs. LSDPC (1991) 3 LRCN 855 @ 890 and Okeowo vs. AG, Ogun State (2002) FWLR (pt. 93) 1878 to submit firstly, that upon receipt of the notice of acquisition, all prior interest in land become extinguished and secondly, that what is mandatory is personal service of the acquisition notice and that publication of the notice in the gazette is not a condition for validity of an acquisition. Counsel argued that the 1st – 3rd Respondents by their paragraph 31 of the Amended Statement of Claim and PW1 evidence under cross-examination admitted receipt of the acquisition notice but challenged the said acquisition by visiting the Department of lands in respect thereof. Counsel submits that a court of law has no jurisdiction to question the legality of a revocation exercise unless there is non-compliance with necessary statutory provisions.

Further, counsel quarreled with the learned trial Judge’s finding of fact that Exhibit D3 does not relate to the land in question because the court failed to appreciate that Otu-Costain is part of Odigbo in Ifesowopo Local Government that Exhibit D3 shows has been acquired by government. There is no evidence on record to show otherwise even during cross examination. He relied on Owena Bank vs. Olatunji (2002) FWLR (pt. 124) 529 to the effect that where evidence is addressed in support of an issue, it is the responsibility of the party who desires that the evidence be disbelieved to challenge it under cross examination, but where he fails to do so and also fails to adduce a rebuttal evidence, it is not right for the court to disbelieve such evidence. He submitted that the trial court’s exclusion of Exhibit D3 occasioned miscarriage of justice to the appellant. We are urged to hold that the trial court failed to properly evaluate the facts and evidence before him and thus rendered the wrong conclusion.

Reacting, learned counsel for the Respondents submitted that Exhibits D1 – D8 are not relevant as they failed to meet the requirements of a valid acquisition in law and have no relevance to the land in dispute. It was submitted that Sections 28 and 29 of the Land Use Act 1978 outlined the procedure to be followed by government to compulsorily acquire any land, or revoke any right of occupancy, to be inter alia; (a) publication of a public notice (b) the public notice must later be gazetted (c) payment of compensation to the land holder and (d) that the acquisition must be for public purpose.

Counsel then argued that in the instant case, the purported acquisition is unlawful and unconstitutional since there is no evidence that the provisions of Sections 28 and 29 of the Land Use Act as stated above was complied with by the 4th Respondent. On this, counsel relied on A.G Bendel vs. Aideyan (1989) 4 NWLR (pt. 118) 646 @ 667; Provost, Lagos State vs. Edun (2004) 116 LRCN 3484 @ 3507 – 3508.

Further, counsel submitted that Exhibit D3 which is the official gazette for the purported acquisition, is self contradictory, as it predated Exhibit D8, .e. 1986 and 1985 respectively. Further, counsel argued that while Exhibit D8 specifically mentioned Otu-Costain, Exhibit D3 made no reference to Otu-Costain but Adagba Camp. Again, while Exhibit D5 relied upon by the Appellant as conferring title on her was issued in 1990, whereas the notice of the purported acquisition was given in 1995 that is 5 years after, as can be seen by Exhibit D8. On this premise, counsel submitted that a notice of acquisition of property must be specific and precise as to the property to be acquired. That a vague and ambiguous definition of the property which is capable of more than one interpretation as to its precise location cannot be valid in law. Counsel further referred to Provost, Lagos State vs. Edun (supra); Uche vs. Eke (1998) 61 LRCN 4257 @ 4268 para C – D to submit that any grant of land whether by private treaty or by government right of occupancy will amount to a nullity if the root of title to make such a grant is not vested in the vendor at that material time. That the applicable principle is captured by the maxim “nemo dat quod non habeat”. He urged us to hold that Exhibits D1 – D8 are not relevant to the claim of the Appellant for acquisition and resolve this issue for the respondents.

Learned counsel for the Appellant further contend via his Reply Brief that agreeing without conceding that the 1st – 3rd Respondents were at some earlier time in possession of the land in dispute, urged us to hold that the Appellant has shown conclusively vide its Exhibit D1 – D8 that the said land was thereafter validly acquired by the 4th Respondent and pursuant to Section 5 of Land Use Act vested same on the Appellant. Counsel referred to Section 28 of Land Use Act as empowering the government to revoke any right of occupancy for overriding public interest that is, for public purpose. Counsel then reproduced Section 51 of Land Use Act for descriptions of what amounts to public interest and submit the land in question was acquired by government and granted to it so as to facilitate the construction of Lagos-Benin Expressway, which amounted to public purpose. Counsel argued that it is the object of the acquisition by government that is material and not the person to whom it was transferred for the purpose of the effecting the public purpose. He strongly relied on Lawson vs. Ajibulu (1997) 6 NWLR (pt. 507) 14.

Pressing further, counsel submitted that an acquisition of land is deemed complete when notice of same is issued and served on the land holder. Counsel submitted that there is no dispute between the parties that the acquisition notice (exhibit D8) was published and served on the 1st – 3rd Respondents duly signed by a public officer on behalf of the Governor. Further, counsel pointed out that the 1st Respondent under cross-examination gave evidence that upon receipt of the subject notice, they challenged same and paid a visit to the department of lands. On the above premise, counsel submits that the foregoing show compliance with Section 28(6) of the Land Use Act which operates to extinguish any previous title of the 1st – 3rd Respondents, if such title ever existed. On the issue of contradictions between Exhibits D3 and D8 submitted by the 1st – 3rd Respondents’ counsel, learned counsel submitted that at no time did the Appellant give evidence or pleaded that Exhibit D3 was issued by the 4th Respondent after the publication of Exhibit D8.

Rather, said counsel that the contention of the appellant at the trial court was that the government had at different times acquired, revoked and thereafter re-allocated or re-validated title to the land in dispute as well as other lands in the Odigbo area. Further, counsel submitted that there are no inconsistencies between Exhibits D3 and D8 since Exhibits D4, D6 and D8 shows that the 4th Respondent had acquired the land in dispute before the 1st- 3rd Respondents commenced this action. At this juncture, he urged us to hold that the lower court was in error to have concluded that the 4th Respondent abandoned the acquisition. He referred to the case of Adeyemo vs. Arokopo (1988) 2 NWLR (pt. 79) 703 @ 721 to the effect that a court must give reason for his judgment, and submit that there are no evidence to support the lower court’s finding that the acquisition was abandoned, thereby ignoring the evidence of DW2, a land officer in Ondo State who testified that the land in dispute was acquired and whose evidence was not discredited by the 1st – 3rd Respondents. He called in aid the case of Obulor vs. Oboro (2001) FWLR (pt. 47) 1004 @ 1010 paras C – D to the effect that the judgment of court must be based on all that is pleaded and supported by clear legal evidence; and Ndem vs. Nkpinang (2001) FWLR (pt. 46) 930 para B to the effect that where a finding is not based on material and live issues borne out of evidence, the appellate court has no alternative but to discountenance that finding. Counsel then argued that Dw2 confirmed that Exhibit D3 and D8 tendered were in respect of the land in dispute.

Counsel then submitted that the weight of evidence in this case supports the Appellant’s case and not the Respondents as held by the learned trial Judge. Counsel referred to the cases of Agbonfo vs. Aiwereoba (1988) 1 NWLR (pt. 70) 325; MSR Nig. Ltd. Vs. Ibrahim (1975) 5 SC 55 @ 62; Egonu vs. Agonu (1978) 11- 12 SC 111 @ 129 to state what an appellate court ought to consider when an appeal is complaining that the judgment is against the weight of evidence. He submitted that the lower court failed to give proper consideration to the pleadings and evidence led by parties at trial. Further, counsel referred to Section 135 of the Evidence Act as placing an evidential burden on the party seeking declaration of title to establish that he is entitled to the declaration. He finally submitted that the 1st – 3rd Respondents are expected to lead evidence to show that the co-ordinates in Exhibit D3 do not include Otu-Costain, but they did not. He urged us to resolve this issue for the Appellants.

RESOLUTION OF ISSUE ONE
It is beyond doubt that the Land Use Act did not come to destroy what was in existence prior to its promulgation. See: Haruna vs. Ojukwu (1991) 7 NWLR (pt. 202) 207 @ 225. Indeed, the combined effect of Sections 34 and 36 of the Land Use Act are the preservation of existing rights by deeming same as having been granted by the operation of the Act. That being so, it is therefore clear that the only valid means the government can divest a right holder – either customary Right of Occupancy or Statutory Right of occupancy must be by revocation and acquisition as provided in Sections 28 and 29 of the Land Use Act. Section 28 (1) of the Land Use Act is explicit on the only reason the government can revoke any right of occupancy. It provides thus:
Section 28(1): “it shall be lawful for the Governor to revoke a right of occupancy for overriding public interest.”

With these provisions in mind, I shall now proceed to consider whether there was valid and complete acquisition of the land subject matter of this action. In an effort to prove its assertion that the land in dispute was validly acquired by the 4th Respondent before same was granted to it, the Appellant relied heavily on Exhibits D1, D2, D3, D5 and D8. I have taken a considered examination of Exhibits D1 and D2 and found that though it was captioned “Application for Certificate of Occupancy” and “Re: Renewal of Certificate of Customary Right of Occupancy” respectively, the content shows that the appellant was seen, treated and addressed by the Ifesowapo Local Government as a lessee or tenant on the land, subject matter of this appeal, as at the time the two letters were written. Paragraph 10 of Appellant’s Amended Statement of Defence bears this out. That must have informed why the purported Certificate of Customary Right of Occupancy was not issued. At paragraph 10 of the Appellant’s Amended Statement of Defence, on page 52 of the record of appeal, the Appellant avers as follows:
Paragraph 10 “The 1st Defendant avers that further to said lease granted to it by Ifesowapo Local Government, it paid rent to the said Local Government. The 1st Defendant hereby pleads and shall at the trial of this suit rely on the relevant documents, particularly Ifesowapo Local Government’s letter dated 29th December, 1988.”

On this score, I am unable to fault the holding of the learned trial court at page 147 of the record of appeal, thus:
“To my mind the 1st defendant was at the time exhibits D1 and D2 were generated no more than a tenant on the land in dispute. It was not in any way being treated as the owner of the land in dispute. That explains why there was need for the “certificate” to be renewed and also the need for reallocation of the land to the 1st defendant. The content of the two exhibits do not help the claim of the 1st defendant to the ownership of the land in dispute. It is my view that at the time exhibit D1 and D2 were made, the 1st defendant was a lessee to the Ifesowapo Local Government and the 1st defendant was not claiming title for itself regarding the land in dispute. I must also add that neither exhibits D5 nor even the purported Certificate of Customary Right of Occupancy (if it exists) will confer title to the land in dispute on the 1st defendant if there was no title at the time they were issued.”

It is beyond dispute that Exhibits D1 and D2 cannot by any stretch of imagination, be construed as a document of revocation of the 1st – 3rd Respondents’ deemed customary right of occupancy by the Ifesowapo Local Government. In other words, there is nothing to show that Ifesowapo Local Government acquired the land in dispute in accordance with Section 28 and 29 of the Land Use Act. It is trite that for there to be a valid acquisition by government, the right holder (deemed or granted) must first be divested of his right by means of revocation and acquisition, notice of which must be duly served on the right holder. See: N.E.W. Lt. vs. Denap Ltd. (1997) 10 NWLR (pt. 526) 481 @ 525; Attorney-General of Bendel State & 2 Ors. vs. P.L.A. Aideyan (1980) 4 NWLR (pt. 118) 646 @ 673, 676 SC. It is safe to state at this juncture, that the Ifesowapo Local Government did not at anytime compulsorily acquire the land in dispute.

I have carefully read exhibit D3 and it is my considered view that it does not relate to the land in dispute. The gazette dated 29/8/1986 – exhibit D3 relates to lands at Isero-Odigbo and nowhere is the land at Otu-Costain mentioned in the description of the land intended to be compulsorily acquired. All the affected camps or lands were stated in exhibit D3. Exhibit D3 cannot be construed to affect all lands in the whole of Odigbo. A perusal of exhibit D4 supports this conclusion. Because of this implication of exhibit D4, I shall take the pain to set out the full content in this judgment. Exhibit D4 is a letter written by Director-General, Ondo State Ministry of Lands and Housing dated 23rd March, 1989 and addressed to the Appellant. It was captioned “Properties Occupied by Dumez Nigeria Limited by Ore” and reads as follows:
“On 27th January 1989, a meeting was held between representatives of the State Government, the Chairman of Ifesowapo Local Government and a representative of Dumez Nigeria Ltd. Arising from that meeting, I am directed to inform you that the State Government is interested in the three sites (quarry, workshop and residential estates) being occupied by Messers Dumez Nigeria Ltd.
2. To this end, I am to say that necessary machinery has been set in motion to upgrade the status of Ore and some other towns in Ondo State for the appropriate provisions of the Land Use Decree, 1978. To this end, I am to request you that all financial transactions and documentations on the land at the three sites since the expiration of the last renewal period should be forwarded to the Ministry of Lands and Housing which has now been mandated to administer the sites till further notice on behalf of the State Government.
3. Thanks for your co-operation.” (Italics mine)

To be inferred from the foregoing is that exhibit D3 does not relate to the land in dispute in view of exhibit 4 dated 23rd March, 1989. At the time exhibit D4 was made, it appears the Appellant was still a tenant of Ifesowapo Local Government which informs why the representatives of State Government, Ifesowapo Local government and the Appellant held a meeting because the State Government is interested in the land in dispute and therefore intend to upgrade the status of Ore and other towns possibly from rural to urban area status for the purpose of implementation of the appropriate provisions of the Land Use Act 1978. In any case, exhibit D4 show beyond doubt that as at 23/3/1989 when it was written, all lands in Ore and some other towns in Ondo State are still classified as rural areas under the control and management of the Local Government by Section 2(1) (b) of the Land Use Act.

Be that as it may, the combined effect of paragraph 7, 14 and 17 of the Appellant’s Amended Statement of Defence, with respect, is confusing, inconsistent and incoherent. Firstly, the Appellant averred that the land subject matter of this appeal was acquired by the old Western Regional Government. On another, the Appellant avers that the same land was acquired by Ondo State Government in 1986. On the third breath, the Appellant stated that in 1995 the Ondo State Government acquired the same land again. One is at a loss on how the Government can acquire the same parcel of land over and over again from itself. Exhibit D8 cannot assist the Appellant’s case because it was not pleaded by the Appellant in its Amended Statement of Defence. It was the 1st Respondents that pleaded same in paragraphs 31 – 33 of their Amended Statement of Claim and went ahead to state that it was abandoned. PW1 gave evidence to that effect and that no compensation was paid to them. The 4th Respondent did not help matter as it neither filed pleadings nor called any evidence. Further exhibit D8 stated clearly that the purpose of the purported acquisition is for public purposes, in accordance, no doubt with Section 28(1) of the Land use Act. Exhibit D5 purporting to grant the purportedly acquired land on the Appellant cannot be valid in the face of Exhibit D8. There is no public purpose in compulsorily taking a person’s land for public purpose and granting the same land to a private entity or enterprise like the Appellant. That certainty will defeat the object of acquisition. In other words, even if exhibit D8 is valid and complete, the appellant cannot be allowed to benefit from same because a land compulsorily acquired for public purpose cannot be granted for the use and occupation of a private firm or enterprise like the Appellant. No, that cannot amount to public purpose. The provisions of Section 28(1) of the Land Use Act is very clear that revocation and compulsory acquisition can only be valid when it is done for public purpose.
In the case of Saude vs. Abdullahi (1989) 20 NSCC (pt. 11) 177 @ 195. The Supreme Court per Obaseki, JSC held thus;
“The express power of revocation, a Military Governor has under the Land Use Act of 1978 is confined to revocation for overriding public interest as spelt out in Section 28 (2) and (3) of the Act and for requirement by the Federal Government for public purpose. There is no provision for revocation for any other grounds in the Act.”
See further S. O. Adole vs. Boniface B. Gwar (2008) 4 SCNJ 1 @ 29 paragraph 5.

It is pertinent to note that parties are ad idem that no compensation was paid to the 1st – 3rd Respondent in 1995. 1st – 3rd Respondents pleaded and led evidence that no compensation was paid to them in 1995 because the purported acquisition was abandoned. The Appellant did not controvert this. Compensation is a necessary incident of valid acquisition by government. In the same case of S. O. Adole vs. Boniface B. Gwar (supra), the Supreme Court per Ogbuagu, JSC at page 28 – 29 paragraphs 35 held thus:
“Unless land is acquired compulsorily in accordance with the provisions of the Act, for example, for overriding public interest or for public purpose by the Local Government or State Government whereby, compensation must be paid, nobody shall be deprived of his land.”

I am constrained to hold and I so do that the purported acquisition by Ondo State Government was abandoned since parties agree that no compensation was paid the 1st – 3rd Respondents. Further, I must say, with respect to the learned counsel for the appellant that the case of Lawson vs. Ajibulu (1997) 6 SCNJ 1 relied on heavily by the Appellant’s counsel as authority that acquisition of land by government and granting same to a private enterprise to carry on the private enterprises’ business amounts to public interest is erroneous. For purposes of clarity, I will reproduce the necessary portions of that judgment at page 24 paragraphs 25 – 35 hereunder thus:
“Paragraph (f) to (h) of Section 2 of Public Lands Acquisition Law of Ogun State allows government to acquire land required for the purpose stated therein. There carrying out of such purposes need not be by the government itself. It is under similar provisions in Federal statutes such as the Public Lands Acquisition Act (now replaced by the Land Use Act) that the Federal Government acquires land compulsorily and leases same to oil companies in furtherance of their oil prospecting activities. It has not been suggested that such acquisition were not for public purpose. The prevalent practice of government acquiring land compulsorily and leasing same to developers for housing estates, economic, industrial or agricultural development must be seen in the same light, that is the involvement of the private sector in the orderly development of both the urban and rural areas.”

To my mind, the opinion of the Supreme Court above does not extend to the case of the Appellant because the relationship between the appellant and the Federal Government in respect of construction of Ore-Benin city expressway was only client and contractor relationship and not that of partnership in business. The Appellant is just one among many construction companies patronized by both Federal and State Governments in many construction projects and it has not been the practice that upon engagement, government usually acquires land compulsorily and grants to them permanently. The Appellant is just one among thousands of private companies enjoying the patronage of government. Even the Appellant’s counsel would agree with me that the intention of the legislature cannot be that whenever government engages any contractor, such contractor must be granted land permanently. In any case, the evidence of DW1 at page 89 of the record of appeal together with the Appellant’s counsel’s submissions to the effect that Ondo State Government acquired the land in dispute and granted same to it for construction of Ore-Benin Expressway goes to no issue and must be discountenanced since same was not pleaded by the appellant in its Amended Statement of Defence. Further, a community reading of paragraphs 6,7 and 8 of the Appellant’s Statement of Defence shows that as at the time the Appellant came on the land in dispute in 1972, same has not been purportedly acquired by government to the knowledge of the Appellant. Rather, it was in 29/8/1986 i.e. 14 years after it came on the land that same was purportedly acquired by Ondo State Government and granted to the appellant for the purpose of construction of Ore-Benin Road, which in any case would not have amounted to public interest.

ISSUE TWO
“Whether the learned trial Judge was correct in holding that Section 6(2) of the Limitation Law Cap 61 Laws of Ondo State 1978 does not avail the Appellant so as to bar the 1st – 3rd Respondents’ right of action.”

Arguing this issue, learned counsel for the Appellant faulted the holdings of the learned trial Judge at page 153 of the record of appeal that it was Section 1(2) of the Limitation Law of Ondo State that is applicable to the Appellant’s case and at page 152 of the record of appeal to the effect that it was the manner the 1st – 3rd Respondents purportedly acquired their alleged title to the land in question that is material in determining the applicability or otherwise of the statute of limitation. On this premise, counsel submit that even if the court finds that the 1st – 3rd Respondents have established title to the land in question, it is still the nature of the relationship between the parties and not the nature of the 1st – 3rd respondents’ holding that determines whether the statute of limitation can apply. To this end, counsel submits that there must exist a customary law relationship between the parties before Section 1 (2) of the Limitation Law of Ondo State can apply. Counsel argued that the Appellant had no customary relationship or even a tenancy relationship of any kind with the 1st – 3rd Respondents. That land in question was allocated to the appellants by State government and therefore, there is no basis to warrant the applicability of Section 1 (2) of the Limitation Law of Ondo State. Pressing further, counsel argued that in cases between natives or non natives, the general rule is that the statute of limitation will apply unless its application will cause injustice. He relied on Kodney vs. Union Trading Co. Ltd. 2 WACA 188 – a case between an African Carpenter and a European Company. The defence relied on Statute of Limitation and the plaintiff in reply relied on Customary Law to exclude the application of the English Law. It was held that in a dispute between a native and non-native, the onus rest on the party who wants native law to be applied rather than English law to satisfy the court that application of English law will result in injustice. On the authority of the above cited case, counsel urged us to hold that there is no evidence on record that the Appellant had any dealings with the 1st – 3rd Respondents’ family and therefore that there is no reason to infer that the 1st – 3rd Respondents’ family will suffer any injustice, and for determining this suit based on customary law. He relied on Tiza vs. Begha (2005) ALL FWLR (pt. 272) 200; Pam v. Gwom (2000) FWLR (pt. 1); Hirnor v. Tongo (2003) FWLR (pt. 159) 1358; Okereke vs. Nwankwo (2003) FWLR (pt. 158) 1246.

Counsel reiterated that the totality of the evidence of the Appellant at the trial court was that it only related with the State government in respect of the land in dispute as borne out by Exhibit D1, D2, D3, D4, D5, D6 and D8 admitted in evidence, which shows clearly that the government controlled the land in question at all times material to this case. That the 1st – 3rd Respondents offered no evidence to challenge the authenticity of the said Exhibits. Further, counsel argued that there is no actual evidence that the 1st – 3rd Respondents’ family ever owned or exercised any proprietary right over the parcel of land in dispute as they failed to tender in evidence the alleged leasehold agreement purportedly executed with the government of Western Region of Nigeria or the evidence of payment of rent by tenants in respect of the disputed land to the 1st- 3rd Respondent’ family. Counsel relied on Foreign Finance Corp. vs. LSDPC (1991) 3 LRCN 855 to the effect that it is what the parties put before the court and their evidence in support of those matters will dictate where the scale of justice tilts. To this end, counsel submit that the scale in this case ought to tilt in favour of the Appellant since it is settled law that where no evidence is led in support of pleaded facts, such facts are deemed abandoned. Further, counsel called in aid the cases of Board of Trade vs. Cayter Irvine & Co. (1927) 43 TLR 625 @ 628 cited in Murmansk State Steamship Lime vs. Kano Oil Millers Ltd. (2) (1974) NWLR 185; Bank of the North vs. Gana (2006) ALL FWLR (pt. 296) 862 to submit that the policy of limitation law is that persons with good cause of action should pursue them with reasonable diligence and when human memory would not have faded or failed.

Counsel reproduced Section 6(2) of Limitation Law of Ondo State and submitted that there is no dispute between the parties in their pleadings and evidence that the appellant had been in undisturbed possession of the land, subject matter of this action since 1967. Counsel referred to the evidence of the 1st – 3rd Respondents that the Appellant came on their land in 1976 and argued that they ought to have commenced action latest by 1988 and not 2002, more than 12 years after their cause of action accrued. Pressing further, counsel argued that the effect of limitation law on the 1st – 3rd Respondents’ claim to title is that their right of action has been extinguished in 2002 when they commenced this suit. Counsel relied on Nwadiaro vs. Shell Dev. Co. Ltd. (1990) 5 NWLR (pt. 150) 322 @ 339; Egbe v. Adefarasin (1987) 1 NWLR (pt. 47) 1 @ 23 to submit that once an action is statute barred, the issue then is not the liability but whether the action is maintainable or not. Counsel argued that the law is that for a person to avail himself of the benefit of Section 6(2) of the Limitation Law of Ondo State, he must show that he has been in adverse possession of the subject land for over 12 years in such circumstance as will show that he has dispossessed the true owner or that the true owner has discontinued possession.

Counsel further argued that the primary claim for determination before the trial court is the 1st – 3rd Respondents’ claim to ownership and that it was erroneous for the trial court to shift the burden of proof to the Appellant who has not counter-claimed. He submitted that Appellant who have been physically on the land for over 12 years without recognizing the 1st – 3rd Respondents’ rival claim, who purports to have an interest in the land are eminently persons in adverse possession as against 1st – 3rd Respondents and in whose favour the limitation period can run. Pressing further, counsel argued that agreeing without conceding that the Appellant did not obtain valid title from the Ondo State Government, it can still rely on limitation law to establish genuine title to the land in dispute. Consequently, said counsel, the learned trial Judge has no basis to have demanded that the Appellant satisfy him on who the Appellant’s predecessors-in-title was or how it got into possession of the land, rather, it is for the 1st – 3rd Respondents to show why it failed to enforce their right of action within the limitation period. Further, counsel argued that even if the 1st – 3rd Respondents’ claim under customary law are upheld, the facts of the Appellant’s adverse possession for over 30 years in addition to the uncontradicted Government acquisition of same satisfied the required proof that the 1st – 3rd Respondents have been dispossessed of the land or they have discontinued possession by not taking any step to assert ownership since the Appellant came on same. He called in aid Norton vs. London and North Western Railway Co. (1879 – 80) 13 CH. D.268 @ 273 and Wallis Ltd. Vs. Shell-mex & BP Ltd. (1974) 3 ALL ER 575 @ 580. Arguing further, counsel stated that the finding of the trial court on exhibits D1 and D2 that the Appellant was a tenant and not the owner of the land shows that the trial court was treating the Appellant’s case as if it had a counter claim for declaration of title. Counsel submitted that at any rate, if the Appellant is a tenant, it is the tenant of government and not that of the 1st – 3rd Respondents’ family. That the 1st – 3rd Respondents did not deny the dealings, or ownership of the land in dispute as confirmed by Exhibit D7 and their application for compensation. Counsel finally on this issue relied on the case of Iheanecho vs. Chigere (2004) 7SC (pt. 11) 49 @ 64 to the effect that once a trial court had a misunderstanding of the case put forward by the litigant, it cannot come to a right determination of the case. He submitted that such was the situation herein and urged us to resolve this issue for the Appellant and set aside the judgment of the trial court.

Reacting on this issue 2, the learned counsel for the 1st – 3rd Respondents submitted that the 1st – 3rd Respondents predicated their claim on traditional evidence viz that their ancestor – one Jomu Leje was the original founder/settler on a large parcel of land including the land in dispute, which subsequently devolved on the 1st – 3rd Respondents as customary owners as against vesting of ownership to land by conveyance or statute. Further, counsel submitted that the first three Respondents pleaded and led evidence to the effect that over the years, they have been leasing out different parts of their land at Otu-Costain to other construction companies like Borini Prono, Raycon Construction Company (RCC), Madona and Poat. He referred us to paragraphs 1 – 21 of Plaintiff/Respondents’ Amended Statement of Claim contained at pages 39 – 43 of the record of appeal and the evidence of the 1st respondent at pages 82 – 83 thereof. Counsel submitted that the Appellant’s counsel submission that case of the 1st – 3rd Respondents is caught by Section 6(2) of Limitation Law is a clear demonstration of misconception of the purport of Section 1(2). Counsel reproduced Sections 6(2) and 1(2) of the Limitation Law of Ondo State and submitted that in view of Section 1(2), the pleadings and evidence adduced by the 1st – 3rd Respondents relating to their customary ownership of the land in dispute, it is clear that the limitation law of Ondo State cannot apply since the Land Use Act did not take away customary ownership of land. He strongly relied on Ogunola vs. Eiyekole (1990) 4 NWLR (pt. 146) 632 @ 635; Ogboni v. Ojah (1996) 36 LRCN 1059 @ 1082 AC.

Further, counsel argued that the Appellant cannot validly claim to be in adverse long possession while at the same time inconsistently be claiming ownership vide its Exhibit D5. Learned counsel referred to the Supreme Court decision in the case of Odekilekun vs. Hassan (1997) 5 LRCN 2819 @ 2848 BF where it was held thus:
“I think it ought to be pointed out on this issue of adverse long possession that it is trite that title by prescription is completely unknown to land held under customary tenure.”

Pressing his argument further, counsel pointed out that when it comes to the doctrine of adverse possession, there is a difference between land held under customary tenure and land held under statutory law. He then submitted that whereas there is nothing like prescriptive title over land held under customary tenure, that mode of acquiring title is validly known in respect of land held under statutory law. He submitted that Section 1(2) of the Limitation Law Cap 64, Laws of Western Nigeria 1959 specifically excluded the application of limitation law to all actions in respect of all lands held by customary tenure. He further relied on Odekilekun vs. Hassan (supra) and Mogaji vs. Cadbury (1985) 2 NWLR (pt. 77) 383 where the Supreme Court held that it is indisputable that the provisions of the Limitation Law Cap 64 laws of Western Nigeria 1959 particularly Sections 6(2) and 16 thereof, which prescribe title by prescription, clearly do not affect actions in respect of title to or any interest in land held under customary tenure. They however, govern actions in respect of title held under statutory law. Finally, counsel strongly submitted that a person cannot secure possession by his act of trespass and thereafter try to validate the trespass by procurement of Certificate of Occupancy. He relied on Dakat vs. Dashe (1997) 54 LRCN 2723 @ 2731 G and urged us to resolve this issue for the 1st – 3rd Respondents and against the appellant.

Learned counsel for Appellant reacting vide his Reply brief, contended that the trial court was in error when it held that the 1st – 3rd Respondents had satisfied the legal requirements for a claim to land by traditional evidence since no evidence from which the trial court could have arrived at such conclusion. Counsel called in aid the case of Ezinwa vs. Agu (2003) FWLR (pt. 165) 473 @ 487 para G – H to the effect that a party relying on traditional history must plead and prove the following (1) The founder of the land (2) The mode of founding or discovery of the land and (3) The history of the devolution of the said land from the founder to the present claimants. Counsel submitted that the 1st – 3rd Respondents did not plead or led evidence to show the mode of founding the land in dispute and therefore are not entitled to their claim. Counsel reiterated that there is no evidence that the 1st – 3rd Respondents were ever on the land in dispute or that they let it out to any person as no evidence of letting same to Messrs Borini Prono, Raycon Construction Company and Poats Nigeria Limited, was tendered in court. He relied on Karibo vs. Grand (1992) 3 NWLR (pt. 230) 426 to the effect that where a party failed to led evidence in proof of his claim or a court fails to adequately or properly evaluate the evidence put before it, the judgment will be set aside.

On the 1st – 3rd Respondents’ counsel’s submission that the statute of limitation does not apply since their claim to title is based on customary ownership, counsel or the appellant submitted that the argument is misconceived because there is no customary relationship between the appellant and the 1st – 3rd Respondents. Counsel argued that the view of the 1st- 3rd Respondents’ counsel is subjective and should not be countenanced by the court because doing so will result where there will be no possibility for the application of the statute of limitation. He urged us to hold that Section 1(2) of the Limitation Law of Ondo State does not apply to the Appellant’s case, and that the case of Ogunoka vs. Eiyekola is distinguishable with the present case, as the case relates to parties that have customary relationship which is non-existent in the present case. Further, counsel argued that even if the 1st- 3rd Respondents were at anytime in possession of the land in dispute, that the evidence tendered at trial and the admission of same by the 1st – 3rd Respondents show that the Appellant has dispossessed the 1st – 3rd Respondents and has been in adverse possession of the subject land. He called in aid the case of Majekodunmi vs. Abina (2002) 3 MJSC 41 @ 53 – 54 to the effect that a party claiming to be in adverse possession under statute of limitation must establish that he has dispossessed or that the title holder has discontinued possession for a statutory period. He further relied on the English case of Littledale vs. Liverpool College (1990) 1 Ch.D 19 @ 21 to the same effect as Majekodunmi vs. Abina (supra); and submitted finally on this issue that even if the 1st-3rd Respondents had any prior interest in the land in dispute, that there is sufficient evidence on record to show that the 4th Respondent and thereafter the Appellant have effectively dispossessed the 1st- 3rd Respondents the land in dispute. He urged us to resolve this issue for the Appellant.

RESOLUTION OF ISSUE TWO
It cannot be overemphasized that the rationale behind the application of statute of Limitation has the object of barring of actions by effluxion of time so as to encourage and ensure due diligence in litigation and to protect Defendants from stale claims when the evidence which might have answered them has faded. See: U.B.N. Ltd. V. Oki (1999) 8 NWLR (pt. 614) 244 @ 253 – 254.

In the instant case, the Appellant is placing reliance on the Limitation Law of Ondo State to contend that the case of the 1st – 3rd Respondents is statute barred. While the 1st – 3rd Respondents are countering same, placing reliance on Section 1(2) of the Limitation Law of Ondo State. There is no doubt that Section 6(2) of the Limitation Law of Ondo State limit right of action to recover land to 12 years from the date on which the right of action accrued and that this action was brought after the statutory 12 years. It is now necessary to consider whether the exclusion provision of the Limitation Law of Ondo State can avail the case of the 1st – 3rd respondents. The relevant section is Section 1 (2) of the Limitation Law of Ondo State, and I shall reproduce same for clarity. Section 1(2) provides thus:
“Nothing in this law affects actions in respect of title to land or any interest in land held by customary tenure or in respect or any matter which is subject to the jurisdiction of a customary court relating to marriage, family, guardianship of children, inheritance or disposition of property on death.”

It is clear that lands held under customary tenure is excluded from the operation of this Limitation Law. Therefore, the 1st – 3rd Respondents’ case herein can only survive if it is held under customary tenure, and that is what I will now set out to determine. Paragraphs 7, 8 and 9 of 1st – 3rd Respondents Amended Statement of claim is pertinent here and I shall reproduce same for convenience.
“7. The plaintiffs averred that from time immemorial, the undisputed beneficial owners of the whole area of land situate at Otu-Costain, part of which is now in dispute is the Akintope family of Odigbo/Otu aforesaid.
8. The plaintiffs stated that their common ancestor was the late High Chief Jomu Leje who founded the area of land stretching from part of Ore extending towards Otu and Ogbe, all in the present Odigbo Local Government Area of Ondo State of Nigeria.
9. The plaintiffs stated further that their common ancestor aforesaid who was a native of Odigbo and the original founder/settler of the area of land mentioned above founded same simultaneously the same time Odigbo was founded several years ago.
10. The plaintiffs averred that their common ancestor Jomu Leje in his lifetime had three children to wit: Adegbehin, Akintope and Dero, the only female.
11. The plaintiffs further averred that Jomu Leje during his life time divided the area of land founded by him amongst his three children as follows:
1. Ogbe given to Adegbehin
2. From Irore River to Lijoka and Otu given to Akintope.
3. Part of Ore up to Irore River given to Dero.

In the same vein, at page 81 of the record of appeal, PW1 testified in part as follows:
“… The land in dispute is owned by Akintope family of Odigbo/Otu. Our ancestor known as Jomu Leje founded the land stretching from Ore to Ogbe to Otu and Onisere areas. He subsequently divided the land between the Adegbehin, Akintope and Dero families. Adegbehin, Akintope and Dero are the direct children of Jomu Leje. The land at Ogbe was granted to Adegbehin family. The land in part of Ore to Irore River was granted to the Dero family. The land from Irore River to Otu Costain to Owena River was granted to Akintope family. I am a grandchild to Akintope. Akintope had the following children in the order of seniority: Logun (f), Leke (f), Akintante (m), Ademoye (m) and Kumuyi (m). The land given to Akintope is still a family land and we all use it jointly and commonly.”

From the above extracts, the 1st – 3rd Respondents pleaded and led evidence of traditional history respecting their root of title. The implication of this is that 1st – 3rd Respondents came on the land by settlement. That being so, their title was acquired by customary tenure, i.e. original settlers. At this point, I make haste to state that the submission of the learned counsel for the Appellant to the effect that it is the nature of relationship between the parties and not the nature of the 1st – 3rd Respondents holding on the disputed land that determines whether the statute of limitation can apply as grossly erroneous. The correct position is that it is the nature of the 1st – 3rd Respondents’ holding that will determine whether the statute of limitation can apply or not. It is the 1st – 3rd Respondents’ holding that the appellant is invoking Section 6(2) of Limitation Law to destroy. Conversely, it is the same 1st – 3rd Respondents’ holding that they are seeking to protect by virtue of Section 1(2). It is trite that the coming into effect of the Land Use Act did not completely destroy all previous characters of land holding in Nigeria. In the case of S. O. Adole vs. Boniface B. Gwar (supra), the Supreme Court per Ogbuagu, JSC at page 28 opined thus:
“The only innovation introduced by the Land Use Act, 1978 (hereinafter called “the act”), is that it divests any claimant of radical title and limits the claim to right of occupancy. The Act is not a draconian document, it is thought to be. Land, whether developed or undeveloped even in rural area held by a person under a recognized customary tenure before the commencement of the Act will continue with such rights and privileges on the land, subject to the provisions of the Act. Whether developed or undeveloped, the holder shall hold such land as if Customary Rights of Occupancy had been granted to him by the Local Government of that area.”
In the same vein, and in the case of Ojah vs. Ogbom (1996) 6 NWLR (pt. 454) 272 @ 293, the Supreme Court also held thus:
“….It may be re-emphasised that the vesting of radical title in the Governor under the Land Use Act does not appear to have totally obliterated the character of land ownership or holding in a family or community.”

Given the above positions of the law, I am convinced that the 1st – 3rd Respondents’ case herein falls within the exception by virtue of Section 1(2) of the Limitation Law of Ondo State.

As to the defence of adverse possession put forward by the appellant, the law is that a party cannot claim ownership of land and at the same time claim to be in adverse possession. That will definitely be contradictory. See the case of Odekilekun vs. Hassan (supra). The appellant did not plead in its Amended Statement of Defence that has been dispossessed or discontinued possession of the land in dispute. On this score, I resolve this issue 2 against the Appellant.

ISSUE THREE
“Whether the learned trial Judge was correct in holding that the 1st – 3rd Respondents had successfully established the identity of the land they are claiming”

In addressing this issue, learned counsel for the Appellant referred to the case of Adeyori vs. Adeniran (2001) FWLR (pt. 76) 689 @ 701 paragraph B – D to the effect that the first duty of a claimant for a declaration of title to land is to show clearly the land to which his claim relates such as the exact boundaries and its extent as no court would grant a declaration to an uncertain area. He further relied Adeyori v. Adeniran (supra) to the effect that once the defendant specifically disputes in his statement of defence either the area or the size or the location of the property claimed by the plaintiff, the identity of the land is said to be in issue. Counsel therefore faulted the finding of the trial court at 140 of the record of appeal that the identity of the land was not in issue. Counsel then argued that the Appellant averred in paragraph 20 of its Amended Statement of Defence the exact identity of the land it occupied and that same was granted to it by Government of Ondo State, whereas the 1st – 3rd Respondents neither pleaded nor led evidence to show the identity of the land it is claiming ownership over. Counsel therefore argued that prayer 1 on the 1st- 3rd Respondents’ Amended Statement of Claim is vague and imprecise. Learned counsel submitted that it is obvious that parties disagree on the identity of the land in dispute. The Appellant assert vide Exhibit D3 that the land it occupies was acquired by government and granted to it vide Government Legal Notice Gazette as No. 47 of 29th August, 1986, (Exhibits D3), while the 1st – 3rd respondents via paragraph 2 of their Reply to the Amended Statement of Defence pleaded that the land in dispute does not form part of the land purportedly acquired by government. Counsel then called in aid the case of Auta vs. Ibe (2003) NWLR (pt. 837) 247 @ 269 – 271 (sic) to the effect that the Plaintiff must establish clearly and unequivocally the precise area to which the claim relates so that such land can be identified with certainty; there must be something on the face of the document of title connecting it to the land in dispute.

Counsel, at this juncture pointed out that the 1st – 3rd Respondents did not plead or tender any survey plan to prove the actual area claimed. Pressing further, counsel argued that a burden is placed on the 1st – 3rd Respondent to establish that the land they are claiming is the same land occupied by the Appellant and the said land was never acquired by the government. Learned counsel referred to the evidence of DW1 through whom Exhibit D4 was tendered that showed actually that the Appellant occupy 3 sites on Otu-Costain. Whilst the 1st Respondent at page 83 of the record of appeal in his evidence in chief testified that he does not know the area of the land occupied by the Appellant. Therefore said counsel, that the identity of the land was indeed put in issue contrary to the finding of the court that it was not.
Counsel referred to the case of Oloshe V. Ogunbode (2003) FWLR (pt. 148) 1326 to the effect that the test for sufficiency of proof of the identity of a parcel of land is whether the plaintiffs showed features or gave a description in evidence which make the identity of the disputed land ascertainable. Counsel submitted that the 1st – 3rd Respondents neither established any connection between the land occupied by the Appellant and the one they allegedly leased to Costain Raymond Construction Nig. Ltd, nor present any document before the court to prove the alleged lease to the said Costain Raymond Construction Nig. Ltd. More importantly, said counsel, the 1st – 3rd Respondents failed to show any nexus between the land occupied by the appellant, the land referred to in Exhibit D4 and the land being claimed by the 1st – 3rd Respondents. Counsel further submitted that the 1st – 3rd Respondents’ reliance on the land granted to the government of the defunct Western Region (sic) and other tenants in near area were not proved. Counsel therefore urged us to hold that the absence of any pleading in the Statement of Defence of the appellant on the identity of the land is not conclusive or enough for trial court to hold that the 1st – 3rd Respondents have identified the land claimed. He urged us to hold that the learned trial Judge misdirected itself in holding that the identity of the land in dispute was not put in issue and resolve this issue for the Appellant.

Responding, learned counsel for the 1st – 3rd Respondents submitted that the location of the land in dispute was clearly stated by the 1st – 3rd Respondents as being at Otu-Costain, Odigbo Local Government Area and is currently in possession of the Appellant as testified by the Respondents at pages 81 – 87 of the record of appeal. Learned counsel argued that even the Appellant vide her paragraph 2 of her Amended Statement of Defence contained at page 21 of the record of appeal admitted the description and identity of the land being claimed by the 1st – 3rd Respondents and went ahead to state at paragraph 3 thereof that the Appellant had been in possession of the land in dispute since 1976. Counsel submitted that this clearly show that the Appellant never put the identity of the land in dispute in issue in its pleadings. Counsel then referred to page 89 of the record of appeal where Appellant’s DW1 in his evidence-in-chief testified as follows: “I know the land in dispute in this suit.” Also, said counsel, the DW1 went further to testify on the same page “The Certificate of Customary Right of Occupancy was to enable us to own the land; the 1st defendant is the owner of the land in dispute.”

Further, counsel argued that Exhibit D5 tendered by the Appellant show clearly the description of the land in dispute with an attached survey plan. And reference to the area of land in the evidence-in-chief of PW1 which the learned counsel for the Appellant made heavy weather of in their brief was not meant as to the identity of the land but only referred to the dimension of the land in dispute. Therefore, counsel strongly submitted that a Defendant challenging the identity of a land in dispute must make same an issue in his Statement of Defence and where parties by their pleadings and evidence adduced are in agreement on the identity of the land in dispute, that burden will not arise. Further, it is trite that where the defendants case supports that of the Plaintiff or contains evidence which the plaintiff can rely on, the court can make use of it as was rightly done in this case by the learned trial Judge.
Counsel placed reliance on Chukwueke vs. Okoronkwo (1998) 65 LRCN 46 @ 63 para A – F; IBN vs. ATMCO (1996) 42 LRCN 1523 @ 1538; Adelusola v. Akinde (2004) 120 LRCN 468 @ 470 paras ZEE; Afolarin Adeleke vs. Folarin Olude & Ors. (2002) 11 NSCQR 644 @657; Fatuade vs. Onwoamanan (1990) 2 NWLR (pt. 132) 322. Pressing his argument further, counsel submitted that contrary to the submissions of Appellant counsel vide its brief of argument, exhibit D4 is of no moment on this case as it creates no ambiguity about the identity of the land in dispute. To justify this submission, counsel reproduced the testimony of PW1 under cross examination at page 93, line 39 to page 94 lines 1 and 2 of the record of appeal, as
“I am now shown exhibit D4. The quarry mentioned therein is the same one in dispute and at Otu-Costain. The workshop mentioned is in Ore as well as the residential estate. The land on which both the residential estate and workshop are built is owned by a family and we still pay rent to the family till this day. I cannot remember the name of the owner family. I now say that the place is owned by the Akintimehin family of Ore. Otu-Costain is written on the survey plan attached to Exhibit D5.”

At this juncture, counsel referred to the case of Bunge vs. Gov. of River State (2006) 141 LRCN 2227 @ 2251 para Z to 2252 paras EE to submit that in civil litigations when parties vide their pleadings agree on some facts, no issue is thereby joined on those agreed facts by the parties. On this score, he urge us to hold that there is no issue as to identity of the land in dispute and resolve this issue against the Appellant.

Replying vide its undated Reply Brief filed on 7/2/2013, learned counsel for the Appellant reiterated that the identity of the land in dispute was in issue because issues were joined by parties at the trial in respect of the several parcels of land occupied by the appellant. Pressing this line of argument further, counsel argued that the Appellant tendered Exhibit D4 which refers to three parcels of land occupied by it in Odigbo area necessarily raises the issue of which land is being claimed by the 1st – 3rd Respondents. Counsel submitted that the burden of proving same is squarely on the 1st – 3rd Respondents who cannot expect the court to presume same from their pleadings which is very vague in respect of the actual land claimed, that the evidence put forward by the Appellant supports their case when there are ample evidence to the contrary. This, said counsel, resulted in the 1st – 3rd Respondents, like the learned trial Judge erroneously shifting the burden of establishing the identity and title to the land in dispute on the appellant. He relied on Agu vs. Nnaji (2002) 18 NWLR (pt. 798) 103 @ 128 to the effect that “a plaintiff must show a prima facie case before the need to consider the defendant’s case can arise.” He also referred to Aromire vs. Awoyemi (1972) SC 1 and Mogaji vs. Odofin (sic). Counsel went on to submit, that DW1 in his evidence was merely identifying the land occupied by appellant which cannot be deemed as confirming that the parties were referring to the same land since Exhibit D4 show the contrary.
Counsel submitted further that there is no where the 1st – 3rd Respondent established that they were at anytime in occupation of the land occupied by the Appellant and that the learned trial court was in error to have presumed same without proof. He urged us to hold that the identity of the land in dispute was in issue and that the 1st – 3rd respondents have failed to discharge the burden on them to show that it is the same land they are claiming that the appellant are occupying.

RESOLUTION OF ISSUE THREE
It is elementary in law that the burden of identifying with sufficient clarity the identity of the land he is claiming is squarely placed on the claimant. In the case of Mr. Taiwo Ilari Ogun vs. Mr. Moliki Akinyelu & Ors. (2004) 12 SCNJ 196 @ 211 paragraph 15 – 20, the Supreme Court held thus:
“In an action for declaration of title to land, the onus is on the plaintiff to establish with certainty the identity of the land to which his claim relates.
This he can do in one of two ways, viz, by oral evidence describing with such degree of accuracy the said parcel of land in a manner that will guide in producing a survey plan of the said land. See: Baruwa vs. Ogunsola (1938) 4 WACA 159. Another way and perhaps a better way of proving the identity and extent of the land claimed is by the plaintiffs filing a survey plan reflecting all the features of the land showing clearly the boundaries. See Awoye vs. Owodunni (no. 2) (1987) 2 NWLR (pt. 57)
Expatiating further on this principle, the Supreme Court at 211 – 212 paragraph 35
– 5 opined as follows:
“The law is settled that a plaintiff seeking a declaration of title to land has the initial and primary burden of proving clearly and unequivocally the precise area to which the claim relates. But this burden will not exist where the identity of the land in dispute was never a question in issue.
The question of the identity of the land as an issue will only arise where the defendant raises it in his Statement of Defence or in his testimony.”
See further Fatunde vs. Onwoamanam (1990) 2 NWLR (pt. 5132) 322; Ezeudo vs. Obiagwu (1986) 2 NWLR (pt. 21) 208.

The question I shall now set out to determine is whether the Appellant as Defendant in the trial court raised the issue of the identity of the land in dispute in its Statement of Defence. Recourse shall now be made to the Amended Statement of Defence of the Appellant at pages 51 – 53 of the record of appeal. I have carefully read the entire 21 paragraphs of Amended Statement of Defence of the appellant and I am unable to find anywhere the Appellant raised any question as to the identity of the land in dispute. Indeed the pleadings of both parties shows that parties are ad idem as regards the identity of the land in dispute. To this end, I shall reproduce paragraphs 6 and 40 of the 1st – 3rd Respondents’ Amended Statement of Claim and paragraph 6 and 20 of the Appellant’s Amended Statement of Defence.

Paragraph 6 of 1st – 3rd Respondents’ Amended Statement of Claim:
“The plaintiffs averred that the land subject matter of this suit is situate at Otu-Costain, Odigbo Local Government Area of Ondo State of Nigeria.

Paragraph 40 of 1st – 3rd Respondents’ Amended Statement of Claim:
“That the land in possession and occupation of the 1st defendant over the years measure an approximate area of 46 hectares and the plaintiffs have been denied the use of same and suffered immeasurable loss thereby.

Paragraph 6 of the Appellant’s Amended Statement of Defence:
“The 1st defendant avers that it has been in occupation of the subject property, since 1972 using the same as a quarry site and it has exercised proprietary rights over the same without hindrance from any quarters, including the plaintiffs herein.”

Paragraph 20 of the Appellant’s Amended Statement of Defence:
“The 1st defendant avers that it is the bonafide owner of the property measuring approximately 46 hectares situate at Otu-Costain, Odigbo Local Government Area of Ondo State of Nigeria, and is therefore not liable to the plaintiffs for the sum of twenty-five million Naira (N25m) or any other sum of money whatsoever in respect of the said property. The 1st defendant shall at the trial of this suit rely on all documents, letters, assessments and receipts in proof of its contention.”

Decipherable from the above paragraphs in the parties pleadings are that the parties are in agreement as to the following respecting the identity of the land in dispute: (1) the land in dispute is situated at Otu-Costain, Odigbo Local Government Area of Ondo State of Nigeria. (2) That the land in dispute measures approximately 46 hectares and (3) That the land in dispute is in the occupation and/or possession of the Appellant as a quarry site. It is therefore safe to conclude that parties know the land in dispute well. In the case of Engineer Bayo Akinterinwa & Ors. vs. Cornelius Oladunjoye (2004) 4 SCNJ 149 @ 172 paragraph 5, the Supreme Court held thus:
“In land cases where the area of land in dispute is well known to the parties, the question of proof not being really in dispute, does not arise.
In such a situation, it cannot be contended that the area claimed or the land in dispute be described as uncertain. See Etiko vs. Aroyewun (1959) 4 FSC 129; Osho v. Ape (1998) 8 NWLR 493. In the circumstances of this case, the identity of the land in dispute cannot be described as uncertain since both parties know and have accepted it as the land in dispute.”

On the effect of the survey plan where parties know the land in dispute well, the Supreme Court at the same page 172 paragraphs 10 – 15 opined as follows:
“There being no difficulty in identifying the land in dispute, there is no issue properly joined and a declaration can be made without basing it on a plan. The evidence of a surveyor, if available is therefore desirable but not necessary where the proof of the identity of the land in dispute is unnecessary. See; Arabe vs. Asanlu (1980) 5 – 7 SC 79. A plan is therefore not a sine qua non to proof of identity of disputed land. The requirement described as “the acid test” is that the land in dispute must be ascertained with definitive certainty- see. Ate-Kwadzo vs. Robert Kwasi Adjei (1944) 10 WACA 474. It is so in this case.”
The foregoing shows that it is not necessary and/or compulsory to tender survey plan of the land in dispute where parties are in agreement as to the identity of the land in dispute. See further the cases of Anyaeze Chukwueke & Anor. Vs. Okorie Okoronkwo & Ors. (1999) 1 SCNJ 44 and Chief Ndarake Akpan & Ors. vs. Chief Udo Kang Umo Otong & Ors. (1996) 12 SCNJ 213.

Given the foregoing, I am equally unable to find fault with the holding of the learned trial Judge at page 140 of the record of appeal thus:
“I am thus compelled to hold, and I so do, that there is no issue made out in the pleadings of the parties respecting the identity of the land in dispute. The defence witness never stated that the identity of the land in dispute is in doubt. The identity of the quarry of the 1st defendant at Otu-Costain is not in doubt. The 1st defendant has not denied being in possession of a parcel of land at Otu-Costain. The first defendant has possession which is before the court as Exhibit D5. In my view, the plaintiff has discharged the onus placed on him and the parties are not in doubt about the identity of the land in dispute.”

It must be stated that the posturing of the Appellant at the trial court and even here has never been that it does not know the identity of the land in dispute, but that the land in dispute was compulsorily acquired by government and granted to it. In any case I have held earlier in this judgment that the Appellant did not plead or join issue of the identity of the land in its Amended Statement of Defence and as such it cannot be made an issue at this appeal without leave of this court. Be that as it may, I am convinced that the identity of the land in dispute is not an issue in this case and I so hold. This issue three is also resolved against the Appellant.

Having resolved the three issues in this appeal against the Appellant, I hold that this appeal lacks merit and is accordingly dismissed. The judgment of Hon. Justice O. A. Adegbehingbe of Ondo State High Court, Ore Division delivered on 13th March, 2006 is hereby affirmed. Cost of N30, 000.00 is also awarded against the Appellant and in favour of the 1st – 3rd Respondents.

MOJEED ADEKUNLE OWOADE, J.C.A.: I read in draft the Judgment delivered by my learned brother Sotonye Denton-West JCA.
I agree with the conclusion and I also abide with the consequential order(s).

CORDELIA IFEOMA JOMBO-OFO, J.C.A.: I read in draft before now the lead judgment just delivered by my learned brother, DENTON-WEST, JCA and I do agree with the reasoning and conclusion reached therein. The appeal is without merit and should be dismissed. I therefore dismiss same.
I abide by the consequential orders as made.

Appearances

Nasir Runmonkun (Esq.)For Appellant

AND

A. F. Adejayan (Esq.) for the 1st – 3rd Respondents

No representation for the 4th RespondentFor Respondent