OTUNBA HAKEEM SOBANDE v. BARRISTER ANDY IGBOEKWE
(2016)LCN/8523(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 26th day of April, 2016
CA/L/54M/2011
RATIO
LAND LAW: REVERSIONARY INTEREST; MEANING AND APPLICATION OF REVERSIONARY INTEREST
It was in this con that the Supreme Court decided that the object of the Land Use Act is not intended to destroy incidence of customary tenancy. Ordinarily, where there is a tenancy, there is reversionary interest of the landlord after the tenancy.
In Black’s Law Dictionary Eighth edition, by Bryan A. Garner, ‘reversion’ is defined thus:
“The interest that is left after subtracting what the transferor has parted with from what the transferor originally had; a future interest in land arising by operation of law whenever an estate owner grants to another a particular state, such as life estate or a term of years, but does not dispose of the entire interest. A reversion occurs automatically upon termination of the prior estate as when a life tenant dies.”
From the above definition, it is clear that there is reversionary interest only when a vendor or grantor did not part with the entire interest he has in a parcel of land. Thus, when there is an outright sale of land, there is no reversionary interest left. Also, when the Government acquires a parcel of land by revocation of all previously existing interests in the land, no reversionary interest is left. PER CHINWE EUGENIA IYIZOBA, J.C.A.
LAND LAW: TITLE TO LAND; POSITION OF THE LAW WHERE THERE IS CONFLICTING CLAIM FOR LAND
Moreover, where there is conflicting claim for possession and action for declaration of title, the law ascribes possession to the one with better title. See Usman v. Garke (1999) 1 NWLR (Pt.587) 466 at 490 F: Odubeko v. Fowler (1993) 7 NWLR (Pt.308) 637 at 657 D-E. PER CHINWE EUGENIA IYIZOBA, J.C.A.
DAMAGES: SPECIAL DAMAGES; HOW SHOULD SPECIAL DAMAGES BE PROVED
It is settled law that special damages must be strictly proved even in undefended suit. See Sawuta v. Ngah (1998) 13 NWLR (Pt. 580) 39 at 50 H. see also Kalu v. Mbuko (1988) 3 NWLR (Pt.80) 98. PER CHINWE EUGENIA IYIZOBA, J.C.A.
LAND LAW: MESNE PROFITS; MEANING AND NATURE OF MESNE PROFITS
Mesne profits as used in the cases of Vincent v. Vincent (supra) and African Petroleum v. Owodunni (1991) 8 NWLR (pt.201) 391 in relation to trespasser is used in a technical sense to refer to tenant holding over after determination of his tenancy. Such tenant is viewed technically as a trespasser his tenancy having been determined. In the case of Marine & General Assurance v. Rossek (1986) 1 All NLR (Pt.1) 403 at 416 Oputa, JSC said:
“Mesne profits can also be equated to the value of use and occupation of land during the time it was held by one in wrongful possession and I may add here, also by one who has not agreed on any rents with the landlord (and was therefore technically a trespasser) even though such an occupier cannot strictu sensu be described as a trespasser.”
Mesne profit is defined by the Black’s Law Dictionary (supra) at page 1246 as “The profits of an estate received by a tenant in wrongful possession between two dates.”
Consequently, based on the above, it is clear that mesne profits are applicable to landlord tenancy relationship where such tenancy has been determined and the tenant is holding over. I do not consider it proper in action for declaration of title to land for a Claimant to be awarded mesne profits in addition to damages for trespass. Such would indeed amount to double compensation. The trial Court in the circumstance rightly refused to award mesne profits to the Respondent in respect of the same land. PER CHINWE EUGENIA IYIZOBA, J.C.A.
JUSTICES
CHINWE EUGENIA IYIZOBA Justice of The Court of Appeal of Nigeria
YARGATA BYENCHIT NIMPAR Justice of The Court of Appeal of Nigeria
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO Justice of The Court of Appeal of Nigeria
Between
OTUNBA HAKEEM SOBANDE Appellant(s)
AND
BARRISTER ANDY IGBOEKWE Respondent(s)
CHINWE EUGENIA IYIZOBA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Judgment Taiwo J of the High Court of Lagos State in Suit No. LD/207/2005 delivered on the 7th day of December, 2010 in favour of the Respondent who was the Claimant at the trial Court.
The facts of the case as gathered from the record of appeal are as follows:
?In 1993, the Respondent’s client, Alhaji Bukar Usman bought a large parcel of land from the Ojupon Family at Thomas Village, Ajah, Lagos out of which the two plots of land which are the subject matter of the dispute in this case formed part of. The Respondent was the solicitor that represented Alhaji Bukar Usman in the transaction. After the purchase, Alhaji Bukar Usman was put in possession of the parcel of land and he was said to have enjoyed quiet possession until he was made to re-purchase the land from both the Ojupon and Ogunsemo families of Ajah and the Baale of Ajah acting for himself and on behalf of the Ajah community. The repurchasing of the land was as a result of the outcome of agitations by the Baale of Ajah on behalf of the Ajah Community who fought the Lagos
State Government to free their lands from government acquisition as the lands in Ajah had been acquired by the Lagos State Government as far back as 1981 by virtue of Notice published in Gazette No. 8, Volume 14 of 19th February, 1981. The Lagos State Government eventually excised the Ajah land from the said Government acquisition in 1995 and vested same on the Baale of Ajah pursuant to the judgment of the Lagos State High Court in Suit No LD/1578/94 in which the Lagos State Government confirmed the excision of the land and vesting of the ownership of same on the Baale of Ajah to hold in trust for himself and the Ajah Community.
?The Respondent in 1999 bought the two plots of land in dispute in this case first from his client, Alhaji Bukar Usman and subsequently from the Baale of Ajah. The Respondent took possession of the land in 1999, fenced it and erected a gate thereon and had quiet possession of the land until the Appellant trespassed thereon. The purchase of the two plots of land from the Baale of Ajah was evidenced by Deed of Assignment dated 22nd November, 1999 and registered as 12/12/2121 at the Lands Registry Lagos, the transaction having been
duly consented to by the Governor of Lagos State.
Sometime in October, 2003, the Respondent’s attention was drawn to a public notice signed by Chief Olumegbon of Lagos and the Baale of Ajah requesting owners of lands in Ajah to submit their documents to certain persons including the Baale of Ajah for verification in view of the judgment of the Supreme Court in Suit No SC/147/97 which affirmed the terms of settlement in Suit No LD/21/87 between the Baale of Ajah and Chief Olumegbon of Lagos.
Before the outcome of the verification exercise, Chief Olumegbon of Lagos and the Olumegbon Chieftaincy Family sold the Claimant’s two plots of land to the Appellant in October, 2004. The Respondent upon discovering that the Appellant had forcefully trespassed into his land and commenced construction works thereon filed this suit in February, 2005.
The case of the Appellant is that he purchased the land in dispute from Chief Olumegbon of Lagos after having seen the judgments that declared the Olumegbon Family as the true owner of the land in dispute. Upon paying the sum of N2,000,000.00 agreed as consideration, he was given vacant possession by Chief
Olumegbon in the presence of witnesses. He said that he paid the purchase price to Chief Olumegbon as the Chairman of the Ajah Management Committee and was given a receipt dated 24/10/04. He also bought hot drinks for the Olumegbon and other members of his family and they prayed for him on the land in dispute in the presence of his family before he commenced construction works.
After hearing evidence and arguments on the matter as presented by the two contending parties, the trial Court found in favour of the Respondent holding that he has proved better title to the land in dispute. The Appellant being aggrieved has filed a Notice of Appeal containing eight grounds of appeal. In his brief of argument filed on the 9th of August, 2011, the Appellant formulated 6 issues for determination as follows:
1. Whether or not the Respondent’s Vendors are the tenants of Appellant’s Vendors as was pronounced in various judgments of Courts including the Supreme Court.
2. If the answer to the above is in the affirmative, what is the effect on the following:
(a) Which of the parties has a defective title and what kind of defect does the title of this party
possess and is the defect curable or cured within the circumstances of this matter?
(b) Which of the parties thus has a more valid or better title?
(c) The reversionary interest of the respective vendors of the parties hereto and the consequent impact on the issues of customary tenancy subsisting between the respective vendors of the parties hereto.
3. Whether the judgment of the Supreme Court of Nigeria in Suit no. SC/14/97 affirming the judgment in LD/21/87 is binding on the parties in this suit with regard to the respective titles of the vendors of the parties herein such that the lower Court ought to have followed the same.
4. Whether or not the lower Court had the requisite jurisdiction to hear and determine this matter ab initio in view of the effect of judgment in SC/148/97.
5. Whether or not the new title created by the excision of land in favour of the Baale of Ajah in trust for all the Ajah families is absolute and not subject to the right of ownership over the same land of the Olumegbon family who have already been adjudged the overlords of the said Ajah families in respect of the same land by the judgment in
SC/1948/97.
6. Whether or not having regard to the evidence adduced before the Court, the Court was right in giving judgment to the Respondent.
The Respondent on his part formulated 5 issues for determination as follows:
1. Whether from the facts and circumstances of this case, the Learned trail Judge was right in holding that the Respondent has a better title to the land in dispute than the Appellant. (Grounds One and Eight).
2. Whether from the facts and circumstances of this case, the new title to the land in dispute created by the excision made in favour of the Baale of Ajah is subject to the decision of the Supreme Court in SC/148/97. (Ground seven)
3. Whether from the facts and circumstances of this case, the Learned Trial Judge was right in holding that the Respondent was first in possession of the land in dispute (Ground two)
4. Whether from the facts and circumstances of this case, the outcome of Suit No. LD/21/87 at the Lagos High Court and subsequently affirmed by the Supreme Court in Suit No. SC/148/97 has any legal effect on the respective claims of the parties to title to the land in dispute in this case. (Ground
four)
5. If the answer to issue No. 4 above is in the positive (which is denied) what is the effect (if any) of the Supreme Court judgment in Suit No. SC/148/97 on the ownership of the land in dispute by the parties. (Ground six)
The real issues that arise for determination in this case in my view are as follows:
1. Whether the Respondent as Claimant proved a better title to the land in dispute in this case than the Appellant.
2. Whether the Respondent established that he was in possession of the land in dispute in this case as found by the trial Court.
3. What are the effects of the previous judgment relating to the land in dispute in this case and whether the trial Judge failed to give effect to them
4. Whether under the facts of this case, this is a proper case for invocation of issue estoppel to deny the trial Court of jurisdiction.
?The Respondent raised some preliminary issues regarding the competence of grounds 3 and 5 of the Appellant’s grounds of appeal and issues 1, 2 and 4 as formulated by the Appellant. His contention is that ground 5 of the Appellants ground of appeal raises the issue of jurisdiction of the trial
Court to entertain this action based on principle of res judicata and issue estoppel. It was also argued that in ground 3 of the grounds of appeal the Appellant raised the issue of failure of the trial Judge to give effect or enforce the letters and terms of previous judgments of Courts on ownership of Ajah land tendered before it and that this is also a fresh issue raised without leave of Court. The said grounds of appeal according to counsel did not arise from the judgment of the trial Court being challenged on appeal and so are incompetent.
Counsel further submitted that since Issues 1 and 2 as formulated by the Appellant are stated to have arisen from grounds 5?and 6 of the grounds of appeal, the said two issues are incompetent because ground 5 which according to counsel is incompetent, having been argued together with other grounds under issues 1, 2 and, 4 renders the entire issues incompetent.
It will be recalled that the Appellant by an application filed on 16th October, 2012, sought inter alia the leave of this Court to raise fresh points of issue estoppel and res judicata in this matter. In its ruling delivered by my learned Brother, Oseji,
JCA, this Court found that the prayer for leave to raise the said fresh issue is superfluous and unnecessary. This in my opinion settles the matter as the said ruling is binding on the parties herein. I will accordingly not strike out any of the grounds of appeal of the Appellant or issues formulated by him, although I have reformulated the real issues that arise for determination as set out above and will now proceed to address them.
ISSUE ONE
Whether the Respondent as Claimant proved a better title to the land in dispute in this case than the Appellant.
APPELLANT’S ARGUMENT:
Arguing this issue, the learned Appellant’s counsel referred to certain judgments relating to the land in dispute that were tendered in evidence and submitted that same were misapplied by the trial Court as it did not place proper effect on the findings and holdings in those judgments. He argued that the parties in the said previous case and the present one are the same as parties include privies, relying on the case of Gbadamosi v. Dairo
(2001) 11 WRN 129. He identified the predecessor in title of the Respondent as the Baale of Ajah and the Ojupon and Ogunsemo families while the vendor of the Appellant is the Olumegbon of Lagos for himself and the Land Management Committee. He submitted that the parties are ad idem that the subject matter of dispute is land in Ajah which is also the case with the land involved in all those cases tendered in evidence.
He then referred to the evidence of DW2, the Olumegbon to the effect that both the Ojupon and Ogunsemo families are his customary tenants which was also the finding of the trial Court, according to him. He further referred to the finding of the trial Court relying on I. O. Smith in his book, Practical Approach to Law of Real Property in Nigeria to the effect that the purpose of Land Use Act is not to destroy the incidents of customary tenancy which led to the holding that land in Ajah is held in trust by the Baale of Ajah for the Ajah Communities of which the Olumegbon is the overlord and that this fact establishes that the overlord always holds the reversionary interest in the land.
Learned counsel regretted that the trial Court
having made the brilliant review drew a most undeductive, unreasonable, illogical and perverse conclusion, in his view. He submitted that when there was acquisition, the portion of the land given back to the owners is called excision and the excision can only be granted in favour of those in whom reversionary interest resides. He submitted that the trial Court did not understand the decision of the Supreme Court in the case of Yusuf v. Oyetunde (1998) 12 NWLR (pt. 579) 483 hence its finding that a new root of title was created by the Lagos State Government in favour of the Baale of Ajah to whom a Certificate of Occupancy would be issued by Lagos State Government by the terms of Settlement signed between them. He submitted that the findings of the trial Court were perverse. He referred to the case of Abioye v. Yakubi (1991) 5 NWLR (Pt.190) 130, where, according to counsel, Nnaemeka-Agu, JSC held that the reversionary interest in land is not over-reached even upon revocation of the possessory rights of the customary tenant and the case of Archibong v. Ita (2004) NWLR (Pt. 858) 590 at 607 where counsel said the Supreme Court held that: “a customary tenants’
possession is subject to the over lord’s right of reversion”. He submitted that the above cited cases of the Supreme Court are not in conflict with each other.
Counsel further submitted that while it is good law that acquisition extinguishes the rights over an acquired land, the reversionary interests are not overreached, extinguished or destroyed and tenants take subject to the reversionary interests of the overlord. Counsel submitted that the trial Court treated reversionary interests under customary law as something that will die and awakened at different times in respect of same land.
He said that the trial Judge’s magical conclusion did not explain how the Baale of Ajah who had admittedly since 1886 been a customary tenant of Olumegbon became the owner. He submitted that Baale of Ajah who had never been the owner cannot transfer land to the Respondent in the capacity of owner.
?Learned counsel submitted that at the time the Respondent and his predecessor bought the land in dispute there was already in existence judgment in favour of the Olumegbon as regards ownership of the land in dispute. As such, the Baale of Ajah cannot give what he does
not have.
He submitted that the tenant’s possessory rights are never independent but dependent on the ownership of the landlord. He submitted that the Appellant has a better title to the land in dispute and urged the Court of Appeal to so find.
RESPONDENT’S ARGUMENTS:
The Respondent on his part submitted that there are five ways of proving title to land as decided in Idundun v. Okumagba (1976) 10 S.C. 222 and that he proved his title by all the five ways. He submitted that the Respondent relied on his Deed of Assignment made on 22nd November, 1999 between him and the Baale of Ajah which was registered. as No. 12 at page 12 in volume 2121 of the Lands’ Registry at Ikeja. He stated that the land in dispute was part of the land acquired by the Lagos State Government in 1981 by virtue of Exhibit V. Following the agitations by land holding families including the Ojupon and Ogunsemo families and the various actions instituted against the Lagos State Government by these people, the Lagos State Government excised a large tract of land of which the land in dispute forms a portion of and
vested same on Chief Amuda Adedeji kareem, the Baale of Ajah to hold same in trust for himself and on behalf of all the land holding families in Ajah. This was further, according to counsel confirmed by the Lagos State Government in Suit No. LD/1578/94 as part of the terms of settlement entered as judgment in the case, tendered as Exhibit U. He stated that in the said Terms of Settlement, a compromise was reached whereby the Baale of Ajah as well as all the land holding families agreed not to prosecute their various actions against the Lagos State Government in relation to Ajah acquisitions, revocation, excision and demolitions and in return, the Lagos State Government agreed to issue certificate of occupancy in respect of the excised land (of which the land in dispute forms part of) to Chief Amuda Adedeji kareem, the Baale of Ajah to hold same in trust for himself and on behalf of all the land holding families in Ajah. He submitted that a new root of title was created by Lagos State Government in favour of Chief Amuda Adedeji Kareem, the Baale of Ajah as held by the Supreme Court in Yusuf v. Oyetunde (1998) 12 NWLR (Pt.579) 489 at 493 D-E. Counsel argued that
it was on the basis of this that he re-purchased the land in dispute from Baale of Ajah in 1999. In response to the application of the Respondent as successor to the Baale of Ajah, the Lagos State Government granted the Respondent consent on purchase of the two plots of land in dispute in this case.
Learned counsel submitted that the fact of acquisition of the land in dispute by Lagos State Government is not in issue and it is only the legal effect of the acquisition that is disputed by the parties. He argued that by virtue of the acquisition, all hitherto existing statutory or customary rights of occupancy or any other right or interest whatsoever in the land became revoked and or extinguished in law as provided by Clause 2(ii) at page 35 of Exhibit V. He referred also to Section 28 of the Land Use Act and submitted that the effect of acquisition was to extinguish all previous interests in the land.
He set out the full of the Terms of Settlement and submitted that the effect is that based on the case of Yusuf v. Oyetunde (supra) the title is vested in the Baale of Ajah holding same in trust for himself and on behalf of all the land holding
families in Ajah and by virtue thereof, a new root of title by grant in favour of the Baale was created by the Lagos State Government and all predecessors in title became extinguished. Learned counsel submitted that the Respondent having thus far established his title and traced same to one whose title is undisputed, the onus is on the Appellant to prove that he has better title than the Respondent’s vendor, citing Sanyaolu v. Coker (1983) 74 NSCC 119 at 130: Clay Industries Nig Ltd v. Aina (1997) 8 NWLR (pt.576) at 208 and Sanni v. Oki (1971) 7 NSCC 113 at 116. He submitted that the Appellant cannot discharge this onus by showing that his title is better than that of the Respondent but better than that of Lagos State Government.
?In contrast, he stated that the Appellant’s title was rooted in purchase in October, 2004 from the Olumegbon Chieftaincy Family of Lagos for which he was issued with a receipt. He argued that the purchase was done without the involvement of the Ojupon and Ogunsemo families and in particular the Baale of Ajah in whom the title was vested by the Lagos State Government. He concluded that Chief Olumegbon of Lagos cannot give what he does
not have. He argued further that the purchase from the Olumegbon was based on the false claim that the Olumegbon family of Lagos owned the land in dispute by virtue of the Supreme Court decision in SC/148/97. He submitted that the land in dispute was not available at the time it was sold by the Olumegbon in 2004 and that even if the land had formed part of the undeveloped and unencumbered land, the authority to sell same was the Ajah management Committee and not the Olumegbon. He submitted that any purported sale by the Olumegbon Chieftaincy family or the Ojupon /Ogunsemo families would be null and void, citing Ojoh v. Kamalu (2005) 18 NWLR (pt. 958) 523. Learned counsel submitted that from Suit No. LD/21/57 Ajah land is jointly owned between the Olumegbon Chieftaincy Family and the Ojupon / Ogunsemo families and this was further confirmed by the Public Notice issued jointly by them, Exhibit T. He submitted also that since the Ajah Management Committee had not been set up as admitted, according to counsel, by the Olumegbon, he lacked the capacity to sell the land in dispute to the Appellant. He contended that the interest of the Respondent is first in time and
as such where the equities are equal the first in time prevails. Labode V. Otubu (2001) 7 NWLR (PT. 712) 256 at?281?relied on. Counsel referred to the Terms of Settlement signed between the parties in Suit No. LD/21/87 and submitted that the?Olumegbon Chieftaincy family were strangers to the land in dispute and had not been owners nor were they in physical possession of the land, hence the Lagos State Government that acquired the land returned same to Baale of Ajah. Counsel argued that the conduct of Olumegbon in standing by while the Baale of Ajah battled the Lagos State Government is that he is estopped from claiming ownership, citing Obodo v. Ogba (1987) 2 NWLR (Pt.54) 1 at 15. He submitted that the Public Notice made by the Olumegbon and the Baale of Ajah notified the world that they recognised, accepted and preserved the rights and interests of all purchasers of Ajah land prior to 31st October, 2003 and such purchasers were only required to forward their title documents to the Olumegbon of Lagos or Baale of Ajah and the Respondent complied with same but is yet to get feedback from the Baale of Ajah because the Ajah Management Committee is yet to be constituted. He submitted that in so far
as the Respondent complied with the requirement of the Notice, the Olumegbon is precluded in law and equity from selling his land without verifying his documents. Counsel argued that by the said Notice the Olumegbon had told the whole world that it is only the Ajah Management Committee that can validly and lawfully sell the free and unencumbered land in Ajah.
?RESOLUTION:
I think that the resolution of this issue is central to the determination of this appeal. The case of the Appellant is that he purchased the land in dispute unencumbered from the Olumegbon Chieftaincy family of Lagos who are the adjudged owner of the land in dispute by virtue of several Court’s?decisions including the decision in S.C./148/97 between the Olumegbon Chieftaincy family and the Ojupon and Ogunsemo families.
The Olumegbon family being the adjudged overlord of all the occupants of the land including the Ojupon and Ogunsemo families as represented by the Baale of Ajah who sold to the Respondent, it is contended that the Appellant has better title to the land in dispute. One feature that has made this case
unique is the acquisition by the Lagos State Government of land in Ajah. Out of the large tract of land acquired, the Lagos State Government excised or released a portion to the Baale of Ajah in 1995, part of which is the land in dispute in this case.
There is no doubt that it is clearly established that the Olumegbon Chieftaincy family had been adjudged the owner of the land in dispute since 1896 by virtue of the judgments tendered. However, it is not also seriously disputed that the land was subsequently acquired by the Lagos State Government. The Respondent has contended that by Clause 2(ii) of the instrument of revocation tendered as Exhibit V, the Lagos State Government revoked all previously existing customary or statutory rights of occupancy over the entire land. It is the contention of the Respondent that this puts an end to the previously existing interests of both the Olumegbon Family as owners of the land and of the Ojupon/Ogunsemo families as their customary tenants. It was also argued that upon the excision in favour of the Baale of Ajah, a new root of title based on grant was created which is radically different from the previously existing
order. Reliance was placed by the Respondent on the Supreme Court decision in the case of Yusuf v. Oyetunde (supra). In that case at page 493 D-E, the Supreme Court held that by virtue of Section 28 of the Land Use Act, when the land of the Samologbe Family was compulsorily acquired, the title of the family to the land acquired became extinguished by reason of the acquisition and also that when a portion of the acquired land was returned to the family, a new root of title by grant was created by the Government. The facts of the case were that the Samologbe village was founded by Akinrinlo Samologbe who first settled on the land.
Subsequently other persons who were not related to the original settler also settled and became members of the Samologbe village by virtue of the settlement. Evidence led at trial showed that there were 14 sections of the Samologbe village and that Oduola Akanni and Adebayo Abinde who were the direct descendants of Akinrinlo Samologbe belonged to the Abiwinde section of the family. Each of the 14 sections of the village had its own head but all the sections of the family put together had no common or overall head. Sometime in
1976 the Western State Government acquired the Samologbe village land. Thereafter in 1977, some of the members of the Samologbe family contacted the Appellant and sought his assistance on how to persuade the Government to release part of the acquired land to them. The Appellant took some actions in this regard and entered into agreement with those members that a part of the land to be released would be sold to him and they did in fact sell same to him. He in turn surveyed the land and started selling to other buyers. Portion of the acquired land was eventually released to the Samologbe family that is to all the 14 sections of the village who all contributed money refunded to Government to facilitate the release.
If the principle in the Yusuf v. Oyetunde case is applied to the facts of the present case, it means that upon revocation of the land in dispute by the Lagos State Government, a new root of title by grant was created and thus title of the persons in whose favour the excision or release was made is rooted in that excision and nothing more. It then means that a new root of title predicated on the excision or grant is created which is radically
different from what had existed hitherto.
The Appellant had relied on the cases Abioye v. Yakubu (1991) 5 NWLR (Pt.90) 130: Archibong v. Ita (2004) NWLR (pt 858) 590 at 607 to argue that in the event of release of acquired land, the Olumegbon Chieftaincy family is entitled to reversionary interest. Neither in the case of Abioye v. Yakubu (supra) nor in the case of Archibong v. Ita (supra) was the issue of effect of acquisition of land considered as in the case of Yusuf v. Oyetunde. What was clearly considered in those cases was not the effect of title gotten from excision of land previously acquired in favour of a party, but whether the interest of a customary tenant can transform from that of tenant to owner to overreach the interest of his landlord. It was in this con that the Supreme Court decided that the object of the Land Use Act is not intended to destroy incidence of customary tenancy. Ordinarily, where there is a tenancy, there is reversionary interest of the landlord after the tenancy.
?In Black’s Law Dictionary Eighth edition, by Bryan A. Garner, ‘reversion’ is defined thus:
“The interest that is left after subtracting what the
transferor has parted with from what the transferor originally had; a future interest in land arising by operation of law whenever an estate owner grants to another a particular state, such as life estate or a term of years, but does not dispose of the entire interest. A reversion occurs automatically upon termination of the prior estate as when a life tenant dies.”
?From the above definition, it is clear that there is reversionary interest only when a vendor or grantor did not part with the entire interest he has in a parcel of land. Thus, when there is an outright sale of land, there is no reversionary interest left. Also, when the Government acquires a parcel of land by revocation of all previously existing interests in the land, no reversionary interest is left.
?
?I am of the opinion that the effect of acquisition is to extinguish the previously existing interest in land and that upon the release of previously acquired land by excision as in this case, it does not relate back to the original root of title but rather a new root of title is founded on the grant made by the Government.
Consequently I hold that when the Lagos State Government acquired
the land in Ajah, the effect of the acquisition extinguished all previous interests on the land. When a portion of the acquired land is excised and returned, the ownership of the land vests on the person/person in whose favour the excision was made. Thus a new root of title is created by virtue of the grant and no issue of reversionary interest arises as what is created is a new root of title. In the Yusuf v. Oyetunde case (supra), all the 14 sections of the Samologbe family jointly pursued the release of part of the acquired land to them and all contributed money towards that end and the land was released to all the sections. When the Appellant in that case contended that all other members of the 13 sections of the family had no locus standi to institute the action based on the fact that they were people whose ancestors merely settled in the village without proprietary interests in the land, the Supreme Court relied on the finding that part of the acquired land was released to all the sections of the village to reject the argument.
?Based on the foregoing, I agree with the learned counsel to the Respondent that the legal effect of the subsequent excision
and vesting of the land hitherto compulsorily acquired by the Lagos State Government in the Baale of Ajah for himself and on behalf of the Ajah Community means that a new legal title was created in favour of the said Baale in trust for all the persons named in the instrument by which the excision was effected.
Based on the foregoing, I am of the view that the Respondent who traced his title to the grant by the Lagos State Government to the Baale of Ajah has established a better title to the land in dispute than the Appellant who traced his title to the Olumegbon family.
I am aware that arguments were canvassed by the parties in this case on the effect of the decision of the Supreme Court in SC/148/97 , the terms of settlement affirmed in that judgment by the Supreme Court and also the effect of the public notice issued jointly by the Olumegbon and the Baale of Ajah. In the first instance, the decision of the Supreme Court in SC/148/97 was based on the series of judgment of Courts that had established that originally the Olumegbon family was the owner of Ajah land before the acquisition while the others were their customary tenants. These decisions
did not take into cognisance the fact of the acquisition of Ajah land by the Lagos State Government and the subsequent excision.
?Having found above that a new root of title by grant was created by the Lagos State Government and that the issue of reversionary interest does not arise, these judgments do not have any effect on the outcome of this matter as the situation has completely changed by virtue of the excision made by the Government in favour of the Baale. The Lagos State Government having revoked all previous interests on the land both the interests of the Olumegbon as the overlord and that of the Ojupon and Ogunsemo families as customary tenants were also revoked. It was based on the agitations made by the land holding families and appeals which resulted in amicable settlement that the excision was made. The Olumegbon Chieftaincy family was not shown to be a party to these transactions and they were not also mentioned in the instrument by which this was effected. Even if the Olumegbon Chieftaincy family is one of the land holding families in favour of whom the excision was made, which is not shown from the evidence led in this case, the family
will be one of the beneficiaries whose trustee is the Baale of Ajah. In the circumstance, the legal title still vests in the Baale while the other families have the beneficial interest.
ISSUE TWO:
Whether the Respondent established that he was in possession of the land in dispute in this case as found by the trial Court.
APPELLANT’S ARGUMENTS:
On the issue of possession, the Appellant submitted that at the time the Respondent and his predecessor bought the land in dispute there was already in existence judgments in favour of the Olumegbon as regards ownership of the land in dispute. As such, the Baale of Ajah cannot give what he does not have. He argued that the tenant’s possessory rights are never independent but dependent on the ownership of the landlord. He consequently submitted that the Appellant was put into physical possession by the Olumegbon in the presence of witnesses and he built two structures in the land in dispute. He contended that the Olumegbon gave him vacant possession and that on the part of
the Respondent, there is no evidence of how he was put into possession of the land in dispute.
RESPONDENT’S ARGUMENT:
On his part the Respondent, contended that when he took possession of the property in dispute, he surveyed, fenced it and erected a gate thereon as far back as 1999 while the Appellant only bought the property in 2004.
?RESOLUTION:
I do not think that there is any doubt that the evidence in this case show clearly that the Respondent first entered into possession of the land in dispute before the Appellant and remained in possession until the Appellant entered the land after it was sold to him by the Olumegbon Chieftaincy family. The evidence showed clearly that the Respondent had surveyed the land and fenced it before the purchase and entry of the land by the Appellant. Apart from this, it was the evidence of the Respondent that he had purchased the two plots of land from Bukar Usman prior to the repurchase from the Baale of Ajah. His evidence was that the street was named after the deceased
wife of Bukar Usman and that the two plots of land in dispute were known as numbers 6 and 8 Usman Close. In his evidence under cross-examination on 28th May, 2009 at page 942 of the printed records, the Appellant admitted that the street was previously known as Usman Close and he was the one that applied to the local Government to change it from Usman Close to Sobande Close. He also admitted that the address of the property in dispute as stated in his Exhibit DF6, his survey plan was 6/8 Usman Close. These pieces of evidence confirm to me that the Respondent first entered into possession of the land in dispute until he was dislodged by the Appellant and it was the said alleged trespass by the Appellant that is being complained of in this case that he is setting up as evidence of his possession. Moreover, where there is conflicting claim for possession and action for declaration of title, the law ascribes possession to the one with better title. See Usman v. Garke (1999) 1 NWLR (Pt.587) 466 at 490 F: Odubeko v. Fowler (1993) 7 NWLR (Pt.308) 637 at 657 D-E.
Consequently, based on my earlier finding that the Respondent has better title to the land in
dispute, I find that he has established possession of same. This issue is resolved in favour of the Respondent also.
ISSUES 3 & 4
What are the effects of the previous judgment relating to the land in dispute in this case and whether the trial Judge failed to give effect to them
?
Whether under the facts of this case, this is a proper case for invocation of issue estoppel to deny the trial Court of jurisdiction.
Issue 3 relates to the effect of the previous judgments which the Olumegbon Chieftaincy family had obtained in respect of the land in dispute in this case. These judgments established that the entire Ajah land belongs to the family and that the Ojupon/Ogunsemo families were their customary tenants. I had touched on this issue when I addressed the issue of who has better title to the land in dispute in this case. It was my decision that the events of acquisition and the subsequent excision of the land and the vesting of same in the Baale of Ajah extinguished all previous interests in the land including those of the overlords and their customary tenant and that what
resulted from vesting of the excised land in the Baale of Ajah was the creation of a new root of title in his favour, though he holds same in trust for himself and the named beneficiaries.
Since the said acquisition extinguished the interests of the Olumegbon and his customary tenants over the portions of land affected by the acquisition and excision, those previous decisions which had established the ownership right of the Olumegbon over the land based on traditional history are no longer relevant to this case or helpful to the case of the Appellant as the ownership right they are meant to defend have been eroded by the event of acquisition. See Yusuf v. Oyetunde (supra). A new root of title has been established and since the Respondent was able to trace his title to the new root of title, he has established a better title to the land.
It follows from the above that if the title of the Olumegbon has been extinguished and the various judgments and decisions of Courts establishing his title have been eroded as aforesaid, those cases can no longer be set up as evidence of title or possession, neither can they be used to establish estoppel or to
challenge the jurisdiction of Court to hear this matter.
Notwithstanding that the Respondent has presented argument in support of his claim to title from various fronts, when the facts of this case are carefully examined, it will be seen that while the Appellant has set up his claim to title to the disputed land rooted on the Olumegbon, the Respondent has rooted his title on the sale to him by the Baale of Ajah following the acquisition and subsequent grant to him by the Lagos State Government. There is no way those decisions can be set up as establishing estoppel in the circumstance as those decisions were not reached against the Lagos State Government. In the light of this, I find the entire arguments of both parties on the effect of these previous decisions, especially Appeal No. SC/148/97 as not useful to the resolution of the issues in contention in this case.
I consequently find no merit in this appeal. It is hereby dismissed. I make no order as to costs.
?CROSS-APPEAL
On the cross-appeal, the Respondent/Cross-Appellant formulated two issues which the
Appellant/Cross-Respondent condensed into one issue which is:
Whether the amount of monetary damages awarded the Cross Appellant is just and proper in view of the pleadings and evidence in respect of the same and upon which the award was made.
I will decide the Cross-appeal based on the sole issue formulated by the Cross-Respondent.
CROSS-APPELLANT’S ARGUMENTS:
Arguing the cross-appeal, learned counsel submitted that the trial Judge was in error in refusing the claims for mesne profits and the error has occasioned miscarriage of justice. He submitted that the trial Judge applied the wrong principles by taking account of irrelevant factors while discountenancing relevant factors in award of damages. He argued that the Cross-Appellant claimed N10, 000,000.00 per annum as mesne profits or damages for loss of use and enjoyment of land which is a separate head of claim from damages for trespass awarded by the trial Court.
?He submitted that in paragraph 69 (g) (h) of his pleading, he claimed damages for the expenses he will incur in putting back the land to its original state
and in replacing the gate to the premises. Counsel contended that if it takes a period of ten years or more for eventual determination of this matter at the Supreme Court his loss by way of mesne profits claimed will be rising, hence the need to award him the entire sum claimed in this regard. He referred to the case of Vincent V. Vincent (2008) 11 NWLR (Pt.1097) 35 at 47-48 H-A and submitted that it decided that a trespasser is bound to pay mesne profits or damages for loss of use. He submitted that he gave unchallenged evidence that the land yields N10,000,000.00 annually as income. He argued that the sum of N5, 000,000.00 awarded to him by the trial Judge is inordinately low. He submitted that he had claimed the sum of N20, 000,000.00 as damages for the expenses he will incur in restoring the land to its original state. He argued that he is entitled to this claim and in addition the sum of N1, 500,000.00 which he needs to rebuild the fence and gate to the premises.
?CROSS-RESPONDENT’S ARGUMENTS:
The response of the Cross-Respondent is essentially that the claims for damages made by
the Cross-Appellant are in the nature of special damages which ought to be strictly proved but was not so the trial Court rightly rejected them. Counsel in this regard referred to the cases of Kopek Construction Ltd v. Ekisola (2010) 46 WRN 1 at 47 and Kalu v. Mbuko (1988) 3 NWLR (pt.80) 98. He also referred to the meaning of mesne profits in the case of Marine v. General Assurance Co. Ltd. V Antoine Rossek (1986) 4 SC 271 at 295 – 296.
RESOLUTION:
I have looked at the evidence led in respect of the damages claimed by the Cross-Appellant which were not awarded by the trial Judge and I agree with the Cross-Respondent that they were in the nature of special damages which ought to be strictly proved but were indeed not proved in this case. It is settled law that special damages must be strictly proved even in undefended suit. See Sawuta v. Ngah (1998) 13 NWLR (Pt. 580) 39 at 50 H. see also Kalu v. Mbuko (1988) 3 NWLR (Pt.80) 98. While arguing his cross-appeal, the Cross-Appellant referred to paragraph 50 of his sworn evidence at page 648 of the record as the evidence in proof of his claim.
That evidence states:
“My Lord, from the clear facts of this case, it is callous, wicked and contrary to equity and good conscience for the Defendant to emerge from no where and cheat or deprive me of the use and enjoyment of the land, which land for over 10 years I fought and protected against all sorts of persons laying claims to the ownership of the land or other interests therein until the land became absolutely free from all encumbrances and now subject to everlasting peace and quiet enjoyment. In the light of all of the foregoing, I have been deprived of the use and enjoyment of the land and thereby suffered loss and damages as the two plots of land ought to ordinarily yield me a revenue of minimum of N10,000,000.00 (Ten Million naira) per annum if I had put it to my desired use. The Defendant is now the one wrongfully using and enjoying the land and earning revenue of at least N10, 000,000.00 per annum on the two plots of land with effect from March, 2005 till the Defendant yields up possession to me.”
I am of the firm view that this piece of evidence does not satisfy the standard required in proof of special damages.
?It is in my view
speculative and not certain. It is based on the above that I do agree with the Cross-Respondent that the Cross-Appellant did not establish strictly the loss he claimed to have suffered as special damages as a result of the wrongful action of the Cross-Respondent.
The Cross-Appellant also complained that his claim for mesne profits was not awarded by the trial Court. He referred to this Court’s decision in Vincent v. Vincent (2008) 11 NWLR (Pt.1097) 35 at 47-48 H-A and submitted that a trespasser is bound to pay the true owner of land mesne profits or damages for loss of use and enjoyment of property.
The above does not represent the true position of the law. Mesne profits as used in the cases of Vincent v. Vincent (supra) and African Petroleum v. Owodunni (1991) 8 NWLR (pt.201) 391 in relation to trespasser is used in a technical sense to refer to tenant holding over after determination of his tenancy. Such tenant is viewed technically as a trespasser his tenancy having been determined. In the case of Marine & General Assurance v. Rossek (1986) 1 All NLR (Pt.1) 403 at 416 Oputa, JSC said:
“Mesne profits can also be equated to the value of
use and occupation of land during the time it was held by one in wrongful possession and I may add here, also by one who has not agreed on any rents with the landlord (and was therefore technically a trespasser) even though such an occupier cannot strictu sensu be described as a trespasser.”
Mesne profit is defined by the Black’s Law Dictionary (supra) at page 1246 as “The profits of an estate received by a tenant in wrongful possession between two dates.”
Consequently, based on the above, it is clear that mesne profits are applicable to landlord tenancy relationship where such tenancy has been determined and the tenant is holding over. I do not consider it proper in action for declaration of title to land for a Claimant to be awarded mesne profits in addition to damages for trespass. Such would indeed amount to double compensation. The trial Court in the circumstance rightly refused to award mesne profits to the Respondent in respect of the same land.
In the final result, I find no merit in the cross-appeal. It is hereby also dismissed. I make no order as to costs.
YARGATA BYENCHIT NIMPAR, J.C.A.:
I had the
privilege of reading in draft the judgment just delivered by my learned brother, CHINWE EUGENIA IYIZOBA, JCA in advance and I am in complete agreement with the reasoning and conclusion arrived at in the lead judgment.
My Lord having brilliantly and conclusively dealt with the issues raised, the judgment leaves little or no room for me to add anything. I too affirm the appeal and dismiss the cross-appeal.
I abide by the consequential orders made in the lead judgment.
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.:
I have read in draft the lead judgment of my learned brother, IYIZOBA, JCA. He has dealt with the issues raised comprehensively and I adopt his lordship’s reasoning and conclusion as mine.
I agree that the appeal as well as the cross-appeal are devoid of substance, there is no doubt that the learned trial judge has extensively and correctly applied the position of the law on the extinguishing of rights or interests in land upon acquisition by government.
?In the same terms as the lead judgment, I also find the appeal and the cross-appeal to be without merit and dismiss
them accordingly. I abide by the order as to cost therein.
Appearances
ADEKUNLE SULAIMAN, ESQ.For Appellant
AND
RESPONDENT IN PERSONFor Respondent
