JULIUS BANKOLE & ANOR v. ALFA JIMOH SEVEHO DENAPO & ANOR
(2019)LCN/12658(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 6th day of February, 2019
CA/L/498/2017
RATIO
FUNDAMENTAL RIGHT: DEPRIVATION OF RIGHT OF FAIR HEARING
“The effect of deprivation of the right to fair hearing in the litigation process is far reaching as it has the effect, where it is established, of nullifying the decision arrived at: CHITRA KNITTING & WEAVING MANUFACTURING CO. LTD vs. AKINGBADE (2016) LPELR (40437) 1 at 28, F.M.B.N. LTD vs. ADU (2000) 11 NWLR (PT. 678) 309 at 318-319 and OTAPO vs. SUNMONU (1987) 2 NWLR (PT. 58) 587. However, the complaint of breach of fair hearing can only be raised and avail a litigant when, in fact, the right had been denied. The admonition of apex Court in this regard is instructive. Hear Tobi, JSC in ADEBAYO vs. A-G OGUN STATE (2008) LPELR (80) 1 at 23-24” PER UGOCHUKWU ANTHONY OGAKWU, J.C.A.
LAND LAW: PROVING TITLE TO LAND
“It is hornbook law that a claimant for declaration of title to land must succeed on the strength of his case and not on the weakness of the defendant’s case, except where the defendant’s case supports the claimant’s case. See KODILINYE vs. ODU (1935) 2 WACA 336 at 337, FAGUNWA vs. ADIBI (2004) 14 NWLR (PT 903) 544 at 568, NSIRIM vs. NSIRIM (2002) 12 WRN 1 at 141, ONWUGBUFOR vs. OKOYE (1996) 1 NWLR (PT. 424) 252 and ASHIRU vs. OLUKOYA (2006) 11 NWLR (PT. 990) 1 at 19-20. So it was for the Appellants to establish the declaration of title sought over the disputed land. This is so because even though the Respondents counterclaimed, they did not seek the relief of a declaration of title to the disputed land in their favour. Therefore the heavy burden of proving title to the disputed land rested squarely on the Appellants. There was no duty on the Respondents who did not claim title to prove their title. See ADEKANBI vs. JANGBON (2007) ALL FWLR (PT. 383) 152 at 160, 163 and 165 and OWOEYE vs. OYINLOLA (2014) ALL FWLR (PT. 721) 148 at 1477. Apropos the foregoing, the relief claimed by the Respondents, inter alia, is a declaration that the Appellants have no title to the land and were not entitled to right of occupancy.” PER UGOCHUKWU ANTHONY OGAKWU, J.C.A.
LAND LAW: PROVING TITLE TO LAND VIA TRADITIONAL HISTORY
“However, the lower Court having found that the fact of acquisition of the disputed land by the Lagos State Government was established by the evidence, the acquisition extinguished the title of any former owner of the land such that the traditional history in the diacritical circumstances become irrelevant and unnecessary in the con of the disceptation. See YUSUF vs. OYETUNDE (1998) 12 NWLR (PT. 579) 485 at 493, ARCHIBONG vs. UTIN (supra) at 20, AKIBOYE vs. ADEKO (2011) LPELR (4551) 1 at 28 and ELEMORO vs. ABIODUN (2014) LPELR (23195) 1 at 49-50. In the circumstances therefore, any contradiction or discrepancy in the traditional history pleaded by the Appellants became a moot point as the decision of the lower Court did not turn on the traditional history that was to be preferred.” PER UGOCHUKWU ANTHONY OGAKWU, J.C.A.
LAND LAW: POSSESSION OF LAND
“It is their possession of the disputed land that necessitated the Appellants action for declaration of title, perpetual injunction and damages for destruction of economic trees on the land. The Appellants having failed in their quest in respect of the land, entitled the Respondents to the relief of perpetual injunction restraining the Appellants from coming unto the land in their possession. It is trite law that a person in possession is presumed to be entitled to the land he occupies against the whole world except the true owner thereof: OWOADE vs. OMITOLA (1988) 2 NWLR (PT. 77) 413 and OTUNLA vs. OGUNOWO (2004) 6 NWLR (PT. 868) 184 at 200. The Appellants having failed to prove that they are the true owners of the land, the Respondents were entitled to have their occupation and possession of the land protected by an order of injunction restraining the Appellants. This Respondents are entitled to this order by virtue of being in possession, in circumstances where the Appellants did not prove that they had a better right to possession.” PER UGOCHUKWU ANTHONY OGAKWU, J.C.A.
JUSTICES
UGOCHUKWU ANTHONY OGAKWU Justice of The Court of Appeal of Nigeria
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO Justice of The Court of Appeal of Nigeria
TOBI EBIOWEI Justice of The Court of Appeal of Nigeria
Between
1. JULIUS BANKOLE
2. SUNDAY BANKOLE
(Suing for and on behalf of Bankole Family) Appellant(s)
AND
1. ALFA JIMOH SEVEHO DENAPO
2. CHIEF OGUNDEYIRespondent(s
UGOCHUKWU ANTHONY OGAKWU, J.C.A. (Delivering the Leading Judgment):
The provenance of this appeal is the disputed ownership of land situate at Avia (Abia) Village, Badagry Local Government Area of Lagos State. The Appellants herein, who were the Claimants at the lower Court instituted proceedings against the Respondents before the High Court of Lagos State in SUIT NO. BD/33/2010 JULIUS BANKOLE & ANOR. (Suing for and on behalf of Bankole Family) vs. ALFA JIMOH SEVEHO DENAPO & ORS. The Appellants claimed the following reliefs:
a) A declaration that the Claimants are the owners and persons entitled to the right of occupancy of all the parcels of land measuring about 20 Hectares situate lying and being at Avia Village, Igborosun Hungon in Badagry Local Government Area of Lagos State.
b) Perpetual Injunction restraining the Defendants by themselves or their privies, agents, servants from trespassing and continuing to trespass on the Claimants land situate lying and being at Avia Village in Igborosun Hungon Village in Badagry Local Government Area of Lagos State.
c) N10,000,000 (Ten Million Naira Only) general damages against all the Defendants for the destruction of the economic trees and damages committed on the Claimants? land.
d) Cost of this action.
The Respondents filed a joint Statement of Defence and they incorporated a counterclaim against the Appellants for the following reliefs:
(i) DECLARATION that the CLAIMANTS has [sic] no title to the land and as such cannot be entitled to right of occupancy.
(ii) ORDER of perpetual injunction restraining the Claimants, their predecessors, privies and assigns from further trespass to the disputed parcel of land.
(iii) General Damages of N5, 000,000:00 (Five Million Naira only) against the Claimants for act of trespass committed in respect of the disputed land.
(iv) Cost of Action.
The parties joined issues on the pleadings which they filed and exchanged and the matter was subjected to a plenary trial at which testimonial and documentary evidence was adduced. In its judgment, the lower Court dismissed the Appellants’ case and entered judgment in favour of the Respondents for some of the reliefs claimed in their counterclaim.
The Appellants were dissatisfied and appealed against the said decision. The judgment of the lower Court which was delivered on 16th March, 2017 is at pages 214-227 of the Records, while the Notice of Appeal filed on 27th March 2017 is at pages 228-234 of the Records.
The Records of Appeal and additional Records were compiled and transmitted. The Additional Records of Appeal was regularized on 13th November, 2018. The parties filed and exchanged briefs of argument which learned counsel adopted and relied upon at the hearing of the appeal. The Appellants filed their Brief of Argument on 12th May, 2017 and their Reply Brief on 13th July, 2017. Three issues were distilled for determination in the Appellants’ Brief namely:
1. WHETHER THE APPELLANTS DID PROVE THAT THEY ARE ENTITLED TO THE DECLARATION OF TITLE OVER THE DISPUTED LAND AND THAT THERE IS NO FEATURE THAT DEPRIVE THEM OF THEIR RIGHTS OF OCCUPANCY OVER THE SAID LAND.
2. WHETHER IN THE CIRCUMSTANCES OF THIS CASE, THE LEARNED JUDGE GAVE FAIR HEARING TO THE APPELLANTS.
3. WHETHER THE COURT HAS JURISDICTION TO GRANT THE RELIEFS IN THE COUNTERCLAIM AND WHETHER THE COURT CAN GRANT THE RELIEFS NOT CLAIMED BY THE RESPONDENTS.?
The Respondents Brief was filed on 30th June, 2017, wherein three issues were also formulated for determination as follows:
1. Whether the trial Court having found that acquisition or no acquisition of the parcel of land in dispute was a live issue at the trial ought not to have proceeded to make a specific finding of the fact.
2. Whether the Appellants did proved [sic] that they are entitled to Declaration of title over the disputed parcel of land covered by Surveyor [sic] Plan No. LAA/BA/65/85 drawn by Surveyor E.A. AROR.
3. Whether the Learned trial Judge in exercise of his discretion considered the evidence placed before him and whether the Court can act on evidence not pleaded.
The issues nominated by the parties even though differently worded address the same complaints which take their roots from the grounds of appeal, which in turn arises from the decision of the lower Court. However, in considering the submissions of learned counsel and resolving this appeal, I will take the liberty to tinker with the issues crafted by the parties in order to arrive at a succinct issue that will be cumulative with the issues distilled by the parties: SANUSI vs. AMEYOGUN (1992) 4 NWLR (PT 237) 527 at 550-551, UNITY BANK vs. BOUARI (2008) ALL FWLR (PT. 416) 1825 at 1846-1847 and MUSA SHA (JNR) vs. DA RAP KWAN (2000) 5 SCNJ 101 at 127. In this wise, the issues that I find apt and on the basis of which I would deal with this appeal are:
1. Whether the lower Court made out a different case for the parties and denied the Appellants their right to fair hearing.
2. Whether based on the preponderance of evidence and balance of probability the lower Court arrived at the correct decision.
ISSUE NUMBER ONE
Whether the lower Court made out a different case for the parties and denied the Appellants their right to fair hearing.
SUBMISSIONS OF THE APPELLANTS’ COUNSEL
The Appellants contend that the lower Court descended into the arena by assisting the Respondents to prove their case. It was stated that when the Respondents sought to tender Exhibit 6, the Gazette, and an objection was raised to its admissibility, the lower Court adjourned to enable the Respondents properly certify the document. Furthermore, that the lower Court suo motu observed that the main issue in the case was whether the disputed land was within the area of land acquired by the Lagos State Government and made a prejudicial and pre-emptive order for the Surveyor-General of Lagos State to prepare a Report and give evidence in that regard. It was posited that the Appellants right to fair hearing was denied by the lower Court descending into the arena and setting up a case different from the one set up by the parties. Section 36 of the 1999 Constitution and the cases of ASSOCIATED DISCOUNT HOUSE LTD vs. HON. MINISTER OF FCT (2013) 8 NWLR (PT 1357) 493 at 517, ADEOSUN vs. GOVERNOR, EKITI STATE (2012) 4 NWLR (PT 1291) 581 ratio 10, ASESA vs. EKWENEM (2009) 13 NWLR (PT 1158) 415 ratio 2, OKERE vs. AMADI (2005) 14 NWLR (PT 945) 545 at 559 among other cases were referred to.
It is the submission of the Appellants that the reliance of the lower Court on the evidence of CW1 as being an admission that the Appellants land was acquired by the Lagos State Government is unavailing as there is no unequivocal and clear inference of acquisition in the testimony of the CW1. The cases of ORJI vs. D.T.M. (NIG) LTD (2009) 18 NWLR (PT. 1173) 467 at 481 ratio 19 and OKUNADE vs. OLAWALE (2014) 10 NWLR (PT. 1415) 207 at 258-259 were referred to. It was further contended that the defence of jus tertii relied upon by the Respondents cannot avail them in an action for trespass and that it was erroneous for the lower Court to hold the Respondents pleading of a third party’s right to be mere tracing of their root of title. The cases of EVBUOMWAN vs. ELEMA (1994) 6 NWLR (PT. 353) 638 at 652, ADELAKUN vs. ISEOGBEKUN (2003) 7 NWLR (PT. 819) 295 at 311, BALOGUN vs. AKANJI (2005) 10 NWLR [no part stated] 394 at 400 ratio 6 and YAKUBU vs. IMPRESIT BAKOLORI PLC (2011) 6 NWLR (PT. 1244) 564 at 573 ratio 13 were cited in support.
SUBMISSIONS OF THE RESPONDENTS’ COUNSEL
The Respondents maintain that the issue of acquisition or non-acquisition was the main issue in contention as the CW1 testified under cross-examination that the disputed land shown in their survey plan was not part of what was acquired by the Lagos State Government. It was stated that it was based on this that the lower Court made the order suo motu for the just dispensation of the issues between the parties; and that the Appellants effected the said order as borne out by the Records. It was opined that the Appellants not having objected to the order cannot allege any breach of their right to fair hearing, having actively participated in the testimony of the representative of the Surveyor-General. Pages 206-208 of the Records and the case of MAGAJI vs. NIGERIAN ARMY (2008) 8 NWLR (PT 1089) 338 were referred to. It was stated that the insistence of CW1 that their land was not acquired created confusion which prompted the order made by the lower Court in order to clear the confusion in the interest of justice. The cases of ABUBAKAR vs. PWASPO (2012) LPELR 7923 (CA) and AWOYALE vs. OGUNBIYI (1985) NWLR [no volume] (PT 10) 861 were called in aid.
The Respondents submit that issues had not been joined on the objection raised to the admissibility of the Gazette when an application for withdrawal of the document was made and adjournment sought. It was stated that the lower Court ordered recertification of the Gazette in the interest of justice in order to correct the error in the certification and that it could not amount to a denial of fair hearing vide TUNBI vs. OPAWOLE (2000) 1 SCNQR [no page stated]. It was maintained that the lower Court did not make a case for the Respondents but that the decision of the lower Court was based on the facts and evidence. It was posited that there was an admission of acquisition in paragraph 5 (f) of the Appellants’ Reply to the Statement of Defence and Defence to the Counterclaim. It was asserted that testimony from the Surveyor-General was necessary for the just determination of the issues in contention.
APPELLANTS’ REPLY ON LAW
In the Reply Brief, the Appellants submit that the pre-conditions for a Court to call a witness not called by either side were not met as there were no exceptional circumstances, no confusion in the evidence before the Court and the parties did not acquiesce for the lower Court to make an order to call a witness not called by the parties.
RESOLUTION
The effect of deprivation of the right to fair hearing in the litigation process is far reaching as it has the effect, where it is established, of nullifying the decision arrived at: CHITRA KNITTING & WEAVING MANUFACTURING CO. LTD vs. AKINGBADE (2016) LPELR (40437) 1 at 28, F.M.B.N. LTD vs. ADU (2000) 11 NWLR (PT. 678) 309 at 318-319 and OTAPO vs. SUNMONU (1987) 2 NWLR (PT. 58) 587. However, the complaint of breach of fair hearing can only be raised and avail a litigant when, in fact, the right had been denied. The admonition of apex Court in this regard is instructive. Hear Tobi, JSC in ADEBAYO vs. A-G OGUN STATE (2008) LPELR (80) 1 at 23-24:
‘Learned counsel for the appellant roped in the fair hearing principle. I have seen in recent times that parties who have bad cases embrace and make use of the constitutional provision of fair hearing to bamboozle the adverse party and the Court, with a view to moving the Court away from the live issues in the litigation. They make so much weather and stop there. They rake the defence in most inappropriate cases because they have nothing to canvass in their favour in the case. The fair hearing provision in the Constitution is the machinery or locomotive of justice; not a spare part to propel or invigorate the case of the user. It is not a casual principle of law available to a party to be picked up at will in a case and force the Court to apply it to his advantage. On the contrary, it is a formidable and fundamental constitutional provision available to a party who is really denied fair hearing because he was not heard or that he was not properly heard in the case. Let litigants who have nothing useful to advocate in favour of their cases leave the fair hearing constitutional provision alone because it is not available to them just for the asking.?
See also KOLO vs. COP (2017) LPELR – 42577 (SC) and BROSSETTE MANUFACTURING LTD vs. M/S OLA ILEMOBOLA LTD (2007) 14 NWLR (PT. 1053) 109 at 139.
The Appellants contention on the alleged breach of their right to fair hearing is that the lower Court made a case different from that set up by the parties with regard to the acquisition vel non of the disputed land by the Lagos State Government and also that the lower Court assisted the Respondents as it relates to the objection to the admissibility of the Gazette, Exhibit 6. It is a settled principle of law that it is not the duty of the Court to make a case for the parties. The Court acts and finds only on the case the parties present before it. See SPASCO VEHICLE AND PLANT HIRE CO. vs. ALRAINE (NIG) LTD (1995) 8 NWLR (PT. 416) 655 at 669, NBCI vs. INTEGRATED GAS (NIG) LTD (2005) LPELR (2016) 1 at 21-22, KAYILI vs. YILBUK (2015) LPELR (24323) 1 at 52 and UBN PLC vs. EMOLE (2001) LPELR (3392) 1 at 18.
The case was fought on the basis of pleadings on which parties joined the issues that went to trial. The Respondents in their Statement of Defence and Counterclaim averred as follows in paragraphs 14-23:
14. The Defendant further aver that the land acquired through Global Acquisition by the Lagos State Government for Agricultural purposes (GRADUATE FARMING SCHEME) IN 1972 PUBLICIZED SAME IN Lagos State official, Gazette public Laws Acquisition Law (Chapter 105) (parcel ‘G’) Copy of the official Gazette is hereby pleaded.
15. The Defendants aver that after the Acquisition of the vast area of land including the disputed parcel of land, compensation was paid to the four land owning family namely, Denapo family, Labimtan family, Ajayi family and kampetoji family without mention of the Claimants family.
16. The Defendants aver that since the Acquisition of the vast area of land the ownership of the land remains with the Lagos State Government.
17. The Defendants also avers that the 3rd Defendant after his retirement from the employment of Lagos State Government (Ministry of Agriculture) in the year 1984, he applied for allocation of part of the acquired land through the Lagos State Governor’s office (land use and Allocation Committee) and 20 Hectares of land was allocated to him which forms the disputed land. Copy of the formal allocation letter dated 4th April, 1985 is hereby pleaded.
18. The Defendants also avers that having allocated the disputed parcel of land to the 3rd Defendant he started farming activities on the land and ground rent is paid every year copy of the Bank payment Advice for year 2010 is hereby pleaded.
19. That in the year 2005, the 1st and 2nd Defendants community through an application dated 16th May, 2005, apply to the Permanent Secretary Land Bureau Governor’s Office, Alausa-Ikeja for Excision of the part of the Land acquired. Copy of the application is hereby pleaded.
20. The Defendants further avers that as development started coming the Abia Community and other land owning family in Abia through their Representatives held meeting with officials of the Ministry of Agriculture and Co-operatives through Agricultural land Holding Authority for Community Development like building of School, Market, Community Hall, Maternity and Mosque/Church which was granted and a letter of Notification of change of size of Allocation dated 20th October, 2009 was written and sent to the 3rd Defendant notifying him of change in the size of former 20 Hectares to accommodate the demand of the Community. Copy of the Notice is hereby pleaded.
21. That immediately the notice was sent to the 3rd Defendant, the total number of land allocated to the 3rd Defendant was reduced to 10 hectares while 10 hectares was allocated to the Abia Community for the purpose listed.
22. The Defendants avers that the said land is Government Acquired land allocated to the Defendants.
(See pages 27-29 of the Records)
By the above averments, the Respondents contend that the disputed land had been acquired by the Lagos State Government and compensation paid to the land owning families, and that their presence on the land was based on allocation of part of the acquired land by Lagos State Government and also the excision of part thereof by the Lagos State Government.
The Appellants in the Reply to Statement of Defence and Defence to Counterclaim averred as follows in paragraphs 3(c), 3(f), 4(c) 5 (b) and 5(d):
3. With particular reference to paragraphs 10, 11, 12, 13, 14, 15 and 16 of the Statement of Defence, the Claimants aver:
c) That the land in dispute which is about 20 Hectares of land is not part of the land acquired by the Lagos State Government but the land trespassed on by the Defendants.
f) The Claimants state that even if Lagos state government pay compensation to the people mentioned by the Defendants in paragraphs 15 and 16 of the Statement of Defence, the compensation paid to those mentioned was on their own land acquired from them by the Lagos state government because the Claimants’ family land was not acquired.
4. The Claimants state as regards paragraphs 17, 18, 19, 20, 21, 22, 23 and 24 of the Statement of Defence as follows:-
c) That the Claimants’ family land in dispute is not part of the land acquired by the Lagos State Government.
5. With reference to paragraphs 25, 26, 27, 28, 29 and 30 of the Statement of Defence, the Claimants state as follows:-
b) That the land given to the 3rd Defendant for agricultural purpose is not the Claimants? family land but the 3rd Defendant left the land given to him by the Lagos State Government and started trespassing on the Claimants? family land.
d) That the land in dispute does not belong to the Lagos State Government nor is it part of the land acquired by Lagos State.(See pages 57, 58 and 59 of the Records)
By the above averments, the Appellants do not raise any issues as to the validity or propriety of the acquisition. Their case was that the land which was acquired by the Lagos State Government was not their land, the cause of action. So at the close of pleadings the parties were at issue on whether the land acquired by the Lagos State Government was the disputed land. There was no issue with regard to the validity of the acquisition. It is trite law that a Court is duty bound to pronounce on the issues before it. See MARINE MANAGEMENT ASSOCIATES INC. vs. NMA (2012) LPELR (20618) 1 at 27, ADEBAYO vs. A-G OGUN STATE (supra) at 14 and NKUMA vs. ODILI (2006) LPELR (2047) 1 at 17.
The lower Court was therefore under the bounden duty to pronounce on whether the disputed land was part of the land acquired by the Lagos State Government.
The lower Court at the proceedings of 16th April, 2015 after the testimony of CW1, correctly identified that the main issue was whether the land claimed by the Appellants was part of the land acquired by Lagos State Government; in the light of the testimony of the CW1 that their land was not acquired (see pages 174-176 of the Records). The parties having joined issues on the pleadings as to whether the land claimed by the Appellants was acquired by the Lagos State Government, it was neither making out a different case for the parties nor was it a descent into the arena when the lower Court directed that the Surveyor-General of Lagos State, who by Law approves and countersigns survey plans, prepare a Report to show the land acquired relative to the land claimed by the Appellants. Indeed, by Section 246 (1) of the Evidence Act, the trial Court is empowered, in order to clear up ambiguities or clarify points, to make order on the production of any document or thing.
The chafed order of the lower Court for the Surveyor-General to prepare a Report on whether the land claimed by the Appellants fell within the land acquired by the Lagos State Government is clearly within the purview of the powers of the Court under Section 246 (1) of the Evidence Act.
As a matter of fact, by the stipulations of the said Section 246 (1) of the Evidence Act, the parties shall not be entitled to make any objection to such an order. The Appellants consequently did not object to the order and as borne out by the Records took steps and gave effect to the order. They further led the representative of the Surveyor-General, who came on a subpoena, in evidence in chief and tendered through him the Report and composite plan that was prepared pursuant to the order of Court made in exercise of the authority of the Court under Section 246 (1) of the Evidence Act (see pages 206-209 of the Records). The Appellants in their final written address at the lower Court identified and argued as their issue number two whether it was proved that the land they claimed fell within government acquisition (see pages 145-147 of the Records). The lower Court was on firma terra when it made the order for the Surveyor-General to prepare a Report on the core issue in dispute and which the parties had joined issues on. The parties were amply afforded a hearing on the subject of the said order of the lower Court. The Appellants consequently have no basis to scream blue murder in this regard.
The Appellants make a foofaraw on the admission in evidence of Exhibit 6, the Gazette. From the Records, the Appellants’ counsel raised an objection to the admissibility of the document on the ground that it was not properly certified. The Respondents? counsel however did not join issues on the objection but applied to withdraw the document having accepted as learned counsel are wont to say, ‘the hint given by the Court.’ The document was withdrawn, an adjournment granted and costs awarded in favour of the Appellants. See pages 198 and 199 of the Records. Apposing the fact that the Gazette was relevant to the inquiry before the Court and facts in respect thereof were duly pleaded, I cannot fathom the Appellants grouse with the adjournment that was granted for the document to be certified as required by law. It is instructive that when the document was then tendered after it had been properly certified, it was admitted without objection (see pages 201 and 204 of the Records). I think the law is now ensconced like the Rock of Gibraltar that the days when the whirligig of technicalities rendered justice grotesque are long gone. The Courts, having worked its way in the mass exodus from the Egypt of undue technicality to the promised land of substantial justice, will not embark on the regressive step at the Appellants behest to the forgone days of undue technicality.
It was in keeping with the current trend of achieving substantial justice that the lower Court allowed the Respondents to withdraw the document they sought to tender before they joined issues on the objection to its admissibility. See generally AFOLABI vs. ADEKUNLE (1983) 2 SCNLR 141, OMISORE vs. AREGBESOLA (2015) LPELR (24803) 1 at 17-18 and NNEJI vs. CHUKWU (1988) 3 NWLR (PT 81) 184. From the cold printed Records, it is effulgent that the Appellants are merely crying wolf in their contention that their right to fair hearing was eviscerated. In the diacritical circumstances of this matter, the fair hearing principles are inapplicable: ADEBAYO vs. A-G OGUN STATE (supra).
The Appellants make a kerfuffle of the lower Court having found that the CW1 admitted that their land had been acquired by the Lagos State Government in his testimony. Let me iterate that this case was fought on the basis of the pleadings filed by the parties. In paragraph 5 (f) of the Reply to Statement of Defence and Defence to Counterclaim, the Appellants averred as follows:
5. With reference to paragraphs 25, 26, 27, 28, 29 and 30 of the Statement of Defence, the Claimants state as follows:-
f) That Lagos State Government realized that the land in dispute belongs to the Claimants? family and invited the Claimants and his family to meetings to see how they can be given back their land. Copies of letters dated 17th February, 2003 and 9th November 2009; 1st and 2nd gazettes of 27th October 1994 and 28th March 1996 will also be relied on.(See page 59 of the Records)
Evidence was adduced in line with this averment by the CW1. See paragraph 31 of the written statement on oath on pages 61-65 of the Records, which statement on oath was adopted by the CW1 on 16th April 2015. (See page 172 of the Records).
Now, the primary duty of the Judge at nisi prius is perception of evidence, evaluation of evidence and ascription of probative value thereto by making the requisite findings of facts which entails both perception and evaluation: GUARDIAN NEWSPAPERS LTD vs. AJEH (2011) 10 NWLR (PT. 1235) 574 at 592, WACHUKWU vs. OWUNWANNE (2011) LPELR (3466) 1 at 50-51 and ONI vs. JOHNSON (2015) LPELR (24545) 1 at 26-27.
In discharge of its duty of perception, the lower Court received the testimony of CW1, DW1 to DW3 as it relates to the land acquired by the Lagos State Government and whether it included the land claimed by the Appellants. After a proper evaluation of the evidence the lower Court held that the land was within the government acquisition (See page 225 of the Records). I am not enthused by the Appellants argument that the admission relied on by the lower Court is not clear and unequivocal. I have already reproduced the averment in paragraph 5 (f) of the Reply to Statement of Defence and Defence to Counterclaim which is backed up by the testimony in paragraph 31 of the witness statement on oath of the CW1 deposed to on 8th December, 2015.
The facts and testimony therein are undoubtedly unequivocal. The meetings for the Lagos State Government to give land back to the Appellants family could only have arisen because the land had been acquired in the first place. In the circumstances, this issue must be resolved in favour of the Respondents. The lower Court neither descended into the arena, made out a different case for the parties, nor did it deny the Appellants their right to fair hearing.
ISSUE NUMBER TWO
Whether based on the preponderance of evidence and balance of probability the lower Court arrived at the correct decision.
SUBMISSIONS OF THE APPELLANTS’ COUNSEL
The Appellants submit that they relied on traditional evidence, which is one of the five ways of proving title to land, to prove their title to the disputed land. It was stated that placing the evidence adduced on the imaginary scale of justice, the scale tilts towards the Appellants. It was argued that the Respondents attempted to found their claim on traditional evidence but abandoned that course and resorted to document of title by relying on government acquisition of land and allocation.
The lower Court, it was contended was in error when it held that the compulsory acquisition of land extinguished the title of the former owner of the land when there is no evidence that the deemed right of occupancy of the Appellants was lawfully revoked. The cases of ORIANZI vs. A-G RIVERS STATE (2017) 6 NWLR (PT. 1561) 224, GOLDMARK NIG LTD vs. IBAFON COMPANY LTD (2012) 10 NWLR (PT 1308) 291, PROVOST, LAGOS STATE COLLEGE OF EDUCATION vs. EDUN (2004) 6 NWLR (PT. 870) 476, LSDPC vs. BANIRE (1992) 5 NWLR (PT. 243) 620 and CHIEF COMMISSIONER EASTERN PROVINCES vs. ONONYE (1944) 17 NLR 142 were referred to.
It was posited that any acquisition of land has to be for public purposes but that the evidence is that part of the land acquired was allocated to the 2nd Respondent by the Government and that the acquisition was therefore not for public purpose within the meaning of the law. The cases of STODIE VENTURES LTD vs. ALAMIEYESEIGHA (2016) 4 NWLR (PT 1505) 271, ONONUJU vs. A-G ANAMBRA STATE (2009) 10 NWLR (PT. 1148) 182, OSHO vs. FOREIGN FINANCE CORPORATION (1991) 4 NWLR (PT. 184) 157 among other cases were relied upon. It was stated that the lower Court was wrong to have held that the argument on valid acquisition of land were non-issues and did not arise from the pleadings, when the Respondents had pleaded acquisition and the Appellants joined issues with them on that. It was maintained that the Respondents having pleaded acquisition of the land had the burden of proving the said acquisition strictly vide ORIANZI vs. A-G RIVERS STATE (supra) at 271 and 298 and PROVOST, LAGOS STATE COLLEGE OF EDUCATION vs. EDUN (supra) at 509.
It is the further submission of the Appellants that the 1st Respondent’s case was that the land had been acquired by Lagos State Government and so the lower Court should not have granted a declaration or injunction in favour of the 1st Respondent who had stated that the land does not belong to him. As it relates to the 2nd Respondent, it was contended that the allocation he claimed to have gotten from Lagos State Government was for 25 years from 1985 and that the same expired in 2010, such that he no longer had any subsisting interest on the basis of which he could be granted any declaration or injunction. It was opined that the Respondents therefore had no locus standi to institute the action contained in their counterclaim. The case of THOMAS vs. OLUFOSOYE (1986) 2 SC 325 at 326 was cited in support.
It was further contended that the Respondents were not specific in their claim as to the land they wanted a declaration that the Appellants had no title to but that the lower Court in its judgment used the land in Appellants? survey plan to enter judgment for the Respondents. It was maintained that the reliefs claimed by the Respondents were vague and the lower Court defined the land in issue by donating the reference to the Appellants survey plan in granting the Respondents reliefs. It was stated that a Court cannot give a party a remedy he has not asked for. The cases ofFAAN vs. GREENSTONE LTD (2009) 10 NWLR (PT. 1150) 624 at 629 and ANIEKE vs. OKOLIE (2009) 9 NWLR (PT. 1147) 633 were called in aid. It was conclusively submitted that in a land matter the identity of the piece of land must be clear, known to both parties and clearly ascertained for an order of injunction to be tied to it vide ADELEKE vs. LAWAL (2014) 3 NWLR (PT. 1393) 1 at 24 and OLADEJO vs. ADEYEMI (2000) 3 NWLR (PT. 647) [no page stated].
SUBMISSIONS OF THE RESPONDENTS’ COUNSEL
The Respondents submit that the Appellants did not prove their title to the disputed land. The case of IDUNDUN vs. OKUMAGBA (2002) 20 WRN 127 was referred to on the five ways of proving title to land and it was stated that the Appellants pleaded contradictory traditional evidence in their Statement of Claim and Reply to Statement of Defence and Defence to Counterclaim and it could not amount to proof as required by law. It was posited that traditional evidence has to be cogent and satisfactorily established for it ground a declaration of title vide NWABUOKU vs. ONWORDI (2002) FWLR (PT. 123) 337 at 356. It was maintained that the Appellants had the burden of proving ownership of the land claimed by them and that there was nothing in the case of the defence which supported the Appellants’ case. The cases of OKELOLA vs. ADELEKE (2005) 1 FWLR (PT. 253) 363 at 402 and ADAWON vs. ASOGBA (2008) 2 FWLR (PT 424) 3175 at 3199 were relied upon.
The 1st Respondent, it was stated, gave the traditional history of his title to the disputed land, and how he was divested of title by government acquisition and compensation duly paid.
The case of ARCHIBONG vs. UTIN (2012) LPELR – 1907 (CA) was called in aid. It was asserted that the Appellants in their pleadings did not challenge the acquisition of the land, but only stated that their land was not acquired and therefore they could not turn around to challenge the validity of the acquisition. The cases of ANYANWU vs. UZOWUAKA (2009) 7 MJSC (PT. 1) [no page stated], KAYODE vs. ODUTOLA (2001) 11 NWLR (PT. 725) 103 and MOTOH vs. MOTOH (2010) LPELR – 8043 (CA) were cited in support. The Respondents, it was contended proved the acquisition of the land by tendering the Gazette, Exhibit 6; the evidence from the Surveyor-General, Exhibits 7 and 8 and that it was not necessary to call the person who certified the gazette as a witness vide AGAGU vs. DAWODU (1990) 7 NWLR (PT 160) 56 at 57, OGBUNYINYA vs. OKUDO (1979) 6-9 SC 24 and OKIKI II vs. JAGUN (2000) 5 NWLR (PT. 655) 19 at 26. It was stated that Exhibits 2, 3, 4 and 5 established that the Respondents were in lawful possession of the land and the Appellants having trespassed and disturbed the said lawful possession, the Respondents were entitled to injunction and damages.
The case of YUSUF vs. KEINSE (2005) 13 NWLR (PT. 943) 554 was referred to. The 1st Respondent, it was stated, was in possession of part of the ten (10) hectares of land which the government excised from its acquisition and that the 2nd Respondent in his evidence stated that he had made payment for the land allocated to him for the year 2014 and that the allocation had not been revoked. It was consequently maintained that based on the facts averred to in the pleadings, the Respondents had the legal capacity to file a counterclaim. The cases of AKPAN vs. UMOREN (2013) 5 WRN 40 and AJAYI vs. ADEBIYI (2013) 3 WRN at 12-13 were relied upon.
The Respondents assert that the lower Court discharged its duty to pronounce on every issue properly placed before it and that it duly and properly evaluated and weighed the evidence adduced and an appellate Court will therefore not intervene. The cases of ANYANWU vs. UZOWUAKA (supra), BASSIL vs. FAJEBE (2001) 11 NWLR (PT. 725) 592 at 608 and OGUNMAKINDE vs. AKINSOLA (2002) WRN [no page stated] were relied upon. It was conclusively stated that the Respondents raised the issue or defence of acquisition in a timely manner but that the Appellants did not utilize the available opportunity to contest if there was an acquisition and they can therefore not blame the Court for the lost opportunity vide FHA vs. KALEJAIYE (2010) 10 NWLR (PT. 1226) 147 at 170.
APPELLANTS’ REPLY ON LAW
The Appellants state that the decision of the lower Court did not turn on traditional history and therefore the submissions of the Respondents on the traditional history pleaded by the Appellants went to no issue especially when they did not file a cross appeal or Respondents Notice. Pages 222-223 of the Records and the cases of NJABA LOCAL GOVT COUNCIL vs. CHIGOZIE (2010) 16 NWLR (PT. 1218) 166, OLANIYAN vs. ADENIYI (2007) 3 NWLR (PT. 1020) 1 at 15 and REICHIE vs. NBCI (2016) 8 NWLR (PT. 1514) 294 were relied upon. It was conclusively asserted that the Respondents did not have locus standi since they cannot assert the very title that they said they no longer had by virtue of the acquisition they relied upon. The case of A-G FEDERATION vs. A-G LAGOS STATE (2017) 1 SC (PT II) 88 at 94 was referred to.
RESOLUTION
I have already set out the reliefs claimed by the parties. It is hornbook law that a claimant for declaration of title to land must succeed on the strength of his case and not on the weakness of the defendant’s case, except where the defendant’s case supports the claimant’s case. See KODILINYE vs. ODU (1935) 2 WACA 336 at 337, FAGUNWA vs. ADIBI (2004) 14 NWLR (PT 903) 544 at 568, NSIRIM vs. NSIRIM (2002) 12 WRN 1 at 141, ONWUGBUFOR vs. OKOYE (1996) 1 NWLR (PT. 424) 252 and ASHIRU vs. OLUKOYA (2006) 11 NWLR (PT. 990) 1 at 19-20. So it was for the Appellants to establish the declaration of title sought over the disputed land. This is so because even though the Respondents counterclaimed, they did not seek the relief of a declaration of title to the disputed land in their favour. Therefore the heavy burden of proving title to the disputed land rested squarely on the Appellants. There was no duty on the Respondents who did not claim title to prove their title. See ADEKANBI vs. JANGBON (2007) ALL FWLR (PT. 383) 152 at 160, 163 and 165 and OWOEYE vs. OYINLOLA (2014) ALL FWLR (PT. 721) 148 at 1477. Apropos the foregoing, the relief claimed by the Respondents, inter alia, is a declaration that the Appellants have no title to the land and were not entitled to right of occupancy.
Apposing this relief to declaration of entitlement to a right of occupancy claimed by the Appellants, it is limpid that the declaration sought by the Respondents is merely akin to urging the Court to dismiss the Appellants relief for declaration of entitlement to a right of occupancy. The Respondents entitlement to the declaration they sought was therefore not dependent on their proving their title to the land, which title in any event, they did not claim; but it was dependant on the Appellants not succeeding in proving their case. If the Appellants had succeeded in proving the relief of declaration of entitlement to a right of occupancy over the disputed land, then willy-nilly, the Respondents declaration would have failed. The converse is equally correct. The Appellants having failed to establish their entitlement to the declaration sought, the Respondents, ipso facto, became entitled to the grant of the declaration that the Appellants had no title to the land, the Appellants having failed to prove their title.
The parties in their respective pleadings averred to traditional history. However, the lower Court having found that the fact of acquisition of the disputed land by the Lagos State Government was established by the evidence, the acquisition extinguished the title of any former owner of the land such that the traditional history in the diacritical circumstances become irrelevant and unnecessary in the con of the disceptation. See YUSUF vs. OYETUNDE (1998) 12 NWLR (PT. 579) 485 at 493, ARCHIBONG vs. UTIN (supra) at 20, AKIBOYE vs. ADEKO (2011) LPELR (4551) 1 at 28 and ELEMORO vs. ABIODUN (2014) LPELR (23195) 1 at 49-50. In the circumstances therefore, any contradiction or discrepancy in the traditional history pleaded by the Appellants became a moot point as the decision of the lower Court did not turn on the traditional history that was to be preferred.
The Appellants have gone to town with their submissions that there was no lawful acquisition of the disputed land by the Lagos State Government and that the parties had joined issues on the said acquisition. Let me restate that this is an action that was fought on pleadings. The parties did join issues on acquisition in their pleadings; but what were the issues that were joined? I have already set out the relevant averments of the parties on the acquisition by Lagos State Government. I will not reproduce them again. The pertinent question is when parties can be said to have joined issues. In ODOEMELAM vs. NDUKA (2012) LPELR (9825) 1 at 29, this Court (per Owoade, JCA) stated:
‘Parties are said to join issues, when they take up the opposite side of a case or when they jointly submit an issue for decision. The 8th Edition, of Black’s Law Dictionary at page 854 defines ‘joinder of issues’ (1) The submission of an issue jointly for decision.
(2) The acceptance or adoption of a disputed point as the basis of argument in a controversy. Also termed joinder in issue; simpliciter.
(3) The taking up of the opposite side of a case, or of the contrary view on a question.
See also CHIDI vs. CONSOLIDATED HALLMARK INSURANCE PLC (2018) LPELR (44384) 1 at 16-17.
Paucis verbis, an issue is the question in dispute between the parties necessary for determination by the Court. See EJOWHOMU vs. EDOK-ETER MANDILAS LTD (1986) 8 SC 41 at 102-103 and AKINTOLA vs. SOLANO (1986) LPELR (360) 1.
I have already demonstrated in the course of this judgment that the Appellants averments on acquisition of the land by the Lagos State Government did not raise the propriety or validity of the acquisition but simply the issue that the Appellants land was not part of what was acquired. See paragraph 3(c) 3(f), 4(c) and 5(d) of the Reply to Statement of Defence and Defence to Counterclaim (pages 57, 58 and 59 of the Records). Given the fact that the issue joined was on whether the Appellants land was part of what was acquired, and not whether the acquisition was lawful, the lower Court had no business considering the validity of the acquisition and it rightly did not do so. The Appellants not having made out a case on their pleadings that the acquisition was not lawful cannot be heard to contend the same. It is rudimentary law that a Court is not a knight-errant marauding all over the place in a quest for chivalric virtues. The business of the Court is to decide the issue which is the question in dispute between the parties. The lower Court eminently did this by correctly identifying that the main issue was whether the Appellants land was part of what was acquired by Lagos State Government and proceeding to determine the same. It is too late in the day for the Appellants, not having raised the propriety and validity of the acquisition in their pleadings, to contend the same. No. That is not the case they took to trial on the pleadings.
It is important to underscore that the Respondents did not claim a declaration of the title to the disputed land. Their claim for general damages for trespass was also not granted by the lower Court. The Appellants contention that the Respondents did not have locus standi is predicated on their argument that since the Respondents did not have title, which they stated was lost by the compulsory acquisition by the Lagos State Government, they could not seek a declaration of title. The Respondents did not seek a declaration of title. As already analysed, the declaration sought by the Respondents in banal effective terms was for the dismissal of the Appellants? case and for the Court to hold that the Appellants have no title to the land. The Respondents who were sued by the Appellants had the locus standi to defend the action against them and concomitantly had the legal standing, in defending the action, to seek a declaration that the Appellants were not entitled to be granted the reliefs they sought.
The Appellants have argued that the relief claimed by the Respondents was vague and that the lower Court ‘donated’ the description for the relief claimed by the Respondents by referring to the Appellants Survey Plan. Once again the Appellants were the parties that sought a declaration of entitlement to a right of occupancy over the disputed land.
They tendered their survey plan to show the area of land in respect of which they sought the declaration. At the risk of prolixity, the Respondents counterclaim was for a declaration that the Appellants were not entitled to the declaration sought in respect of the land covered by their Survey Plan. The Appellants having failed to establish their case, the concomitance was the success of the declaration sought by the Respondents which could only relate to the survey plan relied on by the Appellants as showing their land. I am unable to agree with the Appellants that the lower Court granted a relief that was not claimed. The Respondents from the clear facts of the matter were in possession of the disputed land.
It is their possession of the disputed land that necessitated the Appellants action for declaration of title, perpetual injunction and damages for destruction of economic trees on the land. The Appellants having failed in their quest in respect of the land, entitled the Respondents to the relief of perpetual injunction restraining the Appellants from coming unto the land in their possession. It is trite law that a person in possession is presumed to be entitled to the land he occupies against the whole world except the true owner thereof: OWOADE vs. OMITOLA (1988) 2 NWLR (PT. 77) 413 and OTUNLA vs. OGUNOWO (2004) 6 NWLR (PT. 868) 184 at 200. The Appellants having failed to prove that they are the true owners of the land, the Respondents were entitled to have their occupation and possession of the land protected by an order of injunction restraining the Appellants. This Respondents are entitled to this order by virtue of being in possession, in circumstances where the Appellants did not prove that they had a better right to possession.
Where a trial Court has justifiably appraised the facts, evaluated the evidence and arrived at the correct decision, an appellate Court will not interfere.
This is the position in this matter. Having considered the evidence on the cold printed records, additional records and the exhibits tendered, the decision of the lower Court was based on the preponderance of evidence and balance of probability. This issue is therefore resolved against the Appellants.
The issues for determination have been resolved in favour of the Respondents. This signposts that there is no merit in the appeal. The appeal therefore fails and it is hereby dismissed. The decision of the lower Court is affirmed. There shall be costs of N100, 000.00 in favour of the Respondents.
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.: I have had the opportunity to read in advance the lead judgment of my learned brother, UGOCHUKWU ANTHONY OGAKWU, JCA, and I am in agreement with the judgment.
The Appellant in this case is claiming for declaration of title to the land in dispute. It is settled law that a claimant must succeed on the strength of their own case and not on the weakness of the defendant’s case. See OKUNADE v OLAWALE (2014) LPELR – 22739 (CA); KANKIA v MAIGEMU & ORS [2003] 6 NWLR (PT. 817) 496.
It is also the law that whenever the question of ownership is in issue, the person in possession is presumed to be the owner until otherwise is proved. See OKORIE v UNAKALAMBA & ANOR (2013) LPELR – 22508 (CA); AMINU & ORS v HASSAN & ORS (2014) LPELR 22008 SC.
Therefore in this case, it is for the Appellant who was the claimant at the lower Court to establish that he is entitled to the right of occupancy.
Going by the records before this Court, the Appellant failed to duly establish their title to the land in dispute and the lower Court having rightly appraised the facts and the evidence before it, dismissed the claim of the Appellant.
This Court will therefore not interfere with the decision.
The issues in this appeal are therefore resolved in favour of the Respondents.
For this and the fuller reasons in the lead judgment, I too dismiss this appeal for lack of merit. I also abide by the order as to costs and all other consequential order in this appeal.
TOBI EBIOWEI, J.C.A.: I was afforded the opportunity of reading in draft the judgment just delivered by my learned brother UGOCHUKWU ANTHONY OGAKWU, J.C.A.
I agree with the reasoning and conclusion reached therein in the said judgment.
Appearances:
A.O.S. Hodonu, Esq. with him, O.S. Hodonu, Esq. and Mrs. E.O. AdewunmiFor Appellant(s)
J.D. Kiki, Esq.For Respondent(s)
