CHIEF GANIYU AGBON & ANOR v. LEKKI WORLDWIDE INVESTMENT COMPANY LIMITED
(2019)LCN/12871(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 19th day of March, 2019
CA/L/1070/2015
RATIO
COURT AND PROCEDURE: WHETHER INADEQUATE PAYMENT AFFECT JURISDICTION
“The Court below was therefore right in holding that the fees payable pursuant to Order 44 Rule 11 of the then rules of the Court below is taken as paid if the document is filed by any government department. In any event, non-payment of filing fee or inadequate payment thereof does not affect the jurisdiction of the Court and is treated as a curable irregularity if the filing fees had been assessed but unpaid before the process is filed vide Rasaki v. Ajijola (No.1) (2018) 7 NWLR (pt.1617) 13, Akpaji v. Udemba (2009) 6 NWLR (pt.1138) 545, SPDC Ltd. v. Agbara (2016) 2 NWLR (pt.1496) 353, Ogwe v. I.G.P. (2015) 7 NWLR (pt.1459) 505.” PER JOSEPH SHAGBAOR IKYEGH, J.C.A.
COURT AND PROCEDURE: WHERE A STATEMENT OF DEFENCE ID FILED OUT OF TIME
“Also, a statement of defence filed out of time without regularization and used at the hearing of the action cannot be objected to on appeal vide Savannah Bank of Nigeria Plc v. Festan (1998) 2 NWLR (pt.536) 41, Akumechiel v. B.C.C. Ltd. (1997) NWLR (pt.484) 695, Nkwocha v. MTN (2008) 11 NWLR (pt.1099) 460, British American Insurance Co. Ltd. v. Sillo (1993) 2 NWLR (pt.277) 567, U.B.A. v. Nwora (1978) 11 – 12 S.C. 1.” PER JOSEPH SHAGBAOR IKYEGH, J.C.A.
LAND LAW: TRADITIONAL CLAIM OF TITLE TO LAND
“The cases of Odi v. Osafile (1987) 2 NWLR (pt.57) 510 and Akpan and Ors. v. Odoetuk and Ors. (1993) 3 NWLR (pt.279) 94 at 101 – 102, for example, maintain that traditional history must disclose the names and/or histories of the ancestors right from the founder of the land and how he found it (source of his title) to the last person who inherited the land (genealogical tree of the land or all the names of the intervening owners from the founder for progenitor to the present person) must be pleaded and proved in evidence. See also Mogaji and Ors. v. Cadbury Nig. Ltd. (1985) 2 NWLR (pt.7) 393. In as much as there are five acceptable methods of proving title to land as laid down by the case of Idundun and Ors. v. Okumagba and Anor. (supra), a party may adopt more than one method of proving title to land and expressing it as such in the pleadings and evidence that he is relying on more than one method of proving title to land which is usually pleaded in the alternative vide Mkpinang v. Ndem (2013) 4 NWLR (pt.1344) 302.” PER JOSEPH SHAGBAOR IKYEGH, J.C.A.
JUSTICES:
JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria
UGOCHUKWU ANTHONY OGAKWU Justice of The Court of Appeal of Nigeria
TOBI EBIOWEI Justice of The Court of Appeal of Nigeria
Between
1. CHIEF GANIYU AGBON
2. CHIEF TOYIN GIWA
(For themselves and on behalf of Agbon Village) – Appellant(s)
AND
LEKKI WORLDWIDE INVESTMENT COMPANY LIMITED – Respondent(s)
JOSEPH SHAGBAOR IKYEGH, J.C.A. (Delivering the Leading Judgment):
The appeal is from the judgment of the High Court of Lagos State (the Court below) whereby it dismissed the appellants action for a declaration of customary right of occupancy over a parcel of land located at Agbon village in Ibeju-Lekki Local Government Area of Lagos State, together with the leg of claim of special damages of N3,980,000.00 being the cost of economic trees/crops of the appellants allegedly destroyed by the respondents agents and N800,000 general damages for trespass as well as a perpetual injunction restraining the respondent and its agents, servants, law enforcement personnel co-opted by it and privies from trespassing on the disputed parcel of land and from intimidating and harassing the appellants on the disputed parcel of land.
The case of the appellants on the pleadings, in sketch, was that as village heads (Baales) of Agbon they filed the action for themselves and on behalf of the indigenes and inhabitants of Agbon village in Ibeju-Lekki Local Government Area of Lagos State; that the parcel of land was founded around 1715 by one Ogundipe who migrated from Ijebu-Ode and lived and carried on farming crops – palm trees, raffia palms, coconut trees, oranges, pineapples, mangoes, cashew, papper, vegetables, plantains, kolanuts and cassava with his children; which continued since his demise; that the first Baale of the village was one Chief Garuba Agbon who was succeed by his children after his demise as the Baale namely, Chief Kafaru followed by Chief Ganiyu Agbon.
That the respondent started committing acts of trespass on the parcel of land between January, 2009 and July, 2010 through its servants and agents purporting acquisition of the land by Lagos State Government upon which the respondent entered the parcel of land with earth moving equipments and destroyed 60 palm trees valued N2,000 each, with harvesting period of four times, 45 coconut trees valued N5,000 each with four times harvesting period, 20 stands of mango tree valued 20,000 with one time harvesting period, 50 stands of orange tree valued N40,000 each with one time harvesting period and 200 stands of plantain crop valued N1,000,000 each with one time harvesting period.
The case of the appellants added that upon challenging the trespassers the respondent by itself and agents/servants caused the police to arrest and arraign four of their members at the Ibeju-Lekki Magistrate Court in Epe Magisterial District on a charge of conspiracy, conduct likely to cause a breach of the peace and forcible entry into the parcel of land; and that it was based on the pleaded facts (supra) the appellants filed the action in question claiming the reliefs (supra).
The written statement on oath of the appellants sole witness which is in pages 7 – 9 of the record of appeal (the record) repeated the facts averred in the statement of claim contained in pages 3 – 5 of the record, with the Yoruba version of the written statement on oath contained in pages 10 – 12 of the record. The appellants sole witness statement on oath was adopted by him on 16.01.11 vide page 152 of the record and some document cheque No.E/42/2010 and survey plan dated 20.08.80 were admitted in evidence as Exhibits CEA1 and CEA2, respectively.
On the other hand, the respondents case was that the land in dispute which gazette the acquisition in Gazette No.20, vol.26 of 1993, was acquired by the State Government, and allocated to the respondent by issuing a certificate of statutory right of occupancy to it, Exhibit LWIC 2, and compensation paid to the occupants of the parcel of land, Exhibit LWIC 6, the bundle of documents containing evidence of payment of compensation and resettlement of those affected was done by Lagos State Government at all material times co-participates alongside foreign investors with the respondent in the infrastructural development of the area as free trade zone of national and international standard. The respondent then commenced work on the parcel of land in 2007, which led to the present legal tussle.
The Court below heard and considered the rival versions of the parties and arrived at its judgment dismissing the action on the grounds that the appellants who relied on patrimony of traditional history as their title to the disputed land did not plead and prove the genealogy tree or story of their title to the parcel of land and that all the alleged acts of possession built on the traditional evidence crumbled and that there was no dispute on the identity of the land, therefore the appellants who had the burden to prove their case failed upon which the case was dismissed.
Unhappy with the decision of the Court below, the appellants filed a notice of appeal with eight (8) grounds of appeal contained in pages 303 – 309 of the record. The appellants brief of argument was filed on 27.11.15. The respondent neglected to file its brief of argument. The Court directed the appeal to be heard on the appellants brief alone upon the application filed by of the appellants on 22.05.17 which was moved and granted on 21.01.18.
The appellants contended in the brief that the non-payment of filing fees and default fees for the late filing of the statement of defence with the frontloaded statement on oath and the written address by the respondent, which has its distinct legal personality and can be sued and be sued in its own corporate name, rendered the said processes incompetent and the evidence led thereon went to no issue therefore the Court below wrongly held that the respondent was part of the Lagos State and represented in the litigation by the office of the Attorney-General of Lagos State and exempt from paying filing fees under Order 44 Rule 11 of the High Court of Lagos State (Civil Procedure) Rules 2012 (the rules of the Court below) when the respondent is a private company incorporated under the Companies and Allied Matters Act (CAMA), not an arm or agency of the Government Mandatorily required to pay filing fees for Court processes citing in support Sections 18, 35, 37 and 39 of CAMA, Section 318 of the Constitution of the Federal Republic of Nigeria 1999 (1999 Constitution) which should be read literally vide Bronik Motors Ltd. and Anor. v. WEMA Ltd. (1983) 6 SC 158, considered along with the cases of Dada v. Adeyeye and Anor. (2004) 28 W.R.N. 100, Okomu Oil Palm Co. Ltd. v. Isehienrhien (2001) 6 NWLR (pt.710) 686; Union Beverages Ltd. v. Pepsi Cola Int’l Ltd. (1994) 3 NWLR (pt.330) (no pagination), Eze v. Okechukwu (1998) 5 NWLR (pt.548) (no pagination), Onwugbufor v. Okoye (1996) 1 NWLR (pt.424) 292, Okolo and Anor. v. Union Bank of Nigeria (2004) 3 NWLR (pt.856) 108 -109.
The appellants contended that having established customary title to the disputed parcel of land they are deemed to have an existing customary right of occupancy over the parcel of land which could only be acquired for overriding public interest with the requisite notice of compulsory acquisition served on them and compensation paid therefor as the Governor of Lagos State only holds the land in trust for the people, the Court below should grant their claim for trespass and injunction as the certificate of occupancy issued to the respondent did not override their deemed existing customary right of occupancy citing in support Sections 1, 28, 34(1) and (2), 36(2), 39 and 44 of the Land Use Act read with the casesAtt. Gen., Lagos State v. Sowande (1992) 8 NWLR (pt.261) 589, Ibrahim v. Mohammed (2003) 6 NWLR (pt.817) 615 at 644, Dagaci of Dare v. Dagaci of Ebiwa (2002) 7 NWLR (pt.712) 398, Abioye v. Yakubu (1991) 5 NWLR (pt.190) 130, Olohunde v. Adeyoju (2000) 10 NWLR (pt.676) 588, Ogunleye v. Oni (1990) 2 NWLR (pt.135) 24, NITEL v. Ogunbiyi (1992) 7 NWLR (pt.255) 543, The Administrtors/Executors of the Estate of Gen. Sani Abacha v. Eke-Spiff (2005) 1 NWLR (pt.800) 114 at 170, Oto v. Adojo (2003) 7 NWLR (pt.820) 636, Gwar v. Adole (?) (2003) 3 NWLR (pt.808) 515 at 550, Osho v. Foreign Finance Corporation (1991) 4 NWLR (pt.184) 157, Lawson v. Ajibulu (1991) 6 NWLR (pt.195) 44, Lemboye and Ors. v. Ogunsiji and Ors. (1990) 6 NWLR (pt.155) (no pagination), Edebiri v. Daniel and Anor. (2009) 8 NWLR (pt.1142) 15 at 27 – 28 and 34.
The appellants contended that the Court below was wrong by holding that since the claim for declaration of title failed, the acts of trespass on the disputed parcel of land where the appellants proved possession would not be considered when the appellants as claimants are entitled to plead and rely on more than one method of title to land out of caution as one single root of title is enough citing in support the cases of Ayinde v. Salawu (1989) 3 NWLR (pt.109) 316, Idundun v. Okumagba (1976) 9 10 SC 227, Atunrase v. Sumola and Anor. (1985) 1 NWLR (pt.1) 105, Nkado v. Obiano (1997) 5 NWLR (pt.503) (no pagination), Onwugbufor v. Okoye (supra) at 280, Olohunde v. Adeyoju (2000) 10 NWLR (pt.676) 590, Omoteji v. Asanke (2012) W.R.N. (no pagination), Amojaine v. Eguegbu (1996) 1 NWLR (pt.424) (no pagination), Dantsoho v. Mohammed (2003) 6 NWLR (pt.817) 457, Nkoko v. Akpaka (2000) 7 NWLR (pt.664) 240.
It was also contended that as the appellants had pleaded and proved their acts of ownership and possession over the land extending over a sufficient length of time and numerous and positive enough to warrant the inference that they are the true owners of the land, as well as survey plan, Exhibit CEA1 which strengthened their case, the Court below should have decreed title to them accordingly.
Moreso, the DW2 admitted they moved to the site with certain moving equipment and saw houses on the land vide DW1s evidence citing in support Onwugbufor v. Okoye (supra) at 285; upon which the appellants urged that the appeal be allowed and the decision of the Court below set aside and Section 15 of the Court of Appeal Act be invoked to grant the reliefs sought at the Court below by the appellants against the respondent.
The statement of defence with the written statements on oath of defence witnesses and the written final address in support of the defences case were filed by the assistant chief state counsel in the office of the Attorney-General of Lagos State for the respondent as defendant at the Court below vide the signature and address column in pages 42, 43 and 195, respectively, of the record.
The respondent did not challenge the legal representation of its interest in the litigation by the office of the Attorney-General of Lagos State. The appellants would not have the standing to challenge such legal representation under the presumption that once counsel announces appearance for a client in Court, counsel is presumed to have been so instructed by the client unless counsel is disowned by the client vide Tukur v. Govt. of Gongola State (1988) 1 NWLR (pt.68) 39.
The Court below was therefore right in holding that the fees payable pursuant to Order 44 Rule 11 of the then rules of the Court below is taken as paid if the document is filed by any government department. In any event, non-payment of filing fee or inadequate payment thereof does not affect the jurisdiction of the Court and is treated as a curable irregularity if the filing fees had been assessed but unpaid before the process is filed vide Rasaki v. Ajijola (No.1) (2018) 7 NWLR (pt.1617) 13, Akpaji v. Udemba (2009) 6 NWLR (pt.1138) 545, SPDC Ltd. v. Agbara (2016) 2 NWLR (pt.1496) 353, Ogwe v. I.G.P. (2015) 7 NWLR (pt.1459) 505.
Also, a statement of defence filed out of time without regularization and used at the hearing of the action cannot be objected to on appeal vide Savannah Bank of Nigeria Plc v. Festan (1998) 2 NWLR (pt.536) 41, Akumechiel v. B.C.C. Ltd. (1997) NWLR (pt.484) 695, Nkwocha v. MTN (2008) 11 NWLR (pt.1099) 460, British American Insurance Co. Ltd. v. Sillo (1993) 2 NWLR (pt.277) 567, U.B.A. v. Nwora (1978) 11 – 12 S.C. 1.
Paragraphs 5 -10 of the statement of claim in page 3 of the record on traditional history pleaded thus
5. Agbon Village was founded by one Ogundipe who migrated from Ijebu-Ode.
6. Ogundipe founded the place called Agbon sometime around 1715 where he lived and carried on farming along with his children who were born to him on the land.
7. He and his children were cultivating oil palm trees, raffia palms, coconut trees, oranges, pineapples, mangoes, cashew, peppers, vegetable, plantains, kolanuts and cassava.
8. His descendants have been exercising maximum acts of possession and ownership over all the land since his demise.
9. The Baale of the Village was Chief Garuba Agbon after whose demise his children began to be Baales.
10. The Claimant avers that after Chief Garuba Agbon, the next Baale was Chief Kafaru who was followed by Chief Ganiyu Agbon herein.
The radical root of title pleaded in the statement of claim contained in pages 3 – 5 of the record (supra) did not therefore aver the source or type of title or how the progenitor of the appellants acquired the land, not necessarily when, as such could be from time immemorial whether by conquest or deforestation of virgin land and settlement thereon as first settler, for example. The genealogy tree was also not properly pleaded and proved to show the names of the genealogical rungs from the progenitor to the present claimants.
The proof need not necessarily be with mathematical accuracy, but it should be enough to show or disclose the names of the members of the family tree that inherited the land up to the present claimants. Both were not expressly pleaded and proved. For emphasis see paragraphs 5 – 10 of the statement of claim (supra) on genealogy contained in page 3 of the record which is lacking on how the land was found by the progenitor and the names of the descendants before the era of the Baales that took over the land vide Ukaegbu v. Nwololo (2009) 3 NWLR (pt.1127) 194 to the effect that how the land was found and by whom must be pleaded and proved first for the genealogy to have base.
The cases of Odi v. Osafile (1987) 2 NWLR (pt.57) 510 and Akpan and Ors. v. Odoetuk and Ors. (1993) 3 NWLR (pt.279) 94 at 101 – 102, for example, maintain that traditional history must disclose the names and/or histories of the ancestors right from the founder of the land and how he found it (source of his title) to the last person who inherited the land (genealogical tree of the land or all the names of the intervening owners from the founder for progenitor to the present person) must be pleaded and proved in evidence. See also Mogaji and Ors. v. Cadbury Nig. Ltd. (1985) 2 NWLR (pt.7) 393.
In as much as there are five acceptable methods of proving title to land as laid down by the case of Idundun and Ors. v. Okumagba and Anor. (supra), a party may adopt more than one method of proving title to land and expressing it as such in the pleadings and evidence that he is relying on more than one method of proving title to land which is usually pleaded in the alternative vide Mkpinang v. Ndem (2013) 4 NWLR (pt.1344) 302.
Here the statement of claim contained in pages 3 – 5 of the record indicated only one method of claim of title to land based on inheritance or traditional history upon which root of title the alleged long possession and acts of ownership plus perpetual injunction derived their sustenance from the substantive relief of a declaration of customary ownership to the land claimed in the action.
The alleged acts of ownership and long possession therefore built on the radical root of title of inheritance and would stand or fall with it as inseparable/intertwined or Siamese twins vide Fasoro v. Beyioku (1988) 2 NWLR (pt.76) 263 at 273-274 per the lead judgment prepared by Oputa, J.S.C., (now of blessed memory) thus
I am in complete and total agreement that once radical title has been pleaded and proved, acts of ownership or possession resulting from such title, need no longer be considered for they are then non issues. Conversely, where, as in this case the title pleaded had not been proved, there, also it will be unnecessary to consider acts of possession and the dictum in Ekpo v. Ita (supra) for the acts there become no longer acts of possession but acts of trespass: Da Costa v. Ikomi Supra.
(My emphasis).
See also Ezeoke v. Nwagbo (1988) 1 NWLR (pt.72) 616, Ukaegbu v. Nwololo (2009) 3 NWLR (pt.1127) 194 to the effect that the pleaded root of title must be established or acts of possession alleged to derive from it would be futile.
The contention of the appellants that the survey plan, Exhibit CEA1, strengthened their case of title to land is untenable as survey plan is not one of the ways of proving title to land. It is only useful on the issue of identity of the disputed parcel of land.
The parties did not make the identity of the land in dispute on issue in their pleadings and evidence as the land was well known to them based on the evidence in the record vide Ezeudu and Anor. v. Obiagwu (1986) 2 NWLR (pt.21) 208, Ogun v. Akinyelu (2005) All FWLR (pt.234) 601 at 622.
The case of Motunwase v. Sorungbe (1988) 4 NWLR (pt.92) 90 is to the effect that declaratory reliefs are not granted on admission but on convincing evidence tendered by the claimant(s) so any admissions made by respondents will not relieve the appellants of the onus of proving their case to the hilt.
The Court below was accordingly, right in holding in part of its judgment in page 301 of the record that the radical root of title pleaded was not proved therefore it was futile to rely on acts of possession based on the traditional history that was not established.
In the light of the failure of the appellants to establish their radical root of title to the disputed parcel of land the issues of revocation of their purported subsisting customary right of occupancy over the disputed land did not arise as they did not prove their entitlement to subsisting customary right of occupancy and the Governor of Lagos State could not have revoked what was not in existence.
It follows that the contention on the service of the notice of acquisition of the land on the appellants was not a live issue in the case as they were unable to prove their title to the land, as notice of acquisition and revocation of land is only given to holders or occupiers of the land who have so established it. Even then, Exhibits LWIC 4, evidence of service of letter of revocation; Exhibit LWIC 5, Gazette No.20 dated 15/05/93, Exhibit LCWIC 7, the certificate of occupancy date 14.02.09 tendered through 3DW and mentioned in part of the judgment of the Court below in page 295 of the record showed the appellants did not displace the respondents prima facie title to the land based on the certificate of occupancy issued to it by the Governor of Lagos State.
Had the appellants proved their case, I would have faulted the compulsory acquisition of the land on the grounds that there was no evidence that the appellants community (Agbon Community) was among the representatives in the memorandum of understanding entered between the occupiers of the land and the Lagos State Government and their infrastructural development foreign partners for the creation of the international free trade zone in part of the area in dispute; and that there was no evidence that the appellants were given certificate of title of acquisition of the land by Lagos State Government to divest them of the land as mere publication of compulsory acquisition without the issuance of the said certificate of title to the owners of the land would not divest them of their rights over to land to concretise into valid compulsory acquisition of the land in issue vide Lions Building v. Shadipe (1976) 12 SC 135 at 146 – 147, City Property Ltd. v. A.-G., Lagos State (1976) 1 All NLR (pt.1) 28 at 62 – 63, Atunrase and Ors. v. Federal Commissioner for Works and Housing (1975) 1 All NLR (pt.1) 331 at 339.
In the result, the Court below was right in dismissing the appellants case. I would dismiss the appeal for lacking in merit and uphold the judgment of the Court below (NICOL-CLAY, J.). Parties to bear their costs.
UGOCHUKWU ANTHONY OGAKWU, J.C.A.: I entirely agree with, and do not desire to add to the reasoning and conclusion in the leading judgment of my learned brother, Joseph Shagbaor Ikyegh, JCA, which I was privileged to have read in draft.
For the same reasons therein articulated, I equally dismiss the appeal and abide by the order as to costs.
TOBI EBIOWEI, J.C.A.: I have read in draft the judgment of my learned brother, JOSEPH SHAGBAOR IKYEGH, JCA just delivered. I agree and have nothing to
Appearances:
Mr. S. Iwu For Appellant(s)
Respondent was served hearing notice, but was unrepresented For Respondent(s)
