ANIMASHAUN & ORS v. DG, LAGOS STATE MINISTRY OF LANDS & ORS (2022)

ANIMASHAUN & ORS v. DG, LAGOS STATE MINISTRY OF LANDS & ORS

(2022)LCN/16221(CA)

In The Court Of Appeal

(LAGOS JUDICIAL DIVISION)

On Tuesday, April 26, 2022

CA/L/442/2002

Before Our Lordships:

Jimi Olukayode Bada Justice of the Court of Appeal

Abubakar Sadiq Umar Justice of the Court of Appeal

Abdullahi Mahmud Bayero Justice of the Court of Appeal

Between

1. ALHAJI FAUSAT ANIMASHAUN (NEE COLE) 2. MADAM SARIATU GIWA (NEE COLE) 3. CHIEF SHEHU SALAMI 4. MRS. BINTU ELEHA ALAO (NEE COLE) 5. ALHAJI LATEEF COLE 6. MR. RASAQ COLE (Substituted For The Original Appellant ALHAJI MUSHABIRU COLE Who Died On The 22nd Of January 2007 During The Pendency Of The Appeal Pursuant To The Order Of The Honourable Court Made On The 3rd Of March 2015) APPELANT(S)

And

1. THE DIRECTOR GENERAL, LAGOS STATE MINISTRY OF LANDS 2. THE SURVEYOR GENERAL OF LAGOS STATE 3. ATTORNEY GENERAL AND COMMISSIONER FOR JUSTICE, LAGOS STATE RESPONDENT(S)

RATIO

THE POSITION OF LAW ON SERVICE OF NOTICE OF PROCEEDING ON A PARTY IN AN ACTION

Section 9(1) of the Act provides that:
“Every notice under Sections 5 and 8 shall either be served personally on the persons to be served or left at their last usual place of abode or business, if any such place can after reasonable inquiry be found, and in case any such parties shall be absent from Nigeria or if such parties or their last usual place of abode or business after reasonable inquiry cannot be found, such notice shall be left with the occupier of such lands, or if there be no such occupier shall be affixed upon some conspicuous part of such lands.”
Section 9(3):
“All notice served under the provisions of this ordinance shall be published once at least in the gazette.”
Judicial decisions of this Court and the Apex Court are settled to the effect that failure to effect personal service of notice of acquisition is a gross violation of or serious departure from the set out procedure. Service personally on the Appellants is sine qua non of revocation of their interest in the land in dispute and cannot be dispensed with. It cannot be dispensed with because it is after the service in the manner laid down by reading those two sections together that the right of the Appellants is revoke. The essence of Notice of Acquisition is to make holder of such a land that is a subject of acquisition to be informed of such Acquisition. A failure to serve notice in the manner prescribed in the two sections would be tantamount to a substantial non-compliance which renders the acquisition bad. See OKEOWO V. AG OF OGUN STATE (2010) LPELR – 2442 (SC), GOLDMARK (NIG) LTD & ORS V. IBAFON CO. LTD. & ORS (2012) LPELR – 9349 (SC), PROVOST LAGOS STATE COLLEGE OF EDUCATION & ORS V DR. KOLAWOLE EDUN & ORS (2004) 6 NWLR (PT.870) 476 AT 506. PER UMAR, J.C.A.

THE EFFECT OF THE FAILURE OF THE PARTIES THE PARTIES TO APPEAL AGAINST SPECIFIC FINDINGS OF FACT NOT ACCEPTABLE TO THEM

The law is trite that effect of the failure of the parties to appeal against these specific findings of fact by a Court is that the findings of fact are taken to be acceptable to them and the findings remain binding and are conclusively established between the said parties. See ALAKIJA v. ABDULAI (1998) 6 NWLR (Pt.552) 1 at 4, NDIWE v. OKOCHA (1992) 7 NWLR (Pt.252) 129 at 139 – 140, OPARA v. DOWEL SCHLUMBERGER (2006) 7 SC. (pt.111) 56; (2006) 15 NWLR (pt.2002) 342, STANDARD ENGINEERING CO. LTD. v. NIGERIA BANK FOR COMMERCE & INDUSTRY (2006) 13 LRCN 1330 at 1346 and ORJI v. ORJI (2011) 7 NWLR (pt.1275) 113 at 135. PER UMAR, J.C.A.

THE POSITION OF LAW ON THE PRIMARY FUNCTIONS OF THE TRIAL COURT

It is trite that evaluation of evidence and ascription of probative value are the primary functions of the trial Court. An appellate Court will therefore not interfere with findings of facts made by the trial Court except for compelling reasons such as: (a) If the finding is perverse and cannot reasonably be supported having regard to the evidence or (b) If the finding is an interference from established facts so that an Appellate Court is in as vantage a position as the trial Court to draw its own conclusions or (c) If the trial Court has applied wrong principles of law or (d) When the decision of the trial Court has occasioned a miscarriage of justice. See UBN PLC V. CHIMAEZE (2006) LPELR – 11747 (CA), EFFIONG V. IKPEME & ORS (1999) LPELR – 6675 (CA) and NOMANY V. FRN (2018) LPELR – 44546 (CA). In the absence of any of the above, I find it extremely difficult not to pitch my tent of reasoning beside that of the trial Court. PER UMAR, J.C.A.

ABUBAKAR SADIQ UMAR, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Lagos State, Ikeja Judicial Division delivered by K.M.O. KEKERE – EKUN J. (as she then was) on the 6th July, 2001 wherein the learned trial judge dismissed the Appellants’ claims predicated on declaration of title to land.

BRIEF STATEMENT OF FACTS
The facts culminating into the instant appeal are quiet straightforward. It was the case of the Appellants as Plaintiffs at trial that the land in dispute originally belonged to their family, same having been bought by one Alhaji Laidi Cole (deceased) in 1900 who until his death in 1936, exercised several ownership and possessory rights on the land. That sometimes in 1960, the Government of the old Western Region of Nigeria approached their family, and with their consent, acquired a portion of their family land paying the sum of fifty pounds as compensation for the cash crops on the acquired portion of land.

Upon the creation of Lagos State in the year 1967, the interest of the Old Western Region of Nigeria acquired in the portion of the land devolved on the Lagos State Government represented by the Respondents herein.

It was the further case of the Appellants as Plaintiffs that their family continued to exercise undisturbed ownership and possessory rights over the remaining portion of their land and that sometimes in the year 1973, the Lagos State Government further acquired another portion of the said land via a Notice of acquisition tendered by one Alhaji Mudashiru Cole who testified as PW1. The said Notice of Acquisition dated 21st April, 1973 was admitted and marked as Exhibit P2. According to the Appellants, after the further acquisition of 1973 by the Lagos State Government, the family shared the rest of the land among themselves and were living thereon. The allocation sheet used in the distribution of the remaining land by the family was admitted in evidence and marked Exhibit P3.

According to the narratives of PW1, who after a careful perusal of the evidence led at trial, I consider as the Appellants’ star witness, the family engaged one Surveyor Keshinro (PW2), who prepared a survey plan wherein he divided the remaining portion of the acquired land. That after the survey of the land, the allottees applied for Certificate of Occupancy in respect of their allocations.

It was the further case of the Appellants that sometime in the year 1995, a member of the family came complaining that some people were on the land, trying to fence it. That upon enquiry, the persons on the land claimed that the land belonged to the Government. In a bid to seek judicial redress on the wrong done to them, the Appellants as Plaintiffs approached the trial Court via a Writ of Summons and Amended Statement of Claim wherein the following reliefs were sought:
1. “A Declaration that the Plaintiff’s parcel of land as described in the Survey Plan No. KESH/L/448A dated 25th January, 1979, is the bonafide property of the Cole family.
2. A Declaration that the parcel of land described herein has not in any way been acquired in accordance with the Land Use Act of 1976.
3. A perpetual Injunction restraining the Defendants, their servants, agents and/or privies from any attempt to trespass on the said parcel of land or otherwise allocating the land to the individuals and corporations and/or in any manner whatsoever.”

The case of the Respondent on the other hand as can be gleaned from their Amended Statement of Defence at pages 246 – 254 of the record of appeal is that the land in dispute is part and parcel of the land acquired by the Lagos State Government via the Notice of Acquisition in Exhibit P2. That the Notice of acquisition was widely published so that all those whose interest are affected can make adequate representations to the government for payment of compensation. The Respondents submitted that the Appellants failed and/or neglected to make their interest known to the State Government until the year 1995 when they instituted the suit at the trial Court.

The matter proceeded to trial and upon the conclusion of the judicial exercise, the learned trial judge in a considered judgment delivered on 6th July, 2001 dismissed the Appellants’ claims and further held that by reason of the fact that the acquisition of the Appellants’ family land was done as far back in the year 1973 via Exhibit P2, the Appellants’ claims were statute-barred having been instituted in the year 1995.

Naturally aggrieved by the decision of the trial Court, the Appellants invoked the appellate jurisdiction of this Court via a Further Amended Notice of Appeal dated 27th January, 2021 and filed on 29th January, 2021.

In line with the rules and practice of this Court, parties filed and exchanged their respective briefs. The Appellants’ Further Amended Brief of Argument was filed on 29th January, 2021. The Appellants’ Reply Brief was filed on 26th November, 2021. Both Briefs were settled by BISI ADE – ADEMUWAGUN ESQ. who for the determination of the instant appeal formulated four issues as follows:
1. “Whether the lower Court, in delivering its judgment, was not wrong to have found in favour of the Respondents without first considering and determining the Respondents’ root of title vis-à-vis the substance of the Appellants’ contention that the said acquisition was not in accordance with law (Distilled from Grounds 2, 3 and 4 of the Notice of Appeal).
2. Whether the lower Court was not wrong to hold in essence that the Appellants’ title in the landed property in dispute was extinguished by the purported acquisition by the Lagos State Government vide Exhibit P2 in 1973 (Distilled from Ground 1 of the Notice of Appeal).
3. Whether the findings and the final decision of the lower Court can be sustained by the evidence adduced by the parties (Distilled from Grounds 5, 6 and 8 of the Notice of Appeal).
4. Whether the lower Court was not wrong to have held that the Appellant’s claim was statute barred (Distilled from Ground 7 of the Notice of Appeal).”

On issue no.1, counsel for the Appellants submitted that the land in dispute, the remainder of the acquired land by the then Western Region in 1960, remained vested in the Appellants’ family. That the Respondents on the other hand, contended that the land in dispute was acquired vide a Notice of Acquisition in 1973 (Exhibit P2), and that by virtue of the said acquisition, the Appellants’ title was extinguished in favour of the Lagos State Government.

Counsel for the Appellants submitted that the trial Court failed to consider the validity of the Notice of Acquisition in Exhibit P2. He contended that it would not be enough for the trial Court to merely determine whether the landed property claimed by the Appellants was covered Exhibit P2, that the need to compare the root of title of the parties became sacrosanct to the justice of the case. According to the Appellants’ counsel, it would be unjust to simply determine the Appellants’ claims to title on the basis that the Appellants’ family land fell within that claimed by the Respondents without a thorough consideration and determination of the validity and propriety of the Respondents’ root of title which is Exhibit P2. The Court was referred to OGBU V. WOKOMA (2005) ALL FWLR PT. 277 PAGE 815.

Counsel submitted that having established their ownership of the land since 1926, the onus shifted to the Respondents who claimed that the Appellants’ title had been extinguished by the Notice of Acquisition. That the Respondents made no attempt whatsoever to prove their root of title, and by extension failed to prove that the Appellants’ title was indeed extinguished. It was the submission of counsel that unlike the Appellants who adduced documentary evidence in proof of their title, the best evidential effort by the Respondents came when DW1 testified that the Lagos State Government issued a gazette on the acquired land which was never tendered.

It was the submission of counsel that the Appellants challenged the validity of the Notice of Acquisition on the grounds that same was not served on them, and that compensation was not paid. That this challenge ought to have put the trial Court on alert and caused it to embark on a more thorough inquiry into the propriety of the Notice of acquisition before making a final decision.

On issue no. 2, counsel for the Appellants submitted that the trial Court in its judgment at page 307 of the Record of Appeal held as follows:
“After a careful consideration of all the facts before me, I hold that the Plaintiff has failed to satisfy the Court, on a preponderance of evidence, that the land described in survey plan no. KESH/L/448A is outside the land acquired by the Lagos State Government vide Notice of Acquisition dated 21st April, 1973.”

Flowing from the above excerpt of the decision of the trial Court, the Appellants’ counsel further submitted that it was on the basis of the above finding that the trial Court refused the Appellants’ principal claim before it. That the above finding of the trial Court presupposes the establishment of certain facts, principal of which is that a certain portion of land was acquired by the Lagos State Government vide Exhibit P2. According to the learned counsel representing the Appellants, nowhere in the judgment of the trial Court was a finding of this germane and crucial fact that any portion of land was acquired by the Lagos State Government.

Counsel submitted that the law is that the facts in dispute before a Court are discovered from the pleadings of the parties. Counsel referred to paragraphs 12, 13 and 24 of the Amended Statement of Claim at pages 171, 172 and 174 of the Record of Appeal and submitted that the said paragraphs challenged the acquisition of the landed property in dispute.

He further referred the Court to paragraphs 4 – 7 and 9 – 12 of the Amended Statement of Defence at pages 252 – 253 of the Record of Appeal and also paragraphs 5, 7 and 8 of the Reply to the Amended Statement of Defence at page 263 of the Record of Appeal and submitted that it is beyond doubt that the 1973 acquisition was in dispute and parties joined issues thereon. That the Appellants challenged the said 1973 acquisition on two fronts, the first being the non-service of the Notice of Acquisition and the second being the non-payment of compensation. That the Respondents did not challenge the non-payment of compensation, but only raised a defence to the effect that the Appellants did not indicate their interest in the land for the purpose of the payment of compensation.

Counsel submitted that the trial Court labored under an erroneous belief that the acquisition carried out in 1973 was not in dispute hence its failure to consider or evaluate the evidence adduced by the parties in a bid to determine the dispute. Counsel further submitted that this Court will be on a proper wicket to consider the evidence adduced before the trial Court for the purpose of determining the disputed fact of the 1973 acquisition. Reliance was placed on OGUNLEYE V. ONI (1990) 2 NWLR (PT. 135) 745, EJABULOR V. OSHA (1990) 5 NWLR (PT421) 515, ALHAJI RAUFU GBADAMOSI V. OLAITAN DAIRO (2007) 2 SCM 48, (2007) 3 NWLR (PT 1021) 282.

On the issue of service of the Notice of Acquisition, counsel submitted that it is clear from the pleadings of the parties that the Respondents did not controvert the Appellants’ pleadings to the effect that there was no service of the Acquisition Notice. That service of the Notice of Acquisition is distinct from publication of the Notice and do not substitute or relate to each other. Counsel submitted that by virtue of the provisions of the Public Lands Acquisition Act, 167 Laws of Nigeria and Lagos 1958, the acquiring authority, in this case the Lagos State Government, was obligated to first serve the Acquisition Notice on the land owner, then publish the Notice in a gazette. Reliance was placed on the cases of ATTORNEY-GENERAL OF BENDEL STATE V. AIDEYAN (1989) 4 NWLR (PART 118) 646, (1989) ANLR PAGE 663 (AT ANLR PAGE 683 – 684, GOLDMARK NIGERIA LTD. & 3 ORS V. IBAFON COMPANY LTD. & 4 ORS (2012) 3 SC (PART III) 72.

Counsel therefore submitted that the Respondents’ averment that the Notice was “widely published” does not serve as a contradiction or denial of the Appellants’ averment that they were not served with the Notice of Acquisition. Counsel submitted further that the failure of the Respondents to serve the Acquisition Notice on the Appellants vitiates the purported acquisition and consequently, the Appellants’ rights in the land in dispute was not extinguished as erroneously held by the trial Court.

On issue no.3, counsel for the Appellants submitted that the trial Court made several other errors in its evaluation of facts which culminated in a miscarriage of justice. Such alleged erroneous findings are that the Appellants had proper notice of the acquisition and that the Appellants failed to show any connection between the land shown in Exhibit P5 and the land in dispute. Exhibit P5 is the Certified True Copy of the Certificate of Occupancy issued in favour of PW3, a successor-in-title of the Appellants’ family. Counsel submitted that from the testimony of PW3, it could reasonably be inferred that Exhibit P5 was a Certificate of Occupancy issued to him in respect of a portion of the land in dispute which he purchased from the Appellants. That the Appellants had tendered Exhibit P5 to demonstrate to the trial Court that the Lagos State Government had, years after the purported 1973 acquisition, issued Certificates of Occupancy to various persons in respect of portions of the landed property over which the Respondents claimed a prior acquisition.

Finally, on issue no.4, counsel submitted that the Appellants’ suit cannot be statute barred by a null acquisition, and in the absence of a finding on the propriety of the 1973 acquisition. On the whole, counsel urged this Court to allow the appeal and to set aside the decision of the trial Court.

W.A. DAUDA ESQ. settled the Respondents’ brief of argument filed on 18th October, 2021. For the determination of the instant appeal, the Respondents’ counsel also formulated four issues as follows:
1. “Whether the trial Court was right when it held that the fact of both acquisition (1960 and 1973) was never in dispute and Appellants’ title was extinguished by both the 1960 and 1973 Notice of Acquisition served and admitted by the Plaintiffs now Appellants vide Exhibit P2. (Formulated from ground 1 of the Notice of Appeal).
2. Whether the trial Court was right to have found in favour of the Respondents without first considered and determined the Appellants’ root of title vis-a-vis the substance of the Appellants contention that the said acquisition was not in accordance with law. (Formulated from grounds 2, 3 and 4 of the Notice of Appeal)
3. Whether the trial Court was right when it held that the Appellants’ claim was statute barred. (Formulated from ground 7 of the Notice of Appeal)
4. Whether, having regard to the evidence adduced by the parties, the trial Court findings and final decision was in order and can be sustained. (Formulated from grounds 5, 6 and 8 of the Notice of Appeal)”

On issue no. 1, counsel for the Respondents submitted that the trial Court rightly came to the conclusion that the fact of both acquisitions of 1960 and 1973 were never in dispute. That the Appellants at paragraphs 13 and 20 of their Amended Statement of Claim confirmed the service of the Acquisition Notice and while giving evidence to support their pleading tendered Exhibit P2 which is the Notice of Acquisition served on them. The Court was referred to the evidence of PW1 at pages 181 – 182 of the record of appeal. That the Appellants having admitted in their evidence before the Court below that the Notice of Acquisition (Exhibit P2) was the document pasted on their land, then the Respondents fulfilled the requirement stipulated by Section 9(1) of the Public Lands Acquisition Act.

Counsel submitted that it is trite law that the burden of proof lies on who assert. He submitted further that PW1 having admitted the service of the Acquisition Notice by pasting in his evidence before the Court, cannot turn around to deny same. Reliance was placed on UBA PIC & ANOR. V JARGABA (2007) 11 NWLR PT. 1045, A. G. RIVERS STATE V UDE (2006) 6-7 S. C. PG. 131.

Counsel argued that the law is settled that in an action for declaration of title to land, the Plaintiff must rely on the strength of his case and not on the weakness of the defence. Counsel submitted that the contention of the Appellants at trial was that the land acquired by the Lagos State Government does not include their land which is swampy but that they were unable to prove by their evidence adduced in respect of the said swampy land.

On issue no.2, counsel submitted that having established the truth that the Notice of Acquisition was validly served on the Appellants as admitted by PW1, the Appellants were under a misconceived assumption of ownership.

The Respondents’ counsel submitted that the Court below thoroughly considered and determined the validity and propriety of the Appellants’ root of title in relation to the 1973 Acquisition. He submitted further that the Appellants were acting under a mistaken belief that the Lagos State acquisition of 1973 did not cover the swampy area in which they are claiming, but did not produce sufficient evidence to justify their claim. That PW2, the Surveyor called by the Appellants testified to the extent that Government coordinates were seen on the swampy land which the Appellants erroneously attributed as their land on the premise that the Acquisition of 1973 did not extend to same.

On whether the Appellants’ suit was statute barred, counsel for the Respondents submitted that the Appellants’ cause of action arose in 1973 when they had notice of the acquisition of their land and the present suit which was filed in 1995 was statute barred under Section 16(2) of the Limitation Law of Lagos State, 1994.

On issue no. 4, counsel submitted that the learned trial Judge properly assessed, considered and in fact gave appropriate legal effect to the evidence and exhibits relied upon by the Appellants in coming to its decision. Counsel submitted that the evaluation of facts and attachment of probative value is the duty of a trial Court and that where a trial Court has unquestionably evaluated the evidence before it, it is not for the Appeal Court to re-evaluate same and come to its own decision. Reliance was placed on A.M. AKINLOYE V. BELLO EYIYOLA (1986) NMLR, 902 AT 95, VICTOR WOLUCHEM & ORS V. CHIEF SIMEON GUDI & ORS (1981) 5SC 319 AT 326-330. In the final analysis, counsel submitted that it is trite that there is a presumption that the judgment of the trial Court is correct, that the burden is always on the Appellant to show that the judgment appealed is erroneous. Counsel cited the cases of KANU EKPEZU V. KALU NDEN (1991) 6 NWLR 229, KISIO EDU & ORS. V. DOMPREH & ORS (1935)2 WACA 286. On the whole, counsel urged this Court to dismiss the appeal and to affirm the decision of the trial Court.

Having carefully examined the 10 pages Reply Brief filed by the Appellants, it is my view that the said brief is merely a rehash of the submissions and arguments contained therein in the Appellants’ brief of argument. The essence of a reply brief is not to reopen argument already canvassed. It is to reply to new issues that have arisen in the Respondent’s brief of argument. See KOMOLAFE V. FRN (2018) LPELR – 44496 (SC).

Consequently, I find it inexpedient to reproduce the contents of the said reply brief because the posture of the Appellants in this appeal has been captured and well-articulated in the Appellants’ brief of argument extensively considered in the preceding paragraphs of this judgment.

RESOLUTION
I have given due consideration to the issues raised in this appeal vis-à-vis the arguments and submissions of counsel in support thereof. I am therefore of the view that the stark issues that call for resolution in this appeal are:
1. Whether the Appellants were duly served with the notice of acquisition tendered as Exhibit P2 at trial in due observance with the provision of Section 9 of the Public Lands Acquisition Act, 1958?
2. Whether flowing from the facts and circumstances of this case, the Appellants’ suit was statute barred under Section 16(2) of the Limitation Law of Lagos State, 1994?

3. Whether from the totality of the evidence adduced at trial, the trial Court was right to have dismissed the Appellants’ claims for declaration of title to land?

The three issues formulated by this Court for the determination of this appeal shall be considered as a single unit.
Whether the Appellants were served with the notice of acquisition.

The essence of pleadings as noted by my Lord, Katsina – Alu JSC in AKINTERINWA & ANOR V. OLADUNJOYE (2000) LPELR – 358 (SC), is to compel the parties to define accurately and precisely the issues upon which the case between them is to be fought, to avoid element of surprise by either party and to also guide the parties not to give evidence outside the facts pleaded as evidence on a fact not pleaded goes to no issue See also ONWUKA V. OMOGUI (1992) 3 NWLR (PT.230) 393, EMEGOKWUE V. OKADIGBO (1973) 4 SC 113.

To determine whether the Appellants were served with the Notice of Acquisition in Exhibit P2, of particular relevance are paragraphs 12, 13 and 24 of the Amended Statement of Claim at pages 171, 172 and 174 of the Record of Appeal wherein the Appellants averred that:
“12. The plaintiff further avers that the Western Region Government then acquired the required area of the land and paid compensation of about £50 (Fifty Pounds) to the Cole family for the cash crops found on the parcel of land.
13. The acquired area was later transferred to the Lagos State Government on the creation of the State in 1973. That the acquired land was demarcated on the “The Notice of Acquisition of Land” as beacons Nos. GC7882, GC7287, PBC 378 and PBC 3741. The remaining portion of land left with the Cole family is also described by beacons Nos. GC7283, GC7248, GC7287, GC7262. The existing fence constructed by the Government Trade Centre, still stands as a demarcation between the acquired land and the swampy area of land left for the Cole family. The said acquisition notice with the above beacon numbers shall be relied upon at the trial of the suit.
24. The plaintiff avers that the Cole family was never issued with any notice to acquire the swampy portion of the land being settled upon by the Cole family for any public use nor has the Government paid any compensation to the family. That the attempt to allocate the family land to the individuals and corporate bodies is not legal.”

In specific response to the above averments, the Respondents stated in their Amended Statement of Defence at pages 252 – 253 of the Record of Appeal as follows:
“4. The Defendants aver that the parcel of land in dispute falls directly under the Lagos State Acquisition published vide the Lagos State Notice No. 76 dated 21st day of April, 1973.
5. The Defendants state that the 1973 Acquisition by the Lagos State Government is statutory extension of the existing Western Region Acquisition of 1959 covering all that parcel of land North of the Government Trade Centre situated in that area.
6. In further clarification of paragraphs 11 – 13 of the statement of claim, the Defendants state that whereas the said Western Region Acquisition of 1959 covered the specific area used for building the Trade Centre, the land in dispute falls under the northern extension of the Trade Centre.
7. The Defendants state further to the above paragraph that not only was the area of land under the 1959 Acquisition transferred to the Lagos State Government upon its creation in 1967, the Lagos State Government again on its own acquired the subject land in 1973 as an extension to the north of the existing acquisition in the area.
9. The Defendants state that the notice of the 1973 Acquisition was widely published so that all those whose interest are affected can make adequate representation to the government for payment of compensation.
10. The Defendants further state that the Plaintiff herein failed and/or neglected to make his interest known to the State Government until the year 1995 he instituted this action in Court.
11. The Defendants aver that the acquisition of the subject land in 1973, all existing customary title right in the res had since extinguished with propriety interest therein now transferred to the Lagos State Government.”

Furthermore, the Appellants pleaded in their reply to the Amended Statement of Defence, especially paragraphs 5, 7 and 8 at page 263 of the Record of Appeal thus:
“5. In reply to paragraphs 3, 4, 5 and 6 of the Defendants’ Statement of Defence, the Plaintiff avers that the parcel of land in dispute is specifically demarcated in the Plaintiff’s survey plan exhibited in this suit and marked with the following beacon numbers GC 7283, GC 7248, GC 7287 and GC 7262. That the disputed land is NOT an extension to the Trade Centre along Agege/Ipaja Road, Agege.
7. With regards to paragraphs 7 and 8 and 9 of the Defendant’s Statement of Defence, the Plaintiff aver that the Lagos State Government acquired only the parcel of land then acquired by the then Western Region Government and that was to with the Notice and consent of Laidi Cole family.
8. In reply to paragraph 10 of the Amended Statement of Defence, the Plaintiff avers that the unacquired swampy land was filled with laterite and the family started farming and building on it undisturbed until in 1995, when the Defendants started selling and allocating some parts of the family land to the individuals.”

In my considered view, issues were joined by the parties as regards the 1973 acquisition by the Lagos State Government. The Appellants’ counsel on one limb submitted that the Appellants were not served with the Notice of Acquisition admitted in evidence as Exhibit P2. On the other limb, the Appellants’ submitted that the said Notice of Acquisition was void because it was in contravention with Section 9 of the Public Lands Acquisition Act.

Exhibit P2 and the service of same is pivotal to the determination of the germane issues raised in the instant appeal. I am of the view that the questions to be further considered are:
1. Was there any acquisition in 1973 by the Lagos State Government and if there was, was a notice of acquisition served on the Appellants as required by the provision of Section 9 of the Public Lands Acquisition Act?
2. What was the extent of the land acquired by the Lagos State Government in the year 1973? Does it include the land in dispute between the parties?

The answers to the above questions can be found in the evidence led by the parties at trial. I shall in the subsequent paragraphs take the pain to reproduce the said evidence vis-à-vis the trial Court’s evaluation of the said evidence in the judgment under this appellate scrutiny.

The evidence of PW1, one Alhaji Mudashiru Cole is pivotal to the Appellants’ case, bearing in mind that considering the declaratory nature of the reliefs sought in their Amended Statement of Claim, the Appellants are required to succeed on the strength of their case and not on the weaknesses of the defence. In addition, the said reliefs by law are not granted notwithstanding of the Respondent’s admission. The fact that a defendant fails to defend a claim for declaratory relief does not absolve the Plaintiff of the burden to establish his entitlement to the relief he is seeking by placing or adducing cogent and credible evidence before the Court. See KWAJAFFA & ORS V. B. O. N. LTD (2004) 13 NWLR (PT. 889) 146 AT 172 (D-E), MAJA V. SAMOURIS (2002) 7 NWLR (PT. 765) 78, CHUKWUMAH V. S. P. D. C. (NIG.) LTD. (1993) 4 NWLR (PT. 289) 512, (1993) LPELR – 864 (SC), AKANINWO & ORS. V. NSIRIM & ORS. (2008) LPELR – 321 (SC), (2008) 9 NWLR (PT. 1093) 439 AT 464 (A-H).

In his examination-in-chief at pages 178 – 179 of the record of appeal, PW1 stated as follows:
“In 1960, the Government of Western Region informed us that they wanted to use part of the land. Our family held a meeting to discuss the matter. We gave the Government part of the land because the purpose for which they need the land could also be beneficial to us. It was to be used to build a school. We were paid £50 as crops on the land.
After we were paid….we used the money to…….part of the land……
After the Government of Western Region had acquired the land in 1973 we saw a notice that the Lagos State Government wanted to acquire the land. This is the Acquisition Notice.”
Under cross-examination at pages 181 – 182 of the record of appeal, PW1 said that:
“The Government acquired part of my land in 1960. It was not 1959. It was 1960. It is correct that I testified that my family was paid £50 for the land acquired. It is only the surveyor who can say the size of the land.
I see Exhibit P2 shown to me. It is the document pasted on our land informing me that our land has been acquired…….
The remaining part of the land after acquisition is in my possession. The one acquired is more than the land left for us. The land left for us is a swampy area.”

Flowing from the evidence of PW1 reproduced above, it is evident that there were two acquisitions in this appeal. The first was done in 1960 by the Government of the old Western Region of Nigeria and this acquisition by the Appellants’ own admission was done with their consent, having received the sum of 50 pounds as compensation for the cash crops on the acquired portion of the land. The second acquisition was that done in 1973 by Notice of Acquisition No. 76 dated 21st day of April, 1973. From the evidence of PW1, the following facts are clear:
1. There was an acquisition by mutual agreement in 1960 and the issue of whether a notice of acquisition was issued or served is not in contention.
2. The only acquisition where a notice was issued was that of 1973.
3. The Appellants admitted seeing the notice of acquisition of 1973 pasted on the land in dispute which is the swampy area purportedly left for them by the Lagos State Government after the 1973 acquisition.

From the established facts above, I find it expedient to state that the Appellants had knowledge of the existence of the notice of acquisition. Whether there was compliance with the provision of Section 9 of the Public Lands Acquisition Act. Next is to decide is whether the notice of acquisition was in compliance with the provision of section 9 of the Public Lands Acquisition Act.
Section 9(1) of the Act provides that:
“Every notice under Sections 5 and 8 shall either be served personally on the persons to be served or left at their last usual place of abode or business, if any such place can after reasonable inquiry be found, and in case any such parties shall be absent from Nigeria or if such parties or their last usual place of abode or business after reasonable inquiry cannot be found, such notice shall be left with the occupier of such lands, or if there be no such occupier shall be affixed upon some conspicuous part of such lands.”
Section 9(3):
“All notice served under the provisions of this ordinance shall be published once at least in the gazette.”
Judicial decisions of this Court and the Apex Court are settled to the effect that failure to effect personal service of notice of acquisition is a gross violation of or serious departure from the set out procedure. Service personally on the Appellants is sine qua non of revocation of their interest in the land in dispute and cannot be dispensed with. It cannot be dispensed with because it is after the service in the manner laid down by reading those two sections together that the right of the Appellants is revoke. The essence of Notice of Acquisition is to make holder of such a land that is a subject of acquisition to be informed of such Acquisition. A failure to serve notice in the manner prescribed in the two sections would be tantamount to a substantial non-compliance which renders the acquisition bad. See OKEOWO V. AG OF OGUN STATE (2010) LPELR – 2442 (SC), GOLDMARK (NIG) LTD & ORS V. IBAFON CO. LTD. & ORS (2012) LPELR – 9349 (SC), PROVOST LAGOS STATE COLLEGE OF EDUCATION & ORS V DR. KOLAWOLE EDUN & ORS (2004) 6 NWLR (PT.870) 476 AT 506.

The oblique proposition by the Respondents in paragraph 9 of the Amended Statement of Defence that the notice was widely published so that all those whose interest are affected can make adequate representation for compensation does not avail them nor hold water.

However, the circumstances of this case takes it outside the province of Section 9 of the Public Lands Acquisition Act.

I am of the view that in the circumstances of this case, assuming the Appellants were not so personally served with a Notice of Acquisition as required by law; they are estopped from denying the knowledge of the acquisition in the light of PW1’s testimony. If at all the Appellants pleaded in paragraph 24 of their Amended Statement of Claim that they were not served with any notice of acquisition, the evidence of PW1 who also went as far as tendering the said Acquisition Notice in evidence (Exhibit P2) is contrary to the Appellants’ pleadings. Stating that the said notice was pasted on the land to be acquired is an admission against interest. In law admission against interest by one party is perhaps one of the best form of evidence in favour of the adversary. See the cases of MOHAMMED V. APC & ORS (2019) LPELR – 48061 (CA), ALAO V. KURE & ANOR (2000) LPELR – 10467 (CA) AND AKINTOLA V. BALOGUN & ORS (1999) LPELR – 5485 (CA).

I therefore hold that on the showing of the Appellants themselves, they had knowledge of the acquisition even though a written Notice may not have been served on them personally but pasted on the land in dispute.

What was the extent of the land acquired by the Lagos State Government in Exhibit P2? Does it include the land in dispute between the parties?

The thrust of the Appellants’ claim therefore is whether the subsequent acquisition done by the Lagos State Government in 1973 covers the swampy area sand filled and shared amongst the Appellants’ family members. This takes us to the extent of the land acquired by virtue of the Notice of Acquisition No. 76 dated 21st day of April, 1973. To show that this germane issue was not out of the trial Court’ sight, the trial Court at pages 304 – 305 of the record of appeal held as follows:
“However, as stated earlier the issue in controversy between the parties is whether the Government acquisition of the Plaintiff family land in 1973 extended to and includes the land shown in Exhibit P4.
The Plaintiff contends that the Governor of Western Region of Nigeria first acquired a portion of their land in 1960 to build Trade Centre. Although it is contended on behalf of the Plaintiff that the Defendants failed to tender documentary evidence to show when the land was acquired, the fact of both acquisition (1960 and 1973) was never in dispute.
It is the evidence of PW1 that the land acquired by the Western Region was transferred to Lagos State when it was created in 1973 and that the land acquired by the Western Region in 1960 is the same as the land re-acquired by the Lagos State Government in 1973.
It is the contention of the Plaintiff that after the re-acquisition of the land by Lagos State in 1973 vide Exhibit P2, the family filled the remaining portion and stated (sic) same out among themselves. It is the remaining portion that the Plaintiff contends as shown in Exhibit P4.
It is the contention of the Defendant that the land referred to in Exhibit P2 includes the land shown in Exhibit P4 and they rely on Exhibit D1 (the composite plan) in support of their stand.” (Underlining mine for emphasis).

The above findings of the trial Court is the correct reflection of the fundamental issue in this appeal. To be entitled to the reliefs sought, the Appellants are duty bound to show that the land in dispute which is the swampy area as shown in Exhibit P4 does not fall within the large area of land acquired by the Lagos State Government via Exhibit P2 in 1973. To show the exact measurement of the land in dispute, the Appellant called one Alhaji Yekini Keshinro, a licensed surveyor who testified as PW2 and tendered Exhibit P4 (Survey Plan No. KESH/L/448A dated 25/1/79).

In his testimony under cross-examination at page 183 of the record of appeal, PW2 stated that:
“The area is marked red on the Plan. It is undeveloped and a bit swampy. The area edged red is Exhibit P4 is the land belonging to my client. It has beacon numbers at the corner. The beacon Nos. are PBC 3738, GC 7282, GC 7286 then PBC 3741, PBC 3740, PBC 3789 and back to PBC 3738. The pillars form the entire boundary of my client’s land.
The PCB beacons mentioned belong to the Government. The GC beacon numbers were issued to me by Government. All licenced Surveyors have the right to apply for beacon numbers for use in surveys carried out by them. The area verged red on Exhibit P4 belongs to the Cole Family. I don’t know whether the area below and above the area edged red belong to the State Government.”

In the evaluation of the evidence adduced by PW2 and the Respondents, the trial Court at page 305 of the record of appeal held as follows:
“My first observation in relation to Exhibits P2 and P4 tendered by the Plaintiff is that in order to prove that only a portion of the Plaintiffs’ family land was acquired by the Lagos State Government. The Plaintiff ought to have established the full extent of the land purchased by his father and relate it to the subsequent acquisition of 1960 (by the Western Region) and 1973 (by Lagos State Government). This is because of the Plaintiff’s contention that after the acquisition the family sand filled the remaining portion and that it is the remainder that is the subject of this suit.
It was argued on behalf of the Defendants that the Plaintiff has failed to establish a nexus between Exhibit P1 and P4 and has therefore failed to establish the identity of land in dispute with clarity.
It has been noted that there is a diagram contained in Exhibit P1 described therein as a plain of the land purchased by the father of the Plaintiff in 1926. Also noted earlier is the fact that there is nothing on the diagram to show that it was drawn by a licensed surveyor. The plaintiff failed to relate this plan to Exhibit P4 to show which portion thereof now constitutes the land in dispute. In this regard, the plan contained in Exhibit P1 is of no evidential value.”

The trial Court held further at page 306 of the record of appeal that:
“The substance of the evidence of PW2 is that he merely surveyed the land shown to him by the Plaintiff in 1979. The survey plan which he prepared Exhibit P4 shows that there were PBC government beacons on the land when he carried out his survey.
I have considered the cordiance (sic) stated on Exhibit P2 which describe the boundary of the land sought to be acquired by the Lagos State Government and those on Exhibit P4. All the Government beacons numbers stated in Exhibit P2 are also shown on Exhibit P4. Furthermore, the beacons referred to on Exhibit P2 are also shown on Exhibit P4 show the direction of the acquisition from the PBC Pillars. I have considered the composite Plan Exhibit D1 tendered by the Defendants herein. I am satisfied from the coordinates contained therein that the area verged red thereon is the land acquired by the Lagos State Government vide Exhibit P2 and the portion of land now claimed by the Plaintiffs as shown in Exhibit P4 falls within the said acquisition.” (Underlining mine for emphasis).

Regrettably, the Appellants in their eight grounds of appeal as contained in their Further Amended Notice of Appeal filed on 29th January, 2021 failed to appeal against the above underlined specific findings of the trial Court. I have thoroughly examined the grounds of appeal vis-à-vis their particulars, and I find it safe to hold that the Appellants failed to challenge the decision of the trial Court to the effect that the coordinates contained in Exhibit D1 (the composite plan) tendered by the Respondents in the area verged red is the land acquired by the Lagos State Government vide Exhibit P2 and that the portion of land now claimed by the Appellants as shown in Exhibit P4 falls within the said acquisition. The law is trite that effect of the failure of the parties to appeal against these specific findings of fact by a Court is that the findings of fact are taken to be acceptable to them and the findings remain binding and are conclusively established between the said parties. See ALAKIJA v. ABDULAI (1998) 6 NWLR (Pt.552) 1 at 4, NDIWE v. OKOCHA (1992) 7 NWLR (Pt.252) 129 at 139 – 140, OPARA v. DOWEL SCHLUMBERGER (2006) 7 SC. (pt.111) 56; (2006) 15 NWLR (pt.2002) 342, STANDARD ENGINEERING CO. LTD. v. NIGERIA BANK FOR COMMERCE & INDUSTRY (2006) 13 LRCN 1330 at 1346 and ORJI v. ORJI (2011) 7 NWLR (pt.1275) 113 at 135.

From the unassailable and unimpeachable evaluation of the evidence led by the parties at trial, it is safe to conclude that the trial Court was right to have refused the Appellants’ claims for declaration of title to land. Ranging from their inability to ascertain the exact measurement of the land in dispute to the fact that the swampy portion of land attributed to themselves forms an integral part of the area of land acquired by virtue of the acquisition of 1973, the Appellants failed woeful to establish their entitlement to the reliefs sought in their Amended Statement of Claim.

It is without hesitation that I hold that the trial Court was right when it held that the Appellants’ title to the land in dispute was extinguished by Exhibit P2. It is trite that evaluation of evidence and ascription of probative value are the primary functions of the trial Court. An appellate Court will therefore not interfere with findings of facts made by the trial Court except for compelling reasons such as: (a) If the finding is perverse and cannot reasonably be supported having regard to the evidence or (b) If the finding is an interference from established facts so that an Appellate Court is in as vantage a position as the trial Court to draw its own conclusions or (c) If the trial Court has applied wrong principles of law or (d) When the decision of the trial Court has occasioned a miscarriage of justice. See UBN PLC V. CHIMAEZE (2006) LPELR – 11747 (CA), EFFIONG V. IKPEME & ORS (1999) LPELR – 6675 (CA) and NOMANY V. FRN (2018) LPELR – 44546 (CA). In the absence of any of the above, I find it extremely difficult not to pitch my tent of reasoning beside that of the trial Court.

The Appellants’ counsel, in a bid to strengthen the Appellants’ position, made noise on Exhibit P5 which is the Certified True Copy of the Certificate of Occupancy issued in favour of PW3, a successor-in-title of the Appellants’ family. According to him, Exhibit P5 demonstrates that the Lagos State Government had, years after the 1973 acquisition, issued Certificates of Occupancy to various persons in respect of portions of the landed property in dispute.

My Lords, I do not intend to labour myself on this issue, however few comments will be appreciated. There is an army of cases of this Court and the Supreme Court wherein a Certificate of Occupancy had been declared void. A Certificate of Occupancy, though prima facie evidence of title to land, can be successfully challenged and nullified. It was held by the Supreme Court in ILONA V IDAKWO (2003) 11 NWLR (PT.830) PAGE 53 AT PAGE 84 PARAS E-G per Edozie JSC, that a Certificate of Occupancy is prima facie evidence of title but will give way to a better title. As also held in OLOHUNDE V ADEYOJU (2000) 10 NWLR (PT. 676) PAGE 562 AT Page 587 Paras C-D per Iguh JSC, a Certificate of Occupancy is not conclusive evidence of a right or valid title to the land. It is at best only prima facie evidence of such right and in appropriate cases such as the instant appeal, may be effectively challenged and rendered invalid and null and void.

Having held that PW3’s predecessors-in-title i.e. the Appellants herein failed woefully to establish their claims to the land in dispute, the evidence of PW3 and whatever probative value that may be attached to Exhibit P5 is bound to crumble. The mere fact that PW3 was issued a Certificate of Occupancy does not whittle down the established fact that the land in dispute had been validly acquired by the Lagos State Government in 1973.

Be that as it may, I am inclined to completely shut the hopes of the Appellants by agreeing with the trial Court that the suit was statute barred under Section 16 of the Lagos State Limitation Law which provides that an action predicated on recovery of land must be instituted within 12 years from the date the right of action occurred.

Having admitted that the Notice of Acquisition was pasted on the land in dispute, and having tendered same in evidence as Exhibit P2, the cause of action arose in the year 1973 when the acquisition took place and the notice pasted on the land in dispute. Consequently, the Appellants’ suit commenced in the year 1995, 22 years after the acquisition and notice of same, was caught, extinguished and rendered impotent by Section 16(2) of the Limitation Law. Furthermore, the claims of the Appellants (the grantors of the land in dispute to PW3) having been extinguished by limitation law, it suffices to state that anyone claiming through them would suffer the same pitiable calamity.

In the final analysis, I find no iota of merit in this appeal. Same is hereby unreservedly dismissed. The decision of the Lagos State High Court, Ikeja Judicial Division delivered by K.M.O. KEKERE – EKUN J. (as she then was) on the 6th July, 2001 wherein the learned trial judge dismissed the Appellants’ claims predicated on declaration of title to land is hereby affirmed. Parties are to bear their respective costs.

JIMI OLUKAYODE BADA, J.C.A.: I read before now the lead judgment of my learned brother, ABUBAKAR SADIQ UMAR, JCA, just delivered. I agree with and adopt His Lordship’s reasoning and conclusion in this appeal as mine.

I have also perused the records of appeal and briefs of argument filed and exchanged by the parties. In this appeal, it was admitted that the Notice of Acquisition which was pasted on the land in dispute was admitted in evidence as Exhibit “P2”. It showed that cause of action arose in 1973 and the suit that resulted in this appeal was commenced in 1995 which is 22 years after the acquisition and notice.
The action was caught by SECTION 16(2) OF THE LAGOS STATE LIMITATION LAW – which provides that an action predicated on recovery of land must be instituted within 12 years from the date the right of action accrued. The action is statute barred. This means that the Court has no jurisdiction to entertain it however meritorious the case may be.
The success of this point of law that the action is statute barred takes away the right of action from the Plaintiff leaving him with an empty unenforceable cause of action. Therefore, the Appellant’s claims has become unenforceable. See –
OSUN STATE GOVERNMENT VS. DALAMI (NIG.) LTD. (2007) 9 NWLR PART 1038 PAGE 66.

In view of the foregoing and for fuller reasons in the lead judgment, I am also of the view that this appeal lacks merit and it is dismissed.

I abide by the consequential orders made in the said lead judgment.

ABDULLAHI MAHMUD BAYERO, J.C.A.: I agree.