CHIEF BISI ADEGUNLE v. THE GOVERNOR OF LAGOS STATE & ORS (2019)

CHIEF BISI ADEGUNLE v. THE GOVERNOR OF LAGOS STATE & ORS

(2019)LCN/13527(CA)

In The Court of Appeal of Nigeria

On Friday, the 21st day of June, 2019

CA/L/720/2014

RATIO

TRESPASS: WHEN A CLAIM IN TRESPASS WILL AUTOMATICALLY PUT OWNERSHIP IN ISSUE

See: Okorie v. Udom (1960) SCNLR, 326, Akintola v. Lasupo (1991) 3 NWLR (180) 508, Nwadiogbu v. Nnadozie (2001) 12 NWLR (727) 315, Oluhunde v. Adeyoju(2000) 10 NWLR (676) 562, Fasikun II v. Oluronke II (1999) 2 NWLR (589) 1, Omotayo v. C.S.A. (2010) 16 NWLR (1218) 1 and the recent case ofOnovo v. Mba (2014) 14 NWLR (1427) 397 where the Supreme Court restated the position when it said that:-
It is pertinent to state at this juncture that with the Appellants claim originating in trespass and injunction, the title of the subject matter is automatically put in issue.PER MOHAMMED LAWAL GARBA, J.C.A.

TRESPASS: DEFINITION

The law is also firmly settled that the tort of trespass to land simply means an unauthorized interference, how be it slight, with exclusive possession or right to such possession by a person who is not the owner or cannot show a better title to a piece of land.PER MOHAMMED LAWAL GARBA, J.C.A.

TRESPASS: WHAT IT ENTAILS
Trespass is rooted in exclusive possession and lies at the instance of a person who has such possession or the right to it against all persons who cannot show or prove title or better right to the exclusive possession of a piece of land. See Foreign Finance v. L.S.D.P.C. (1991) 5 SCNJ 52 @ 74, Shittu v. Egbeyemi (1996) 6 NWLR (457) 650 @ 658-9, Okpeji v. Minister of Agriculture (1997) 9 NWLR (522) 693 @ 705-6, Tumo v. Murana (2000) 12 NWLR (681) 370 @ 391,Ude v. Chimbo (1998) 12 NWLR (577) 169, Dokubo v. Omoni (1961) FWLR (61) 1804 @ 1917-8.PER MOHAMMED LAWAL GARBA, J.C.A.

TRESPASS: AN ACTION IN TRESPASS LIES AT THE INSTANCE OF A PERSON IN EXCLUSIVE POSSESSION
Although an action in trespass simpliciter, lies at the instance of a person in exclusive possession of a piece of land, it was held by the Apex Court at page 75 of the Foreign Finance v. L.S.D.P.C. (supra) that;
In order to succeed in a claim for trespass, a plaintiff must show that he is the owner of the land or that he had exclusive possession of it. A trespasser does not by the act of trespass, secure possession in law from the person against whom he is in trespass. A trespasser with or without a claim of right is a trespasser ab initio and the onus is on him to prove that he has a better right to possession in order to succeed in his defencePER MOHAMMED LAWAL GARBA, J.C.A.

SALE OF LAND: REQUIRMENT FOR A VALID SALE OF LAND UNDER CUSTOMARY LAW

SALE OF LAND: PROOF OF SALE UNDER NATIVE LAW AND CUSTOM

In the case of Gaji v. Paye (2003) 12 MJSC, 76 @ 93, it was stated that the proof of sale of land under the native law and custom would require, as prerequisite evidence of persons who actually witnessed the sale and handing over the land to the purchaser. See also Ofume v. Ngbeke (1994) 4 NWLR (341) 746PER MOHAMMED LAWAL GARBA, J.C.A.

APPEAL: WHEN AN APPELLATE COURT WILL INTERFERE IN THE DISCRETION OF ATRIAL COURTS

The law is known that, ordinarily, an appellate Court does not interfere with evaluation of evidence by a trial Court save in recognized circumstances and established reasons that include where a trial Court took into account irrelevant matters or ignored or failed to consider relevant matters, reached conclusion not supported by the credible evidence placed before it by the parties or did not properly utilize the unique opportunity to hear and see the witnesses give firsthand account of the facts relied on by parties. See Layinka v. Makinde (2002) 5SC (Pt. 1) 109, (2002) 10 NWLR (775) 358; Ayanru v. Mandilas Ltd (2007) 4SC (Pt.III) 58, (2007) 10 NWLR (1043) 462; Gbadamosi v. Dairo(2007) 1-2 SC (Pt.II) 157, (2007) 3 NWLR (1021) 282; Ladipo v. Ajani (1997) 8 NWLR (517) 356; Adebanjo v. Adusei (2004) 4 NWLR (862) 44; Fagbenro v. Arobadi (2006) 7 NWLR (978) 174PER MOHAMMED LAWAL GARBA, J.C.A.

JUSTICES:

MOHAMMED LAWAL GARBA Justice of The Court of Appeal of Nigeria

BIOBELE ABRAHAM GEORGEWILL Justice of The Court of Appeal of Nigeria

ABIMBOLA OSARUGUE OBASEKI-ADEJUMO Justice of The Court of Appeal of Nigeria

Between

CHIEF BISI ADEGUNLE – Appellant(s)

AND

1. THE GOVERNOR OF LAGOS STATE
2. ATTORNEY GENERAL OF LAGOS STATE
3. MR. GBENGA ASHAFA – Respondent(s)

MOHAMMED LAWAL GARBA, J.C.A. (Delivering the Leading Judgment): The Appellant had approached the High Court of Lagos State vide Suit No: ID/1384/2007 and claimed reliefs against the Respondents as follows: –
i. N1,000,000.00 damages for trespass; and
ii. Perpetual injunction restraining the Defendants, their servants, agents and or privies from trespassing or entering or remaining on all that piece or parcel of land measuring approximately 10 acres and more particularly described shown and delineated in survey Plan No: ASC/LA/343/93 DATED 13TH May, 1993 and drawn by Abifat Survey Consultant.

The case of the Appellant was that he became the owner of the land in question by purchase under native law and custom, from the land owning family of Ajasa Odualabe of Ajasa Town in Alimosho Local Government Area of Lagos State, in 1978 when he was put and remained in possession uptil the time of alleged trespass by the Respondents.

On their part, the Respondents denied trespass and claimed to have acquired the land in 1980.

In a judgement delivered on the 31st March, 2014, at the end of trial, the High Court

dismissed the case on ground of lack of proof on the part of the Appellant and being dissatisfied with the decision, he brought this appeal on five (5) grounds contained on the Notice of Appeal filed on 24th April, 2014.

The Appellant has raised three (3) issues for the determination by the Court in the brief filed on the 15th May, 2015 as follows: –
2.1 Whether the learned trial judge was not in error when she held that the Appellant has not proved title conclusively, when all that needed to be proved in an action for trespass is exclusive possession. This issue is covered by grounds 2 and 3 of the Notice of Appeal.
2.2 Whether the learned trial Judge was not in error in refusing or failing to consider the issue of the validity or otherwise of the alleged compulsory acquisition of the land in dispute. This issue is covered by ground 1 of the Notice of Appeal.
2.3 Whether the appraisal of the evidence by the learned trial Judge is faulty and whether the fault has occasioned a miscarriage of justice. This is the issue called to question in grounds 4 and 5 of the grounds of appeal.”

Four (4) issues are set out for decision by

the Court in the unpaginated Respondents brief filed on 9th October, 2015, deemed on 8th February, 2016, in the following terms: –
3.0 a. Was the Learned Trial Judge wrong when she held that actual or constructive possession of the Claimant on the land in dispute at the time of the trespass is needed to be proved. (Issue A relates to Ground 1).
b. Was the Learned Trial Judge wrong when she held that Title is in issue. (Issue B relates to Ground 2)
c. That against the weight of evidence proffered by the Claimant, was the Learned Trial Judge wrong for not awarding damages against the Defendants/Respondents. (This issues relates to grounds 3, 4 and 5 of the Notice of Appeal)
d. Is the duty of the Court to award prayers not being claimed. (Relates to ground 1)

The Appellant filed a Reply brief on 17th February, 2016 in reaction to the Respondents brief.

For being the precise complaints against the the judgement of the High Court, I intend to use the Appellants issues in the determination of the appeal and consider them together.

Appellants Submissions:
On his issue 1, the Appellant

submits that his claim being for trespass, rooted in exclusive possession, all the law requires him to do was to establish exclusive possession of the land or his right to such possession and that the Respondents trespassed into it, citing Ihekoronye v. Hart (2000) 15 NWLR (892) 840 @ 852. He said, relying on Nsirim v. Nsirim (1995) 9 NWLR (418) 144 that where ownership was claimed in addition to trespass and injunction, then title must be proved. It is contended that the Respondents did not claim to be owners, did not counter claim and so title was not in issue in the case. Reference was made to the evidence of the Appellant in paragraphs 4-7 of the Statement On Oath, paragraphs 5-7 of CW2s Statement On Oath as well as the documentary Exhibits admitted in evidence and it is submitted that the Appellant had proved his actual exclusive possession and his right to such possession, which was said to have been wrongly rejected by the High Court on the ground that the Survey Plans tendered show that the land therein are not the same in size and shape.

Paragraphs 9, 10 and 11 of the Amended Statement of Defence of the Respondents paragraph 7 of

the Reply to it by the Appellant were cited and it is submitted that the different in size of the land in dispute on the two (2) Survey Plans tendered by the Appellant does not justify the conclusion that the land is different as the land in survey plan used in Suit No: ID/461M/2003 is only a part of the same land shown on Survey Plan No: ASC/LA/343/93.

In the alternative, according to the Appellant, even if title was in issue, he had pleaded ownership of the land in dispute by purchase under native law and custom, paid the price in the presence of witnesses as required by the law stated in Egonu v. Egonu (1978) 11 and 12, SC, 111 @ 127 and Okonkwo v. Okolo (1988) 2 NWLR (2007) 632 @ 652. He said that the High Court misconceived his case by holding that he claimed title by way of traditional evidence which is not borne out by the case put forward by him and that the case does not require him to proffer evidence of traditional history to prove root of title of his vendor family. Alade v. Awo (1975) 4 SC, 215 @ 223-4 was cited on when traditional evidence would be useful in a case and it is argued that the Appellants case does not come within the

situation stated therein. It is the case of the Appellant that his evidence and that of CW2; a witness to the purchase of the land, was not refuted by the Respondents even though they unsuccessfully challenged the receipt issued to him for the purchase of the land (Exhibit C1), on the ground that it was forgery.

In further argument, the Appellant contended that contrary to the statement by the High Court that he relied on acts of possession to prove title, his pleadings and evidence show that his claim of ownership was based on purchase under native law and custom and not acts of possession as explained in Balogun v. Akanji (1988) 1 NWLR (70) 301 @ 322-3. He maintained that he had not only proved exclusive possession, but also title to the land he claimed and urged the Court to resolve the issue in his favour.

On issue 2, it is submitted that the High Court was wrong to have failed or refused to consider the issue of the validity of the alleged compulsory acquisition of the land in dispute raised as a defence by the Respondents in paragraphs 2 and 4 of the Amended Statement of Defence which was denied by the Appellant in paragraphs 2 and 3 of the

Further Amended Reply. The Appellant argues that by the pleadings, the parties joined issue on the validity of the alleged compulsory acquisition and the High Court had the duty to consider and determine it. The cases of Ofoeze v. Ogugua (1996) 6 NWLR (455) 451 @ 462, Okonkwo v. Kpajie (1992) 2 NWLR (226) 633 @ 657, were referred to and it is pointed out that the Appellant also vehemently challenged the validity and legality of the acquisition under cross examination of DW1 and addressed it copiously in the final address. It is then submitted by the Appellant that the High Court erred in law to have stated and found that since the Appellant did not claim for the setting aside of the acquisition, his arguments go to no issue as the Appellant is under no obligation to specifically pray the High Court to set aside the acquisition for it to determine the issue joined by the parties. The High Court is also said to be wrong in law to have used or relied on the alleged acquisition to found possession in favour of the Respondents when it failed to consider the Appellants arguments thereon since they did not prove the acquisition, thereby occasioning a

miscarriage of justice to the Appellant. It is the case of the Appellant that revocation cannot be presumed in favour of a party where it is used as a shield in a case of trespass and that as a defence set up by the Respondents, they owe the burden of proving its validity, to succeed, citing Osho v. Foreign Finance Corporation (1991) 5 SC, 59 @ 82. There being no valid acquisition, according to the Appellant, the defence fails and the Respondents are liable for trespass and Aro v. Lagos Island Local Government Council (2002) 4 NWLR (757) 385 @ 424-5 was cited on the power of the Court to re-evaluate evidence where a trial Court failed to properly do so. The Court is urged to consider the evidence before the High Court and determine whether the alleged acquisition is valid.

The submissions of the Appellant on issue 3 are to the effect that the evaluation of the evidence by the High Court was faulty, citing Exhibit C2 and C4 which were said to have been tendered not to prove ownership but that a part of the land in dispute earlier on trespassed on, was recovered by the Appellant. Exhibits D1 and D3 tendered by the Respondents in proof of the alleged

acquisition are said to be contradictory in that Exhibit D1 says the land was revoked in 1982, Exhibit D3, the Lagos State Gazette which shows the land was revoked in 1980. The Exhibits are said to be unsafe to be relied on, on the authority of Ayinde v. Abiodun (1999) 8 NWLR (616) 587 @ 595. Then, citing Section 28(6) and (7) of the Land Use Act, 1978, it is contended that the revocation of a right of occupancy was not valid since the Appellant was not served with prior notice which was a condition precedent. Also, that DW3 was not signed nor mentioned or identified the Governor as the appropriate authority for the revocation, as exercising the statutory power at the material time. The case of Olatunji v. Military Governor, Oyo State (1995) 5 NWLR (377) 586 @ 599 was relied on by the Appellant for the submissions and it is further argued that compensation is also a condition precedent to the validity of an acquisition of land by Government on the authority of Section 44 of the 1999 Constitution and Ononuju v. Attorney General, Anambra State (2009) 10 NWLR (1148) 18 and that since there was no evidence of compensation paid, there was no valid acquisition. In

addition, relying on Osho v. Foreign Finance Corporation (supra), Ereku v. Government, Mid-West State (1974) 10 SC, 59 and Aduku v. Commissioner For Works, Lands and Transport, Enugu State (1997) 2 NWLR (487) 588, Appellant says that the owner of a property is entitled to know the basis of the revocation of his right of occupancy and that where it is revoked for public purpose, such purpose must be spelt out in the notice which Exhibit D3 did not contain. It is said that the purpose stated by the Respondents in paragraph 4 of their pleading cannot be said to be for overriding public interest and so it is unlawful on the authority ofKaigama v. Namnai (1997) 3 NWLR (495) 549, Administration/Execution of the Estate of General Abacha v. S.D. Eke-Spiff (2009) 7 NWLR (1139) 97 and Ereku v. Government Mid-West State(supra).

The Appellant also said that Exhibit D5, a composite plan tendered by the Respondents was neither signed nor dated and so of no probative value and worthless by the authority in Omega Bank Nigeria Plc v. O.B.C. Limited (2005) 8 NWLR (928) 547 @ 581 and Attorney General, Abia State v. Agharanya (1999) 6 NWLR (607) 362 @ 371. He also contends

that by the evidence of CW2 his family had sold the land in dispute to the Appellant in 1978, before the purported acquisition and had not been acquired before then.
In conclusion, the Court is urged to uphold this appeal.

Respondents Submission:
It is submitted, on the authority of Shittu v. Egbeyemi (1996) 6 NWLR (457) 650, (1996) LPELR-3060 (SC), that the Appellant owed the duty to prove exclusive possession of the land in dispute at the time of the alleged trespass and that was stated by the High Court, relying on Aromire v. Awoyemi (supra). It is said that in paragraph 11 of the Statement of Claim, the Appellant said he was in possession of the land, but then said the squatters of the case No. ID/461M/03 welcomed the officials of the Respondents to the land in 2007 and that he failed to prove his exclusive possession of the land. The case of Adetona v. Zenith International Bank Plc (2011) LPELR-8327 (SC) was referred to and it is said that the title to the land in dispute was put in issue by the Appellant who claimed ownership and trespass on the basis of exclusive possession. Learned Counsel for the Respondents says,

depending on circumstances of each case, exclusive possession and ownership can be synonymous and proof of the latter, is prima facie proof of the former unless another person is in possession. Badejo v. Sawe (1984), 6 SC, 350 @ 353 and Oyadare v. Keji (2005) 7 NWLR (925) 571 were referred to and it is submitted that the High Court was right to have considered the title or ownership when dealing with trespass in view of paragraphs 2 and 4 of the Respondents pleadings and paragraph 4 of the Appellants Statement of Claim. Also, that by the case put forward by the Appellant he owed the duty to prove the ownership he claimed or that he had a better title to the land in dispute before the claim for trespass could succeed. According to Counsel, since he did not amend his pleadings to challenge the validity of the acquisition of the land by the Respondents or claim for it to be set aside, the High Court was right that his arguments of the issue did not go to any issue in the case. It is his case that the Appellant had the duty to trace his root of title to the land and how it devolved to him since he claimed purchase under native law and custom as a

receipt as in Exhibit C1, is not known to Yoruba native law and custom. In further argument, he said Exhibit C1 could not have been made before 1986 and was not made in 1975, as was shown in paragraphs 5 and 6 of DW3s deposition on oath. Statements in Ishola v. Abake (1972) 5 SC (Reprint) 203 and Fasoro v. Beyioku (1988) 1 NWLR (76) 263, (1988)LPELR-1249 (SC) on acts of possession were set out and it is contended that the Appellant failed to provide any proof of actual possession or constructive possession otherwise he would have not instituted the suit No: ID/461M/2003 against squatters.

It is submitted further that the Appellant failed to challenge the acquisition and excision of the land by the Respondents as shown in Exhibits D1 and D3 and which established that the Appellant was not in exclusive possession as the original land owning family had been compensated by the excision in 1980.

Learned Counsel argues that the composite plan; Exhibit D5 tendered by the Respondents shows that the land in dispute is Five Hundred (500) metres away from the land earlier litigated upon by the Appellant and not part of the land excised at Amikanle

claimed by the Appellant in paragraph 2 of his further deposition on oath. That since the Appellant did not seek for an order to set aside the acquisition of the land in dispute, the High Court could not grant a relief not claimed or sought by the Appellant, on the authority of Ajayi v. Texaco Nigeria Limited (1987) 3 NWLR (1962) 577 and Ayalogu v. Agu (2002) 3 NWLR (753) 168. The issue of contradictions in Exhibits D1 and D3 were said not to have been raised before the High Court and no leave of Court was obtained to raise it in the appeal, as a fresh issue, citing Agboola v. UBA, Plc (2011) LPELR-9353 (SC). Counsel also says revocation is different from acquisition as the land in dispute was acquired and not revoked since the Appellant had no prior right or interest which could have been revoked. It is then argued that since the Appellant did not object to the admission of Exhibits D5 when it was tendered at the trial, the law in Akpaji v. Udemba (2009) 2-3 SC (Pt. II) 1 does not permit him to do so now.

In the alternative, the name of the maker of Exhibit D5 is said to be on it and meets the definition of a signature at page 1387 of the 7th Edition of Blacks Law Dictionary.

In conclusion, the Court is urged to dismiss the appeal with substantial costs against the Appellant.

In the Appellants Reply brief, it is said that there is no contradiction in the case of the Appellant as his pleadings and evidence are that the squatters in question trespassed on the land when the caretaker in charge of the land, died and the Appellant was in constructive possession at the material time on the authority of Ekpan v. Uyo (1986) 3 NWLR (26) 63 @ 66. The case of Adetona v. Zenith International Bank, Plc (supra) was distinguished on the fact that the High Court was said to have refused to consider the issue joined on the validity of the acquisition before finding for the Respondents. The cases of Ishola v. Abake And Fasoro v. Beyioku (both supra) are distinguished from the Appellants case in which he did not plead traditional evidence and he has proved ownership.

Resolution:
As may be observed, the action by the Appellant was premised on ownership of the land in question which he said he acquired by way of purchase under the Yoruba native law and custom from the land owning

Ajasa-Odualabe family in 1978 and which he asserted was trespassed on by the Respondents. The claim for damages for trespass and injunction based on ownership by the Appellant automatically put his title to the land in to question and in issue in the case whether or not it was denied or challenged by the Respondents. See: Okorie v. Udom (1960) SCNLR, 326, Akintola v. Lasupo (1991) 3 NWLR (180) 508, Nwadiogbu v. Nnadozie (2001) 12 NWLR (727) 315, Oluhunde v. Adeyoju(2000) 10 NWLR (676) 562, Fasikun II v. Oluronke II (1999) 2 NWLR (589) 1, Omotayo v. C.S.A. (2010) 16 NWLR (1218) 1 and the recent case ofOnovo v. Mba (2014) 14 NWLR (1427) 397 where the Supreme Court restated the position when it said that:-
It is pertinent to state at this juncture that with the Appellants claim originating in trespass and injunction, the title of the subject matter is automatically put in issue.

As the party who prayed for the High Court to enter judgement in his favour based on the existence of the facts of ownership and trespass to the land in question, the Appellant owed the initial burden of proof as the party who would fail if no evidence at

all were given on either side by dint of the provisions of Sections 131, 132 and 133(1) of the Evidence Act, 2011. UBN Limited v. Ozigi (1994) 3 NWLR (333) 144, Adegoke v. Adibi (1992) 6 SCNJ 136, (92) 5 NWLR (242) 410, Mandilas v. Ayanru (2000) 4 NWLR (653) 438, N.I.I.A. v. Ayanfalu (2007) 2 NWLR (1018) 246, Adighije v. Nwaogu (2010) 12 NWLR (1209) 419, Phillips v. E.O.C. & Industry Company Limited (2013) 1 NWLR (1336) 618.

The law is also firmly settled that the tort of trespass to land simply means an unauthorized interference, how be it slight, with exclusive possession or right to such possession by a person who is not the owner or cannot show a better title to a piece of land.
Trespass is rooted in exclusive possession and lies at the instance of a person who has such possession or the right to it against all persons who cannot show or prove title or better right to the exclusive possession of a piece of land. See Foreign Finance v. L.S.D.P.C. (1991) 5 SCNJ 52 @ 74, Shittu v. Egbeyemi (1996) 6 NWLR (457) 650 @ 658-9, Okpeji v. Minister of Agriculture (1997) 9 NWLR (522) 693 @ 705-6, Tumo v. Murana (2000) 12 NWLR (681) 370 @ 391,

Ude v. Chimbo (1998) 12 NWLR (577) 169, Dokubo v. Omoni (1961) FWLR (61) 1804 @ 1917-8.
Although an action in trespass simpliciter, lies at the instance of a person in exclusive possession of a piece of land, it was held by the Apex Court at page 75 of the Foreign Finance v. L.S.D.P.C. (supra) that;
In order to succeed in a claim for trespass, a plaintiff must show that he is the owner of the land or that he had exclusive possession of it. A trespasser does not by the act of trespass, secure possession in law from the person against whom he is in trespass. A trespasser with or without a claim of right is a trespasser ab initio and the onus is on him to prove that he has a better right to possession in order to succeed in his defence.
In his regard, it is important to note that, in law, there is a material difference between de jure possession for the purposes of an action in trespass, and mere physical occupation and control of a piece of land, as a matter of fact, which may arise in various circumstances such as by stealth or trespass. Although possession in law or de jure, may also coincide with physical occupation and control of a

piece of land, it is said that the two (2) are not always synomous or conterminous See Ezukwu v. Ukachukwu (2004) 17 NWLR (902) 227, Udeze v. Chidebe (1990) 1 NWLR (125) 141,Oyadare v. Keji (supra), Foreign Finance v. L.S.D.P.C. (supra).

In the case of the Appellant, since the case he presented in paragraph 4 of the statement of claim was that he is the owner of the land he claimed by virtue of a purchase or sale under Yoruba native law and custom, the initial burden on him was to adduce cogent, credible and sufficient evidence to prove the ownership claimed as required by law; on the balance of probabilities or preponderance of evidence. The law also is that he is to succeed on the strength of his own evidence and the case he presented before the High Court, his case being one for title; primarily, and for trespass; secondarily. He cannot rely on the weakness of the case of the Respondents in order to succeed in the claims made in the case. Barje v. Gunduma (2001) 13 NWLR (731) 673, Njoku v. Registered Trustees, C.H.G.F. (2006) 18 NWLR (1011) 239, Ogundepo v. Olumesan (2011) 18 NWLR (1278) 54, Awodi v. Ajagbe (2015) 3 NWLR (1447) 578.

In the case of Folarin v. Durojaiye (1988) 1 NSCC, Vol. 19 (Pt. 1) 255 @ 262 it was stated that the requirements for a valid sale of land under customary law are: –
(1) Payment of money or agreed consideration;
(2) The transaction be made in the presence of witnesses
(3) The actual handling over of possession of the land to the purchaser in the presence of witnesses. See also Egonu v. Egonu (supra), Okonkwo v. Okolo (supra), Erimosho v. Owokoniran (65) NWLR, 479, Ajayi v. Jolaosho (2004) 2 NWLR (856) 89, Adedeji v. Oloso (2007) 1-2 SC 76 @ 100-3, Fatoki v. Baruwa (2012) 14 NWLR (1319) 1, Ogundalu v. Macjob (2015) 8 NWLR (1460) 96, Manya v. Idris (2001) 8 NWLR (716) 627, Atanda v. Commissioner for Lands and Housing, Kwara State (2018) 1 NWLR (1599) 32 @ 53 and 60. In the case of Gaji v. Paye (2003) 12 MJSC, 76 @ 93, it was stated that the proof of sale of land under the native law and custom would require, as prerequisite evidence of persons who actually witnessed the sale and handing over the land to the purchaser. See also Ofume v. Ngbeke (1994) 4 NWLR (341) 746.

In proof of the case he presented, the Appellant testified and tendered in evidence, a receipt for the

payment of the purchase price or money to the vendors for the land he claimed and also called one of the witnesses who witnessed the transaction between him and the vendors for the sale and purchase of the land. The witness; CW2 Oba Sule Odubale in his evidence in paragraphs 1, 3, 4, 5 and 6 of his Written Deposition on Oath dated the 14th February, 2012 which was adopted by him on 13th March, 2012 at the trial, stated that: –
1. My name is Oba Sule Odualabe. I am the Oba of Ajasa land and a member of the Ajasa Odualabe family of Ajasa town in Lagos State. I live in Ajasa town.
3 I know the land in dispute. It is a 10 acre of land situate, lying and being at Igbo Esisi Area, Ajasa Town in Alimosho Local Government Area of Lagos State.
4. The land in dispute originally belonged to our family, the Ajasa Odualabe Family who are the land owning family of Ajasa Town from time immemorial.
5. The parcel of land in dispute was sold to Chief Bisi Adegunle sometime in 1978 under Yoruba Native Law and Customs. Oba Bello Ajasa the then bale of the community who later became the Oba helped him to look after the farm.
6. After paying the

purchase price to may family in January, 1978, the Claimant was put into possession in the presence of living witnesses including myself.

Put shortly, the above depositions and evidence of CW2 are to the effect that he was one of the witnesses who saw or witnessed the transaction between the Appellant and his vendors (the CW2s family) for the purchase and sale of the land claimed by the Appellant and that he paid the price and was put into possession thereof in his presence. The evidence was not even challenged let alone effectively and materially controverted during cross-examination by the learned Counsel for the Respondents. As evidence of the transaction or purchase of the land claimed by the Appellant, payment of the purchase price and actual handing over of possession of the land by the vendors to the Appellant as purchaser, in the presence of CW2, the evidence remained unchallenged, in line with the case of the Appellant, cogent and credible in support of the purchase of the land under the Yoruba native law and custom, by the Appellant. The Appellants evidence and that of CW2 clearly shows that the basic requirements for a

valid acquisition of the land under native law and custom have been met by the transaction in question.

In their twenty-two (22) paragraphs Amended statement of Defence dated 28th July, 2011, the Respondents did not deny the purchase of the land or transaction between the Appellant and his vendors in respect of the land he claimed, but only sought to impugn the receipt for payment of the purchase price by asserting that it was a forgery on the fact that the postage stamp used on it was issued in 1986.

The High Court had found that the receipt was not a forgery and there is no appeal against the finding by the Respondents thereby leaving it extant and binding, see Okotie-Eboh v. Manager (2004) 11-12 SC, 174, Gbedu v. Itie (2000) 10 NWLR (1202) 227. The arguments on the admissibility or the even the weight to be attached to the receipt as evidence of payment of the purchase price the Appellant paid for the land he purchased from his vendors, go to no issue and of no moment!
They also claimed in paragraph 2, that the land
falls within the Lagos State acquired Area as contained in the Lagos State Official Gazette No. 27 Volume 13 of

April, 1980.

With the failure by the Respondent to specifically allude to and deny the transaction of the purchase of the land by the Appellant under native law and custom, the Respondents are, by known rules of pleadings in civil cases, deemed to have admitted the transaction by virtue of the provisions of Section 123 of the Evidence Act 2011 and so as a fact, requires no further proof from the Appellant. Reptico S.A. Genera v. AFribank Nigeria Plc (2013) 14 NWLR (1572) 172, First Equity Sec. Ltd v. Anozie (2015) 12 NWLR (1473) 337, Cole v. Jibunoh (2016) 4 NWLR (1503) 499.

With the admission by the Respondents and the evidence from the Appellant on ownership of the land in question way of purchase under native law and custom in 1978, the evidential burden of proof was on the Respondents to prove that the said land was in fact and the law, part of the land acquired by the Lagos State Government in 1980, as asserted in paragraph 2 of their pleadings.

In its appraisal of the case presented by the Appellant the High Court in its judgment, particularly at pages 191-2 of the Record of Appeal stated thus: –

However, from the pleadings, evidence and indeed the Claimants written address, the claimant relied upon title by way of traditional evidence and acts of possession to prove ownership and there from constructive possession.
It was held in Balogun V Akanji (2005) 10NWLR (part 933) 394 @ 411 per Oguntade JSC paras A-A as follows’-
It is to be borne in mind that proofs of title by evidence of traditional history and acts of ownership are separate and parallel. One is also to be distinguished from the other. Whilst the evidence in proof of either in a claim for declaration of title may overlap, the recognition of each as different to the other helps to remove the error and confusion to which parties and counsel alike are prone. A plaintiff may by his statement of claim rely solely for the title he asserts in a claim for declaration of title on traditional history. On the other hand, since it is permissible to plead in the alternative, he may rely on both methods i.e, traditional history and acts of ownership. Where he falls on the former, he may well succeed on the later because in their nature both are different.
In Balogun v. Akanji (1988) 1 NWLR

(PT 70) 301, (1988) All NLR 188 at 211- 212, this Court per Oputa, JSC observed, “One final word on Ekpo v. Ita (supra). Anyone who pleads acts of possession as his root of title is really relying on the presumption that possession Is of the law and that he who is in possession is presumed by Section 145 of the Evidence Act. Cap. 62 of 1958 to be the owner and that the onus of proving that he is not the owner is on the person who affirms that he is not the owner. Looked at logically and critically a person pleading acts of possession as his root of title is simply saying- “I do not know how I got the land. All I know is that I have been in possession and have excises various positive acts of possession. Now you prove that I am not the owner” put in this way it is easier to appreciate that acts of possession will not arise where the root of title is known, and pleaded and proved. In such a case title will be awarded on the strength of the title pleaded and proved. It is only where and when traditional evidence is inconclusive that the Court will be obliged to look at the acts of possession of the parties and there from determine on whose side the

presumption….”
Clearly, this statement shows that the High Court perceived that the case of the Appellant was predicated on claim for ownership of the land based on traditional evidence or history. As demonstrated above, the Appellants case in both pleadings and evidence was predicated on acquisition of the said land by way of purchase under native law and custom and not by way of traditional history.
In the famous case of Mogaji v. Cadbury Nigeria Limited (1985) 1 NWLR (7) 393, Obaseki, JSC had stated that: –
Property is acquired under customary law either by settlement, by heritance, by grant or by sale.”
See also Ajayi v. Osunuku (2008) LPELR-8332 (CA).
Then in the case of Adisa v. Oyinwola, (supra) Ayoola, JSC had explained that: –
The several ways in which title in land can be acquired should not be confused with the several ways in which such acquisition can be proved. The much cited case of Idundun & Ors. v. Okumagba & Ors. (1976) Vol. 10 NSCC 446 deals with five ways in which ownership of land may be proved, and not the ways of acquiring title to land. In short, Idundun & Ors v. Okumagbe & Ors

deals with matters of evidence rather than question of substantive law of acquisition of title. It is for this reason that acquisition of title by gift, grant or purchase was not mentioned.
See also Ajiboye v. Ishola (2006) 13 NWLR (998) 628, Isezuo v. Sanni (2013) LPELR-21974 (CA).
Even though the acquisition of the land by the Appellant was said to be and based on purchase under native law and custom, as can be seen in the statement of the law by the Apex Court above, such acquisition may be way of grant, gift, inheritance, first settlement, conquest or sale, each to be proved by the material evidence of the facts and circumstances of the acquisition.
The case of Balogun v. Akanji cited by the High Court dealt with proof of title to land by way traditional history and acts of possession, specifically pleaded and relied on in the case. It did not deal and was not concerned with the modes of acquisition of land under native law and custom by way of purchase or sale. In the Appellants case, there was no dispute about the ownership or root of title of the Appellants vendors to the land in question nor was

there any challenge to the transaction either by the vendors or the Respondents; as shown earlier, to require proof by traditional history or evidence, of the root of title of the Appellants vendors or its devolution to them. On his part, the Appellant had produced the requisite and unchallenged evidence of how he acquired the land from the vendors and so how it devolved to him from them.
In the above circumstances, the High Court undoubtedly misconceived and misapprehended the case put forward by the Appellant in its appraisal of the pleadings and evidence placed before it by him, which misconception and misapprehension led it to make the erroneous findings at page 196-7 of the Record of Appeal, that: –
Upon evaluation of the evidence, this Court finds the Claimants claim to ownership of the land in dispute by traditional evidence to be inconclusive as no evidence of the root of title of the Ajsa Odualabe family was proffered. It is trite that a party relying on evidence of traditional history must plead his root of title and is required to show in his pleadings and evidence who the ancestor are and how they came to own the land and

eventually how it passed to hi. See Runsewe v. Odutola (1996) 4 NWLR Part 441 page 143.
The case of the Appellant did not require proof by traditional evidence of the root of title of his vendors or its devolution by genealogical hierarchy down to him since it was founded on acquisition by way of purchase/sale.
The acquisition by the Appellant does not require traditional history evidence to be proved as an event, incident or fact which is within memory of living witnesses who witnessed it. In the case of Adisa v. Oyinwola (supra) Ayoola, JSC had stated that: –
Facts which are within living memory are properly to be proved by evidence of living witnesses to the event and not by evidence of tradition permitted by Section 45 of the Evidence Act. See Commissioner of Lands v. Kadiri Adigun (1937) 3 WACA 206.
The Appellant is therefore right and I agree with him, that the High Court misconceived his case and on that erroneous basis, made the findings above and reached the ultimate conclusion that he claimed ownership of the land in question based on acts of possession. The basis of the ownership claimed by the Appellant

was acquisition by way of purchase under native law and custom of the land by the virtue of which he was put into possession and remained thereon until the alleged trespass by the Respondents. For emphasis, the root of the Appellants claim of ownership/title to the land in question was not acts of possession, but acquisition by way of purchase under native law and custom.
I find merit in the arguments of the Appellant under his issue 1 and resolve it in his favour.

The next issue is on the failure or refusal by the High Court to consider and determine the issue of the validity of the acquisition raised by the Respondents in defence of the Appellants claims which was joined by the parties and placed before it in the case. In the case of F.C. D.A. v. Sule (1994) 3 SCNJ, 71, (1994) 3 NWLR (332) 257, Olatawura, JSC, had stated that: –
The general rule is that all issues submitted for consideration of the Court should be treated. Non-consideration of the issue submitted by a party may lead to a miscarriage of justice.
The law is simply that a trial Court (indeed every Court) has the binding judicial duty to consider

and pronounce on all material issues and relevant aspects of case properly joined and raised before it by the parties in their pleadings and evidence. See Federal Ministry of Healt v. C.S.A. Limited (2009) 9 NWLR (1145) 93, Adeogun v. Fasogbon (2011) 17 NWLR (1277) 522.

Now, did the parties properly join issue on the validity of the acquisition of the land in dispute and placed same before the High Court in their pleadings and evidence, for it to be a material aspect of the case before it which called for decision. An issue in a case was defined by Ogbuagu, JSC in Unity Bank, Plc v. Bouari (2008) 2-3 SC (Pt. II) 1, (2008) 7 NWLR (1086) 372 when he said: –
an issue is a point that has arisen in the pleadings of the parties which forms the basis of the dispute or litigation which requires resolution by a trial court.
In the words of Tobi, JSC, in Olafisoye v. FRN (2004) 4 NWLR (864) 580, (2004) 1 SC (Pt. II) 27: –
An issue is the question of dispute between the parties necessary for the determination of the Court.
See also Egbe v. Alhaji (1990) 3 SCNJ, 41, (90) 1 NWLR (128) 146,

Metal Construction West Africa Limited v. Migllore(1990) 2 SCNJ, 20, (90) 1 NWLR (126) 299, Ishola v. Ajiboye (1998) 1 NWLR (532) 91.
From the definition of an issue in all these cases, it entails a conflict, controversy or contrary claims of right between parties to a case which constitutes a dispute between them submitted for resolution by the court in a case. An issue in a case is therefore a point of dispute between the parties which they submit to the Court for judicial resolution Akintola v. Solano (1986) 2 NWLR 598 @ 622, Air Via Limited v. Oriental Airlines Limited (2004) 9 NWLR (878) 298, Obiechefu v. Governor, Imo State (2008) 14 NWLR (1106) 22, Attorney General, Anambra State v. Attorney General of the Federation (2007) 12 NWLR (1047), (07) LPELR-603 (SC), Olayioye v. Ajibike (2011) LPELR-8787 (CA).

In paragraphs 2 and 4 of the Amended Statement of Defence, the Respondent pleaded and claimed that: –
2. The Defendants say that the Land purportedly in dispute measuring approximately 10 Acres falls within the Lagos State acquired Area as contained in the Lagos State Official Gazette No. 27 Volume 13 of April 1980.
4. The Defendants aver that the

Land in dispute was acquired by the Lagos State Government in 1980 same was laid out into Residential Plots and allocated to individuals after due process has been followed; a list of some of the Allotees will be relied on at the Trial of this Suit.

Paragraphs 2 and 3 of the Appellants Further Amended Reply to the Amended Statement of Defence, reacted to the above pleadings and assertions by the Respondents in the following terms: –
2. With further reference to paragraph 2 of the Amended Statement of Defence the claimant states that his land has not been acquired. The claimant further states that he acquired his interest in the land in dispute in January 1978 well before the purported acquisition. The claimant says no notice of intention to acquire was ever served on him and no compensation paid. The claimant will therefore contend that the purported acquisition, if any, is invalid and amounts to an unlawful expropriation. The claimant will further contend in the alternative that his land forms part of the area excised from acquisition at Amikanle and that the Defendants have no right to forcefully take it over after the claimant has

successfully in due process evicted squatters therefrom.
3. With further reference to paragraph 4 of the Amended Statement of Defence states that the act of Lagos State Government in forcibly seizing his land without notice or compensation and purportedly allocating same to individuals for residential purposes is a gross abuse of governmental powers, against the intendment and spirit of Public Lands Acquisition Law and other enactments relating to land acquisition and is therefore unlawful and illegal.

Without any difficulty, it can be seen that from the above pleadings by the parties, an issue or a dispute arises and was raised on the legality, lawfulness or validity in law, of the acquisition of the land in dispute by the Respondents which was raised as a defence to resist the claim of ownership and trespass by the Appellant. It was a material aspect and question raised in the pleadings of the parties for the High Court to decide in the case.

The parties each adduced evidence which was placed before the High Court in line with their respective pleadings on the issue or dispute, the Respondents by paragraphs 3 and 5 of the Statement on

Oath (SOA) of their witness; Mrs. Queen Falope, and the Appellant in paragraph 2 and 3 of the Further Amended Deposition on oath dated 12th April, 2012.

In addition, at paragraphs 4.10 and 4.11 of the Respondents Final Address after the close of evidence, and at paragraphs 5.2.1 – 5.2.12 of the Appellants Final Address as well as paragraph 1.1 – 2.2 of the Respondents Reply on Points of Law, the issue or question of the validity of the acquisition of the land in dispute was addressed by the parties as part of the issues they placed before the High Court for decision.

From the above record, the Appellant is right that the issue or question of the legality, lawfulness or validity of the acquisition claimed and asserted by the Respondents was a material issue of dispute between the parties, properly raised by them and placed before the High Court for resolution. For that reason it was an error in law for that Court to say at page 17 of the judgement (page 198 of the Record of Appeal) that:-
The Claimant in his written address argued extensively on the mode and propriety of the acquisition made by the

defendants. The Court observes that no claim was made to set aside the said acquisition, the arguments with due respect are therefore found to be misplaced and go to no issue, they shall therefore will not be considered by the Court.

The arguments by the Appellant on the validity or legality of the acquisition of the land in dispute by the Respondents cannot rightly be said to go to no issue in the case since in both pleadings and evidence of the parties, an issue, question or dispute arises and was raised therein for determination by that Court. Arguments or submissions on points or issues made in final addresses of Counsel or parties to a case can only be rightly said to go no issue if and only if, they relate to or are on points or issues which do not arise or are not derivable from the material facts and relevant evidence placed before a Court on the dispute submitted to if for resolution. The arguments or submissions by the Appellant in his Final Address on the validity or legality of the land in dispute went to, related to and touched on an issue properly raised by the parties in both pleadings and evidence which was placed before the High

Court for resolution and, as demonstrated earlier, it had the obligation and duty to resolve it by considering and making a definite pronouncement one way or the other. The High Court has failed to discharge that binding obligation and duty to deal with and pronounce on the issue on the merit. The holding that no claim was made to set aside the acquisition by the Appellant as the basis for the finding that the arguments by the Appellant on the issue go to no issue is patently wrong in law since whether not the acquisition would be set aside is only consequential to the determination of the crucial question or issue of the validity or legality of the acquisition. As a consequence that would naturally and ordinarily flow from the determination of the issue of the validity of the acquisition in his favour, the law does not require the Appellant to specifically seek for an order or relief for setting aside the acquisition.
A consequential order or relief is one which is made or granted at the discretion of the Court in order to give effect to the judgement or main decision of the Court in a case and it flows or arises as a consequence of such judgement or

decision, does not need to be sought for by parties. See Funduk Engneering Limited v. Mcarthur(1996) 7 NWLR (459) 153 (SC), Obayagbona v. Obazee (1972) 5 SC, 247, Akinbobola v. Plisson Fisko Nigeria Limited (1991) 1 NWLR (167) 270, Adeyeri II v. Atanda (1995) 5 NWLR (397) 512, Ademola v. Sodipo (1989) 5 NWLR (121) 329, Usiobaifo v. Usiobaifo (2005) 1 SC (Pt. II) 60, (2005) 3 NWLR (913) 665, C.C & Ind. S.P.R. Limited v. Ogun State Water Corporation (2004) 4 SC (Pt. II) 86, (02) 9 NWLR (773) 629.

Learned Counsel for the Appellant has argued that failure by the High Court to consider and determine the issue of the validity of the acquisition has occasioned miscarriage of justice and invites the Court to consider the issue on the evidence adduced by the parties. In Sanusi v. Ameyogun (1992) 1 NWLR (237) 527, the Apex Court per Olatawura, JSC, adopted the definition of miscarriage of justice in 5th Edition of Blacks Law Dictionary wherein it was defined as: –
Decision or outcome of legal proceedings that is prejudicial or inconsistent with substantial rights of party. and said where the Appellant Court finds that there has been

a miscarriage of justice, it has the right to upset the judgement of the Lower Court: ONAJOBI AND ANOR. V. OLANIPEKUN & ORS (1985) 2 SC, 156; (1985) N. S. C. C. Vol. 16 (Pt.1) p. 611.
Tobi, JSC, defined miscarriage of justice, in the case of Gbadamosi v. Dairo (2007) 1-2 SC (PT. 11) 157, (2007) 3 NWLR (1021) 282, as follows: –
Miscarriage of justice connotes decision or outcome of legal proceeding that is prejudicial or inconsistent with the substantial rights of the party. Miscarriage of justice means a reasonable probability of more favourable outcome of the case for the party alleging it. Miscarriage of justice is injustice done to the party alleging it. The burden of proof is on the party alleging that the justice has been miscarried.
Larmie v. D. P. M. S. Ltd (2005) 12 SC (Pt. 1) 93, (2005) 18 NWLR (958) 438; Jinadu v. Esurombi Aro (2005) 12 14 NWLR (944) 142; G. C. G. Nig. Ltd. v. Etuk (2013) LPELR-20817(CA).
The Appellant has shown that the High Court had misconceived his case and failed to consider and determine a material issue joined by the parties and properly submitted to it for decision which might

have been more favourable to him. In the circumstances, the Court is entitled to intervene, accept the invitation by the Appellant for the Court to look at and consider the issue of the validity of the Respondents acquisition of the land in dispute by virtue of the provisions of Section 15 of the Court of Appeal Act and Order 7, Rule 2(1) of the Court of Appeal Rules, 2016.

In that regard and as a foundation for the consideration of the issue, Section 28 of the Land Use Act, empowers the Governor of a State to revoke rights of occupancy over land situate in a State for overriding public interest. It is expedient to call in the provisions of Section for a full appreciation of the powers provided therein and here they are: –
28. Power of Governor to revoke rights of occupancy
(1) It shall be lawful for the Governor to revoke a right of occupancy for overriding public interest.
(2) Overriding public interest in the case of a statutory right of occupancy means
(a) the application by the occupier by assignment, mortgage, transfer of possession, sub-lease, or otherwise of any right of occupancy or part thereof contrary

to the provisions of this Act or of any regulations made thereunder;
(b) the requirement of the land by the Government of the State or by a Local Government in the State, in either case for public purposes within the State, or the requirement of the land by the Government of the Federation for public purpose of the Federation;
(c) The requirement of the land for mining purposes or oil pipeline or for any purpose connected therewith.
(3) Overriding public interest in the case of a customary right of occupancy means
(a) the requirement of the land by the Government of the State or by a Local Government in the State, in either case for public purposes within the State, or the requirement of the land by the Government of the Federation for public purposes of the Federation;
(b) the requirement of the land for mining purposes or oil oil pipeline or for any purpose connected therewith.
(c) the requirement of the land for the extraction of building materials;
(d) the alienation by the occupier by sale, assignment, mortgage, transfer of possession, sublease, bequest or otherwise of the right of occupancy without the

requisite consent or approval.
(4) The Governor shall revoke a right of occupancy in the event of the issue of a notice by or on behalf of the President if such notice declares such land to be required by the Government for public purposes.
(5) The Governor may revoke a statutory right of occupancy on the ground of
(a) a breach of any of the provisions which a certificate of occupancy is by Section 10 of this Act deemed to contain;
(b) a breach of any term contained in the certificate of occupancy or in any special contract made under Section 8 of this Act;
(c) a refusal or neglect to accept and pay for a certificate which was issued in evidence of a right of occupancy but has been cancelled by the governor under Section 9(3) of this Act.
(6) The revocation of a right of occupancy shall be signified under the hand of a public officer duly authorised in that behalf by the Governor and notice thereof shall be given to the holder.
(7) The title of the holder of a right of occupancy shall be extinguished on receipt by him of a notice given under Subsection (6) of this section or on such later date as may be stated in the

notice.
Then Section 31 of the Act provides that: –
31. The provisions of the Public Lands Acquisition (Miscellaneous Provisions) Act shall not apply in respect of any land vested in, or taken over by, the Governor or any local government pursuant to this Act or the right of occupancy to which is revoked under the provisions of this Act but shall continue to apply in respect of land compulsorily acquired before the commencement of this Act.
The community effect of these provisions would appear to have vested or conferred unfettered power and authority on the Governor of a State to control all lands in the State and to revoke a right of occupancy, whether statutory or customary, of a any person(s) or community or communities over any piece or parcel of land, subject only to the provisions of the Act. The exercise of the powers by the Governor to revoke a right of occupancy over a piece or parcel of land; personal or communal, is what has become known as compulsory acquisition of land by Government. Because the exercise of the power and authority to compulsorily acquire land by way of revocation involves, affects and

expropriate personal or communal rights of the person(s) or communities in question guaranteed by the provisions of Section 44(1) of the Constitution, the attitude of the Courts over the years has been to interpret the relevant statutory provisions under which the powers are exercised in order to ensure that the procedure stipulated therein are strictly complied with in the acquisition.
In his usual erudition and weighty voice, Tobi, JSC, in C. S. S. Bookshops Ltd v. Reg. Trustees of Muslim Comm. in Rivers State (2006) 11 NWLR (992) 530, stated the position thus: –
The case law is in great proliferation. Any provision of the law which gives or governs compulsory acquisition of a persons property must be construed by the Court fortissimo contra preferentes. Such a statute should be construed by the Court strictly against the acquiring authority and sympathetically in favour of the complainant or the owner of the property against any irregularity in the procedure for acquisition as laid down by the enabling statute. See Peenok Investment Ltd. v. Hotel Presidential Ltd. (1993) 4 NCLR 122 at 115; Alhaji Bello v. Diocesan Synod of Lagos

(1973) 1 ALLNLR (Pt. 1) 247 at 268; Nigerian Telecommunications Ltd. V. Chief Ogunbiyi (1992) 7 NWLR (255) 543; Osho v. Foreign Finance Corporation (1991) 4 NWLR (184) 157.
See also A. G. Bendel State v. Aideyan (1989) 4 NWLR (118) 646, 673; Olatunji v. Gov., Oyo State (1995) 5 NWLR (397) Baba-Iya v. Mai Sikeli (2006) 3 NWLR (968) 508; Provost, Lagos State College of Education v. Edun (2004) 6 NWLR (870) 476 @ 506; Okeowo v. A. G. Ogun State (2010) 16 NWLR (1219) 327. These judicial authorities are unanimous that for a compulsory acquisition of land by the Governor or Government to be valid and legally effective to extinguish the existing right over a piece of land, the provisions of the Land Use Act and as the case may be, other enabling statute on the procedure provided for the acquisition, must be strictly followed and observed in the process of the acquisition.

In the present appeal, the Lagos State Governor or Government was/is undoubtedly vested with requisite power and authority to revoke any right over and compulsorily acquire any piece or parcel of land situate in Lagos State at any time, in accordance with the provisions of the

Land Use Act and the other relevant statutes.

In the particular case of the Appellant, the acquisition could validly be made before or after he purchased the land in dispute as long as it was done in accordance and compliance with the relevant statutory provisions.

The case of the Respondents, as set out in paragraphs 2 and 4 of the Amended Statement of Defence, is that the piece or parcel of land claimed by the Appellant fall within the area acquired by the Lagos State Government, 1980 and laid out into Residential Plots and allocated to individuals.”

Composite plan of the land in dispute and a copy of the Lagos State Official Gazette No. 27 Vol. 3 of April 1980 were tendered in evidence in support of the acquisition.

On this part, the Appellant has denied the acquisition as it was done after he purchased the land in dispute and was put in possession and that in the alternative, the acquisition was invalid since he was not served prior notice thereof and was not paid compensation. I have before now, stated that the Governor or Government of Lagos State can properly and validly revoke a right over and compulsorily acquire a

piece or parcel of land at any time pursuant to Section 28 of the Land Use Act, subject to the relevant provisions on the procedure for the acquisition. So the fact that the acquisition was after the Appellant purchased the land and was put in possession, is of no moment in the determination of legality, lawfulness or validity of the acquisition. The material question is whether the acquisition of the land in dispute was in fact and law made by the Governor or Government of Lagos State in accordance, and compliance with the applicable statutes. By the provisions of Section 102 (a) of the Evidence Act, 2011, Official Gazettes, as records of official acts of sovereign authority or public officers, are public documents and under Section 106(a) (i) and (iv) of the Act, may be proved by the production of the such Gazette as prima facie proof of the fact which they were intended to notify. Since an official Gazette is prima facie evidence of the fact which it intends to notify, it enjoys a rebuttable presumption, which until it was rebutted by other credible and sufficient evidence, a Court of law is entitled to act and rely on is correct and in proof of the fact it

intends to notify. It is evidence which, if not effectively rebutted, would be admissible evidence that has not been challenged or controverted on the fact it intends to notify and can properly be relied on by a Court. P. T. F. v. I. F. M. S. Limited. (2003) 16 NWLR (794) 586; Magaji v. Nigerian Army (2008) 8 NWLR (1089) 338 @ 393; Adeleke v. Iyanda (2001) 12 NWLR (729); Nasir v. C. S. C. Kano State (2010) 6 NWLR (1190) 253; Leadway Assurance Company. Limited. v. Zeco Nigeria Limited (2004) 18 NSCQR, 394, (2004) 11 NWLR (884) 316.
As a fact, the Gazette No. 27 of 17th April, 1980, is prima facie and sufficient evidence of the notification of the acquisition of the land described thereon, by the Lagos State Government with effect from the 17th April, 1980; the date of its publication.
In the absence of evidence to the contrary, the land described in the Gazette and in respect of which notice of revocation of right and intention to acquire and take possession was given therein, was compulsorily acquired by the Lagos State Government in 1980.
However, the Appellant has maintained that he was not personally served with the notice of the

Governments intention to acquire the land in dispute as the owner in possession by the date of the acquisition.
As seen earlier, the provisions of Section 28 (6) and (7) of the Land Use Act provide that: –
(6) The revocation of a right of occupancy shall be signified under the hand of a public officer duly authorised in that behalf by the Governor and notice thereof shall be given to the holder.
(7) The title of the holder of a right of occupancy shall be extinguished on receipt by him of a notice given under Subsection (5) or on such later date as may be stated in the notice.
These straight forward provisions are that the title (ownership) of the holder of a right of occupancy shall be extinguished on receipt by him of a notice given to him of the revocation signified under the hand of public officer duly authorized in that behalf by the Governor. It is beyond reasonable argument that by the combined effect of the provisions of Subsections (6) and (7) of Section 28 of the Land Use Act, that service of the notice of revocation of a right of occupancy on the title holder (owner) of a piece of land and receipt of same by him are conditions precedent for extinguishing his title (ownership) over

the said land by way of compulsory acquisition of the land by the Governor/Government. In the absence of evidence of issuance, service and receipt of a notice of revocation of a right of occupancy on and by a title holder (owner) of a piece of land, there can be no valid revocation of his title which is also a condition precedent for a valid compulsory acquisition of the said piece of land.
For emphasis, the right of occupancy in a title holder (owner) of a piece of land only becomes extinguished when the notice of revocation of the title issued, was received by him, under the provisions of Section 28 (6) and (7) of the Land Use Act. See Ononuju v. A. G. Anambra State (1998) 11 NWLR (573) 304, (2009) 4-5 SC (Pt.1) 163; Provost, Lagos State College of Education v. Edun (supra); Okeowo v. A.G., Ogun State (2010) 16 NWLR (1219) 327. Adekeye, JSC, was emphatic in the case of Goldmark Nig. Ltd. v. Ibafon Co. Ltd (2012) 3 MJSC (Pt.1) 90, that:
On the issue of notice, this Court pronounced several decisions that the publication in the gazette does not constitute sufficient notice, there must be personal service of same on the person.

In the Respondents case, they did not plead any fact as to the giving of the notice to the title holder of the land in dispute which admittedly falls within the Lagos State acquired area as contained in the Lagos State Official Gazette No. 27 Volume 13 of April, 1980.
Even after the Appellant frontally and specifically denied the said acquisition in the Amended Reply to the Amended Statement of Defence, the Respondents did not bring forth, fact of giving notice of the revocation of the land in dispute or even the larger land within which it falls, to the title holder(s) and receipt of such notice by him/them as stipulated in the provisions of Section 6 and 7 of the Land Use Act and stated by the Apex Court in the cases cited above, for their title to be extinguished and for a valid acquisition in accordance with the law. Peter-Odili, JSC in the case of Goldmark Nig. Ltd v. Ibafon Co. Ltd (supra) had said that: –
One cannot but continue to emphasize that where a statute specifically provides for a particular way in which Government or any party can obtain title, the Government or the party can only acquire title by strict

compliance with the statute, unless the statute or its wording is against the Constitution of the land. Another way of stating it is that there should be strict compliance with the issue of serving notice on land owners or interested persons in compulsory acquisition of land in accordance with the provisions of the law.
With the undenied and proved ownership of the land in dispute before the purported publication of the Exhibit D3, by way purchase under native law and custom, the Appellant was at the material time, a title holder of the land on whom the provisions of Subsections (6) and (7) of Section 28 of the Land Use Act, prescribed service of notice of revocation. The absence of facts and requisite evidence from the Respondents, who asserted the acquisition, shows that there was no valid acquisition of the land in dispute as the publication of Exhibit D3 alone, does not meet or satisfy the pre-conditions stipulated by the laws for the acquisition.
In A. G. Bendel State v. Aideyan (supra) Nnaemeka-Agu, JSC stated the law that: –
There can be nothing like a de facto acquisition: any such purported acquisition outside, or not in

complete compliance with the provisions of a law with the above safeguards, is completely null and void.
The law was more poignantly stated in Olatunji v. Mil. Gov. Oyo State (supra) where it was held that: –
Failure to effect personal service of the notice on the appellant in accordance to the manner set out in Section 28 and 44 of Land Use Act is a gross violation of or serious departure from the set out procedure. Service personally on the occupant is sine qua of revocation of his 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 rending those two sections together that the right of the appellant is revoked.
See also Wuyah v. Jamaa L. G. Kafancan (2011) LPELR-9078(CA); Baba-Iya v. Mai sikeli (2006) 3 NWLR (968) 508; Provost, Lagos State College of Education v. Edun (supra); Adisa v. Oyinwola (supra) P. Dumez Nig. Plc v. Ademoye (2014) LPELR-23518(CA).
In the above premises, there was no valid acquisition of land in dispute by the Respondents by the mere publication of Exhibit D3 to extinguish the established

title/ownership of the Appellant.

In the absence of a valid acquisition in law, the issue of compensation for the acquisition will not arise. The issue is resolved in favour of the Appellant.

The last Issue is whether the High Court properly and correctly evaluated the evidence placed before it. With the findings on the Issues 1 and 2 above, it is apparent that the High Court did not properly evaluate the evidence before it largely due to its misconception and misapprehension of the Appellants case which led to the erroneous findings and conclusion in the judgement appealed against. The Respondents did not effectively challenge and controvert the case put forward by the Appellant but simply pleaded and solely relied on the purported acquisition vide Exhibit D3.

Once again, the case of the Appellant was that he acquired the land in dispute by purchase under native law and custom, was put and remained in possession up to the time of the unauthorized interference with by officials of the Respondents on the basis of Exhibit D3. Exhibit D3, did not in law, as demonstrated before now, extinguish the Appellants title holding/ownership of

the land in dispute, to vest the Respondents with possession thereof.

The credible evidence of the Appellants acquisition and exclusive possession of the land in dispute at the material time remained unchallenged and sufficient to support his case of trespass against the Respondents as required by law.

NWLR (978) 174. The ascription of possession of the land in dispute on the basis only, of Exhibit D3 by the High Court was plainly an error in law in assessment of the material evidence placed before it as it is not supported by that evidence.
In the circumstances, the Court is not only entitled to, but has a duty to interfere with the decision returned by the High Court.

Like I stated earlier, the evidence adduced by the Appellant supports and establishes his case of trespass against the Respondents in respect of the land in dispute and is entitled to judgement.

In the final result, I find merit in the appeal and allow it. As a consequence, the judgement by the High Court delivered on the 31st March, 2014 in the Appellants Suit No. ID/1384/2007 is hereby set aside and judgement entered in favour of the Appellant as per paragraph 15 of the Statement of claim dated 26th October, 2007.

In view of the time taken for the trial, the processes filed by the Appellant and the number of appearances by him and other Counsel who represented him during the trial, the Appellant is entitled to costs for both the trial and prosecution of the

appeal. See Onabanjo v. Ewetuga (1993) 4 NWLR (288) 443 @ 450, Uzoma v. Okorie (2000) 15 NWLR (692) 882 @ 893.
Costs are assessed at One Million Naira Only (N1,000,000.00) in favour of the Appellant to be paid by the Respondents.

BIOBELE ABRAHAM GEORGEWILL, J.C.A.: I had the privilege or reading in draft the lead Judgment of my learned brother MOHAMMED LAWAL GARRA, J.C.A., just delivered with which I agree and adopt as mine. I have nothing more to add.

ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.: I have had the advantage of reading in draft the judgment delivered by my learned brother, MOHAMMED LAWAL GARBA, JCA in this appeal.

The uniqueness of this case, boils down to fact that the trial Court didnt critically consider relevant matters, or the credible evidence put by the parties before reaching it conclusion, which creates the doorway for this honourable Court to now interfere with the evaluation of the evidence given at the trial Court and its decision as a matter of duty. See SOGUNRO & ORS V. YEKU & ORS (2017) LPELR 41905 (SC), where the apex Court held

that;…it is only where the appellate Court, either because the reasons given by the trial Judge are not satisfactory or because it unmistakably, so appears from the evidence, is satisfied that the trial judge has not taken proper advantage of his having seen and heard the witnesses, that it could properly interfere. In such a case, the matter will become at large in the appellate Court. This is as much settled principle of English Law, Watts (or Thomas) v. Thomas (1947) 1 All ER 582 as it is a settled position in this country, Nwankpu and Ors V. Ewulu and Ors (1995) LPELR -2017 (SC 32), C – E. per NWEZE, JSC (PP. 29 – 30, PARA. D)

In light of the above reason and the reasoning in the lead judgment, I also find the appeal meritorious and it is accordingly allowed. I also abide by the order as to costs and all other consequential orders in the lead judgment.

Appearances:

Kike-Siji-Fasole (Mrs.) For Appellant(s)

I.K. Taiwo (DCL) with him, T.O. Idris (SSC), A. Iyitade (SC) and T. J. Shosanya (SC) For Respondent(s)

Appearances

Kike-Siji-Fasole (Mrs.) For Appellant

AND

I.K. Taiwo (DCL) with him, T.O. Idris (SSC), A. Iyitade (SC) and T. J. Shosanya (SC) For Respondent