LAGOS STATE GOVERNMENT & ORS v. ALH. MUFUTAU AKINWUNMI & ORS
(2018)LCN/11928(CA)
(2018) LPELR-45312(CA)
In The Court of Appeal of Nigeria
On Thursday, the 12th day of July, 2018
CA/L/124/2016
RATIO
LAND LAW: DECLARATION OF TITLE AND OWNERSHIP OF LAND
“As a foundation for the consideration of the issues raised by the Appellants’ Counsel against the judgment by the High Court, counsel are right on the general position of the law on duty of proof, in cases for declaration of title/ownership of land, in particular, as well as in other cases seeking for declaratory reliefs; see Ozowala v. Ezeiheshie (1991) 1 NWLR (170) 699, Okedare v. Adebara (1994) 6 NWLR (549) 157, Onu v. Agu (2006) 5 SCNJ, 74 @ 89, and that a party is to succeed on the strength of his case and not on the absence or want of defence or even admission in pleadings of a Defendant. See Eyifisoye v. Alabatutu (1968) NMLR, 298, Woluchem v. Gudi (1981) 5 SC, 291 @ 308-9, Akintola v. Balogun (2000) 1 NWLR (642) 533, Madubuomou v. Nnahue (1999) 1 NWLR (628) 673, Onisaodu v. Elewuju (2006) 13 NWLR (998) 517, in addition to the cases cited by learned counsel.” PER MOHAMMED LAWAL GARBA, J.C.A.
JUSTICE
MOHAMMED LAWAL GARBA Justice of The Court of Appeal of Nigeria
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO Justice of The Court of Appeal of Nigeria
JAMILU YAMMAMA TUKUR Justice of The Court of Appeal of Nigeria
Between
1. LAGOS STATE GOVERNMENT
2. HON. COMM. MIN. OF ENV. LAGOS STATE
3. HON. COMM. MIN. OF TRANS. LAGOS STATE
4. THE ATTORNERY GENERAL LAGOS STATE – Appellant(s)
AND
1. ALH. MUFUTAU AKINWUNMI
2. MR. UCHE OKOYE
3. PERSON UNKNOWN – Respondent(s
MOHAMMED LAWAL GARBA, J.C.A. (Delivering the Leading Judgment):
This appeal is against the judgment of the High Court of Lagos State delivered on 31st March, 2015 in the Respondents’ Suit No. ID/746/ 2008 in his favour and it is brought by Appellants on four (4) grounds of dissatisfaction contained on the Notice of Appeal dated the 15th June, 2015.
In the Appellants’ brief filed on the 17th, May 2017, two (2) issues were distilled for decision in the appeal as follows: –
1. WHETHER FROM THE FACTS AND EVIDENCE AVAILABLE ON RECORD, THE LAND ALLOCATED TO THE RESPONDENT BY THE APPELLANTS AT 48, OSORO/4, AKINWUNMI STREET, MUSHIN, PAPA AJAO, LAGOS STATE IS SYNONYMOUS OR F0RM PART OF THE LAND SAID TO BE AT OBELE IGBODO, MUSHIN COVERED BY EXHIBIT PW1-D (INDENTURE DATED 8TH DECEMBER 1973).
(Distilled from ground one and two of the Notice of Appeal dated 15th June 2015)
2. WHETHER OR NOT THE JUDGMENT DELIVERED BY THE HIGH COURT OF LAGOS STATE IN THIS CASE ON THE 31ST DAY OF MARCH, 2015 IS NOT AGAINST THE WEIGHT OF EVIDENCE AVAILABLE ON RECORD.
(Distilled from ground three and four of the Notice of Appeal dated 15th June, 2015)
The Respondents’ brief was filed on the 1st June, 2017, wherein, a preliminary objection to the competence of the grounds of appeal was raised and argued, urging the Court uphold it and strike out the appeal for being incompetent, thereby depriving the Court of the jurisdiction to entertain the appeal.
Two issues are also submitted for determination in the following terms:-
a. Whether the Learned trial Judge was right when he held that the Respondent (formerly the Claimant in the Lower Court) is entitled to the statutory right of occupancy over the landed property situate at No. 48 Osoro Street/No. 4 Akinwunmi Street, Papa Ajao, Mushin Lagos? (Distilled from grounds 1 and 2 of the ground of Appeal)
b. Whether the learned trial Judge was right, in holding that the letter of allocation dated 11th February 2008 (Exhibit PWIK) revoking the temporary allocation of the Respondent (formerly the Claimant in the Lower Court) was illegal, void, and of no legal effect? (Distilled from ground 3 of the appeal).”
In reaction to the preliminary objection, the Appellants filed a Reply brief on the 28th March, 2018, deemed on the 9th May, 2018.
I would deal with the preliminary objection which is premised on the following grounds first –
1. The Appellant did not seek leave at the Lower Court before raising grounds 1 and 2 of the appeal which is a ground of fact.
2. Grounds 1 and 2 of the appeal are fresh points which were not canvassed at the Lower Court.
3. The Appellant also failed to seek the leave of the Court to raise grounds 1 and 2 of the appeal as a fresh point.
4. No issue for determination was distilled from Grounds 3 and 4 of the Appellant’s Notice of Appeal.”
In arguing the grounds of objection, Counsel for the Respondents says grounds 1 and 2 of the Notice of Appeal are on issues of fact and, relying on Section 242 of the 1999 Constitution, that prior leave of Court is required for them to be competent. Order 6, Rule 4 of the Court of Appeal Rules, 2016 as well as the cases of Anambra State House Develop Corp. v. Emekweu (1996) 1 NWLR (426) 505 @ 538 on guide to identification of a ground of law and Akinyemi v. Odua Invest. Co. Ltd (2012) 17 NWLR (1329) 209 @ 232 on how to identify a ground of fact, among other cases were referred to.
In addition, grounds 1 and 2 are said to raise new issues not determined by the High Court and not substantial points of law and so prior leave ought to have been obtained before they were brought, citing New Res Int. Ltd v. Oranusi (2011) 2 NWLR (1230) 102 @ 117 and Eze v. A.G., Rivers State (2002) 1 MJSC, 87 @ 99.
It is the further submission of Counsel that the law is trite, relying on visa Comms. Ltd. v. MCSN Ltd/Gte (2013) 5 NWLR (1347) 250 @ 277, inter alia, that an issue for determination predicated on an incompetent and competent grounds, or from an incompetent ground, is rendered incompetent. Also, that Issue 2 of the Appellants did not emanate from grounds 3 and 4 of the Notice of Appeal and so on the authority ofEke v. Ogbonda (2006) 18 NWLR (1012) 506, incompetent and no issue was distilled from ground 3 which is therefore deemed abandoned as was stated in Dakolo v. Rewane Dakolo (2011) 16 NWLR (1272) 22. Not yet done, it is the contention of the Respondents’ Counsel that ground 4, being an omnibus ground, cannot be used to raise an issue of law.
In answer to the grounds of the objection, learned Counsel for the Appellants said the argument that leave is required to file grounds 1 and 2 is grossly misconceived by virtue of the provisions of Section 221(1)(a) of the Constitution which provides that an appeal against the final decision of a High Court Federal or State, sitting as a first instance Court, is as of right and so leave of Court is not required by an Appellant. He said the judgment appealed against by the Appellants is a final decision by a State High Court sitting as a first instance Court and so irrespective of the nature of the grounds of appeal, the appeal by the Appellants against it on any ground of pure law alone, mixed law and facts or facts alone, is as of right and does not require prior leave of Court to be brought. The provisions of Section 221(1)(a) of the Constitution were set out and the case of Nwankwo v. Kay-Kay Const. Ltd (2014) LPELR-24336(CA) was referred to. After setting out grounds 1 and 2, it is argued that the grounds challenge the evaluation of the evidence adduced by the parties at the trial by the High Court and cannot be said to raise new or fresh issues which require leave of Court, citing Yusuf v. Akande (2011) LPELR-5114(CA); Eze v. State (2015) 7 NWLR (978) 172.
While conceding that no issue was distilled or formulated from ground 3, issue 2 was said to have been raised from ground 4, which does not question or raise any issue of law since it does not attack any specific finding by the High Court and reference was made to Akinlagun V. Oshoboja (2006) Legalpedia (SC) 4A56. The Court is urged to dismiss the objection in its entirety.
Without the need to waste vertriage, the learned Counsel for the Appellants is right, and I completely agree with him, the ground of the objection on the need for leave to have been obtained by the Appellants before filing grounds 1 and 2 of the Notice of Appeal because they are said to be of mixed law and facts or facts alone , is a product of gross misunderstanding and misconception of the provisions of Sections 241(1)(a) and 242 of the Constitution providing for the right of appeal as of right and with leave of Court. Both Sections have received judicial interpretations by this Court and the Supreme Court in countless cases and recently, I have had cause to restate the law on the provisions in Appeal No. CA/L/571/2018, Dr. O. Okonkwo v. PDP & Ors, judgment of which was delivered on the 7th May, 2018. This was part of what I said in my contribution to the lead judgment
“Speaking generally, the right of appeal against any decision of trial/Lower Court, by a party in a case, to this Court, is vested by the Constitution which established both Courts and conferred them with their respective jurisdiction. See 241 and 242 (for the purpose of this appeal and other relevant sections in respect of other Lower Courts and Tribunals) of the 1999 Constitution (as altered) Min. of Petroleum Resources v. Expo-Shipping Line Nig. Ltd (2010) 12 NWLR (1208) 261; Ekulo Farms Ltd. v. UBN, Plc (2006) 4 SC (Pt.II) 1; Abba-Tukur v. Govt. of Gongola State (1988) 1 SC, 78; Eyesan v. Sanusi (1984) LPELR-1185 (SC). The right of appeal vested in a party or person by the provisions of the Constitution, is pursuant to provisions of Section 243(1) (b), to be exercised in accordance with any Act of the National Assembly and the rules of Court for the time in force regulating the powers, practice and procedure of the Court of Appeal. Oruche v. COP Delta State (1997) 4 NWLR (497) 236: Aroyewun v. Adebanji (76) 11 SC (Reprint) 21;Onigbeden v. Balogun (75) 4 SC, 63; Moses v. Ogunlabi (75) 4 SC (Reprint) 60; Min. of Petroleum Resources v. Expo-Shipping Line Nig. Ltd (supra); Ngige v. Obi (2006) 14 NWLR (1999) 1.
By the provisions of Section 241(1)(a) of the Constitution, the right of appeal to the Court from the final decision of a High Court; Federal and State, in any civil or criminal proceedings, is as of right, sitting as a first instance Court.
The right of appeal as of right vested by the provision of Section 241(1) (a) is one which the party or person can exercise at his will and on his own power or authority so long as it is exercised in compliance with other relevant statutory provisions. Because the right of appeal is as of right in a party, he has the discretionary authority to file an appeal without seeking for permission, order or leave of either the trial or appellate Court to do so, if it is filed in accordance with the relevant statutory requirements provided for in an Act of the National Assembly.
Similarly, under the provisions of Section 241(1)(b) an appeal against the decision of a High Court, Federal or State, in any civil or criminal proceedings, is as of right and can be filed by a party without the need to seek for or obtain the prior permission, order or leave from the trial or appellate Court to do so, where the ground(s) of the appeal involves/involve question(s) or issue(s) of law alone. Because the provisions of Section 241(1)(a) provide for o right of appeal against a final decision of the High Court to the court, the provisions of Section 241(1)(b) which did not specifically name the nature of the decision against which the right of appeal is provided for as of right, it can, in relation to the earlier provision, reasonably be said to provide for a decision by the High Court which is not final in any civil or criminal proceedings.
A decision of the High Court, or any other Court of law, which is not final in any civil or criminal proceedings, is an intermediate or interlocutory decision in the course of such proceedings on an issue which does not dispose of the dispute between and rights and obligations of the parties to the proceedings, completely and finally. See Akinsanya v. UBA Ltd. (1986) 4 NWLR (35) 273: Ajani v. Giwa (1986) 3 NWLP (32) 796 @ 803-4; Nwadike v. Ibekwe (1987) 4 NWLR (67) 718, (1987) 11-12 SCNJ, & 2; Metal Constr. (W.A) Ltd. v. Migllore In Re: Miss C. Ogundare (1990) 2 SCNJ, 20, (1990) 1 NWLR (126) 229 @ 314: Nwosu v. Offor (1997) 2 NWLR (487) 274, (97) 1 SCNJ, 193.
A decision in relation to a Court, by dint of Section 318(1) of the Constitution, means any determination of that Court and includes judgment, decree, order, conviction, sentence or recommendation.
In these premises, under both Sub-paragraphs (a) and (b) of Section 241(1) of the Constitution, the right of appeal provided for is one as of right which can be exercised freely and without hindrance by a party or person, in accordance with the laid down law on procedure and practice which regulate and govern the exercise of the right. In particular, under Subparagraph (b), where the ground(s) of an appeal is/are on questions/issues of law alone, the nature of the decision by a High Court against which the right of appeal is provided, is immaterial, as the determining factor is whether or not the ground(s) involves/involve question(s) of law alone.
In other words, the nature of the grounds rather than the nature of the decision is the determinant and a precondition for the exercise of the right of appeal as of right as provided for under the provisions of Section 241(1) (b). Total Int. Ltd. v. Prince Awogboro (1994) 4 NWLP (337) 147; Adamu v. A.G., Borno State (1996) 4 NWLR (456) 203; NNPC v. Fawehinmi (1998) 7 NWLR (559) 598; Anoghalu v. Oraelosi (1999) 10 SCNJ 1; Welle v. Bogunjoko (2007) 1 NWLR (1029) 123; Ogbimi v. Niger Construction Co. Ltd. (2006) 9 NWLR (986) 474; Inyang v. Ebong (2002) 2 NWLR (2002) 2 NWLR (751) 284; FHA v. Kalejaiye (2010) 19 NWLR (1226) 147; FBN, Plc. v. Fashar (2000) 6 NWLR (662) 573; Comptel Int. SPA v. Dexson Ltd (1996) 7 NWLR (459) 170; Nwaolisah v. Nwabufoh (2011) LPELR-2115 (SC).”
In this appeal, there is no question on the fact that the judgment appealed from by the Appellants is a final decision delivered by the High Court of Lagos State, sitting in its original jurisdiction as a first instance Court and the right of appeal conferred or vested on a party dissatisfied with it by or under Section 241 (1)(a), is as of right. An appeal as of right is one in respect of which the right to appeal is exercised at the unfettered discretion of the party so long as it was filed within the time prescribed by an Act of the National Assembly and Rules to the Court of Appeal pursuant to the provisions of Section 243(1) (a) and (b) of the Constitution.
An appeal as of right provided for under Section 241(1)(a) is to be brought by a party without the need for prior permission, consent, indulgence, authority or leave of either the trial or this Court, once it is in accordance and complies with the requirement of the relevant law or statute enacted by the National Assembly, which for the moment, is the Court of Appeal Act, 2004.
It is not the contention of the Respondent under any of the grounds of the objection, that the Appellants’ appeal was brought in violation of any provisions of the Court of Appeal Act and specifically, that it was not filed within the time prescribed by the Act. The appeal provided for under Section 241(1)(a) of the Constitution as of right, can be brought by a party on any ground of appeal; whether of law alone, mixed law and facts or of facts alone without the need for leave of Court to do so because the nature of the grounds in such an appeal if of no moment to the exercise of the right of appeal.
In the circumstances, the ground of the objection by the Respondent’s Counsel has no basis in law and untenable.
The next ground of the objection is that grounds 1 and 2 are on issues which were not raise at the trial. Grounds 1 and 2 of the Notice of Appeal, without the particulars, are as follows: –
1. The learned trial Judge erred in law and in fact when he held that by virtue of exhibit PW-B (indenture dated 8th December, 1973) the Claimant established that he is entitled to the Statutory Right of Occupancy over the landed property and premises with appurtenances situate and known as No. 48, Osoro Street/No.4, Akinwunmi Street, Papa Ajao, Mushin Lagos State.
2. The learned trial Judge misdirected himself/was wrong when he held that the land allocated to the
claimant by the Lagos State Ministry of Transportation vide the letter of allocation dated 4th June, 2004 (exhibit PW-C) is part of the land covered by the conveyance dated 8th December, 1973 (exhibit PW-B)”
As can easily be seen, these grounds are direct complaints on the assessment of the evidence; Exhibits PW-1-B and PW1-C, and inferences drawn from it in the evaluation of the probative value to be ascribed to it by the High Court to arrive at the decision contained in the judgment. Again, it is a misconception to say that the grounds raise issues which were not raised at the trial because the grounds are directly traceable and derivable from the ratio decidendi of the judgment by the High Court. The grounds cannot seriously be said to have raised fresh points that would require leave of Court and the ground of objection is not supportable in law and bound to fail.
The last ground of the objection is that no issue was distilled from Grounds 3, 4 and so the grounds are deemed abandoned. The law is firmly established that where an issue is not framed or formulated from any ground of an appeal, the said ground is deemed to have been abandoned by the party who filed the Notice of Appeal. Osinupebi v. Saibu (1982) 7 SC, 104 @ 110-111; Ogbe v. Asade (2009) 18 NWLR (1772) 106 @ 124; Iyoho v. Effiong (2007) 11 NWLR (1044) 31; Onifade v. Olayiwola (1990) 7 NWLR (164) 730, (1990) 11 SCN, 10; Ndiwe v. Okocha (1992) 7 SCNJ, 355; Ngilari v. Mothercat Ltd (1995) 8 NWLR (311) 377.
In this appeal, although in the Appellants’ Reply brief, Counsel has conceded that that no issue was distilled or framed from Ground 3 of the Notice of Appeal, it may be recalled that the Appellants’ Issue 2 in the Appellants’ brief, was unequivocally indicated to have been distilled from Grounds 3 and 4 of the Notice of Appeal. The law is known that an issue can properly and competently be formulated from two or more grounds of appeal but a single ground of appeal cannot be used to formulate more than one issue in an appeal. Orji v. State (2008) 4 SCNJ, 85; Amodu v. Commandant, P. C Maiduguri (2009) 75 NWLR (1763) 75; Agbetoba v. Lagos State Executive Council (1991) 4 NWLR (188) 664; Osazuwa v. Edo State, C.S.C. (1999) 4 NWLR (597) 161; Mbang v. Guardian Newspapers Ltd (2010) LPELR-4479 (CA).
Neither of Grounds 3 and 4 has successfully been challenged to be incompetent and so both grounds are presumed to be competent grounds of appeal and, can properly be used to distill an issue for determination in the appeal. With the clear indication that the Issue 2 of the appeal was derived from grounds 3 and 4 of the Notice of Appeal, in the Appellants’ brief, it is erroneous for both Counsel to say that no issue was distilled for determination in the appeal, from ground 3.
In addition, the learned Counsel for the Respondent has indicated in the Respondent’s brief that his Issue 2 was distilled from ground 3 of the Notice of Appeal and the law allows him to do so whether or not the Appellant distilled an issue from the said ground, if the chooses to do so. Maraya Plastics Ltd v. Inland Bank Plc (2002) 7 NWLR (765) 709; Shittu v. Fasawe (2005) 14 NWLR (946) 671. On that account, an issue has been distilled for decision in the appeal, by the Respondents’ Counsel.
I have also noted that though learned Counsel for the Respondent has argued that ground 4 is incompetent because an omnibus ground of appeal cannot be used to raise an issue of law, as allegedly suggested by the Appellants. He did not however, demonstrated how the ground 4, which clearly, is an omnibus ground of appeal, was used by the Appellants to raise an issue of law in the appeal, but appears to have forgotten his earlier argument that no issue was distilled from ground 4 and deemed abandoned. Counsel is however right that the law is that an omnibus ground of appeal being one of fact, cannot be used or employed to raise an issue of law by Counsel. See Onaga v. Micho & Co. Ltd (1961) 2 SCNLR, 107; Iwuoha v. NIPOST (2003) 8 NWLR (822) 308; Calabar East Co-Op & Thrift Society v. Ikot (1999) 14 NWLR (638) 225; FMH v. CSA Ltd (2009) 9 NWLR (1145) 193.
On its face, Issue 2 of the Appellants is one which questions the fact of whether the judgment by the High Court is against the weight of the evidence adduced by the parties and used or relied on for the conclusion therein, which is the subject of the omnibus ground 4 of the Notice of Appeal. The ground is not used by the Appellants to raise any issue of law and the argument by the Counsel for the Respondent in that regard, is not correct.
Over all, the objection by the Respondents Counsel to the competence of the appeal or all the grounds thereof is devoid of merit and is accordingly dismissed.
Now, back to the issues for decision.
Appellants’ Issue 1: Arguments for Appellants
It is submitted that the evidence adduced before the High Court did not show that the land in dispute is a part of or synonymous with the land covered by indenture dated 8th December, 1973 (Exhibit PW1-D) tendered by the Respondent who has the legal duty to prove clearly, the area of land to which his claim relates in terms of exact boundaries and size, if he is to succeed for the declaration he sought. That the Respondent was required to produce credible evidence describing and identifying the area of land he claims with certainty and inter alia, Tukuru v. Sabi (2005) 3 NWLR (913) (no page provided); Olofosoye v. Olorunfemi (1989) 1 NWLR (1995) 26 and Dada v. Dosunmu (2006) 12 MJISC (Pt.1) 1.96 were cited on the submissions and it is contended that there was no iota of evidence before the High Court of any link between Obele-Igodo Mushin and No. 48, Osoro Street/No. 4, Akinwunmi Street Papa Ajao, Mushin, Lagos and whether the former later became the latter was a matter of fact to be proved by credible evidence which was not produced by the Respondent.
According to learned Counsel, the area of land covered by Exhibit PW1-B is square yards while the judgment by the High Court is in respect of land in square metres, said to be measurement contradiction when the law, as stated in Dada v. Dosunmu (supra), requires the area of land to be certain.
Again, arguments on the duty of a party claiming declaration of title to land to prove clearly, the precise area of land he claims, with certainty and further authorities on the position of the law were referred to; including Gbadamosi v. Dairo (2007) 3 NWLR (1021) 252; Epi v. Aigbedion (1972) 10 SC, 53 and Dada v. Dosunmu (supra). It is then maintained that the land allocated to the Respondent; 329.56 Sq. Metres is at 48, Osoro Street, Papa Ajao, Mushin while the land covered by conveyance dated 8th December, 1973 is at Obele-Igbodo Mushin.
Issue Two (2):
It is submitted for the Appellants that the case before the High Court shows that the Respondent was allocated the land in dispute by a letter dated the 4th June, 2004 setting out the conditions of the allocation, particularly on the use to which was to be put, a Mechanic workshop. Another letter dated 21st December, 2004 from the Urban and Regional Planning Board, Lagos State on the use of the land allocated to the Respondent, which was admitted in evidence as Exhibit DW1-C, was referred to and it is argued that the letter of allocation constituted a contract which binds the parties.
Then, in what appears to be Voltra face, it is submitted that the letter of allocation to the Respondent was an offer which must be accepted unconditionally to crystallize into a contract, on the authority of Nneji v. Zakhem Co. Nig. Ltd (2006) 12 NWLR (994) 297 @ 311 and Best Nig. Ltd v. Blackwood Hodge Nig. Ltd (2011) 5 NWLR (1239) 95 @ 127.
Without showing or even contending that the Respondent had accepted the offer made to him by the allocation letter unconditionally, submissions on the law that parties to a contract are bound by the terms and conditions thereof, the right of parties in cases of breach of contracts and apparently, from nowhere, the case of Osho v. Foreign Corp (sic) (1991) 4 NWLR (184) 757, on service of notice prescribed under Section 44 of the Land Use Act, was cited and it is said that the Respondent as a party to the contract leading to the allocation, breached the terms and conditions thereof in that he used the land for other purpose than the one it was allocated for. It is the case of Counsel that the letter of revocation of the allocation sent to the Respondent was a valid notice under Section 44 of the Land Use Act and the Court is urged to so hold.
In addition, Counsel contends that the fact that the land was allocated to the Respondent shows that it does not belong to him prior to the allocation as he could not have been allocated what belonged to him and Section 135(1) of the Evidence Act, Jackwhite (sic) (2001) 3 SC, 121 and Olalomi Ind. Ltd v. NIDB Ltd (2009) 16 NWLR (1167) 266 were referred to on the burden of proof of an assertion by a party in a case. The Respondent was to have failed to lead credible evidence that the land claimed is subject to planning regulations as a set back and that the judgment by the High Court is against the weight of evidence.
In conclusion, the Court is urged to allow the appeal and set aside the judgment by the High Court.
Respondent’s Issue One (1)
Citing the case of Irolo v. Uka (2002) 14 NWLR (786) 195 @ 229-31- on the judicially established ways of proving title or ownership of land, among other cases, it is submitted that the Respondent has proved his statutory Right of occupancy to the land at 48, Osoro Street/No. 4 Akinwunmi Street Papa Ajao, Mushin, Lagos by Exhibit PW1-B that enjoys the presumption of due execution and authentication by virtue of Section 162 of the Evidence Act and the authority of Johnson v. Lawanson (1971) 1 ALL NLR 56.
According to Counsel, even though Appellants’ counsel claim that the land in dispute is at Obele Igbodo, Mushin and not at No. 48 Osoro Street/No. 4 Akinwunmi Street Papa Ajao, Mushin, the Appellants in paragraph 3 of the Statement of Defence have pleaded that is at the latter address and so did not join issue with the Respondent on the identity or location of the land in dispute. The case of Igbinokogie v. Ogedengbe (2002) 1, MJSC, 36 @ 48, per Kalgo, JSC was cited and the cases cited by the Appellants on the need for proof of identity of land in dispute in the claim for declaration of title or ownership of land are said to support the Respondent’s position. In additiory cases including Okoko v. Dakolo (2006) 16 NWLR (1000) 401 @ 436, on the law that parties and the Court are bound by pleadings in a case were referred to and it is said that Appellants should not be allowed to raise a point on appeal which they did not raise in their pleadings.
Issue Two (2):
The submission for the Respondent are that the Appellants did not dispute their allocation of the land at No. 48 Osoro Street/No. 4 Akinwunmi Street, Papa Ajao, Mushin, and did not controvert the Respondent’s facts in paragraphs 13 and 14 of the Statement of Claim that:
“13. In preparation for the construction of the said prototype toilet, and mechanic workshops,the claimant bought building materials such as cement, gravels, blocks and sands worth about N2,000,000 (Two Million Naira) and deposited then on the said open space.
14. The claimant avers that on the 13th September, 2007 the claimant commenced construction work on the said open space but the claimant’s workers were stopped by official from the second defendant without giving any reason.”
Relying on Lewis & Peat (NRT) Limited v. Akhimien (1976) 1 ALL NLR, 460 and other cases, it is submitted that since the Appellants did not specifically deny and traverse the above averments, the general denial or traverse in Paragraph 2 of their statement of claim was not sufficient to put the facts in issue and are deemed admitted.
That the Appellants did not deny the fact that the Respondent was prevented from putting the land to the use for which it was allocated to him in Exhibit PW1-6 and that they subsequently, without hearing the Respondent, sent a letter of revocation dated 11th February, 2008; thereby denying him the right to fair hearing guaranteed under Section 36(1) of the Constitution.
Reliance was placed on Adigun v. AG of Oyo State (1987) 2 NWLR (Pt.56) 787, Bamgboye v. University of Ilorin (1999) 10 NWLR (Pt. 622) 290, Garba v. University of Maiduguri (1986) 1 NWLR (Pt. 18) 550 and the Court is urged to hold that the revocation never took place because it was issued without fair hearing and due process, resting the Respondent’s case on the famous statement in Macfoy v. U.A.C. Limited (1967) 3 ALL ER, 1169 @ 1771 that when an act is void, it is a nullity, incurably bad and that you cannot put something on nothing and expect it to stay there; it will collapse.
In conclusion, the Court is urged to dismiss the appeal for lacking in merit.
In the Appellant’s Reply brief, it is submitted that the Respondent was to succeed on the strength of his case and not on the absence of denial or traverse in the statement of defence, absence of evidence or even the weakness of the defence, on the authority of Oyeneyin v. Akinkugbe (2010) 1 MJSC (Pt.II) 1, Adams v. A.G. Federation (2007) ALL FWLR (355) 429 @ 447 and Gonzee v. N.E.R.C. (2005) 12 MJSC, 179 @ 184.
On the allegation of denial of fair hearing before the revocation of the allocation to him, it is said that the allocation was in the nature of a contract and that no law donates the right to the Respondent who, breaches the conditions of the allocation.
Once again, the Court is urged to allow the appeal.
As a foundation for the consideration of the issues raised by the Appellants’ Counsel against the judgment by the High Court, counsel are right on the general position of the law on duty of proof, in cases for declaration of title/ownership of land, in particular, as well as in other cases seeking for declaratory reliefs; see Ozowala v. Ezeiheshie (1991) 1 NWLR (170) 699, Okedare v. Adebara (1994) 6 NWLR (549) 157, Onu v. Agu (2006) 5 SCNJ, 74 @ 89, and that a party is to succeed on the strength of his case and not on the absence or want of defence or even admission in pleadings of a Defendant. See Eyifisoye v. Alabatutu (1968) NMLR, 298, Woluchem v. Gudi (1981) 5 SC, 291 @ 308-9, Akintola v. Balogun (2000) 1 NWLR (642) 533, Madubuomou v. Nnahue (1999) 1 NWLR (628) 673, Onisaodu v. Elewuju (2006) 13 NWLR (998) 517, in addition to the cases cited by learned counsel.
As a reminder, the pith of the Appellants’ issue 1 is that there was no evidence before the High Court that the land allocated to the Respondent vide Exhibit PW1-c is the same or part of the land conveyed to him in Exhibit PW1-B.
The starting point on the issue is the case presented by the Respondent in his pleadings, which are the crucial foundation upon which admissible evidence could be led by him in proof of the facts averred therein for the purpose of the claims made before the High Court. The relevant paragraphs of the Respondent’s Statement of Claim at this stage are: 7, 8, 9, 10, 11, 12 and 22 which say that –
7. The Claimant is the owner of the property and premises with the appurtenances situate at, and known as No. 48, Osoro Street/No. 4, Akinwunmi Street, Papa Ajao Mushin, Lagos State, covered by a deed of conveyance registered as 35/35/1440 of the Lands Registry in the office of Lagos.
8. The Claimant avers that the said property has as it’s appurtenances, abuttal, frontage or set back, an empty open space as shown on the survey plan attached to the aforesaid deed of conveyance.
9. By a letter dated 4th June, 2004, the claimant was granted approval by Lagos State Ministry of Transportation to construct mechanic workshop on the said open space of Land on the payment of the sum of N5,490.47 which the claimant paid. The claimant shall rely on the said letter and payment receipt at the trial of this suit.
10. By a letter dated 21st December, 2004 from Lagos State Urban and Regional Planning Board, the approval to construct mechanic workshop on the open space by the claimant was confirmed.
11. The claimant avers that the second defendant by a letter dated 5th January, 2006 the claimant was granted approval to construct one (1) No prototype public toilet with service well on the aforesaid empty open space the cost of which the claimant is to solely bear subject to Environment sanitation law and thereupon erected signboard on the space for the purpose. The claimant shall rely on the said letter at the trial of this suit.
12. The claimant avers that since the approval to construct on the open space in 2004, the claimant has being paying ground rent on the open space consistently up to 2008 to the Lagos State Government. The claimant shall rely on the Revenue receipt issued to the claimant at the trial of this suit.
13. In preparation for the construction of the said prototype toilet, and mechanic workshops, the claimant bought building materials such as cement, gravels, blocks and sands worth about N2,000,000 (Two Million Naira) and deposited them on the said open space.
14. The claimant avers that on the 13th September, 2007 the claimant commenced construction work on the said open space but the claimant’s workers were stopped by official from the second defendant without giving any reason.
15. The claimant further avers that the Ministry of transportation by a letter dated 11th February, 2008 and received through speed post on the 22nd April, 2008, purportedly revoked the allocation of the space to the claimant, and therefore void and of no effect.”
These averments were repeated by the Respondent in his statement on Oath dated and filed on the 12th May , 2008, which was adopted at the trial on 17th June,2004 as his oral evidence in support of the facts pleaded in the above paragraphs. The Respondent in addition, put in evidence, Exhibits PW1-B-PW1-E, PW1-G and PW1-K in further proof of the averments in his pleadings.
On their Part, the Appellants in paragraphs 1 and 3 of the statement of defence dated and filed on 7th October, 2008, reacted to the above averments of the Respondent, as follows:-
1. The Defendants admits paragraphs 1, 2, 3. 4, 5, 9, 10, 11, 15 and 22 of the Statement of Claim.
3. The Defendants avers that the land in dispute which is a set back and under a high Tension Wire situate at No. 48, Osoro Street/No.4 Akinwunmi Street, Papa Ajao, Mushin was allocated to the Claimant for use as a Mechanic Workshop (copy of the allocation letter is hereby pleaded and would be relied on at trial).”
By the statement on oath dated and filed on the same date with the statement of defence by the Appellants’ sole witness, the depositions were repeated as oral evidence by them in support thereof.
Apparently, the Appellants have expressly and unequivocally admitted the facts of the allocation of the land subject of the Respondent’s claim, to him for the purpose stated by him and eventually, that they revoked the allocation vide Exhibit PW1-K as stated by him. By the rules of pleadings all facts pleaded by a party which are expressly and clearly accepted, conceded to and admitted in the opposite party’s pleadings require no proof by evidence by dint of the provisions of Section 123 of the Evidence Act since proof presupposes the existence of a dispute or disagreement on a fact and where there was no dispute or disagreement about a fact, the question of its proof would not arise.
In the case of Din v. African Newspapers of Nig. Ltd. (1990) 5 SC (Pt.1) 111, (1990) 3 NWLR (139) 392, it was held by the apex Court that:-
“where both parties have agreed on a fact in issue, no further proof of such fact was necessary as it ceases to be an issue between them.”
See also Owosho v. Dada (1984) 7 SC.149 @ 163; Adeye v. Adesanya (2001) 2 SCNJ, 79 @ 86-8; Oseni v. Bajulu (2009) 18 NWLR (1172) 164; Edokpolo & Co. Ltd v. Ohenhen (1994) 7 NWLR (358) 511 @ 519; Agbanelo v. UBN, Plc (2000) 11 NWLR (666) 53 @ 59; Ndukwe v. LPDC (2007) 1-2 SC. 253.
It can also be easily noticed and observed that the Appellants did not, at all, deny the averments by the Respondent in paragraphs 7 and 8 of the Statement of Claim which are the specific, affirmative, positive, material and relevant facts upon which the averments in the following paragraphs 9-11 and 22 admitted expressly by the Appellants, were premised and based.
Again, by the known principles of pleadings, specific, positive and material averments in a party’s pleadings that are not denied and traversed at all, but ignored or disregarded by the opposite party in his own pleadings, would be deemed admitted by him on the reasonable presumption that if he in fact intended to deny the fact(s) or averment(s), he would have done so expressly and specifically in his pleadings. Cappa & D’Alberto Ltd v. Akintilo (2003) 4 SC (Pt.II) 1, (2003) 9 NWLR (824) 49; Ben Thomas Hotels v. Sebi Furniture Ltd (1989) 5 NWLR (123) 523; Onagoruwa v. JAMB (2001) 10 NWLR (722) 742; Okosi v. State (1989) 231 NWLR (100) 642; Ogolo v. Fubara (2003) 5 SC.141, (2003) 11 NWLR (831) 231. Since the Appellants did not deny or traverse or even attempt to do so at all in their pleadings, the fact that he is the owner of the property conveyed to him vide Exhibit PW1-B and that the property has, as its appurtenances, abuttal, frontage or set back, an empty open space, they are deemed to have admitted such facts and thereby obviating the need for proof by the Respondent since it ceases to be an issue of dispute between them by the muted admission. See Adeleke v. Aserifa (1986) 3 NWLR (30) 575; Nnonye v. Anyichie (1989) 2 NWLR (Pt. 101) 110; Adelaja v. Alade (1999) 4 SC (Pt.1) 81; Ogunleye v. Oni (1990) 2 NWLR (135) 745; Long-John v. Blakk (1998) 5 SCN, 68.
The legal consequence of the express and presumed admission by the Appellants of the case put forward in both pleadings and evidence before the High Court by the Respondent is that the land allocated to him vide Exhibit PW1-C, abuts, as a setback to the property he owns by virtue of Exhibit PWI-C. The unchallenged and expressly admitted evidence adduced by the Respondent was credible and sufficient to establish his entitlement to the declaration sought, on the balance of probabilities.
The question that now arises is whether in its judgment, the High Court did find and hold that the land allocated to the Respondent vide Exhibit PW1-C is synonymous or part of the land conveyed to him in Exhibit PW1-B, as asserted by the Appellants’ Counsel.
In its judgement, the High Court dealt with the issue or point at page 173 of the Record of Appeal where it stated and found that –
“Applying the foregoing facts to Exhibits PW1-B, the registered conveyance tendered as the title document by the Claimant, there is no doubt that this exhibit fulfill all the above stated requirement and the title of the Claimant to the property is not in dispute. The Survey Plan attached to Exhibits PW1 – B indicates that the total area of the land covered by Exhibit PW1-B is 1403.89 sguare meters. From the pleadings, it is the part of it measuring 329.56 square meters which is an open space or set back in front of the building that is now in dispute. There is no evidence that was led to show that this open space or set back does not form part of the 1403.89 square meters belonging to the claimant and covered by Exhibit PW1-B. In Onu v. Agu 1996 5 NWLR part 457 pages 652, the Supreme Court held that before a declaration of title is decreed, the land to which it relates must be ascertained with certainty.
In other words, definite and precise boundaries of the land claimed must be clear and unambiguous. It is my view and so hold that the claimant herein has established the identity and boundary of the land he claim by cogent satisfactory evidence which has not been contradicted by the Defendants. I therefore resolve issue 2 herein in favour of the Claimant, as the Claimant by virtue of Exhibit PW1-B is deemed to be the holder of a statutory right of occupancy granted by the Governor by virtue of Section 34(1)(2) and 5(a) of the Land Use Act of 1978.”
The clear import of the above finding by the High Court is that since there was no evidence to show that the open space or set back, subject matter of the case does not form part of the land owned by the Respondent vide Exhibit PW1-8, the Respondent is entitled to the statutory Right of Occupancy for that land because he had proved the identity and boundaries of the land by cogent & satisfactory evidence which was not controverted by the Appellants. In the final orders made by that Court in the judgment, it made declarations of the Respondent’s entitlement to the statutory Rights of Occupancy in respect of the property claimed in paragraph 7 of the statement of claim and then, the use and enjoyment of the property “and premises with the appurtenances and abutting space, frontage or setback”.
The facts pleaded, the evidence adduced by both parties as well as the primary finding and orders made in the reliefs 1, and 2 of the judgement, show that the land allocated to the Respondent vide Exhibit PW1-C, is not synonymous or part of the land covered by Exhibit PW1-B, but merely an abutting open space which is admittedly, a set back to that property. Nowhere in the entire twenty-six (26) paragraphs Statement of Claim of the Respondent did he claim the land allocated to him vide Exhibit PW1-C to be synonymous or a part of or be the same with that covered by Exhibit PW1-B. No admissible evidence was also adduced by him to that effect in the absence of the requisite pleadings to form the foundation for the evidence.
However, by the facts and evidence before the High Court, the Respondent did prove, as required by the law, that he was entitled to the use and enjoyment of the open space, as a setback abutting his property covered by Exhibit PW1-B in accordance with the provisions of the allocation as in Exhibit PW1-C.
The unchallenged pleadings of the Respondent in paragraphs 12, 13 and 14 of the Statement of Claim and the Depositions in the corresponding paragraphs in the Respondents statement on oath, as his oral evidence, show on the balance of probabilities or preponderance of evidence that the Respondent was prevented by the 2nd Respondent’s officers from putting the open space allocated to him vide Exhibit PW1-C, as a set back to his property, to the use for which it was allocated to him.
The 2nd and 3rd Appellants did not produce credible, cogent and satisfactory evidence to show or establish that the Respondent breached the terms and conditions of Exhibits PW1-C by putting the land allocated to him, to other use or uses than those stated in Exhibit PW1-C and D. In the absence of such evidence, the Appellants did not show how they could validly have exercised the authority and power to penalize the Respondent unilaterally and without an opportunity to be heard under the alleged contract between the parties.
Even if by the conditions and terms of Exhibit PW1-C, and any relevant laws the 2nd & 3rd Respondent retained the right, power and authority to revoke the allocation to the Respondent in the event by him, of putting the open space or set back to his property, to use other than that stipulated in the letter of allocation, the right and power should not be expressed arbitrarily without credible evidence of the breach and/or a hearing from the Respondent. The Exhibits PW1-K; letter of revocation of the temporary letter of allocation was not issued in the lawful exercise of the Appellants’ right and power under Exhibit PW1-3, but in complete disregard to the right of the Respondent to know and be heard on the allegation contained therein as the basis thereof.
In the result, the High Court was right to have declared that the revocation letter issued by the 2nd and 3rd Respondents in respect of the open space or set back which abuts the Respondent’s property at No. 48, Osoro Street/No. Akinwunmi Street, Papa Ajao, Mushin, to the Respondent vide Exhibit PW1-C, invalid, void and of no legal effect.
The facts and evidence before the High Court clearly supports its judgment and so it is supported by the deserved weight or probative value of the evidence placed before it by the parties.
In the final result, the two (2) issues submitted by the Appellants are lacking in merit and resolved against them.
As a consequence, the appeal fails and is dismissed for being bereft of merit.
The judgment by the High Court delivered on 31st March, 2015 in the Respondent’s Suit No.
ID/746/2008 is hereby affirmed.
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.: I have read the draft copy of the judgment just delivered by my learned brother, MOHAMMED LAWAL GARBA, J.C.A., and I am in complete agreement with the sound reasoning and conclusions advanced therein. There is nothing more useful to add.
The appeal fails and is accordingly dismissed. The judgment of the Lower Court is hereby affirmed.
JAMILU YAMMAMA TUKUR, J.C.A.: I have read in draft the lead judgment just delivered by my learned brother MOHAMMED LAWAL GARBA JCA. I agree with the reasoning and conclusion contained therein. I adopt the judgment as mine with nothing further to add.
Appearances:
A. A. Muheeb, CSC with him, K. B. Kazeem, PSC, Ministry of Justice, LagosFor Appellant(s)
Niyi OlajideFor Respondent(s)
