MAJOR MURITALA GBADAMOSI (RTD) & ORS. v. H.R.H. OBA TIJANI ADETUNJI AKINLOYE & ORS.
In The Supreme Court of Nigeria
On Friday, the 12th day of July, 2013
SC.146/2005
RATIO
LAND LAW: DOCTRINE OF NEMO DAT QUOD NON HABET
It is settled law that you cannot give what you do not have, otherwise known as the doctrine of “Nemo dat quod non habet”.
The question is simply whether the respondents who had sold their title to the portion of land in dispute to the appellants which title was compulsorily acquired by the Lagos State Government from the appellants, and which acquisition has been declared by a court of law to be null and void legally speaking be entitled to a repossession of the title already sold to appellants from the third party; Lagos State Government; without the authority and/or consent of the new owner of that title The lower courts held that the respondents are entitled to the title. However, common sense says that you cannot eat your cake and still have it back. That is the simple answer to a very simple case as revealed by the record of appeal. Without making magic or abracadabra, can you eat your cake and still have it back Fortunately, this is a court of law which has absolutely nothing to do with magic or abracadabra neither does the court allow itself to be used as an engine for the perpetration of fraud, in whatever guise.
In the case of Ilona v. Idakwo (2003) 11 NWLR (pt. 830) 53 at 89 and 91 – 92, this Court held, inter alia, as follows:-
“Where there is a subsisting right of occupancy, it is good against any other rights. The grant of another right of occupancy over the same piece of land will therefore be invalid…
Where a party has fully divested himself of all interest in land, no right vests in him to deal with the same property by way of further alienation anymore. It is a matter of nemo dat quod non habet: i.e. he cannot give that which he no longer has.” PER WALTER SAMUEL NKANU ONNOGHEN, J.S.C.
JUSTICES
WALTER SAMUEL NKANU ONNOGHEN Justice of The Supreme Court of Nigeria
BODE RHODES-VIVOUR Justice of The Supreme Court of Nigeria
OLUKAYODE ARIWOOLA Justice of The Supreme Court of Nigeria
CLARA BATA OGUNBIYI Justice of The Supreme Court of Nigeria
KUMAI BAYANG AKA’AHS Justice of The Supreme Court of Nigeria
Between
- MAJOR MURITALA GBADAMOSI (RTD)
2. RASAKI GBADAMOSI
3. MUFTAU GBADAMOSI
(For themselves and on behalf of GBADAMOSI BANDELE ELETU FAMILY) Appellant(s)
AND
- H.R.H. OBA TIJANI ADETUNJI AKINLOYE
2. CHIEF MURITALA SAKA ODOFIN
3. ALHAJI CHIEF YEKINI OLA BAKARE
(For themselves and on behalf of OJOMU CHIEFTAINCY FAMILY) Respondent(s)
KUMAI BAYANG AKA’AHS, J.S.C. (Delivering the leading Judgment): The issue in this appeal is whether the respondents who had earlier sold a portion of land vide a registered conveyance to the appellants can turn round to claim ownership of the same portion simply because the appellants had stood by and allowed the respondents to challenge the Lagos State Government who had revoked all rights of occupancy in and over a vast area of land in Lekki Peninsula in the Eti-Osa Local Government Area of Lagos State.
The background facts leading to this appeal are as follows:
In 1977 the respondents’ family sold a portion of the Ojomu Chieftaincy, family land measuring 254.558 hectares to the appellants’ father, late Gbadamosi Bandele Eletu. The land is situate and known as Osapa Village in Eti-Osa Local Government Area of Lagos State. The transaction done through a Deed of Conveyance dated 23rd August, 1977 was duly registered as No.36 page 36 Volume 1648 at the Lands Registry, Lagos. By the Lagos State Government Notices Nos. 10 and 14 published in the Lagos State Official Gazette of February 19th and 26th, 1987 respectively, the Lagos State Government compulsorily acquired a vast area of land spanning several kilometres consisting of many villages and settlements. The acquired land included the appellants’ Osapa Village. The respondents brought an action in Suit No. ID/1883/89 (Alhaji Fatai Ajetunmobi & Ors. v. The Attorney-General of Lagos State) to challenge the compulsory acquisition. Judgment in the suit was delivered on the 18th day of October, 1991 in which the court granted the following reliefs in favour of the Ojomu Chieftaincy Family:
(a) A declaration that the Plaintiffs are the persons entitled to a customary right of occupancy to all that piece or parcel of land shown in the plan attached to the statement of claim herein.
(b) A declaration that the customary right of occupancy vested in the Plaintiffs in and over the land mentioned in the claim hereof has not been validly or effectively revoked by the Military Governor of Lagos State.
(c)An injunction restraining all officers and servants of the Lagos State Government from committing acts of trespass on the said land or unlawfully making use of the same except with the consent of the plaintiffs.
After the said judgment the respondents entered an agreement with the Lagos State Government wherein portions of Ojomu Chieftaincy family land were granted to the Government of Lagos State whilst the Governor revoked the respondents’ right of occupancy over other portions of the aforesaid family land and thereafter excised areas from such portions vesting the same in the respondents. Following this agreement, the Ojomu Chieftaincy Family became the holders of a right of occupancy in and over the entire portions of land excised from the Government acquisition. The respondents then claimed that the present appellants who were neither a parry in Suit No. ID/1883/89 nor a party to the agreement entered into between them (respondents) and the Lagos State Government claimed proprietary rights over portions of Ojomu Family Land and committed several acts of trespass on the said land and this led the respondents to institute action against the appellants in Suit No. LD/2642/95. The appellants counter – claimed and averred that the land which was sold to their father was exempted from the Notice of Revocation and by virtue of the excision as contained in Lagos State Official Gazette No. 24 Volume 27 dated 23rd June 1994, the title over the affected portion of land at Osapa Village if any reverted to them (defendants). The respondents as plaintiffs filed a reply to the counter – claim alleging that all interests in the land granted to the defendants by the Deed of Conveyance dated 23rd August, 1977 abated when the Governor of Lagos State revoked all rights of occupancy in and over the vast area of land in Lekki Peninsula in 1981 and that since the revocation was not challenged by the defendants, it remained valid against them.
The learned trial Judge entered judgment against the defendants on issues settled where documents were admitted by consent of the parties without giving oral evidence. The judgment was affirmed by the Court of Appeal Lagos Division (herein referred to as the court below). It is against this judgment that the appellants have further appealed to this Court in their Notice of Appeal dated 14th June, 2004 containing eight grounds of appeal. In the amended appellants’ brief filed on 18/12/2012 which was deemed filed by order of court made in chambers on 20th March 2013 the appellants formulated the following six issues for determination:-
1. Whether the Court of Appeal was right when it held that because the appellants did not institute a separate action to challenge the revocation of their title the appellants’ title is extinct (Ground 4)
2. Whether the learned Justices of the Court of Appeal were right when they resolved appellants’ issue 1 against the appellants without considering the appellants’ arguments on the issue (Grounds 1, 2 and 8)
3. Whether the learned Justices of the Court of Appeal were right when they held that the judgment in Suit No. ID/1883/89 and the settlement agreement between the respondents and the Lagos State Government had extinguished the appellants’ title in favour of the respondents (Ground 3)
4. Whether the Justices of the Court of Appeal were not in error when they held that the appellants cannot benefit from Suit No. ID/1883/89 (Ground 5)
5. Whether the Court of Appeal was right when it held that the High Court rightly granted to the respondents a relief not claimed (Ground 6)
6. Whether the Court of Appeal was right in affirming the award of N500,000.00 damages for trespass when there is (sic) no evidence of trespass before the High Court (Ground 7).
The respondents also filed an amended brief on 28th March, 2013. They replied seriatim to the issues postulated and argued by the appellants without formulating their own issues.
On issue 1 which is pivotal to this appeal, learned counsel for the appellants submitted that the Court of Appeal was in error to hold that the appellants title became extinct since the appellants did not institute an action to challenge the revocation of their title by the Government. He referred to Suit No. M/779/93 – Major Murtala Gbadamosi Eletu (Rtd.) v. A. G. Lagos State & Ors. to challenge the Government’s revocation of the title to the land which ended in a term of settlement and was made the judgment of the Court as contained on pages 116 – 118 of the Records. He therefore submitted that the Court of Appeal’s holding that the title of the appellants is extinct on the ground that they did not challenge the revocation is most perverse. Learned counsel for the respondents maintained that the Court of Appeal was right in affirming the judgment of the Lagos State Government revocation of 1981. He argued that a methodical look at Exhibit C3 shows that the suit the appellants filed to challenge the revocation was commenced in 1993, two years after the revocation had been declared null and void in Suit No. ID/1883/89 instituted by the respondents wherein the Court affirmed the right and interest of the respondents over the whole land. He maintained that the judgment of the Court in Suit No. ID/1883/89 stands and has not been upturned and submitted that title over the whole land resided in the respondents since there is no appeal against it and it is deemed accepted by the party against whom the decision was entered and is therefore binding. He placed reliance on Iyoho v. Effiong (2007) 11 NWLR (part 1044) 31 SC and Adeyemi – Bero v. Omotosho (2008) 15 NWLR (part 1111) 576. He said that what transpired in Exhibit C3 is tantamount to a review of the decision in Suit No. ID/1883/89 which divested the powers of the Lagos State Government with respect to the portions of land vested in the respondents. Relying on the principle of nemo dat quod non habet which was applied in Ilona v. Idakwo (2003) 11 NWLR (Part 830) 53 learned counsel submitted that the Lagos State Government had no power, right or interest to transfer or alienate or enter any form of arrangement on any portion of land already declared by the Court in Suit No. ID/1883/89 as belonging to the respondents to anyone, the appellants inclusive.
The appellants filed a reply brief in which it was submitted that the decision in Ilona v. Idakwo (supra) supports the appellants’ case and proceeded to argue that the respondents misunderstood the arguments of the appellants when they cited Adeyemi – Bero v. Omotosho and Iyoho v. Effiong supra which are irrelevant to this case.
The crux of the respondents case at the High Court is that the judgment in Suit No. ID/1883/89 extinguished the title of the appellants to the land. This is evident in paragraphs 4, 5, 6, 7. 8 and 9 of the plaintiffs’ pleadings in Suit No. LD/2642/95 wherein they averred as follows:-
“4. Sometime in 1981, the Governor of Lagos State revoked all rights of occupancy in and over a vast area of land in Lekki Peninsula which included the aforementioned Ojomu Family Land.
5. The Plaintiffs herein brought an action against the Lagos State Government in respect of the said revocation.
6. By a judgment delivered in Suit No. ID/1883/89 (Alhaji Fatayi Ajetunmobi & Ors. v. The Attorney-General of Lagos State) the Court granted the following reliefs in favour of the Ojumo Chieftaincy Family:
(i) A declaration that the plaintiffs are the persons entitled to a customary right of occupancy to all that piece or parcel of land shown in the plan to the statement of claim herein.
(ii) A declaration that the customary right of occupancy vested in the plaintiffs in and over the land mentioned in claim (i) hereof has not been validly or effectively revoked by the Military Governor of Lagos State.
(iii) An injunction restraining all officers and servants of the Lagos State Government from committing acts of trespass on the said land or unlawfully making use of the same except with the consent of the Plaintiffs.
7. After that said judgment the Plaintiffs entered into an agreement with the Lagos State Government where under portions of Ojumo Chieftaincy Family Land were conceded, yielded or granted to the Government of Lagos State whilst the Governor revoked the Plaintiffs’ rights of occupancy over other persons of the aforesaid Family Land and thereafter excised areas from such portions vesting the same in the plaintiffs.
8. Following the agreement mentioned in paragraph 7 hereof the Ojumo Chieftaincy Family became the holders of a right of occupancy in and over the entire portions of land excised from Government acquisitions as herein before mentioned and other portions of Ojumo Family Land not acquired by the Government.
9. The Defendants who were neither a party in suit No. ID/1883/89 nor a party to the agreement entered into between the plaintiffs and the Lagos State Government now wrongfully claim propriety rights over portions of Ojumo Family Land and have committed several acts of trespass on the said land.”
In their Amended Statement of Defence and Counter – Claim in Suit No. LD/2642/95, the Defendant/Appellants pleaded as follows in paragraphs 2A, 7, 11 and 19:-
“2A Further to paragraph 2 above, the Defendants aver that in 1977 that plaintiff’ Family, that is Ojomu Chieftaincy Family of Ajiran through their accredited representatives among whom was the 2nd Plaintiff outrightly sold and conveyed a portion of the Ojumo Family Land described in paragraph 2 of the Statement of Claim and measuring 254.558 hectares and situated at Osapa Village in Eti-Osa Local Government Area of Lagos State to the Defendants’ father late Gbadamosi Bandele Eletu as evidenced by the Deed of Conveyance dated 23rd day of August 1977 and registered as No. 36 at page 36 in volume 1648 of the Lands Registry in Lagos. The said Deed of Conveyance with the plan attached is hereby pleaded and will be relied upon at the trial. The Defendants also plead and will rely at the trial on the composite plan No. SOL/1093/LA/OBD dated 17/3/97 prepared by A. O. Solesi, a licensed surveyor.
7. The Defendants aver that customary right of occupancy in respect of all that piece or parcel of farmland at Osapa Village, Eti-Osa Local Government Area, Lagos as shown on plan No. MD/77/90 dated 25/4/77 and made by M. O. Diya, licensed Surveyor referred to and attached to Deed of Conveyance dated 23/8/77 and made between CHIEF NUSA ADEBANJO OJUMO and eight (8) others including the 2nd Plaintiff all representing OJUMO CHIEFTAINCY FAMILY and GBADAMOSI BANDELE ELETU is vested in the Defendants by devolution of inheritance under the said Conveyance.
11. Further to paragraph 10 above, the Defendants aver that several years after the judgment in suit No. I/302/55 which was delivered on 12th December 1960, the Plaintiffs’ family in 1977 through their accredited representatives including the 2nd Plaintiff in this suit, by way of outright sale for a consideration conveyed to the GBADAMOSI BANDELE ELETU which land now vests in the Defendants.
19. Further to paragraph 18 above, the Defendants aver that their land falls under the exception to the Notice of Revocation mentioned in paragraph 16.2 above being a village already established before the Notice of Revocation or
ALTERNATIVELY
By virtue of the excision as contained in Lagos State Official Gazette No. 24 Volume 27 dated 23rd June, 1994 the title over the affected portion of land at Osapa Village, if any, reverted to the Defendants”
In the reply which was filed to the Statement of Defence and Defence to Counter – Claim the Plaintiffs pleaded in paragraphs 1 and 2 thereof…….
“1. With regard to paragraphs 3 and 7 of the Statement of Defence, the Plaintiffs aver that all interest in the land granted to the Defendants by the Deed of Conveyance dated 23rd August, 1977 abated when the Governor of Lagos State revoked all rights of occupancy in and over the vast area of land in Lekki Peninsula in 1981.
2. The Plaintiffs in response to paragraph 5 of the Statement of Defence aver that since the revocation was not challenged by the Defendants, it remains valid against them”.
It is not entirely true to say that the appellants could not claim any benefit that accrued to the respondents by virtue of the judgment in Suit No. ID/1883/89. At the time the respondents instituted that action against the Lagos State Government challenging the acquisition of the land, title to that portion of the land covered by exhibit C1 (the registered Deed of Conveyance) had already passed to Gbadamosi Bandele Eletu, the late father of the appellants. The interest which the respondents sought to protect in Suit No.ID/1883/89 included that of the appellants since the appellants derived their root of title from them and they sued for the whole of the Ojomu Chieftaincy Family Land. See:- Banire v. Balogun (1986) 4 NWLR (part 38) 746 at 753. When the Court declared that “the customary right of occupancy vested in the Plaintiffs in and over the land mentioned in claim (i) hereof has not been validly or effectively revoked by the Military Governor of Lagos State”, the interest of the parties returned to status quo before the purported acquisition. The respondents never disclosed to the Lagos State Government that they had divested themselves of their interest in the Osapa Village land and since the whole land was initially owned by the Ojomu Chieftaincy Family, it was logical that the Lagos State Government would return the land improperly acquired to the owners once the compulsory acquisition was rendered null and void by the Court.
The respondents have not been consistent in their claim to the land. In one breath they claim it was the acquisition by the Lagos State Government which was not challenged that extinguished the appellants’ right to the land while in another breath they are asserting that it was the declaration made by the Court in Suit No. ID/1883/89 in their favour that extinguished the appellants’ interest in the land.
It is not true as learned counsel for the respondents has submitted that the appellants sat by and failed to challenge the acquisition of the land by the Lagos State Government. It is of no consequence whatsoever that the appellants did not institute their action to challenge the acquisition the same time that the respondents took out their Writ in Suit No. ID/1883/89 or that the appellants did not join in that suit even if they were aware of it; neither does it lie in the respondents’ mouth to say that the appellants belatedly filed their action after judgment in Suit No. ID/1883/89 was delivered. It was for the Lagos State Government that had carried out the acquisition to challenge the late commencement of Suit No. M/779/93 by the appellants. The argument of learned counsel for the respondents that Suit No. M/779/93 (Exhibit C3) instituted by the appellants was a review of Suit No. ID/1883/89 and the reliance placed on Iyoho v. Effiong and Adeyemi – Bero v. Omotosho (supra) holds no water whatsoever. The appellants were never a party to Suit No. ID/1883/89 and notwithstanding the fact that suit No. ID/1883/89 was in respect of the whole of Ojomu Chieftaincy Family Land, the appellants had a right to institute Suit No. M/779/93 to challenge the Lagos State Government over its acquisition of Osapa Village covering an area of 254.558 hectares the title to which the appellants acquired by purchase from the respondents. The renunciation by the respondents of some portions of the acquired land in favour of the Lagos State Government could not affect the interest of the appellants since the respondents could not compromise the Osapa Village land in their settlement agreement with the Lagos State Government because they could not surrender what did not belong to them. Any negotiation embarked upon between the respondents and the Lagos State Government which led to the excision of some portions of the acquired land would be vested in the party whose interest was subsisting. And following the terms of agreement reached between the appellants and the Lagos State Government on 20th May, 1996 which became the judgment of the Court in Suit No. M/779/93 (Exhibit C3), the Excision Notice of June 23, 1994 should vest the 10 hectares (approximately 24.17 acres) reclaimed land in Osapa Village in the appellants. See. Dantsoho v. Mohammed (2003) 6 NWLR (Part 817) 457. It is quite ironic that the respondents who divested themselves of their title to the Osapa Village land since 1977 would be submitting that the Lagos State Government had no power, right or interest to transfer or alienate any portion of the land already declared by the Court in Suit No. ID/1883/89 as belonging to the respondents.
The respondents cannot eat their cake and have it. See: Coker v. Sanyaolu (1983) 14 NSCC 119 at 129 – 130; Okoli v. Ojiako (1997) 1 NWLR (part 479) 48 at 52. The judgment in Suit No. ID/1883/89 could not vest title on a party that had alienated that title. The reversion of the title must rest with the appellants.
It is necessary to take a critical look at the judgment of the trial court which was affirmed by the Court of Appeal. As stated earlier, the judgment in Suit No. LD/2642/95 was entered against the defendants (the present appellants) on issues settled where documents were admitted by consent and no evidence was given by any of the parties. Despite the pleadings in paragraphs 2A, 7 and 11 of the Amended Statement of Defence and Counter – Claim which were not denied in the reply filed by the Plaintiffs (now Respondents), the learned trial Judge still went ahead to hold as follows:
“…… there is no material evidence to link the purchasers in exhibit C1 with the Defendants in this suit. In like manner there is no material evidence to link the present plaintiffs with the vendors in Exhibit C1 that is the conveyance between Chief Amusa Adebambo Ojomu and Eight others and Gbadamosi Bandele Eletu. By not giving any material evidence or link between the purchaser in Exhibit C1 and the Defendants in this suit, the Defendants have no right or interest in any portion of land within the piece or parcel of land under and by virtue of the Deed of Conveyance dated 23rd of August, 1977 and registered as No. 36 at page 36 in Volume 1648 of the Land Registry at Lagos”
The learned trial Judge proceeded to hold that –
“…… the Plaintiffs by reason of excision are entitled to the statutory right of occupancy in respect of the whole land contained in Exhibit A5 and are entitled to hold the said land to the exclusion of the Defendants”.
The defendants who were dissatisfied with the decision appealed against it to the Court of Appeal complaining in Grounds 1 and 4 of the Notice of Appeal that –
“1. The learned trial Judge erred in law by repeatedly using in the judgment the phrase “there is no evidence” without first deciding whether the issues or questions for determination settled by parties’ counsel are issues or questions of law on admitted facts or issues or questions partly of the one kind and partly of another.
PARTICULARS OF ERROR
(a) Neither party gave evidence but relied on the issues/questions for determination settled by their counsel.
(b) It is trite law that it is the plaintiffs who have the burden to prove the case
(c) It was not open to the learned trial judge and indeed of any court to speculate upon matters which there was no evidence led as evident in this case.
(d) Parties agreed on the issues on points of law alone.
4. The learned trial Judge misdirected himself on the facts when he found that there is no evidence that the plaintiffs in Suit No. LD/2642/95 were the same people who conveyed land to GBADAMOSI BANDELE ELETU as evident by conveyance dated 23rd day of August, 1977 and Registered as No. 36 at page 36 in volume 1648 of the Lands Registry, Lagos.
PARTICULARS OF MISDIRECTION
(a) The land conveyed in 1977 to Gbadamosi Bandele Eletu, the father of the Defendants/Appellants herein was conveyed by the vendors as the Chiefs and principal representatives of the Ojomu Chieftaincy Family of Ajiran-
(b)Suit No. LD/2642/95 was instituted by the Plaintiffs/Respondents for themselves and as Representatives of the same Ojomu Chieftaincy Family of Ajiran
(c) The 2nd Plaintiff/Respondent (Chief Muritala Saka Odofin) was the 3rd Vendor as shown in Exhibit C1.
(d) It was not an issue before the Honourable Court as to whether the Respondents are the same people who sold the said land to Gbadomosi Bandele Eletu in 1977.
(e) The parties had agreed on the issues settled and particularly by paragraph 1 of the Reply to Statement of Defence and Counter – Claim that the Plaintiffs/Respondents’ family admitted paragraph 3(a) of the Defendants/Appellants’ Amended Statement of Defence. Rather the Plaintiffs/Respondents pleaded that the interest of the Appellants in the land had dated (sic)”
The issues which were distilled from these grounds were:-
“1. Whether issues having been settled by counsel, the learned trial Judge adopted the right legal approach in dealing with those issues before reaching his conclusion
2. Whether the learned trial Judge was right in holding that the Defendants have no right or interest in the land in dispute for the various reasons given in the judgment”
The lower court glossed over issue I and dismissed the appeal on the ground that the appellants did not challenge the Notice of Revocation published by the Lagos State Government in 1981.
The established legal procedure where issues have been settled by the parties were set out by Bello, JSC (as he then was) in Obijunru v. Ozims (1985) 16 NSCC (Part 1) 430 at 436 – 437 where he said:-
“it is commenced on the application of one of the parties or by the Judge suo motu who thereupon will proceed to ascertain and determine the material questions in controversy between the parties or may direct the parties to prepare such issues. Thereafter the questions will be reduced into writing and the Judge will settle them in the form of issues stating questions of law on admitted facts or questions of disputed facts or questions of one kind or partly another”Since there was no dispute as to the facts the parties agreed not to call oral evidence but tender documents. One of the facts admitted was the sale of Osapa Village to Gbadamosi Bandele Eletu. The High Court instead of identifying admitted and disputed facts as required where parties have settled issues, ignored the conventional practice and went ahead to hold that there was no evidence to show that the appellants were the heirs of the late Gbadamosi Bandele Eletu the purchaser in Exhibit C1. In doing this the court ignored the admission by the Respondents in their Reply to the Statement of Defence and Defence to Counter – Claim and arrived at a wrong decision. Also the High Court totally overlooked and ignored Exhibit C3 which clearly showed that the appellants challenged the revocation of their title by filing two suits which culminated in the settlement contained in Exhibit C3 dated 20th May, 1996. If the Court below had adverted its mind to these grave errors, the judgment would have been otherwise. All the above errors in the judgment of the High court were brought to the attention of the court below but it still went ahead to affirm the decision of the learned trial Judge.
The Respondents’ claim before the High Court was that the appellants were not competent to derive benefits from either the court order made in Suit No. ID/1883/89 or the settlement agreement entered in that suit because the appellants were not parties to both the suit and the settlement agreement made therein. Since the revocation had been set aside alier the respondents had parted with their ownership of Osapa Village which was listed in the excision Notice of 23rd June, 1994, the respondents could not claim any legal right to Osapa Village merely because the High Court had declared in Suit No. ID/1883/89 that the plaintiffs/Respondents were entitled to the statutory right of occupancy in respect of the whole land contained in Exhibit A5. The High Court erroneously held that excision of land contained in the official gazette No. 24 of Volume 27 of the 23rd June 1994 did not include “Land at Osapo Village”. Osapa is mentioned in paragraph 3(b)(ii) in the Lagos State of Nigeria Official Gazette No. 24 Vol. 27 of 23rd June, 1994 wherein it is stated that:
“The Lagos State Government hereby confirms and undertakes that the proposed revocation of the Plaintiffs’ Right of Occupancy in and over the aforementioned land will not include:
(a) ………………
(b) the areas specifically excised by the Lagos State Government from the operation of previous Notices of Revocation affecting the land which is the subject of these Terms of Settlement, viz (Customary Right of Occupancy)
(ii) Osapa 18.05 Ha”
The settlement agreement reached between the appellants and the Lagos State Government reduced the entitlement of the appellants from 18.05 Hectares to 10 Hectares.
As no evidence was taken in the High Court, the alleged trespass leading to the award of N500,000.00 (Five Hundred Thousand Naira) damages against the appellants was not proved and the Court of Appeal was in error to affirm the award.
I find that there is merit in the appeal and it is hereby allowed. The judgment of the Lagos High Court in Suit No. LD/2642/95 delivered on 11th October, 2000 which was affirmed by the Court of Appeal in CA/L/64/2001 on 12th May, 2004 are hereby set aside. The appellants are entitled to the statutory right of occupancy over 10 Hectares (which is approximately 24.l7acres) of the reclaimed land in Osapa Village which has been excised and assigned to them, a sketch plan of which was attached and marked ‘SCHEDULE 1’ to the terms of settlement dated 20th May, 1996 and made the judgment of the Court in Suit No. M/779/93. I award the following costs to the appellants against the respondents:
(i) N100,000.00 in this Court
(ii) 50,000.00 in the Court of Appeal
(iii) N50,000.00 in the High Court. This brings the total costs awarded against the respondent to N200,000.00
WALTER SAMUEL NKANU ONNOGHEN, J.S.C.: This is an appeal against the judgment of the Court of Appeal, Holden at Lagos in appeal No. CA/L/64M/2001 delivered on the 12th day of May, 2004 in which the court dismissed the appeal of the appellants against the judgment of the Lagos State High Court in suit No. LD/2624/1995 delivered on the 11th day of October, 2000 in which the court entered judgment for the plaintiffs, now respondents in this Court, to the effect that the plaintiffs are “entitled to the statutory right of occupancy in respect of the whole land contained in exhibit A5 and are entitled to hold the said land to the exclusion of the Defendants”‘ who are appellants before the lower court and this Court.
The trial court also granted an injunction “restraining the Defendants whether by themselves, their servants or agents from committing any further acts of trespass on the plaintiffs’ land” and awarded “the sum of N500,000.00 damages to the plaintiffs for trespass while dismissing the counter-claim of the defendant/appellants on the ground that same “was not established by any material evidence.”
The facts of the case have been stated in the lead judgment of my learned brother AKA’AHS, JSC but I have to restate some of them herein to highlight the Point being made.
It is not in dispute that sometime in 1977 the family of the respondents sold, by a Deed of Conveyance dated 23rd August, 1977 a portion of their Ojomu land measuring 254.558 hectares to the father of the appellants, late Gbadamosi Bamidele Eletu, which land is situate and known as Osapa Village in Eti-Osa Local Government Area of Lagos State. The conveyance was registered as No. 36 at page 36, volume 1648 at the Lands Registry, Lagos. The appellants are the children of the said purchaser who inherited the land.
The original purchaser and appellants took effective possession of the land and enjoyed undisturbed possession prior to the suit leading to the appeal.
Sometime in 1987, the Lagos State Government, by official Gazette of February 19 and 26, 1987 respectively compulsorily acquired a vast area of land covering several kilometres including the appellants’ Osapa Village resulting in the institution of several actions by the appellants and the respondents against the Lagos State Government including suit No. M/779/95: Major Muritala Gbadamosi Eletu (RTD) & Ors. v. A.G. Lagos State & Ors. by the appellants which resulted in a terms of settlement entered as the judgment of the court recognising the title of appellants to Osapa Village.
There was also suit No. LD/3954/93: Major Muritala Gbadamosi Eletu (RTD) & Ors. v. Harris Dredging Ltd & Anor. Meanwhile, the respondents had, on their part and prior to the two suits so instituted by the appellants, instituted suit No. ID/1883/89: Alhaji Fatayi Ajetunmobi v. A.G. Lagos State in which they challenged the compulsory acquisition of their family land which incidentally included the portion earlier sold to the father of appellants i.e. Osapa Village and won. The Lagos High Court set aside the compulsory acquisition and declared same null and void resulting in a settlement Agreement between the parties in which the respondents herein renounced their title to some portions of the acquired land excluding Osapa village land in favour of the state government.
Following the agreement, the government by a notice published in the official gazette excised and released from acquisition some portions of the land earlier acquired including Osapa village land’ which land constitutes the subject matter of the action leading to the instant appeal.
It is the case of the respondents at the trial court that appellants were not competent to derive benefits from either the court order made in suit No. ID/1883/89 or the settlement Agreement entered in the suit on the ground that appellants were not parties to the suit and settlement Agreement made as a result. It is also their case that the compulsory acquisition earlier set aside by the court remains invalid as against the respondents but subsisting against appellants. The above submission was accepted by the trial court and affirmed by the lower court.
It is also not in dispute that Counsel for both parties submitted questions for determination and tendered documents by consent at the trial court thereby leading no evidence at the trial. As stated earlier in this judgment, the counter claim of appellants in respect of their Osapa village land was dismissed by the lower courts for want of evidence while the claims of the respondents were granted in full.
Learned Senior Counsel for appellants, OLU DARAMOLA, SAN in the amended appellants brief deemed filed and served on 20/3/13 submitted the following issues for the determination of the appeal:-
“1. Whether the Court of Appeal was right when it held that because the appellants did not institute a separate action to challenge the revocation of their title, the Appellants’ title is extinct. (Ground 4).
2. Whether the teamed Justices of the Court of Appeal were right when they resolved the Appellants’ issue 1 against the Appellants without considering the Appellants’ argument on the sad issue (Grounds 1, 2 and 8).
3. Whether the learned Justices of the Court of Appeal were right when they held that the judgment in suit No. ID/1883/89 aid the settlement Agreement between the Respondents and the Lagos State Government had extinguished the Appellants’ title in favour of the Respondents (Ground 3).
4. Whether the Justices of the Court of Appeal were not in error when they held that the Appellants cannot benefit from suit No. ID/1883/89 (Ground 5).
5. Whether the Court of Appeal was right when it held that the High Court rightly granted to the Respondents a relief not claimed (Ground 6).
6. Whether the Court of Appeal was right in affirming the award of N500,000.00 damages for trespass when there is no evidence of trespass before the High Court (Ground 7).”
The above issues were adopted and argued by the respondents in the amended respondents’ brief settled by DR. WALE OLAWOYIN and filed on 28/3/13.
I have to state that in dismissing the counter claim of the appellants, the trial court held/found at pages 14 – 15 of the record of appeal, inter alia as follows:-
“It is clear that part of the land earlier acquired from the plaintiffs had been returned to them without reference to any interest of the Defendants or any other third party. The position of excision between the plaintiffs and Lagos State Government had been confirmed by Exhibit A4 which was the memorandum of Agreement between the Government of Lagos State and the Ojomu Chieftaincy family. I hold on balance of probabilities that the plaintiffs by reason of excision are entitled to the statutory right of occupancy in respect of the whole land…”
From the graphic details of the facts of this case it is very clear and I hold the firm view that the main issue calling for determination in this case; by which I mean both at trial and on appeal; is whether the respondents haven divested themselves of their title to the piece or parcel of land known and described in the Deed of conveyance therein called Osapa village land since 1977 can get the said piece or parcel of land back from any person other than the purchaser of same or his representative. Secondly, can the Lagos State Government whose title to the land vide compulsory acquisition has been declared null and void give valid title to the very land to the respondents by way of settlement agreement
It is settled law that you cannot give what you do not have, otherwise known as the doctrine of “Nemo dat quod non habet”. The question is simply whether the respondents who had sold their title to the portion of land in dispute to the appellants which title was compulsorily acquired by the Lagos State Government from the appellants, and which acquisition has been declared by a court of law to be null and void legally speaking be entitled to a repossession of the title already sold to appellants from the third party; Lagos State Government; without the authority and/or consent of the new owner of that title The lower courts held that the respondents are entitled to the title. However, common sense says that you cannot eat your cake and still have it back. That is the simple answer to a very simple case as revealed by the record of appeal. Without making magic or abracadabra, can you eat your cake and still have it back Fortunately, this is a court of law which has absolutely nothing to do with magic or abracadabra neither does the court allow itself to be used as an engine for the perpetration of fraud, in whatever guise.
In the case of Ilona v. Idakwo (2003) 11 NWLR (pt. 830) 53 at 89 and 91 – 92, this Court held, inter alia, as follows:-
“Where there is a subsisting right of occupancy, it is good against any other rights. The grant of another right of occupancy over the same piece of land will therefore be invalid…
Where a party has fully divested himself of all interest in land, no right vests in him to deal with the same property by way of further alienation anymore. It is a matter of nemo dat quod non habet: i.e. he cannot give that which he no longer has.”It is very unfortunate that the respondents claimed title to the whole of their family land compulsorily acquired by the Lagos State Government including the portion earlier sold to the father of the appellants and in which they were in effective possession. The claim so made without disclosing the truth and excluding the said portion so sold is clearly made in bad faith and smacks of insincerity. To put it mildly, it is very unconcionable and consequently against the principles of equity and good conscience. It is worst when the respondents, after obtaining judgment and entering into a settlement Agreement which expressly excludes the land of appellants to still insist and hold unto that land when they know that they had much earlier divested themselves of the title to the said portion.
It is for the above reasons and the more detailed reasons contained in the lead judgment of my learned brother, AKAAHS, JSC that I too find merit in the appeal and allow same.
I abide by the consequential orders made in the said lead judgment including the order as to costs.
Appeal allowed.
BODE RHODES-VIVOUR, J.S.C.: I read in draft the leading judgment prepared by my learned brother, Aka’ahs, JSC and I am in full agreement with his lordships reasoning and conclusions. I shall not state the facts as this has been so well done in the leading judgment and the quantum of concurring judgments by my learned brothers.
It has been said on several occasions that if pleadings are to be of any use parties must be held bound by them, and facts are pleaded and not law. It is the duty of the court to decide issues based on the pleadings. See: Oseni v. Dawodu 1994 4 NWLR (pt.339), Okoya v. Santili 1994 4 NWLR (pt.338) p.256, Akinfolarin v. Akinola 1994 3 NWLR (pt.335) p. 659
All that a party is required to do is to plead facts which would enable the court to conclude that he has an equitable estate or interest. He does not need to plead that he has an equitable estate or interest.The appellants pleaded sufficient facts not denied, to show beyond doubt that they are the heirs of Late Gbadamosi Bamidele Eletu who purchased 254.558 hectares of the land situate and known as Osapa village in Eti-Osa Local Government Area of Lagos State from the family of the respondents sometime in 1977. These facts show that the appellants have an equitable interest in the land by operation of Law. Both courts below fell into unpardonable error not being able to see that on the state of the pleadings the appellants have an equitable interest on the land by operation of law.
The well laid down position of the law is that where a purchaser of land has paid the price for the land to the vendor, he immediately acquires equitable interest in the land and this, is as a good legal estate. The equitable interest so acquired can only be destroyed by a purchaser for value who had no notice of the existing equity.My lords, there is no doubt that the appellants purchased the land in question from the respondents. A fact nowhere denied by the respondents. The equitable interest acquired by the appellants on the 254.558 hectares of land at Osapa Village in Eti-Osa Local Government Area of Lagos State remains intact.
The appellants are the true owners of the land in question, and there is nothing known to law to disturb their title to the land.
For this and the more detailed reasoning in the leading judgment, there is indeed merit in this appeal. The decisions of the two courts below are wrong.
The appeal is allowed.
OLUKAYODE ARIWOOLA, J.S.C.: My learned brother Aka’ahs, JSC obliged me with the draft of the lead judgment just delivered. I agree entirely with the reasoning therein and the conclusion arrived thereat.
The appellants are entitled to judgment. The appeal is meritorious and should be allowed. Appeal is allowed.
I abide by the consequential orders including that on cost in favour of the appellants but against the respondents.
CLARA BATA OGUNBIYI, J.S.C.: I had the privilege of reading in draft the lead judgment just read by my learned brother Aka’ahs, JSC. I agree that the appeal has merit and should be allowed.
The facts of the case are very intriguing and well spelt out in the lead judgment. It is however interesting that the Ojomu chieftaincy family having sold their land in dispute to the appellants in 1977 should subsequently turn around to claim the same land as against the defendants/appellants.
See Coker v. Sanyaolu (1983) 14 NSCC 119 at 129 to 130; Okoli v. Ojiakor (1997) 1 NWLR (Pt 479) 48 at 52. It is not, for instance in dispute at the trial High Court that the defendants/appellants acquired their title from the plaintiffs/respondents as per Exhibit ‘C’.
The lower court in affirming the judgment of the High Court in ID/1883/89 nevertheless vested title to the disputed property in the Respondents. By implication therefore, the High Court had by its judgment estopped the appellants from contesting the respondents’ title. As rightly submitted by the learned appellants’ counsel, the decision in ID/1883/89 which set aside the revocation notice by Logos State Government is a declaratory judgment. In other words, it merely declared, that the revocation Notice by the State Government is invalid; hence it affirmed the appellants’ title as it operates in their favour against the whole world.
It was therefore erroneous for the Court of Appeal to have fallen into the same trap as the trial court in affirming that the judgment in ID/1889/83 did confer the appellants’ undivested title on the respondents.
With the few words of mine and more particularly on the comprehensive reasoning and conclusion arrived thereat by my learned brother Aka’ahs, JSC in his lead judgment, I also find merit in this appeal and allow same in terms of the lead judgment inclusive of costs.
Appearances
Olu Daramola SAN, and Ahmed Raji SAN with Ademola Koko, Ola Faro, Adesola Adedipe, Ademola Abimbola, Sunday Onubi and Abolanle Alawoya For Appellant
AND
Dr. Adewale Olawoyin For Respondent
