MR. MUSILIU AKINDELE & ANOR v. ATTORNEY GENERAL OF LAGOS STATE & ORS
(2019)LCN/13108(CA)
In The Court of Appeal of Nigeria
On Monday, the 15th day of April, 2019
CA/L/112/2012
JUSTICES
JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria
TIJJANI ABUBAKAR Justice of The Court of Appeal of Nigeria
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO Justice of The Court of Appeal of Nigeria
Between
1. MR. MUSILIU AKINDELE
2. MR. WAIDI HARUNA
(for themselves and as representatives of the Osu Olumeke Chieftaincy family of Ilase) Appellant(s)
AND
1. ATTORNEY GENERAL OF LAGOS STATE
2. FELFAN NIGERIA LIMITED
3. REGISTRAR OF LANDS/TITLES LAGOS STATE Respondent(s)
RATIO
THE PURPOSE OF A SURVEY PLAN
The purpose of a survey plan such as the one attached Exhibit E is to show graphically the morphology of the area, and its extent and size vide Oyefeso v. Coker (1999) 1 NWLR (pt.588) 654 at 661. In the instant case, the appellants claimed the disputed land and the 2nd respondent counter-claimed it, therefore the identity of the land was no longer in issue or in dispute between the parties vide Anyanwu and Ors. v. Uzowuaka and Ors. (2009) 13 NWLR (pt.1159) 445 at 475 ? 476.
Moreover, the identity of the disputed land was not specifically made an issue in the pleadings, so the parties are deemed or taken to know or be aware of the area of the land litigated upon requiring no further proof vide Ezeudu and Ors. v. Obiagwu (1986) 2 NWLR (pt.21) 208 at 230, Adenle v. Olude (2002) 18 NWLR (pt.799) 413 at 433 ? 434, Adelaja v. Alade (1999) 6 NWLR (pt.608) 544 at 559, Dosunmu v. Joto (1987) 4 NWLR (pt.65) 297, Ogunyanwo and Ors. v. Oluwole (2009) 16 NWLR (pt.1167) 391 at 403 ? 404. PER IKYEGH, J.C.A.
JOSEPH SHAGBAOR IKYEGH, J.C.A. (Delivering the Leading Judgment): The appeal is from the judgment of the High Court of Lagos State (the Court below) whereby it declared that the appellants as the claimants at the Court below were trespassers on the parcel of land located at Ilase beach, Badagry, in Ojo Local Government Area of Lagos State upon which the Governor of Lagos State sued in the name of the 1st respondent had granted the 2nd respondent a Certificate of Occupancy dated 26.03.1989; as well as the award of N5 million as damages against the appellants in favour of the 2nd respondent for trespass on the parcel of land plus a perpetual injunction restraining the appellants themselves, their agents, servants and privies from further committing civil acts of trespass on the said parcel of land.
?Briefly stated, the appellants claimed both in their writ of summons and statement of claim at the Court below that they were the owner of a large area of land located at an Island called Ilashe beach, Badagry, in Ojo Local Government, under Native Law and Custom, and were consequently entitled to a statutory or customary right of occupancy over
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the said large area of land which was at all material times subsisting; therefore a declaration should be issued by the Court below that the Certificate of Occupancy granted by the 1st respondent to the 2nd respondent over the parcel of land in 1989 is invalid, unlawful, null and void and, also, for an order setting aside the Certificate of Occupancy in consequence; and/or for an order compelling the 3rd respondent to cancel and/or remove from the register of Deeds/Titles of Lagos State the Certificate of Occupancy dated 26.10.1989 and registered as No. 13 at page 13 in volume 1989 of the Register of Deed kept at the Lagos State Land Registry, Lagos; coupled with a claim of N1 million general damages for acts of trespass committed by the 2nd respondent on the land; and a perpetual injunction restraining the 2nd respondent, its servants, agents, workers whosoever from further going to the land to commit any other further acts of trespass on the land.
?The two witnesses called by the appellants testified that one Agbeti and one Kogbiyele migrated from Ile-Ife and settled on the disputed parcel of land, where they farmed coconut; that the land devolved on
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them as inheritance from the genealogy tree linking Agbeti and Kogbiyele part of which was granted to strangers who built houses on it upon payment of the customary ?Ishakole? to their family; that their family operating through a Chief Jimoh Babalawo Agbeti, P.W.2, commissioned a licensed surveyor, a Mr. Marceline Augustine Seweje, who made a survey plan of the land for their family; and that suddenly the appellants saw the 2nd respondent?s agents operating and using the land without their permission which prompted them to file the action at the Court below claiming the reliefs earlier summarised in the discussion.
The 2nd respondent?s case was that the parcel of land is situate at Ibeshe village and is called Ilashe Resort and was granted by the 1st respondent to the 2nd respondent; that one Mr. Ibru had purchased the land before the grant; that the 2nd respondent had submitted the purchase receipt, Deed of Conveyance, given to it by a Mr. Ibru, the Company?s Registration Certificate, Survey plan, Development levy and Directors? Tax-clearance to the Governor of Lagos State, represented by 1st respondent in the present
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litigation upon which a Certificate of Occupancy, Exhibit C, was issued by the 1st respondent to the 2nd respondent over the parcel of land in 1989 to be used as a tourism resort; that the 2nd respondent engaged some of the persons living in the area to work on the resort as paid workers before the appellants later started challenging the 2nd respondent?s title to the parcel of land.
The Court below accepted the evidence of the 2nd respondent and declared the appellants trespassers on the parcel of land and granted the reliefs (supra) in the counter-claim of the 2nd respondent against the appellants. Dissatisfied with the decision of the Court below, the appellants filed a notice of appeal with fifteen (15) grounds of appeal challenging the decision of the Court below. The notice of appeal was subsequently amended by order of the Court and filed on 09.05.17 containing seventeen (17) grounds of appeal.
The appellants? brief of argument was filed on 09.05.17 in which it was contended that the traditional history of the land was established by the evidence adduced by the appellants which evidence also established their long possession
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of the disputed land; and that even though Chief Kogbiyele, one of the witnesses mixed up some of the names of the ancestors arising from his advanced age, none-the-less his testimony was very substantially in line with the oral history of his family that the appellants pleaded showing title to the land was proved by traditional history and acts of long possession by the appellants and through the persons on the land at their instance; that the case file was not pleaded in the valid statement of defence dated 06.06.75 therefore it went to no issue vide Akinrinmade v. Lawal (1996) 2 NWLR (pt. 429) 218 at 229, Emegokwe v. Okadigbo (1973) ALL NLR 314.
It was also argued that there was evidence from PW1 that a ?Red Copy? of the original survey plan produced in 1976 was submitted to the Surveyor-General?s office; that since the survey plan was not made for the purpose of annexures to or incorporation with any registrable instrument, Exhibit A, the survey plan need not have been submitted to the office of the Surveyor-General vide Section 2 of the Survey Plan of Lagos State 2003 read with Sections 2, 6, 7 and 30 of the Lands Instruments
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Registration Law of Lagos 2003; and that the failure to submit the survey plan, Exhibit B, to the Surveyor-General only exposed the surveyor to a penalty and would not affect the admissibility of the survey plan in evidence vide Section 2 of the Evidence Act 2011, therefore the survey plan is an act of ownership vide Majekodunmi v. Abina (2002) 3 NWLR (pt. 755) 720 at 747; and that even then the survey plans tendered in evidence by the 2nd respondent were also not counter-signed by the Surveyor-General.
The appellants contended that the 2nd respondent did not adduce evidence of persons that purportedly conveyed the land in issue to one Felix Ibru, nor that the latter took possession of the land, so the pleadings on the issue should be deemed abandoned vide UBA v. S.A.F.P.U. (2004) 3 NWLR (pt.861) 516 at 540 ? 541, Haruna v. Modibbo (2004) 16 NWLR (pt.900) 487 at 584, Military Governor of Lagos State v. Adeyiga (2003) 1 NWLR (pt.802) 589 at 618.
The appellants also contended that there were conflicting evidence of the presence of buildings and by whom the buildings were erected between the evidence of DW1 and DW4 showing the evidence is at
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variance with the pleadings and of no probative value which destroyed the 2nd respondent?s case as it had not discharged the burden of proof of title to the land it projected in the pleadings vide Ugochukwu v. Unipetrol (Nig.) Plc (2002) 7 NWLR (pt.765) 1 at 14, Idahosa v. Oronsaye (1959) NSCC 136, NIPC v. Thompson Organisation (1969) All NLR 134, Popoola v. Balogun (2007) 8 NWLR (pt.1037) 574 at 602; and that since the Court below failed to weigh the totality of the evidence on the imaginary scale of justice, the Court should do so and enter judgment for the appellants vide Mogaji v. Odofin (1978) 4 SC (Reprint) 65 at 67, Kaiyaoja v. Egunla (1974) All NLR 913.
?The appellants contended that having put across the case that they have been in possession of the land and had not been ousted out of the said possession vide paragraph 15 of the statement of claim in page 13 of the record and the evidence of PW2 in page 134 of the record coupled with the fact that the 2nd respondent did not challenge the pleadings of the appellant in pages 36 ? 38 of the record to that effect and the evidence of DW1 in page 168 of the record that he always saw the 2nd
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appellant at the site as well as DW4?s evidence in page 244 of the record that the ?settlers, an old man and his children who helped us? and that he met them regularly and that they lived on the lagoon front of Ilashe as fishermen and that they have boats and planted coconut trees established the case of the appellants.
The appellants therefore argued that the issue of limitation law did not arise; more so, the appellants discovered only in 1994 that the 2nd respondent had a certificate of occupancy over the land in issue and that in the absence of adverse possession being proved against the appellants, limitation law cannot be used to deprive them of their title and right to the disputed land; and that assuming without conceding that the appellants were in long possession of the land, that per se would not entitle them to a declaration of title to the land as long possession by a defendant can only be used to defeat a claim of declaration of title to land and trespass vide Mogaji v. Cadbury (Nig.) Ltd. (1985) 2 NWLR (pt.7) 393.
The appellants argued that the deed of conveyance dated 06.09.96 was not pleaded in any competent
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pleading as the only pleading served on the appellants did not contain an averment on the deed of conveyance which the appellants objected to on that ground; that it was wrong for the 2nd respondent to rely on an amended statement of defence to tender in evidence the deed of conveyance without obtaining the leave of the Court to amend the statement of defence, therefore Exhibit E1, the deed of conveyance, was not based on any piece of pleading and went to no issue vide Akinrinade v Lawal (1996) 2 NWLR (pt.429) 218 at 229, Emegokwe v. Okadigbo (1973) All NLR 314, Total v. Nwako (1978) 11 NSCC 289.
The appellants further argued that the plans attached to Exhibits E and E1, the deeds of conveyance, related to the deeds of conveyance, nor was the land demised therein described, nor are the purported lessors of the two conveyances connected with either survey plan which rendered the survey plans incompetent, as a document of grant that does not clearly identify the land granted is of no value and cannot be cured by Section 162 of the Evidence Act videAuta v. Ibe (2003) 13 NWLR (pt.837) 247 at 265.
?The appellants contended that a certificate of
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occupancy is no more than prima facie evidence of an interest or title to land vide Gwar v. Adole (2003) 3 NWLR (pt.808) 516 at 552, Ilona v. Idakwo (2003) 11 NWLR (pt.830) 53 at 84; and that since the 2nd respondent did not prove the root of title of the vendor it cannot rely on the certificate of occupancy as proof of title to the land vide Mogaji v. Cadbury (1985) 2 NWLR (pt.7) 393, Ndukwe v. Acha (1998) 6 NWLR (pt.552) 25 at 38, Temile v. Awani (2001) 12 NWLR (pt.728) 726 at 755, Olohunde v. Adeyoju (2000) 10 NWLR (pt.676) 562 at 586.
It was argued that Section 162 of the Evidence Act does not cure the defect of title as it is only a presumption that the 2nd respondent was granted the land through a Mr. Ibru, not a presumption that the grantors had any interest in the land; and, that even if the presumption of interest in the land had been established to give to a Mr. Ibru rights over the land, that presumption would have been defeated by the evidence of the appellant in rebuttal, establishing that the appellants had resided on the land all their lives or at all material times with mosques, churches, villages and other features indicating the
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land is inhabited; and that, had the 1st respondent known in advance of the habitation of the land by the appellants, he would not have caused the certificate of occupancy to be issued to the 2nd respondent, which issuance has had the unjust consequence of expelling the appellants from their ancestral land.
It was argued by the appellants that the oral evidence of the transfer of the land from a Mr. Ibru to the 2nd respondent infringed the provisions of the Land Use Act as there was no document of transfer put in evidence showing the Governor?s consent was obtained which totally invalidated the issuance of the certificate of occupancy, Exhibit C, which should be expunged for being invalid, null and void; and that as the 2nd respondent had failed to prove its case, damages should not have been awarded in its favour.
?It was finally argued that the 2nd respondent did not prove exclusive possession, as all that the 2nd respondent showed at best was that it had people on visit at the holiday house on occasional weekends, whereas there was evidence from the appellants that they live on the land, therefore having failed to prove exclusive possession,
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the 2nd respondent was not entitled to damages for trespass; more so, the appellants could not have been trespassers on land upon which they were born, grew up and still reside thereon vide Uchendu v. Ogboni (1999) 5 NWLR (pt.603) 337 at 354, Ogunbiyi v. Adewunmi (1988) 5 NWLR (pt.93) 215 at 221.
The appellants submitted in summary that the appeal should be allowed and judgment entered for them in terms of their claim at the Court below.
The 1st and 3rd respondents did not file any brief.
?The 2nd respondent?s brief was filed on 14.07.17, but deemed as duly filed on 05.03.18. The second respondent argued in its brief that the oral evidence of the PW1 and PW2, the only witnesses called by the appellant, was contradictory and at variance with their pleadings: PW2?s evidence, for example, was said to be at variance with paragraphs 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15 and 16 of the statement of claim; that paragraph 4 of their statement of claim had stated one Osu Olumeke (long deceased) who is the common ancestor of all the members of the Osu Olumeke family, was the first settler on the said land, whereas PW2 testified that their
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ancestral name is Agbesi and that Agbesi and Mosaku were the first persons to get to the land; also, that Osu Olumeke was born at Ilashe and that Olumeke and Agbesi are the same.
It was also argued that paragraph 9 of the statement of claim had pleaded that Ilashe beachland was virgin territory at the time Odu Olumeke came upon it and he settled upon the land after due consultation with Ifa Oracle and built an Ogun shrine which is there to this date. The 2nd respondent elaborated in his argument that while the appellants pleaded that Osu Olumeke family was the first settler on the said land, the PW2 testified on the other hand that Agbesi and Mosaku were the first persons to get to the land which was contrary to the pleadings and destroyed the evidence of traditional history of the land on the identity of the founder of the land and on the names and particulars of successive owners through whom the appellants claim citing in support the cases of Nruamah v. Ebuzoeme (2013) 13 NWLR (pt.1372) 474 at 495, F.J.S.C. v. Thomas (2013) 17 NWLR (pt.1348) 503 at 544, Sections 132 and 134 of the Evidence Act, R.C.O. and S. Ltd. v. Rainbownet (2014) 5 NWLR (pt.1401)
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516 at 542, Rimi v. INEC (2005) 6 NWLR (pt.920) 56, Olonade v. Sowemimo (2014) 5 S.C. (pt.297) 121 ? 122, Okwejiminor v. Gbakeji (2008) 1 S.C. (pt.3) 263 at 315.
It was argued by the 2nd respondent that the failure of the appellants to submit copies of the survey plan to the Surveyor-General?s office offended Section 2 of the Survey Law of Lagos State, 2003 and tainted Exhibits A and B, the survey plans, with illegality and that the law in force at the time the action arose in 1976 when the survey plan, Exhibit B, was made was the Survey Law Cap.132, not Cap.S13 that had repealed it vide Osakwe v. F.C.E. Asaba (2010) 10 NWLR (pt.1201) 1 at 43, Obiuweubi v. CBN (2011) 7 NWLR (pt.1247) 465, S.P.D.C. (Nig.) Ltd. v. Isaiah (2001) 11 NWLR (pt.723) (no pagination) and that since the appellants had relied on the survey plans, Exhibits A and B, as evidence of possession of the land, an interest in land, the failure of the appellants to annex them to registrable instruments tainted them with illegality and only admissible as to the identity of the land and of no further evidential value.
?It was also argued that since the traditional evidence in the
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case is lacking or rejected, it cannot be relied upon to prove acts of ownership vide Odofin v. Ayoola (1984) 2 S.C. 160 at 193, Eronini v. Iheuko (1989) 2 NWLR (pt.101) 46 at 66.
It was further argued that the 2nd respondent proved a better title via Exhibits B, C, D and E ? E1 vide page 316 of the record and the erection of sign board on the land vide page 168 of the record and even developing the site where the appellants? side offered assistance as part of the labourers in building the resort vide page 168 of the record; and that title to the land was put in issue as the 2nd respondent asserted ownership of the land, so the appellants who should have proved a better title failed on their contradictory evidence and were thus unable to establish title to the land by the traditional history and acts of long possession, they sought to rely upon as their root of title to land vide Nruamah v. Ebuzoeme (2013) 13 NWLR (pt.1372) 474 at 494, Garan v. Olomu (2013) 6 S.C.J.L. at 681, Fasikun II v. Oluronke II (1999) 2 NWLR (pt.589) 1 at 18; and that based on the evidence of DW1 and DW3 along with the survey plans, Exhibits E ? E1, the deed of
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conveyance, Exhibit E ? E1, which was over 20 years old and carried the presumption of genuineness and the certificate of occupancy, Exhibit C, the 2nd respondent proved a better title to the disputed portion of land vide Section 162 of the Evidence Act, Alatise v. Sanyaolu (1972) 2 SC 97, Ajero v. Ugorji (1999) 10 NWLR (pt.621) 1, Nruamah v. Ebuzoeme (supra), Adesanya v. Aderonmu (2000) 9 NWLR (pt.672) 370, Eze v. Atasie (2000) 10 NWLR (pt.676) 470, Shittu v. Fashawe (2005) 14 NWLR (pt.946) 671.
The 2nd respondent argued that the certificate of occupancy issued in 1989 is presumed to vest the 2nd respondent with exclusive possession of the land vide Agboola v. UBA Plc (2001) 6 (pt.427) at 250, which it had earlier started development on the disputed land between 1965 ? 1989 by the deed of conveyance, Exhibit E ? E1, with assistance from the appellants? side showing there was no protest from the appellants during that period of time vide the evidence of DW1 in pages 168 and 244 of the record showing the action was brought after 12 years and was thus statute barred as held by the Court below.
?The 2nd respondent submitted that
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the statement of defence was valid vide page 35 of the record granting the leave to file it, therefore Exhibits E ? E1, the deed of conveyance, were validly pleaded and replied to by an amended reply and defence to the counter-claim dated 22.08.97 by the appellants who did not challenge the propriety of the statement of defence at the Court below showing they waived the irregularity, if any, and should not be allowed to raise it on appeal vide Order 5 Rule 2(1) of the High Court of Lagos (Civil Procedure) Rules 1994 read with the cases ofAyanwale v. Atanda (1988) 1 NWLR 22 at 24, IBWA Ltd. v. Imano Ltd. (2001) 5 NSCQR 777 at 793; that even if there is defective statement of defence, declaratory reliefs sought by the appellants would not have been granted in default of statement of defence as such reliefs are not granted on admissions vide Bello v. Eweka (1981) 1 S.C. 63 at 73.
?It was also argued that the issue of the alleged defectiveness of the statement of defence being a fresh one the appellants should have sought and obtained the leave of the Court to argue it in grounds 14 and 15 of the notice of appeal and having failed to do so, the said
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grounds of appeal are incompetent and should be struck out together with the arguments thereon contained in the appellants? brief vide Olalomi Ind. Ltd. v. N.I.D.B. Ltd. (2009) 16 NWLR (pt.11167) 266 at 286, Elugbe v. Omokhafe (2004) 18 NWLR (pt.905) 319, New Resources Int? Ltd. and Anor. v. Ejike Orarusi (2011) 2 NWLR (pt.1230) 102 at 117, Odedo v. INEC (2008) 17 NWLR (pt.117) 554; that the reliance by the 2nd respondent?s statement of defence dated 26.06.1995 at the trial of the suit has not occasioned miscarriage of justice, and that it is now too late to complain on appeal that the statement of defence was incompetent; consequently, the 2nd respondent urged that the appeal should be dismissed and the judgment of the Court below be affirmed.
The appellants? reply brief filed on 19.03.18 reiterated in argument that the sole purpose of Exhibits A and B was the question of their admissibility which the Court below had admitted in evidence vide Section 3(1)(b) of the Survey Law of Lagos State, 1973 and since the question of admissibility is procedural it is the law in force on the date the application is made for the document to be
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admitted in evidence that would determine the admissibility of the document vide the Evidence Act 2011.
It was argued in the reply brief that the survey law of the old Western Region which became the Survey Law of Western Nigeria bear no counter-signature of the Surveyor-General, so the decision of the Court below that Exhibits A and B are inadmissible should be set aside and/or if its rejection in evidence is upheld, the same should be extended to Exhibits E and E1 which should also be expunged.
It was also argued that the statement of defence having not shown to have been served on the appellants renders such process totally void vide UBA Plc v. JM & Co. (Nig.) Ltd. (2016) 5 NWLR (pt.1504) 171 at 190; therefore the statement of defence should be expunged; upon which it was urged that the appeal be allowed and the reliefs sought in the appellants? statement of claim should be granted.
In determining limitation enactment, only the writ and the statement of claim are ordinarily resorted to for the purpose of calculating the limitation period vide Woherem v. Emereuwa (2004) 13 NWLR (pt.890) 398, Ajayi v. Adebiyi (2012) 11 NWLR
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(pt.1310) 137, Kolawole v. A.G., Federation (2012) 14 NWLR (pt.1320) 221.
The writ of summons which in pages 1 ? 2 shows the action was filed on 10.01.95, while paragraph 21 of the statement of claim contained in page 14 of the record pleaded that the alleged incursion into the parcel of land was noticed by the appellants? side in March, 1994. The Limitation Law of Lagos State stipulates 12 years limit for action for recovery of land. In this case, the action was taken to recover the land within one year of the discovery of the alleged incursion into the land. The action was therefore not caught by the Limitation Law of Lagos State, and I respectfully so hold.
The arguments on raising fresh points without the leave of the Court with respect to the use made of the statement of defence appears with respects, untenable, as the issue was embedded in the final decision of the Court below in a civil case and does not require the leave of the Court to raise and argue as grounds of appeal on appeal from the said final decision which is constitutionally an appeal as of right vide Section 241(1) of the 1999 Constitution.
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A statement of defence irregularly filed is merely voidable until set aside and as it was not set aside by the Court below and was put to use by the parties at the Court below without objection or challenge, it is not open to the appellants to complain on appeal on the issue which they obviously waived vide U.B.A. Ltd. and Anor. v. Nwora (1978) NSCC 519, Savannah Bank of Nigeria Plc v. Festan (1998) 2 NWLR (pt.536) 41, Akumechiel v. BCC Ltd. (1997) NWLR (pt.484) 695, Nkwocha v. MTN (2008) 11 NWLR (pt.1099) 460, British American Insurance Co. Ltd. v. Sillo (1993) 2 NWLR (pt.277) 567.
There was internal conflict or self-contradictory evidence of the appellant on the person(s) that founded the disputed land as pointed out in the 2nd respondent?s arguments (supra) in the brief which are supported by the pieces of evidence in the pages of the record indicated by the 2nd respondent in the brief. Likewise, the pieces of pleadings on the traditional history which were at variance with the traditional evidence indicated in the 2nd respondent?s brief rendered the aspect of traditional history at variance with the pleadings of no moment vide Emegokwe v. Okadigbo (supra).
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The Court below was, accordingly, right in holding that the traditional history of the land projected as the radical root of title of the appellants collapsed on account of the violent internal conflict in the traditional evidence and its variance with the pleadings.
The radical root of title pleaded by the appellants having failed, as rightly held by the Court below, acts of possession built on it collapsed along with it vide Fasoro v. Beyioku (1988) 2 NWLR (pt.76) 263 at 273 ? 274 per the lead judgment prepared by Oputa, J.S.C., (now of blessed memory) thus ?
?I am in complete and total agreement that once radical title has been pleaded and proved, acts of ownership or possession resulting from such title, need no longer be considered for they are then non issues. Conversely, where, as in this case ? the title pleaded had not been proved, there, also it will be unnecessary to consider acts of possession and the dictum in Ekpo v. Ita (supra) for the acts there become no longer acts of possession but acts of trespass: Da Costa v. Ikomi Supra?.
(My emphasis).
See also Ezeoke v. Nwagbo (1988) 1 NWLR (pt.72)
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616,Ukaegbu v. Nwololo (2009) 3 NWLR (pt.1127) 194 to the effect that the pleaded root of title must be established or acts of possession alleged to derive from it would be futile. See also Eronini v. Iheuko (supra) and Odofin v. Ayoola (supra) cited by the 2nd respondent.
The certificate of occupancy, Exhibit C, is prima facie evidence of the right of occupancy over the disputed piece of the land vide Section 9(c) of the Land Use Act, 1978 read with the cases of Gwar v. Adole (supra), Ilona v. Idakwo (supra). The appellant did not place credible evidence to displace the prima facie evidence of title to the land in Exhibit C, the certificate of occupancy, issued to the 2nd respondent. The prima facie evidence of title coupled with use of the land as resort centre with a jetty and building thereon established the 2nd respondent?s title to the disputed land.
The purpose of a survey plan such as the one attached Exhibit E is to show graphically the morphology of the area, and its extent and size vide Oyefeso v. Coker (1999) 1 NWLR (pt.588) 654 at 661. In the instant case, the appellants claimed the disputed land and the 2nd respondent
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counter-claimed it, therefore the identity of the land was no longer in issue or in dispute between the parties vide Anyanwu and Ors. v. Uzowuaka and Ors. (2009) 13 NWLR (pt.1159) 445 at 475 ? 476.
Moreover, the identity of the disputed land was not specifically made an issue in the pleadings, so the parties are deemed or taken to know or be aware of the area of the land litigated upon requiring no further proof vide Ezeudu and Ors. v. Obiagwu (1986) 2 NWLR (pt.21) 208 at 230, Adenle v. Olude (2002) 18 NWLR (pt.799) 413 at 433 ? 434, Adelaja v. Alade (1999) 6 NWLR (pt.608) 544 at 559, Dosunmu v. Joto (1987) 4 NWLR (pt.65) 297, Ogunyanwo and Ors. v. Oluwole (2009) 16 NWLR (pt.1167) 391 at 403 ? 404.
The contention that the survey plan was not counter-signed by the Surveyor-General and therefore inadmissible in evidence does not impress me vide the case of Oseni and Ors. v. Dawodu and Anor. (1994) 4 NWLR (pt.339) 390 at 405 ? 406 where the Supreme Court held inter alia that ?
?But it is equally correct that well before the said repeal of the Survey Law, Cap. 132, Laws of Lagos State 1973, there was the
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Survey (Amendment) Decree No. 34 of 1974 which in no mistaken terms had abrogated and dispensed with the counter-signature of the Surveyor-General in Plans as a condition for their admissibility in evidence in all Courts of law throughout the Federation.
Sections 1 and 2 of the said Decree No. 34 of 1974 provides as follows ?
“1 (1) The requirement that no map, plan or diagram of land ?
(a) shall be accepted for registration with any registrable instrument which is required by any written law to contain any map, plan or diagram; and
(b) shall be admitted in evidence in any Court unless the map, plan or diagram has been examined by any Survey Department of any Government in Nigeria and bears the counter- signature of the Director of Surveyor-General or any other officer of any such Department, is hereby abolished.
(2) Accordingly, the provisions of the enactments specified in the Schedule to this Decree and in so far as those provisions are in force anywhere in Nigeria are hereby, consequentially, repealed to the extent specified in their Schedule, and all other enactments to the like effect are
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similarly repealed.
This Decree may be cited as the Survey (Amendment) Decree 1974 and shall have effect throughout the Federation.”
There can be no doubt, therefore, that as far back as in 1974, the provision for the Surveyor-General to counter-sign survey plans before they shall be admitted in evidence had been dispensed with throughout the Federation. I must, with respect, therefore disagree with the submission of learned appellants’ counsel that it was by the Lagos State Survey Edict NO.8 of 1984 that the provisions of Section 3(1)(b) of the Survey Law of Lagos State 1973 were first abrogated. In my view, Decree No. 34 of 1974 which pursuant to its express terms has effect throughout the Federation covered the field of the subject matter in issue, that is to say, the issue of the position of the law throughout the Federation in so far as the counter-signature of a Surveyor-General on a plan is concerned as a precondition to it admissibility in a Court of law. This point must be made as the superiority of a Decree or an Act of the National Assembly over an Edict or a State legislation is beyond dispute.
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This matter was considered in the case of Attorney-General of Ogun State v. Attorney-General of the Federation and others (1982) 1 – 2 S.C. 13 at 40 ? 41, (1982) 3 NCLR 166 where Fatayi-Williams C.J.N., in the judgment of this court in circumstances not entirely dis-similar with the issue now under consideration explained as follows:-
” ?I would only wish to add that, where identical legislations on the same subject matter are validly passed by virtue of their constitutional powers to make laws by the National Assembly and a State House of Assembly, it would be more appropriate to invalidate the identical law passed by the State House of Assembly on the ground that the law passed by the National Assembly has covered the whole field of that particular subject matter. To say that law is “inconsistent” in such a situation would not, in my view, sufficiently portray clarity or precision of language.”
I am in respectful agreement with the above observations of the learned Chief Justice and must in all humility endorse them. See too Attorney-General of Ontario v. Attorney-General of the Dominion of Canada (1894) A.C 189, Tennant v. Union Bank of Canada
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(1894) A.C. 31 at 47 and Grand Trunk Railways of Canada v. Attorney-General of Canada (1907) A.C. 65 at 68. It is evident that Decree of. 34 of 1974 laid down the law applicable to survey plan in the matter of their admissibility in evidence before the Courts throughout the Federation without the counter-signature of the Surveyor-General. In my view, did cover the field of that particular subject matter throughout the Federation and I so hold. I will now consider the two cases referred to by learned counsel for the appellants on this point.?
Even then, non-compliance with the requirement of the Surveyor-General?s counter-signature of survey plan at the material time the law was in force to that effect indicates the non-compliance would not ipso facto render the plan totally invalid for all purposes, if good cause were shown to the Court for not obtaining the Survey-General?s counter-signature showing such an uncounter-signed plan is admissible in evidence once good cause is shown to the Court for doing so vide Oseni v. Dawodu (supra) at 408 following Alamba v. Marizu and Ors. (1972) 2 ECSLR (pt.2) 422, Ojiako v. Ogueze (1962) 1 All NLR
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58, Kola James v. Chief S. O. Lanlehin (1985) 7 S.C. 404 at 436 and 444 or (1985) 2 NWLR (pt.6) 262.
The survey plans, Exhibits A and B, and the survey plans attached to the conveyance, Exhibits E ? E1, do not require registration under the Land Instruments Registration Law as they are pieces of evidence covered exclusively by the provisions of the Evidence Act and outside the statutory powers of a State Legislature. The matter is pungently put in the case ofBenjamin and Ors. v. Kalio and Ors. (2018) 15 NWLR (pt.1641) 38 at 51 ? 52 where his lordship, Eko, J.S.C., held inter alia following the earlier Supreme Court cases of Ogbimi v. Niger Construction Ltd. (2006) All FWLR (pt.317) 390 at 400, Ojugbele v. Olasoji (1982) 4 S.C. 31, Edokpolo and Co. Ltd. v. Ohenhen (1994) 7 NWLR (pt.358) 511 thus ?
?It is obvious to me, upon painstaking and dispassionate perusal of Section 20 of the Law, Cap. 74 of Rivers State that the Rivers State House of Assembly had purportedly enacted a piece of legislation on evidence. Their legislative intent or purport is clear and categorical that no land instrument, mandatorily registerable which is
29
not so registered “shall not be pleaded or given in evidence in any Court as affecting any land”. This clearly is an act of legislative trespass into the exclusive legislative terrain of the National Assembly prescribed by the Constitutions, since 1979. Section 200/the Law Cap. 74 of Rivers State has therefore rendered inadmissible exhibit L, a piece of evidence that is relevant and admissible in evidence under the Evidence Act Because, in my firm view, exhibit L is a piece of evidence pleadable and admissible in evidence by virtue of the Evidence Act read together with Item 23 of the Exclusive Legislative List and Section 4(3) & (5) of 1999 Constitution as amended (and the provisions in pari material with Section 4 (3) and (5) of the 1979 Constitution), it cannot accordingly, be rendered unpleadable and inadmissible in evidence in any proceedings before any Court of law by and law enacted by the State House of Assembly, as the Rivers State House of Assembly had purportedly done by their enactment of Section 20 of the law, Cap. 74.
In my firm view, the argument of the appellant, that Section 20 of the Land Instruments (Preparation and Registration)
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Law, Cap 74 of the Laws of Rivers State, has rendered exhibit L, a Land Instrument, unpleadable and inadmissible in the proceedings at the trial Court goes to naught. It does not fly in view of the current and prevailing state of the constitutional law, admissibility of exhibit I, is governed by Evidence Act: not the Rivers State Land Instrument (Preparation and Registration) Law, Cap 74. In my judgment: a peace of evidence pleadable and admissible. In evidence by dint of the Evidence Act cannot be rendered unpleadable and inadmissible in evidence by a law enacted by a State House of Assembly under the prevailing constitutional dispensation. The learned trial Judge (Mary Peter-Odili, J – as she then was) was therefore right when she stated at page 141 of the records that exhibit L was “properly pleaded – and cannot therefore be said to be inadmissible”.
The survey plans were therefore admissible in evidence and I so hold.
?Paragraphs 7 and 9 of the reply to the statement of defence and counter-claim in pages 98 ? 99 of the record stated that the land covered by the certificate of occupancy, Exhibit C, covers only 10.882 hectares which is a
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small portion of the appellant?s land of 77.204 hectares and that the vendor had no power and authority to sell the land to a Mr. Ibru. Once the title of the vendor is put in issue the vendee is obliged to establish the title of the vendor if the vendee is relying on conveyance as the root of title to the disputed portion of land.
In this case, the radical root of title put forward by the 2nd respondent is the certificate of occupancy, Exhibit C, not the deed of conveyance. The Land Use Act has provided for a procedure for acquiring land under the Act and any acquisition which is not in compliance with the Act would not be protected by the Act and the Court would not permit a departure from the provisions of the Act, particularly Sections 1, 2, 5, 9 and 10 thereof. The 2nd respondent?s title over the disputed portion of land having been granted by the Governor of Lagos State under the relevant provisions of the Land Use Act, the deeds of conveyance in Exhibits E ? E1 became otiose as Section 5(2) of the Act stipulates that ?
?Upon the grant of a statutory right of occupancy under the provisions of Subsection (1)
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of this section, all existing rights to the use and occupation of the land, which is the subject of the statutory right of occupancy shall be extinguished?.
The 2nd respondent?s title to the disputed portion of land covered by Exhibit C, the certificate of occupancy, therefore extinguished the deeds of conveyance, Exhibits E and E1, on the strength of Section 5(2) of the Act. The nexus between a Mr. Ibru, the vendee in the deeds of conveyance, Exhibits E ? E1, and the 2nd respondent with respect to the disputed land did not therefore arise as the acquisition of title to the disputed parcel of land was done by the 2nd respondent under the Act.
The appellants had to contend with the certificate of occupancy which is in the name of the 2nd respondent, not the deeds of conveyance, Exhibits E ? E1, which are in the names of a Mr. Ibru whom the appellants did not sue in the instant case. Had the appellants proved better title to the land as prior lawful owners of the land then the certificate of occupancy, Exhibit C, would have been displaced or demolished.
?Having failed to dislodge the prima facie title of the 2nd
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respondent over the disputed parcel of land covered by Exhibit C, the certificate of occupancy, the Court below was right in dismissing the appellant?s case and upholding the counter-claim.
The appeal is accordingly unmeritorious and is hereby dismissed and the judgment of the Court below (Oluwayemi, J.) affirmed with N100,000 costs against the appellants in favour of the 2nd respondent.
TIJJANI ABUBAKAR, J.C.A.: I agree with the leading Judgment prepared and rendered in this appeal by my learned brother Joseph Shagbaor Ikyegh JCA. I have nothing extra to add.
ABIMBOLA OSARUGUE OBASEKI?ADEJUMO, J.C.A.: I have read the lead Judgment of my learned brother, JOSEPH SHAGBAOR IKYEGH, JCA and I agree with the judgment.
In matters that relate to title of land, the person who establishes better root of title will succeed. This was the holding of this honourable Court in the case of FRANCIS EDOBOR v NOSAKHARE OLOTU & ANOR (2013) LPELR – 9288 (CA);
“It is settled that where parties to a land dispute trace their title to a common root, it is the party who establishes a better
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claim for declaration of title.”
per OMOLEYE, JCA (P.42, PARAS B – C)
The Appellants failed to dislodge the prima facie title of the 2nd Respondent over the disputed land. This appeal lacks merits and the judgment of the lower Court is affirmed. I abide by all other consequential orders in the lead judgment.
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Appearances:
The Appellant was served hearing notice but was unrepresented.For Appellant(s)
Chief Fadiaro SAN with him, Mr. O. E. Oku and A. Aniowobi for the 2nd Respondent.
M. Benson-Obadina, Esq. (S.S.C. Lagos State M.O.J.) for the 1st Respondent.
The 3rd Respondent was served hearing notice but was unrepresentedFor Respondent(s)
Appearances
The Appellant was served hearing notice but was unrepresented.For Appellant
AND
Chief Fadiaro SAN with him, Mr. O. E. Oku and A. Aniowobi for the 2nd Respondent.
M. Benson-Obadina, Esq. (S.S.C. Lagos State M.O.J.) for the 1st Respondent.
The 3rd Respondent was served hearing notice but was unrepresentedFor Respondent
