OANDO (NIG.) PLC. (FORMERLY, UNIPETRO (NIG) PLC.) V. MR. AMEME NWACHUKWU
(2013)LCN/6616(CA)
In The Court of Appeal of Nigeria
On Friday, the 6th day of December, 2013
CA/I/61/2009
JUSTICES
SOTONYE DENTON WEST Justice of The Court of Appeal of Nigeria
MOJEED ADEKUNTE OWOADE Justice of The Court of Appeal of Nigeria
CORDELIA IFEOMA JOMBO-OFO Justice of The Court of Appeal of Nigeria
Between
OANDO PLC & ORS Appellant(s)
AND
PRINCE OYEBISI ADEWUYI & ORS Respondent(s)
RATIO
THE MEANING OF THE EXPRESSION “FINAL DECISION”
The expression “final decision” in subsection (1) (a) has been construed as a decision completely determining the rights of the parties before the court. See: AQUA LTD. V. ONDO STATE SPORTS COUNCIL (1988) 4 NWLR (PT.91) 622, RABIU V. STATE (1981) 2 NCLR 293. A party dissatisfied with the final decision of a High Court can appeal pursuant to Section 241 (1) (a) on any ground of appeal, be it law, mixed law and fact or facts.
See: TOTAL INTERNATIONAL LTD. V. ANOGBORO (1994) 4 NWLR (Pt.337) 147 at 160. PER OWOADE, J.C.A.
WHETHER OR NOT A PLAINTIFF MUST SUCCEED ON THE STRENGTH OF HIS CASE IN A CLAIM FOR DECLARATION OF TITLE
In a claim for declaration of title, the law, as declared in several cases, is that the plaintiffs must succeed on the strength of his case.
He referred to the case of ALAO V. AKANO (2005) 11 NWLR (PT.935) 160 at 173, GBADAMOSI v. TAIWO (supra) page 72. KODILINYE V. ODU (2003) 36 WRN 175. PER OWOADE, J.C.A.
WHETHER OR NOT ACTS OF LONG POSSESSION AND ENJOYMENT OF LAND IS EVIDENCE OF OWNERSHIP OR RIGHT OF OCCUPANCY
The second, again as in this case is that acts of long possession and enjoyment of land can be prima facie evidence of ownership or a right of occupancy of the particular piece of land in respect of which such acts are done.
See: OYADARE V. KEJI (2005) 7 NWLR (PT.925) 571, MASKALLA v. SILLI (2002) 13 NWLR (PT.784) 216.
On this very important issue, it is appropriate to listen to the learned trial judge himself. At page 170 of the record, he said:“….. is trite law that where title is in issue as a result of the competing claims of the two parties, and one of them is found to be in possession, the party in possession is by virtue of Section 146 of the Evidence Act presumed to be the owner and the party alleging the contrary then has the burden to prove that he has a better title so as to entitle him to displace the party in possession.
See: (1) MUSTAPHA LAWAL V. LIALE (1967) N.M.L.R. 155.
(2) OYEBANJI V. OKUNOLA (1968) N.M.L.R 221
(3) AROMIRE V. AWOYEMI (1972) 2 S.C. 1
(4) OGUNFOLU V. ADEGBITE (1986) 5 NWLR (Part.43) 549 at 550.
The first issue is therefore resolved in favour of the plaintiffs, and by implication they are entitled to the injunction asked for in the 3rd leg of the claim–” PER OWOADE, J.C.A.
MOJEED ADEKUNLE OWOADE, J.C.A. (Delivering The Leading Judgment): This is an appeal against the judgment of the Honourable Justice M. A. Adeigbe sitting at Ile – Ife in the Osun State High Court, delivered on 16th December, 2008.
By a writ of summons and statement of claim filed on 16-2-2006, the respondents as plaintiffs sued the 1st Appellant for an entitlement to statutory right of occupancy, rent and injunction. The other defendants appellants were joined by order of court in the proceedings.
The relevant pleadings at the court below are:
a. Plaintiffs Amended Statement of claim dated 23/11/2006.
b. Statement of defence of the 1st defendant dated 5/5/2006 and filed on 7/5/2006.
c. Further Amended statement of Defence of the 2nd – 5th Defendants dated and filed 25/5/2007.
d. Plaintiff’s Reply to statement of Defence by 1st Defendant dated 2/10/06 and filed on 3/10/2006.
e. Plaintiff’s Reply to statement of Defence by 2nd – 5th Defendants dated and filed on 12/1/2007.
By paragraph 12 of the plaintiffs Respondents Amended Statement of Claim the Plaintiffs claim against the Defendants are that the plaintiffs are entitled to a statutory right of occupancy to that piece or parcel of land situate, lying and being at Iremo Road, Ile-Ife now called Lagere Road, Ile – Ife, Osun State and covered by instrument registered as No. 41 at page 41 in volume 553 at Lagos now Osogbo being the property of late – Babasale Samuel Adewuyi
ii. Rent of the said place occupied and utilized by the defendants for its outfit.
iii. Injunction restraining the defendant it agents or privies and 5th defendant – Poplat Nig. Ltd. from further operation on the land.
The case of the plaintiffs (Respondents to this appeal) is that the land in dispute was the property of their late father Babasale Samuel Adewuyi of which he had exercised possessory rights on or about 1939.
That, the said Samuel Adewuyi (senior brother to Oba Sir, Adesoji Aderemi) exercised various acts of ownership and granted a lease of the land with building thereon to the United African Company (U.A.C.) in 1940 which lease was covered by instrument registered as No. 41 at page 41 in volume 553 at Lagos, now Oghogbo.
The respondents gave that they had always known the land in dispute to be the property of their late father but could not take any action on the land until the year 2003, when the safe of their father who died in 1957 was opened by some electronic device and the instrument registered as No. 41/41/553 was discovered as a confirmation of their entitlement to the land in dispute.
Meanwhile, that in 1957 after their father’s death, the then reigning ONI of Ife, Oba Adesoji Aderemi who as the younger brother of their father and the de facto administrator of their father’s estate engaged a caterpillar levelled the building on the land and started leasing out the land to companies in succession. The 1st defendant appellant, OANDO PLC, is/was a tenant of the said Oba Adesoji Aderemi on the land in dispute and continued to pay rents to his estate through the defendants appellants after his demise in 1980.
The case of the defendants appellants more especially through the 2nd – 5th defendants appellants is that the land in dispute belonged to the late Oba Adesoji Aderemi who had exercised ownership rights on the land since 1950. That their predecessor in title, Oba Aderemi erected a Cocoa store, a bungalow and leased out a portion of the land at different times to Nigeria Properties Company Ltd, N. K. Zard Company Ltd., and later to Mobil Oil Nigeria Ltd and Agip Oil Nigeria Ltd. That Oba Adesoji Aderemi allocated the land unto himself for personal use as the sole authority in Ife at that time who could allocate land to individuals or to himself.
The appellants acknowledged that the land claimed by the respondents via instrument registered as 41/41/553 covered only 72 square yards but that Oba Ademji Aderemi is the owner of the landed properties at:
1. Lagere Ife measuring in Area 1085 square yards by virtue of Deed dated 20th day of December, 1937 and registered as No. 38 at page 38 in volume 120 of the Registered of Deed, and
2. Lagere Ife measuring in Area 1176. 40 square yards by virtue of Deed dated 9th day of September, 1965 and registered as No. 20 at page 20 in volume 797 the Register of Deeds.
They, appellants also contend that the radical title to the land in dispute was in the Ife Native Authority and that the plaintiffs respondents claims are barred by sections 3, 4, 16 and 17 of the limitation law of Osun State and by laches from claiming from the defendants appellants.
At the trial, the respondents called three (3) witnesses, the 1st appellant called one (1) witness while the 2nd – 5th appellants called two (2) witnesses.
In a considered judgment contained at pages 153 – 173 of the records the Learned Trial Judge held severally as follows:
First, at pages 168 – 169 that:
“As far as this case is concerned, the evidence of acts of possession on the land in dispute by the plaintiffs father until his death is compelling, uncontradicted and unassailable. For example, the defendants witnesses never contested the evidence of possession of the plaintiffs father, but they only said that their father, as the Ooni of Ife could allocate the land in dispute to himself and so he did under the Ife Native law and custom, which was not proved and without taking notice of the subsisting interest of the plaintiffs father in the land in dispute. I hold therefore that the registration of Exhibit POA 23 in 1967 by the defendant’s father on the land in dispute without taking cognizance of the existence of Exhibits POA 2 and POA 4 is unpardonable and reckless.”
Still at page 169, the learned trial judge continued:
“….Even if the late Ooni, Oba Adesoji Aderemi wanted to use his alleged power under the Ife Native Law and Custom, he ought to have revoked the earlier grant of the land by Ooni and council of Ife as contained in Exhibits POA 2 and/ or POA 4, and duly register the revocation documents, to serve as NOTICE that the title of land is no more in the plaintiffs father. The failure to do so amounts to the plaintiffs still having possession of the land till now.—————————————-
I therefore hold that as at the time Oba Adesoji Aderemi registered his subsequent lease agreement on the land in dispute in 1965, as contained in Exhibit POA 23 relied on as defence by the defendants in this case, there was already an earlier lease document registered on the land since 1940, as contained in Exhibits POA 2 and /or POA 4, and it is the law that a document affecting land takes effect as against other instrument affecting the same land from the date of registration”
The Learned Trial Judge concluded his findings and observations on the first issue in the case when he held at page 170 of the record that. “It is trite law that where title is in issue as a result of competing claims of the two parties, one of them is found to be in possession, the party in possession is by virtue of section 146 of the Evidence act, presumed to be the owner and the party alleging the contrary then has the burden to prove that he has a better title so as to entitle him to displace the party in possession —”
On the issue of whether the plaintiffs have clearly shown the area of the land in dispute, the Learned Trial Judge held at (page 170) that:
“I hold that the extent of the land in dispute is as contained in Exhibits POA 2 and/or POA 4, which both parties have not disputed. Since the area of the land in dispute is contained in the survey plan attached to the two Exhibits, the identity of the land is already known to the parties, consequently no other survey plan is necessary in this case.”
At page 172, on the issue of rent claimed by the plaintiffs, the trial court held:
“I therefore agree with the submission of Chief Popoola, learned counsel for the 1st defendant who argued that the 1st defendant could not have paid and cannot pay rent to strangers who are not privy to Exhibit POA 3, adding that it is absurd for the plaintiffs to sue the 1st defendant for rent when there was no contract of lease agreement between them for upward of almost 40 years…………..”
Finally, at pages 172 – 173 of the records, the Learned Trial judge held that the plaintiffs case succeeds and judgment in their favour is entered only on the following terms:
(1) The plaintiffs are declared to be entitled to a statutory right of occupancy to the piece or parcel of land situate, lying and being at Iremo Road, Ile – Ife now called Lagere Road, Ile – Ife, Osun State and covered by instrument registered as No. 41 at page 41 in volume 553 at Lagos now Osogbo being the property of late Babasale Samuel Adewuyi.
(2) Since the purport of injunction is to stop the continuation of any wrong doing, I hereby make an order of injunction restraining the defendants, their agents or privies from further operation on the said land.
(3) The second leg of the plaintiffs claims on rent is unsuccessful and hereby dismissed.
Dissatisfied with the above judgment, the defendants as appellants filed a notice of appeal containing eight (8) grounds of appeal in this Honourable Court on 12/1/2009.
The appellants grounds of appeal devoid of their particulars are as follows:
1. The judgment of the Learned Trial Judge is against the weight of evidence.
2. The Learned Trial Judge erred in law in giving judgment to the effect that the plaintiffs are entitled to statutory right of occupancy to the piece of land, lying situate and being at Iremo Road, Ile – Ife now called Lagere Road, Ile – Ife Osun State covered by instrument registered as No 41 at page 41 in volume 553 of the land registry in the office at Lagos (now Osogbo) being property of late Babasale Samuel Adewuyi when the sketch plan attached to the said instrument was not prepared, signed and certified by a surveyor and thereby came to a wrong decision occasioning miscarriage of Justice.
3. The Learned Trial Judge erred in law when he wrongfully rejected Exhibits POA 21 and POA 22 tendered by the 2nd to 5th defendants duly signed by a registered surveyor which exhibits were tendered in support of their case.
4. The Learned Trial Judge erred in law in holding that the case of RAMONU ATOLAGBE V. KOREDE OLAYEMI SHORUN (1985) 1 NWLR (PT.2) page 350 at page 361 applied to this case in that Exhibits POA 21 and POA 22 not having been countersigned by the surveyor general cannot be admissible in evidence.
5. The Learned Trial Judge erred in law in failing to consider and pronounce on the issue of the statute of limitation raised by counsel to the 1st defendant and counsel to the 2nd – 5th defendants, the suit itself having been statute barred pursuant to sections 3, 4, 16 and 17 of the limitation law of Osun State.
6. The Learned Trial Judge erred in law for failing to consider and pronounce on the equitable defences of laches and acquiescence raised by counsel for the 1st defendant and counsel for 2nd – 5th defendants when the evidence adduced before the trial court established clearly that the plaintiffs had waited for a period of Forty Nine (49) years after the cause of action arose before filing their action.
7. The Learned Trial Judge erred in law when he relied on evidence of use and ownership of the land in dispute by their late father, adduced by the 2nd and 3rd PW in giving judgment to the plaintiffs when the plaintiffs failed to plead the facts on which evidence was adduced in their Amended Statement of claim.
8. The Learned Trial Judge erred in law when he failed to reject Exhibits POA2 and POA4 at the judgment stage but instead proceeded to hold that the extent of the land in dispute is as contained in Exhibits POA 21 and POA 22 and therefore came to a wrong conclusion on the identity of the land in dispute. The wrong conclusion has occasioned a miscarriage of Justice.
The relevant briefs of argument in this appeal are:
(a) Appellants brief of argument dated 26/5/2009 and filed on 29/6/2009-setiled by Chief Femi Popoola.
(b) Respondents brief of argument incorporating a notice of preliminary objection dated 3/1/2012 and filed on the same date – settled by Abayomi Fabunmi Esq.
(c) Appellants reply brief dated 15/3/2012, filed on the same date and deemed filed on 2/4/2012 – settled by Chief Femi Popoola.
Learned counsel for the respondents gave notice of preliminary objection as follows:
(i) The appellants issue (ii) of the issues for determination as contained in page 3 of the appellants brief of argument is incompetent, in that the issues of statute of limitation and the principles of laches and acquiescence raised were not specifically pleaded by the defendants at the trial court and evidence was not led on the issue.
(ii) The appellants ground 7 in the notice of appeal as contained in page 177 of the record of appeal is not competent in that the appellants did not obtain leave of the trial court or the court of appeal to raise the issue, which can be described as issue of fact or mixed law and fact.
The first ground of the respondent’s Notice of Preliminary Objection on the incompetency of appellants issues on statute of limitation and the defences of laches and acquiescence are property so called issues in the appeal and not issues capable of preventing the hearing of the appeal. A preliminary objection or facts to sustain a notice of preliminary objection should be extrinsic to the appeal itself. The issues of statute of limitation and laches could not be accommodated as preliminary objection because they are facts that pertain to the action or inaction, pronouncement or lack of pronouncement of the trial court at the trial. Respondent’s 1st ground of appeal is incompetent as a form of preliminary objection and it is accordingly struck out.
On the second ground of the preliminary objection, learned counsel for the respondents submitted that Ground 7 of the appellants grounds of appeal show that the appellants are complaining about the lower court relying on the evidential facts of use and ownership of the disputed land by the PW2 and PW3 to give the respondents judgment at the trial court. The said ground, said counsel, can best be described as a ground of facts or of mixed law and facts which requires leave of the trial court or this court before the ground can be sustained.
On this point, learned counsel for the respondent referred to the cases of OBA FELIX ABIDOYE (ALAAGBA OF AGBA) & 4 ORS. V. OBA JACOB ALAWODE (OLORORUWO OF ORORUWO) & 3 ORS. (2001) 4 SCM 1 at 5 – 6.
OGBECHIE & ORS. V. ONOCHIE 7 ORS. (1986) 2 NWLR (PT.23) 484 at 488. AJA & ANR. v. OKORO & 7 ORS (1991) 7 NWLR (PT.203) 260 at 273 and 284.
In reply to the above, learned counsel for the appellants submitted that ground 7 of the notice of appeal does not require leave of the High Court or Court of Appeal. This, according to counsel is because the right of appeal from the High court to the court of appeal is governed by the provisions of SS. 241 and 242 of the 1999 constitution. That the cases of ABIDOYE V. ALAWODE (supra) and OGBECHIE V. ONOCHIE (supra) cited on the point by the learned counsel for the respondent are Supreme court decisions based on section 233 (3) of the 1999 constitution or the equivalent provision of the 1979 Constitution.
That, they deal with appeals from the court of appeal to the Supreme Court. He argued that the objection fails to distinguish between appeals from the High Court to the Court of Appeal and Appeals from the Court of Appeal to the Supreme Court.
Truly and as pointed out by the learned counsel for the appellants section 241 (1) (a) – (f) of the 1999 Constitution (as amended) deals with appeals as of right from the decision of the High Court (s) to the Court of Appeal.
The provision is qualified by section 242 (1) which provides for leave to appeal in circumstances not covered by section 241 (1) of the 1999 Constitution (as amended). Section 241 (1) of the 1999 Constitution provides as follows:
“An appeal shall lie from decisions of the Federal High Court or a High Court to the court of Appeal as of right in the following cases – (a) final decisions in any civil or criminal proceedings before the Federal High Court or a High Court sitting at first instance; ….”
I do agree with the learned counsel for the appellants that it is the provision of section 241 (1) (a) of the 1999 Constitution that is applicable to the instant appeal which involves the final decision of the High Court of Osun State in a civil proceeding and the court sat as a court of first instance.
The expression “final decision” in subsection (1) (a) has been construed as a decision completely determining the rights of the parties before the court. See: AQUA LTD. V. ONDO STATE SPORTS COUNCIL (1988) 4 NWLR (PT.91) 622, RABIU V. STATE (1981) 2 NCLR 293. A party dissatisfied with the final decision of a High Court can appeal pursuant to Section 241 (1) (a) on any ground of appeal, be it law, mixed law and fact or facts.
See: TOTAL INTERNATIONAL LTD. V. ANOGBORO (1994) 4 NWLR (Pt.337) 147 at 160.
Learned counsel for the Appellants was right when he argued that the decisions of ABIDOYE V. ALAWODE (Supra) and OGBECHI V. ONOGHIE (Supra) cited by the Learned counsel for the Respondents were based on section 233 (3) of the 1999 Constitution or the equivalent provision in the 1979 Constitution. Ground 7 of the appellants grounds of appeal is not incompetent as a ground of appeal in a final decision of the High Court sitting at first instance to the Court of Appeal.
The only surviving ground of the respondents notice of preliminary objection fails and the respondents preliminary objection is accordingly dismissed.
Learned Counsel for the appellants nominated two(2) issues for determination. They are:
(i) Whether on the pleadings and evidence before the court, the respondents have proved title to the land in dispute to warrant the declaration of title and injunction granted in their favour.
(ii) Whether the respondents are barred from asserting any rights or claims in respect of the land in dispute by reason of the statute of limitation and the principles of laches and acquiescence.
The respondents also formulated the following issues for determination:
(1) Whether the respondents as the plaintiffs at the lower court discharges the onus of proving the ownership of the land in dispute to merit judgment being given in their favour and injunction granted restraining the respondents, their agents or privies from further operation on the said land.
(2) Whether the respondents case at the lower court was caught by the equitable defences of statute of limitation and the principles of laches and acquiescence to defeat their claim at the lower court.
The appeal will be decided on the issues formulated by the appellants.
On issue No 1. Learned Counsel for the Appellants submitted that a party who claimed ownership should plead and prove any of the five ways by which ownership of land may be proved as established in cases such as IDUDUN V. OKUMAGBA (1976) 9-10 SC 227 at 251 – 253, GBADAMOSI V. TAIWO (2004) 43 WRN 5t at 72.
Counsel submitted that based on their pleadings and evidence before the trial court, the foundation of the respondents claim was the deed of lease, registered as No 41 at page 41 in volume 553 in the Registry in Lagos (now in Osogbo) dated in 1940 certified copies of the document were admitted as Exhibits POA 2 and POA 4.
However, said counsel, the parties are ad idem about root of title in Ile – Ife, the location of the land in dispute in this case. That, according to the undisputed part of the evidence on both sides, root of title in Ile – Ife are in two levels, namely:
(i) That originally all land in Ife belong to the community at large and that community is headed by the Ooni and the Chiefs, i.e the Ooni – in – council.
(ii) That individual and families may become land owners by allocation; either from the Ooni acting solely. If appellants evidence is to be followed or from the Ooni – in Council, if the respondents evidence is to be preferred.
Appellants counsel submitted that on this point the PW2 said as follows:
“If there is to be a grant by the Ooni, it must be with the advice and consent of the other Chiefs”
PW3 also said “It was the council of Chiefs and Kabiyesi that grant land in Ife jointly, but never an individual”
DW 3 for his part said as follows:
“The custom of Ile – Ife on allocation of land is that before the advent of the Europeans in Ile – Ife, the Ooni of Ife who is referred to as ‘ONILE’ i.e the owner of the land, allocated land to whoever he pleases”
Counsel submitted that whether one agreed that allocation is done solely by the Ooni or must be done by him in conjunction with the Chiefs, the relevant point is that there must be an allocation. He submitted that the five ways by which title must be proved, the method of proof which evidence of the parties agreed on, is proof by traditional evidence.
However, said counsel, the respondents failed to prove this root of title which they agreed is the method by which a person may acquire title in Ile – Ife.
That, from the blues, Babasale Samuel Adewuyi was said to have granted a lease of the land in dispute to the United Africa Company (UAC) by Exhibits POA 2 or POA 4 dated 27th March, 1940.
Counsel submitted that Exhibit POA 2 is not a document of title. It was not a document that conferred title on the said Chief Samuel Adewuyi. That, in Exhibit POA 2, Chief Adewuyi was the Lessor, while the UAC was the Lessee.
Counsel submitted that in the document, Exhibit POA 2, it was stated clearly that Chief Samuel Adewuyi granted the three year lease to the UAC with the consent of the Ooni and the council of Ife. The question, according to the counsel, is why did Chief Samuel Adewuyi need the consent of the Ooni – in – Council before he could grant a three years lease of the land?
He submitted that the above clearly demonstrates that in granting a lease of the land as evidenced in Exhibit POA 2, Chief Adewuyi was not exercising any right of ownership. That, a land that would need consent of the Ooni and his Chiefs before a lease of the same could be granted would necessarily be a land in which the radical title had not been allocated to any person, a land over which radical title still remains in the Ooni and the Chiefs.
He submitted that if Chief Samuel Adewuyi needed consent to grant a lease of the land, it was because he himself was only given a license to use the land, not that the land had been allocated or given to him as his exclusive property.
Indeed, there is nowhere in the respondents pleadings where they explained how Chief Samuel Adewuyi became the owner of the land which they alleged belonged to him. Yet, the respondents claims, as contained in the writ of summons and their amended statement of claim, was for a declaration of title. In a claim for declaration of title, the law, as declared in several cases, is that the plaintiffs must succeed on the strength of his case.
He referred to the case of ALAO V. AKANO (2005) 11 NWLR (PT.935) 160 at 173, GBADAMOSI v. TAIWO (supra) page 72. KODILINYE V. ODU (2003) 36 WRN 175.
The plaintiff, said counsel, is required to provide such evidence as is sufficient to convince the court that he is entitled to the declaration which he is seeking and if the plaintiffs fails to discharge this burden, the weakness of the defendants case will not help him.
Counsel submitted that it is therefore a surprise that without proving the root of the title which they themselves agreed upon as the method by which their predecessor could have acquired title, the trial court was still able to grant to the respondents a declaration of title to the land in dispute.
Counsel submitted that even the learned trial judge in his judgment realized the failure of the Respondents to establish a root of title. That he therefore, resorted to some logical implication to supply this missing link. That, His lordship, after analyzing the five ways, through which title may be established as stated in IDUNDUN V. OKUMAGBA (supra) said as follows:
“It is clear from Exhibits POA 2 and POA 4 dealing with the land in dispute, that it is compelling, uncontradicted and unassailable that the plaintiffs father, late Babasale Chief Samuel Adewuyi duly occupied the portion of the land covered by Exhibit POA 2 since 1940”
That, commenting further on the lease of 1940, His Lordship said as follows:
“It is apparent that by its very nature, a lease recognizes that title in the land to which it relates to some other person different from the lessee. The implication of this action is that as far back as 1940, it was known from the duly registered Exhibit POA 2 that the late Babasale Adewuyi had title of the land covered by the document”
In other words, said counsel, the Learned Trial Judge is saying that because Chief Adewuyi granted a lease of the land in dispute, he is the owner of the land.
Counsel submitted that the above logic is not good against any person who was not a party to the lease of 1940, Exhibit POA 2 (or POA 4). The argument might have been valid against the lessee in that agreement, that is, the UAC, if the dispute were to be between that company and Babasale Adewuyi or the respondents as his successors. This, he said is because a tenant cannot deny the title of his landlord. He referred to the case of FARAJOYE V. HASSAN (2006) 16 NWLR (PT. 1000) 463 at 487. But, the appellants are not successors to the UAC.
Counsel submitted that once again, the Learned Trial Judge seems to realize the weakness of relying on the fact that Chief Adewuyi granted a lease of the land in dispute. He realized the need to trace the root of title to the Ooni and his Chiefs, in line with our argument so far and in line with the evidence on record. That, in order to satisfy that requirements the learned trial judge said as follows:
“Looking closely at Exhibits POA 2 and POA 4, it is clearly established that the land covered by that document is granted to the lessor therein by the Ooni and council of Ife from the date contained therein”
And by this stroke, said counsel, the Learned Trial Judge, turned a deed showing three years lease between Chief Adewuyi and UAC to a deed of grant of land from the Ooni of Ife and his council to the said Chief Adewuyi, whereas, Exhibit POA 2 contained no such thing.
Counsel submitted that the Learned Trial Judge continued as follows, still on Exhibits POA 2 and POA 4:
“But it is only the DW3 that said the late Sir Oba Adesoji Aderemi allotted both the land contained in Exhibits POA2 and /or POA4 and the entire land in dispute to himself in his capacity as the Ooni, without showing how and when the same Ooni revoked the grant of 1940 to the plaintiffs father as contained in the testatum of the lease document registered as No. 41 at page 41 in volume 553…”
He submitted that.
(i) There is no evidence before the trial court of any grant of land to Chief Adewuyi in1940.
(ii) An alleged testatum in a document to which the Ooni was not a party cannot establish such a grant by him.
(iii) The alleged document can therefore not be binding on the Ooni and his successors in title.
(iv) In fact there is no such testatum in Exhibit POA 2.
(v) This all important fact of grant of land by the Ooni was not pleaded. Thus, any evidence of an alleged grant by the Ooni, if the alleged testatum may be treated as such evidence, is not admissible as such evidence and goes to no issue.
see: OKOYA v. SANTILLI (1994) 4 SCNJ (Pt.11) 333 at 381 – 382. IGE v. AKOJU (1994) 4 SCNJ (PT.11) 288 at 298.
(vi) The document later admitted as POA2 and POA4 was pleaded only as lease between Chief Adewuyi and the UAC and the document itself is simply no more than a lease of three years. Therefore, its use by the learned trial Judge for another purpose, other than what it purports to be and other than the purpose for which it was pleaded was totally erroneous thus leading to a miscarriage of justice. As held by the case of Trade Bank Plc. V. Dele Morenikeji Nig. Ltd. (2005) 6 NWLR (Pt.921) 309 at 327 – 328, it is wrong for a court to make a case for parties to a suit. See also Overseas Construction Co. Ltd. v. Creek Ent. Nig. Ltd. (1985) 3 NWLR (Pt.13) 407.
Counsel submitted further that by using the document(s) as an instrument of grant of land by the Ooni and his council to Chief Adewuyi, the learned trial Judge has altered, in a fundamental way, the case put forward by the Respondents. The Respondents, themselves never relied on the documents, Exhibit POA2 and POA4 in the manner done by the learned trial Judge. He submitted that having failed to prove their root of title, the Respondents claim for declaration of title ought to have been dismissed.
Counsel submitted further that having failed to establish any grant from the Ooni and his council, the act of Chief Adewuyi in granting a very limited lease of the land, a lease of three years between 1939 – 1942, which he did with the consent of the Ooni and Council was not an act of ownership but an act of a licensee. That is a licensee of the Ooni in Council, whose consent he needed before he could grant a lease of the land.
Counsel submitted that it is most reasonable to hold on the balance of probabilities, that Chief Adewuyi was only permitted to use the land for just a limited period of time. If one considers the quantity of the land involved – 72 square yards or 60.2 square metres, less than one fifth of a plot of land. If land was going to be allocated to him, being who he was, elder brother of the Ooni himself, it is absurd to suppose that it is this micro-quantity of land that would form the subject of a grant to him.
On the balance of probabilities, and as suggested by Exhibit POA 2, he merely required the use of that small space at that time and his brother obliged him.
Counsel submitted that it is instructive to note that apart from the sole and singular act by Chief Adewuyi, there was no other act of his on the land.
That, PW2 said:
“After the period of 3 years (1939 to1942), I do not know who took over the land”
He argued that the simple truth demonstrated by this evidence is that having used the land for the three years for which he was permitted, Chief Adewuyi gave up the possession of the land. This, said counsel, gives credence to the evidence of DW 3, BOWOFADE ADEREMI, when he said as follows:
“After allotting the land to himself, he caused a surveyor to survey the land for him”
That, the plan of September, 1950 was eventually admitted as Exhibit POA 22. This survey, according to counsel, was done seven years before the death of Chief Adewuyi in 1957. Having done the survey, the witness testified that Oba Aderemi erected a cocoa store and bungalow on the land. There was no evidence of any protest from the said Chief Adewuyi. The respondents claim can therefore not be true when they said that it was after Adewuyi’s death that Oba Aderemi took over the land in dispute.
The point, said counsel, is if it was true that PW3’s mother “remained in the shop selling things between the Agip Petrol station, until 1957——– ” it means that the petrol station had been there before 1957, that is before Chief Adewuyi’s death. And if the same witness had testified that it was not Chief Adewuyi who put those oil marketers on the land, all these go to confirm that Oba Aderemi had been in possession during the life time of Chief Adewuyi and there was no dispute on title to this land between them.
However, said counsel, the Learned Trial Judge accepted the falsehood from the respondent when he commented as follows on the acts of Oba Aderemi on the land.
“The PW2 and PW3 established clearly that as at the time the late Oba Adesoji Aderemi, Ooni of Ife was registering the subsequent lease document on the land in dispute in 1956, there was already a part of it that had been duly registered by his senior brother earlier in 1940 ————- it is trite law that the two competing registered documents, each takes effect as against the other from the date of registration. The benefit of earlier registration is therefore preserved———– I therefore hold that the earlier registration of the lease document of the part of the land in dispute by the plaintiffs father in 1940 takes priority over the subsequent registration of the lease document of the whole land in dispute by the Ooni of Ife —–”
Appellants counsel urged us to reject the above position taken by his Lordship because:
(i) Registration affecting a small, micro – part of a land cannot serve as registration of any interest in the whole land.
(ii) More importantly, the registration of 1940 being the registration of a three year lease, the same has expired in 1942 as shown in the evidence of PW2 and that expired registration cannot disturb a subsequent registration. There are no ‘competing registered documents” on the land.
(iii) The registration of a three year lease cannot be treated as if it were the registration of a conveyance which has no expiration date.
Learned counsel for the appellants argued further that it is this erroneous treatment of a three year lease as if it were a conveyance that made the learned trial judge to grant declaration of title to the respondents when they have not proved any title, thus occasioning a miscarriage of justice. He referred to the case of OSISANYA v. ODUGBESI (2004) 38 WRN 113 at 128 – 129.
The other alleged acts of Chief Adewuyi on the land was PW3’s claim that his father used to sell cocoa in a store on the land in dispute and he used to visit his father there:
He said, the learned trial judge found the evidence above “compelling, uncontradictad and unassailable”
However, said counsel, the evidence really goes to no issue because it was not pleaded. He submitted that the evidence cannot qualify as act of possession by the respondents father or predecessor since it was not admissible in the first place. That, the finding based on unpleaded and inadmissible evidence and categorized as “compelling” by the learned trial judge greatly swayed him to arrive at the conclusion which he eventually reached, made him to give declaration to the respondents upon such evidence and, occasioned another grave miscarriage of justice.
Counsel submitted that in sharp contrast to the respondents case of three years lease of 72 square yards is the 2nd-4th appellants case of continuous and unbroken possession and acts of ownership since 1965 – 2006 when this action was filed, a period of forty-one years. This, he said is the uncontroverted evidence before the trial court. But, there is even evidence of possession since 1950, as represented by Exhibit POA 22.
Counsel submitted that the 2nd-4th appellants explained that their predecessor, who was the traditional ruler of Ile – Ife, allocated the land to himself for his personal use, as he has power to do and did allocate land to others likewise. That, in their reply to the statement of defence dated 2nd day of October, 2006 in paragraph 4, the respondents pleaded that after the death of Chief Adewuyi, Oba Aderemi asked Adewuyi’s wife – Mrs. Abike Alawe Adewuyi, who was on the land to re-locate and “occupy the extreme area of the land formerly occupied by UAC where she erected her shop which is still there today”
Counsel urged that from the above, we should hold that Oba Aderemi was the person who truly had the right of ownership over the land in the area including the land in dispute for the following reasons:
(i) There is plausible evidence that he possessed power to allocate land, which he exercised in his own favour in respect of the land in question. This contrasts with the respondents inability to establish any root of title as to where Chief Adewuyi got the land from.
(ii) There is evidence of acts of ownership since 1950 when the Ooni made a survey of the land, even when Chief Adewuyi was alive.
(iii) He was able to re-locate respondents mother to another part of the land and he demolished the old structures thereon without any protest. This was an act of ownership. It is submitted that PW3 claim on this point that the woman protested is an afterthought as it was never pleaded. Apart from this lone, unpleaded statement, there is no pleading and no other evidence of any protest against the actions of the Ooni in respect of the land.
(iv) Oba Adesoji Aderemi (the Ooni) exercised numerous acts of ownership over the land by surveying the land, building on the land, leasing the land to several companies, like the UAC, Mobil, Agip, Nigerian properties company and N K Zard. All these were done without challenge from anybody.
Appellants counsel submitted that the learned trial judge was wrong when he held that the “—– evidence of acts of possession on the land in dispute by the plaintiffs father until after his death is compelling, uncontradicted and un – assailable”
The above comment, said counsel, is more referable to the acts of possession and ownership by Oba Aderemi, the 2nd – 4th appellants predecessor in title. He also submitted that the learned trial judge’s comment is unwarranted and un-supported by the evidence before the court when he said as follows:
“I hold therefore that the registration of Exhibit POA 23 in 1957 by the defendants father on the land in dispute without taking cognizance of the existence of Exhibit POA 2 or POA 4 is unpardonable and reckless”.
On another wicket, learned counsel for the appellants submitted that another cause giving occasion for a serious miscarriage of justice in this case is the confusing and improper employment of the term “land in dispute” in this case. He submitted that this misunderstanding of what really is the “land in dispute” between the parties led the learned trial judge to make orders in terms far wider than the respondents claims before the court.
He submitted that for the avoidance of doubts, the land in dispute is as endorsed by the respondents in their writ of summons and the relief contained in the last portion of the amended statement of claim dated 23rd day of November, 2006 there, the respondents claimed a statutory right of occupancy to a parcel of land at Iremo (Lagere) Road Ile – Ife “Covered by instrument registered as No. 41 at page 41 in volume 553 at Lagos now Osogbo…”
Counsel submitted that the instrument referred to above became Exhibits POA 2 and POA 4 during the trial. Again, during the trial, it was revealed that the land covered by Exhibits POA 2 and POA 4 measures only 72 square yards, which is the same as 60.2 square metres or hardly more than a standard bedroom. Therefore, said counsel, it is beyond controversy that based on the respondents claim which defined the dispute or the cause of action between the parties, the land in dispute in this case is properly speaking, 72 square yards.
However, said counsel, the confusion started setting in right from the respondents pleadings when they:
(i) averred that Agip Oil, now Oando Plc., Mobil Plc and other multi – Nationals ” occupied this place and had petrol filing station erected thereon”
(ii) claimed “injunction restraining the defendant its agents or privies and 5th defendant – Poplat Nig. Ltd. From further operation on the land”
(iii) PW1 testified that he surveyed the “land in dispute” and proceeded to tender the plan of a land much larger than the one covered by Exhibit POA 2.
(iv) PW 2 claimed that “the present occupiers” are 1st and 5th defendants” there are the organizations operating filing stations. He also said he became aware of Agip (now OANDO) was “on the land as soon as he came back from England —– I was living directly opposite the place in 1965, with Agip Petrol Station on one side and Mobil on another”
(v) The same witness claimed that the 72 square yards being claimed covers the area where the 5th defendant is now using as a petrol filling station. I confirm that the area being claimed is the area occupied by Agip then, now OANDO”
(vi) PW 3 said a “Mobil Petrol Station used to be on the land. There is the Poplat Petrol Station now — all the leases of the land to the three Petrol Stations were done after the death of my father”
The pertinent question here, said counsel, is how can it be possible for two or three filling stations to occupy, side by side, a land of 72 square yards. This, lends great credence to the position of the 2nd – 4th defendants in their further amended statement of defence dated 23rd day of May, 2007, paragraphs 10, 15 and 17 that the 72 square yards (land in dispute) claimed by the respondents only shares a common boundary with the land on which the 1st appellant (and now) the 5th appellant was operating.
He submitted that paragraphs 6 and 12 also show that Mobil Oil was occupying another portion of the land surveyed in 1950 by Oba Aderemi and not on the 72 square yards land in dispute, claimed by the respondents while paragraph 18 shows the measurement of those land as 1085 square yards and 1176.40 square yards respectively.
He submitted further that the deeds were tendered covering the land on which the 1st and 5th appellants were operating, showing that their lands were far larger than the 72 square yards land in dispute. These were Exhibits POA 3 and POA 22. Indeed, said counsel, PW1 called by the respondents put it beyond any doubt that the land formerly occupied by the 1st appellant was totally different from the 72 yards land in dispute, when he said based on exhibit POA1 which he prepared on behalf of the respondents as follows:
“The area verged red on the survey plan is being claimed by the plaintiffs— I saw the portion adopted ‘green’ was covered by a deed dated March, 27, 1940 and the one marked ‘red’ in the survey here is dated 9th September, 1965″
Counsel submitted that the document dated 9th September, 1965 referred to in the survey which PW1 prepared, was later tendered through him as Exhibit POA 3. In other words, looking at Exhibit POA 1, it can be seen clearly that the land in dispute, namely the 72 yards, covered by deed registered as 41/41/553, Exhibit POA 2, was indicated in Exhibit POA 1 and was verged green, while the land covered by Exhibit POA 3, occupied by the 1st and 5th appellants was also indicated in Exhibit POA1 and verged red.
According to counsel, the same witness (PW1) said further that the totality of the area verged red is more than 72 square yards and (more importantly) the total area of the service station which is fenced is the area verged ‘red’ on the plan”
Counsel submitted that even the learned trial judge himself appreciated the point that the land in dispute is only one covered by Exhibit POA2 when he said as follows:
“From the pleadings, the plaintiffs and the 2nd – 5th defendants agreed that the land in dispute is as contained in Exhibits POA 2 and POA 4”
But, his lordship allowed the same confusion about the “land in dispute” when he held as follows, “I therefore hold that the earlier registration of the lease document of the part of the land takes priority over the subsequent registration of the lease document of the whole land in dispute by the late Ooni of Ife, Oba Adesoji Aderemi in 1957 ———-”
In other words, the learned trial judge was treating the entire land in the area, including the one occupied by the 1st and 5th appellants as the land in dispute.
Counsel submitted that the weight of evidence before the court does not support this finding by the learned trial judge, with special regard to the evidence of PW1. Further, that evidence, having established that the land occupied by the 1st and 5th appellants are different from the land in dispute, the learned trial judge ought to have:
(i) Dismissed the claim for title as against the 1st and 5th appellants.
(ii) Dismissed the claim for injunction as against the 1st and 5th appellants since their operations are not on the land in dispute.
He urged us to resolve this issue against the respondents and hold that they did not prove their title to the land in dispute.
As it was with the appellants case, learned counsel for the respondents also started his argument on issue No I with the case of IDUNDUN v. OKUMAGBA (supra) at pages 251 – 253. He argued that of the five recognized means of proving title, the respondents satisfied conditions (ii) and (iv) as enunciated in the case of IDUNDUN V. OKUMAGBA (Supra) meaning that they relied on (ii) proof of ownership by production of document of title and (iv) Acts of possession and enjoyment of the land which may be prima facie evidence of ownership of the particular piece or quantity of land.
That on the condition (ii) above, the respondents tendered Exhibit POA 2 or POA 4 which is the leasehold agreement between the respondents father Chief Samuel Adewuyi (Babasale) and United Africa Co. Ltd. Dated the 27th March, 1940 that is the document registered as 41/41/553 at Lagos, now Osogbo. Learned counsel for the respondents then reviewed the evidence of the witnesses especially PW 2, PW 3 and DW 3. He argued that all the parties are agreed that the land in Ile – Ife including the land in dispute is vested in the people of Ile – Ife.
Counsel submitted that what can be deduced from the evidence of DW3 are as follows:
(1) That known tradition on customary law custom and tradition granting land in Ile – Ife to people is (sic) was jettisoned.
(2) DW3 did not however prove his assertion as provided by the law in establishing customary law, custom and tradition of Ile – Ife on granting land to people.
(3) The DW3 also did not explain why and how the Oba of Ile – Ife, Oba Adesoji Aderemi came about the absolute power he assumed on Ile-Ife land which made him to allocate the disputed land to himself.
(4) The DW3 also did not explain how tradition could permit an Oba to take such crucial decision on land allocation to people without consulting his chiefs who are vested with such right on being consulted on such matter.
On the other hand, said counsel, the evidence of PW2 and PW3 on the customary law, custom and tradition of the people of Ile – Ife was not challenged by the appellants at the court below.
Respondents counsel then referred to Exhibit POA 2, and, that the Exhibit reads thus:
“That the lessor doth with the consent of the Ooni and council of Ife hereby demise to the lessee all that piece or parcel of land ————— as shown in this sketch map attached”
That, what was attached to the agreement was sketch map not a survey plan as known in modern times or as contended in this appeal in the appellant’s brief of argument. He said, the Ooni of Ife referred in Exhibit POA 2 was Oba Adesoji Aderemi who reigned as Ooni of Ife between 1930 and 1980. Therefore, said counsel, Oba Adesoji Aderemi as Chairman of Ooni in council and its members were privy to the granting of part of the land in dispute to United Africa Co. Ltd. in 1940. Learned counsel then referred to the covenants contained in Exhibit POA 2, as follows:
“The lessor doth with the consent of the Ooni and council hereby demise all that piece or parcel of land with building thereon situate at Iremo Street, Ife in the Oyo province —————— as shown in the sketch plan attached ————-coloured red.
The lessee covenants with the lessor as follows:
(1) Not to assign or let the piece of land without the consent of the lessor, the Ooni and Council and of the Governor.
(2) At the expiration or sooner determination of these presents to deliver up the said piece of land peaceably to the lessor.
(3) Not to permit any non – native to reside, upon the land hereby demised”
PARAGRAPH 3
“The lessee shall have the option of renewing this lease for a further period of three years on the same terms and conditions that are contained in these presents subject ——- expiration of these presents”
Learned respondents counsel, surmised that the following facts are deducible from Exhibit POA 2.
(1) That the Governor remains the final authority on lease hold rights granted to the lessor.
(2) What was attached to the agreement was a sketch map or plan and not a survey plan,
(3) That there is / was a building on part of the land demised for use of UAC LTD.
(4) That Ooni and Council is regarded as custodian of Ife custom at that time.
(5) The inclusion of the clause or the exclusion of non – native to reside upon the land hereby demised shows clearly that only natives of Ile – Ife are (were) allowed.
(6) Only natives are (were) given permit to be on demissed premises.
(7) The inclusion of the clause that at the expiration of 3 years the lessor should deliver up the demised land to the lessee is a clear covenant that the lessor shall continue to benefit on the grant of the demised lease after 3 years usage.
(8) It is also clear that the option clause granted the lessee to renew the leasehold is a clear testimony that the grant continues unless it is either revoked, cancelled or abated by the Governor with the knowledge of Ooni and council.
Counsel submitted that, in the absence of any record showing that the lease was determined before or after the demise of late Chief Samuel Adewuyi, the lessor still has possessory title on the demised property from the 14th day of November, 1939 and the date of its approval by the Chief Commissioner acting for the Governor on 30/4/1940.
Counsel submitted that DW3, Bowofade Aderemi gave evidence relating to Ife Native Law and Custom as that relied on when his father allocated land to himself. The assertion of the appellants in paragraphs 4, 5 and 6 of the amended statement of defence of the 2nd – 5th defendants has not been proved, in that only DW 3 gave evidence without anyone supporting him on the issue of native law and custom which made his father the sole authority on Ife land.
Counsel submitted that though not conceded, being the sole authority did not abrogate the advisory rule of Ooni and Council manned by all the traditional Chiefs while Ooni was the Chairman.
Counsel referred to the cases of OJEDIRAN V. ALEBIOSU (1992) 7 SCNJ Vol. 1 page 183 at 193 194, QUEEN EXPARTE EKPENGA V. OZOGULAR (1962) 1 ALL NLR 265 at 266 ODUNSI V. OJORA & 2 ORS (1961) 1 ALL NLR (PT. 2) at 283 and LADI GIWA V. ERINMILOKAN (1961) 1 ALL NLR (PART II) 294.
First for the principle that it is good law that it is desirable that a person other than the person asserting native law and custom should also testify in support thereof and secondly for the proposition that native law and custom are questions of fact and that the findings in earlier cases on them do not create precedents for other cases.
Counsel argued that the appellants here, needed two witnesses to establish the native law and custom and this they failed to do. He submitted that PW 2 and PW 3, on the other hand led un-contradicted evidence on the native law and custom of Ile – Ife as pleaded by the appellants.
On the point of respondents leading evidence on the appellants pleadings, he referred to the cases of AGU v. IKWEWIBE (1991) 4 SCNJ 56 at 74; ONYEKANWU & ORS. v. EKWUBIN (1966) 1 ALL NLR 32 and submitted that the appellants having relied on native law and custom to establish how late Ooni of Ife, Oba Adesoji Aderemi got on the land, the law allows the plaintiffs to give evidence in rebuttal of appellants claim at the court below.
In further reply to the first leg of appellants issue No 1 on the issue of proof of title by the respondents, counsel submitted that:
(1) The Ooni – in Council which had its Chairman in the person of late Oba Adesoji Aderemi, the Ooni of Ile – Ife granted the land in dispute to late Chief Samuel Adewuyi.
(2) The grant was not meant to vest radical title on late Chief Samuel Adewuyi but right to own the land subject to revocation of the grant by the Ooni – in – Council acting as a body.
(3) That such right enjoyed by late Chief Samuel Adewuyi can be likened to the right which a holder of the statutory right of occupancy or deemed holder of statutory right of occupancy has under the land use Act. The best you can transfer under such situation is the unexpired residue of your right in the land. You can also not transfer any interest in the land without the consent of the Governor, in this case Ooni – in – Council or Governor is vested with the land in trust for the people concerned, in this case the people of Ile -Ife community.
(4) In this case, late Chief Samuel Adewuyi in executing the lease agreement in U. A. C. LTD.’s favour was deemed to have the right to do so and actually had the title vested in him.
Counsel submitted that the above is to say that at least late Chief Samuel Adewuyi had been in possession and had exercised right of ownership on the land to the exclusion of the whole world. However, the grant purportedly made to Ooni unto himself was not proved. Counsel submitted that the respondents father had been in possession of the land in dispute since 1939 and that in fact the late Oba Adesoji Aderemi and his family had been trespassing on the disputed land since the respondents had always been in possession since then.
On the second leg of appellants Issue 1, learned counsel for the respondents submitted that after the appellants agreed with the finding of the trial court on the identity of the land in dispute, it does not lie in their mouths to start complaining on the same issue. He argued that where a defendant intends to challenge or dispute such boundaries or features as shown in the survey plan or sketch map as in this case, he must do so by specifically traversing the plaintiff’s pleading in that regard because a mere general traverse will be insufficient. He referred to the cases of ELIAS V. OMO-BARE (1982) 5 SC 25, OMOREGIE V. IDGIEMNWANYE (1985) 2 NWLR (PT.5) 41; ADIMORA V. AJUFO (1988) 2 NWLR (PT. 80) 1 and ADELAIA V. ALADE (1999) 6 NWLR (PT. 608) 544 at 559.
Counsel submitted further that the issue of boundaries of the land in dispute is not covered by the appellants two issues for determination, it follows that the appellants cannot raise the issue and argue as they have done in their brief.
On this, he referred to the book CIVIL PROCEDURE in NIGEBIA 2nd Edition by Fidelis Nwadialo at page 865 and the cases of OKONKWO V. OKONKWO (1998) 7 SCNJ 246 AT 256, SHITTA – BEY V. A. G. OF THE FEDERATION (1998) 7 SCNJ 264 at 272, OGUNSOLA V. NICON (1996) 1 NWLR 126, OYEBADE v. AJAYI (1993) 1 NWLR 313 and GABRIEL EMAIKWU ADAH V. JOHN OKOH ADAM (2001) 4 SCM 28 at 32 – 33 to demonstrate that issues for determination when formulated displace grounds of appeal in an appeal. He urged us to hold that the issue of boundaries of the disputed land was not properly raised and to resolve issue No 1 in favour of the respondents.
Appellants issue No. 1 which covers ground 1 and 7 of the notice and grounds of appeal is a key issue in the determination of this appeal. However, despite the spirited and admirable efforts of Chief Femi Poppola of counsel to the appellants and his very useful submissions on the subject matter, my candid but humble opinion in its totality is that the conclusions arrived at by the learned trial judge on the issue are right even when sometimes they are based on good reasons and sometimes for reasons that are not so right.
For example, learned counsel for the appellants argued vehemently that both parties relied on traditional evidence for the proof of their cases and that the respondents did not plead or proof their root of title to the land in dispute. To use the words of the learned counsel for the appellants “from the blues, Babasale Samuel Adewuyi was said to have granted a lease of the land in dispute to the United Africa Company (UAC) ———”
First, I do not agree with the learned counsel for the appellants that the parties to this case relied or both agreed to rely on traditional evidence. Rather, I agree with the learned counsel for the respondents, that the respondents case was based on (ii) proof of ownership by production of document of title. (iv) Acts of possession and enjoyment of the land which may be prima facie evidence of ownership of the particular piece or parcel of land” under the principles enunciated in the case of IDUNDUN V. OKUMAGBA (Supra).
My impression of the case of the respondents, as shoddy as it was before the court below is that the fact or the existence of Exhibit POA 2 or POA 4, its registration and the hereditaments it leased out to UAC LTD. in 1940 are acts of possession on the land in dispute dating back to 1939/1940 and which continued inspite of the long drawn acts of trespass of the appellants until the action was instituted.
Incidentally, the document itself made some glaring representations. The first is that the possessory right on the land in dispute was granted by the Ooni – in – council, the second is that there was an existing building on the land in dispute. The third is that the reversionary interest on the leasehold land belongs to the lessor (therein) Chief Samuel Adewuyi and the fourth not the least is that the dealing between the grantor/Head lessor, that is the Ooni – in Council and the lessor, Chief Samuel Adewuyi was governed by native law and custom. None of these ‘representations’ contained in Exhibits POA 2 and POA4 was impugned, denied or contradicted either in the pleadings or evidence of the appellants.
In other words, the respondents predecessor granted a lease of land “with building thereon” to U. A. C. LTD. in 1940, which leasehold interest was subject to the consent of Ooni – in – Council and the Governor and when the lessee is not exercising an option to renew the 3 years lease, the reversionary interest goes to the lessor.
The issue of title came into existence in the case because of the rivalry or perhaps the competing possessory rights or interest of the parties. This is because, by a deed of lease registered as 20/20/797 in 1965 exhibit POA 3, the appellants predecessor leased a larger portion inclusive of the portion of land in dispute to AGIP NIG. LTD. in these circumstance, it was not difficult in the absence of proof of better title for the learned trial judge to say that the possessory right of 1940 overrides and overshadows the possessory claim of 1965. But, then, how did the appellants fair in their bid to proof title to land? DW3, Bowofade Aderemi gave evidence of the over lordship of the Ooni under Ife native law and custom as the sole authority over all the land at Ile – Ife and that sometime in 1950 he allotted unto himself a parcel of land along Lagere Road for personal use. The said survey plan No. BK 750 of 30/9/50 by licensed surveyor A. Togono Bickresteth as enclosed in plan No. 05/0236/2007/049 of 16/5/2007 was admitted in evidence as Exhibit POA 21. Now, the portion verged Black said to belong to the predecessor of the appellants in Exhibit POA 21 includes but is much larger than.
(a) Portion marked ‘green’ therein which is the land covered by instrument No.41/41/553 now in dispute.
(b) Portion marked ‘red’ which includes the portion marked ‘green’ being the larger portion of land in dispute as claimed in the survey plans of the parties, And which tallies with the land leased by the appellants predecessor in instrument registered as 20/20/797 of 1965 to AGIP NIG. LTD.
(c) Portion marked ‘blue’ which is not in dispute and which belonged to the predecessor of the respondents and formerly occupied by Mobil Nig. Ltd.
The evidence of DW3 that Ooni of Ife allotted a large chunk of land including the land in dispute to himself is an opinion on the native law and custom of Ile – Ife. I dare say that such opinion evidence is irrelevant and inadmissible. This is because, the general rule of irrelevancy of opinion evidence is stated in Section 66 of the Evidence Act cap. 112 LFN 1990. The exception to the rule in relation to native law and custom is contained in Section 57 of the same enactment. It reads”
“57 (1) when the court has to form an opinion upon a point of foreign law, native law and custom, or of science or art, or as to identity of hand writing or finger impressions, the opinions upon that point of persons specially skilled in such foreign law, native law or custom, or science or art, or in questions as to identity of handwriting or finger impressions, are relevant facts. “experts”
(2) Such persons are called experts.
There is nothing in the record of appeal to indicate that DW 3 brought himself forward in evidence as an expert or someone specially skilled in the native law and custom of Ile – Ife to be able to declare that under the native law and custom of Ile – Ife, the Ooni of Ife could as the sole authority over land allot land to himself for personal use. The evidence of DW3 on the native law and custom of Ile – Ife is not in accord with the Evidence Act, it is irrelevant and inadmissible.
In the light of all of these, the learned trial judge was obliged to apply two related principles of law both in favour of the respondents case. The first is that where as in the instant case, two persons claim to be in possession of a piece of land at the same time, the law ascribes possession to one with better title. This, is because there can be no such thing as concurrent possession by two persons claiming adversely to each other.
See. AWOYOOLU V. ARO (2006) 4 NWLR (PT.071) 481.
The second, again as in this case is that acts of long possession and enjoyment of land can be prima facie evidence of ownership or a right of occupancy of the particular piece of land in respect of which such acts are done.
See: OYADARE V. KEJI (2005) 7 NWLR (PT.925) 571, MASKALLA v. SILLI (2002) 13 NWLR (PT.784) 216.
On this very important issue, it is appropriate to listen to the learned trial judge himself. At page 170 of the record, he said:
“….. is trite law that where title is in issue as a result of the competing claims of the two parties, and one of them is found to be in possession, the party in possession is by virtue of Section 146 of the Evidence Act presumed to be the owner and the party alleging the contrary then has the burden to prove that he has a better title so as to entitle him to displace the party in possession.
See: (1) MUSTAPHA LAWAL V. LIALE (1967) N.M.L.R. 155.
(2) OYEBANJI V. OKUNOLA (1968) N.M.L.R 221
(3) AROMIRE V. AWOYEMI (1972) 2 S.C. 1
(4) OGUNFOLU V. ADEGBITE (1986) 5 NWLR (Part.43) 549 at 550.
The first issue is therefore resolved in favour of the plaintiffs, and by implication they are entitled to the injunction asked for in the 3rd leg of the claim–“
It is difficult for me to understand the complaint of the learned counsel for the appellants on the issue of the identity of land in relation to the second leg of their issue No 1.
As a matter of law, the learned trial judge held quite rightly in my view and in spite of the admissibility of various survey plans in the case at pages 170 – 171 that:
“————- I hold that the extent of the land in dispute is as contained in Exhibits POA 2 and / or POA 4, which both parties have not disputed. Since the area of the land in dispute is contained in the survey attached to the two exhibits, the identity of the land is already known to the parties, consequently no other survey plan is necessary in the case:
See (1) ETIKO V. AROYEWUN (1959) 4 F. S. C. 129
(2) ARABA V. ASANLU (1980) 5 -7 SC 78 (3)
EMIRI V. IMIEYEH (1999) (Supra)”
But, concluded that portion at page 171, that “in the circumstances, all the survey plans tendered as contained in Exhibits POA 1, POA 21, and POA 22 are not useful in the determination of the case”
It seems to me that the problem of the learned counsel for the appellants in relation to the identity of the land in dispute is that Exhibits POA 2 and or POA 4 contain sketch maps rather than survey plans of the land in dispute and that in the trial of the case there was a difference between “the land being claimed” and “the land in dispute”
Truly, the land being claimed ‘by parties in this case is the piece of land marked ‘red’ in Exhibits POA 1 and POA 21 that piece of land tallied with the description of land which the appellants leased out in 1965 to Agip Nig. Ltd. and it contains the “land in dispute marked “green” in the two exhibits which tallied with the description of the land leased to UAC NIGERIA LTD. in 1940 and registered as 41/41/553 in Lagos now Osogbo.
I think that all the learned trial judge did was to grant the respondents not the land claimed marked ‘red’ in Exhibits POA 1 and POA 21 but the lesser piece of land marked “green” in those exhibits which also is not only the land agreed to by the parties as the land in dispute” but also described and contained in the plaintiffs respondents amended statement of claim of 23/11/2006 as:
“Whereof the plaintiffs claim against the defendants is that the plaintiffs are entitled to a statutory right of occupancy to that piece of land situate lying and being at Iremo Road, Ile – Ife now called Lagere Road, Ile – Ife Osun State and covered by instrument registered as No. 41 at page 41 in Volume 553 at Lagos now Osogbo being the property of Babasale Samuel Adewuyi —-”
To my mind, the fact that this piece of land as described by the respondents is indeed known to the parties and tallies with the judgment of the court puts the matter to rest. At page 172, the learned trial judge found in favour of the plaintiffs respondents and declared:
(1) The plaintiffs are declared to be “entitled to a statutory right of occupancy to that piece or parcel of land situate lying and being at Iremo Road, Ile – Ife now called Lagere Road, Ile – Ife, Osun State and covered by instrument registered as No. 41 at page 41 in Volume 553 at Lagos now Osogbo being the property of late Babasale Samuel Adewuyi—”
Issue No I is resolved against the appellants.
On issue 2, learned counsel for the appellants submitted that the writ of summons and statement of claim determine the cause of action. He referred to the cases of UBA PLC. v. UMEODUAGU (2004) 35 WRN 1 at 11 and LABODE v. OTUBU (2001) 7 NWLR (PT.712) 256 at 276. That, from the writ of summons and statement of claim, the root of title relied upon by the respondents was the deed of lease dated March, 1940 and registered as No. 41 at page 41 in Volume 553.
He submitted that since the claims of the respondents were not based on customary law, as can be teen from the writ of summons and their amended statement of claim, then, the statute of limitation is applicable to the case. Counsel submitted that there is undisputed evidence, both from the respondents and the appellants that the 2nd – 4th appellants and their predecessor in title, Oba Adesoji Aderemi have been in possession of the land subject matter of the respondents claim since, at least, 1965. In fact, said counsel, evidence has revealed that the 2nd – 4th appellants were in possession of a parcel of land far larger than what the respondents claimed. The area was shown in the survey plan of 1950 tendered as Exhibit POA 22. Counsel submitted that for the purpose of this argument, the truth of the following evidence by the plaintiffs (respondents) will be assumed.
(i) Prior to 2003 when the respondents father’s safe was broken, PW2 was aware that his father was the owner of “the property in question” and he knew that his father “owned the area long ago”
(ii) PW 2 became aware that Agip (OANDO) was on the land as soon as he came back in 1964 and was living directly opposite the place in 1965
(iii) From his return from England in 1965 to 2003, PW2 did not bother himself but was concerned with his practice as a lawyer.
(iv) PW 3 said his mother was on the land until 1957 when Oba Adesoji Aderemi engaged a caterpillar to level the buildings on the land. So the respondents knew that Oba Aderemi had taken the land since 1957.
(v) PW3 further said when he saw Oba Aderemi on the land, his mother protested.
(vi) The PW3 also knew that Mobil Petrol Station, Agip Petrol Station have been on the land after his father’s death and it was not his family that leased the place to them.
(vii) PW 3 family became aware of their ownership of the land before 2003 and they knew “all along” that the land belongs to their father.
(viii) PW 3 also knew that a company had been on the land before Mobil and that “‘it was ‘Baba Aafin’ Sir Aderemi who put the company there”
Based on the above, learned counsel for the appellants submitted that it is crystal clear that the respondents had been aware of their claim to the land since 1957 or at least, 1965 whereas, this action was filed in 2006, a period of 49 years or 41 years after becoming aware.
The respondents, said counsel, attempted to explain away this almost life time of delay by saying that the document they based their claim on was only discovered in 2003 in their father’s safe when they succeeded in opening the said safe or according to the PW3, the group of 73 children could not take action due to financial difficulties.
On the question of their father’s safe, according to counsel, the evidence was that the family only succeeded “lately” in opening it by the aid of an electric apparatus. So, it was not the safe that was discovered in 2003 as claimed by PW 3 but the document that was discovered in the safe.
Counsel submitted that this excuse is very untenable for the following reasons:
(i) The family knew about the existence of the safe since their fathers death in 1957.
(ii) There was no evidence of, the efforts they made since then to open the safe by engaging the services of professionals or technicians who know about safes.
(iii) Was the electrical apparatus which they used belatedly a new invention which was not in use before 2003?
He submitted that on the balance of probabilities, there was no such safe that the respondents family was not curious enough to find out its content since 1957. Counsel argued that this action is statute barred Pursuant to Sections 4 (1), 4 (2) 16 and in particular, Section 17 of the limitation law, Cap 64 laws of Osun State.
Counsel referred to the cases of UBA PLC. v. UMEODUAGU (2004) 35 WRN 1 at 11, GBADAMOSI v. TAIWO (2004) 43 WRN 51 at 72 and EGBE v. ADEFARASIN (1987) 1 NWLR (PT.47) 1 that a cause of action accrues on the date when a breach or any step taken warrant a person who is adversely affected by the act to seek redress in court and that a cause of action is statute barred if legal proceedings cannot be commenced in respect of the same because the period laid down by the limitation law or act had elapsed.
Appellants counsel submitted that the issue of limitation was pleaded in paragraph 14 of the 1st appellant’s statement of defence and paragraph 25 (i) of the defence of the 2nd – 5th appellants. And, that though counsel for the 1st appellant and 2nd – 5th appellants made submissions on the issue in their address, the learned trial judge did not make any pronouncement on it in relation to the 2nd – 4th appellants. If the learned trial judge had considered this issue, his lordship would not have had any difficulty in coming to the conclusion that the action is statute barred.
Counsel submitted that his failure to give any consideration to the issue has occasioned a grave miscarriage of justice, in granting a claim of right and injunction in respect of a cause which the respondents did not see the need to pursue in the 41 years prior to the institution of this action in 2006.
Still on issue No 2 but on another leg of the issue, learned counsel for the appellants submitted further that the respondents claim is barred by laches. That, if it is assumed that Oba Adesoji Aderemi’s possession of the land and his use thereof were an infringement of the respondents rights, the respondents have acquiesced in the infringement for a great length of time. He referred to the cases of AKPAN AWO V. COOKEY GAM (1913) 2 NLR 100 and MRS. G. A. SOSAN & ORS V. DR. M. B. ADEMUYIWA (1986) 5 SC at 178 and urge that the issue be resolved in favour of the appellants.
In response to issue No 2 learned counsel for the respondents submitted that limitation of actions law does not apply to the present case because the tenure of the late Chief Samuel Adewuyi was subject to native law and custom.
Respondents counsel referred to paragraphs 4 and 6 of the amended statement of defence of the 2nd – 5th defendants, which say:
“4. Under the Ife Native law and custom Oba Adesoji Aderemi had the pole authority over all land within his jurisdiction as Ooni of Ife———-”
6. In the same manner, Oba Adesoji Aderemi allotted the parcel of land, lying situate and being along Lagere Road, abutting the junction of Akarabata Street, Ile – Ife to, himself for his personal use —”
Counsel submitted that it is then a surprise to hear the appellants saying that the land in dispute is not subject to native law and custom and so statute of limitations is applicable to it when they themselves described the way Oba Adesoji Aderemi allegedly allocated the land to himself under native law and custom.
Respondents counsel submitted further that not only that the parties to the dispute are natives of Ile – Ife but also that even Exhibit POA 2 revealed that the demised land was a native land. Counsel referred to one of the covenants in Exhibit POA 2 thus:
“7 not to permit any non – native to reside upon the land hereby demised”
Counsel also Referred to the cases of AKANO FASHINA AGBOOLA v. ANGELINA ABIMBOLA (1969) 1 ALL N.L.R 287 at 292 and GABRIEL AKIN TAIWO & ORS v. B. I. O. TAIWO & ORS (1958) 3 FSC 892 at 893 and submitted that limitation, statutes are not applicable to tenures held under law.
Finally on limitation, counsel submitted that statute of limitations cannot be used as engine for fraud. That, the appellants in the instant case deliberately trespassed on the respondents land with knowledge that the title on the land had been vested on the respondents father as far back as 1939.
On the defence of laches, learned counsel referred to the case of NWAKOBI v. NZEKWU (1961) ALL NLR 445, where the Supreme Court held that “the equitable defence of laches is not available to successor in interest to a fraudulent trespasser who persists in the continuance of the original trespasses”
He said that there are various dicta in the case of AKPAN AWO V. COOKEY GAM (Supra) that suggest that the following conditions must be satisfied before a successful plea of laches.
(1) The defendant must have entered the land as a stranger and also as a trespasser.
(2) The stranger must have dealt with the land as his own.
(3) The real owner must have delayed in asserting his right of ownership and must have slept on his rights, and.
(4) The land must have been developed to the knowledge of the real owner who had refused to act,
(5) The trespasser must not have knowledge of plaintiff’s ownership.
Counsel submitted that the above conditions are not all present in the instant case. That, the appellants claim that the late Oba Adesoji Aderemi the Ooni of Ife, granted the land to himself prevents the applicability of the defence of laches in their favour.
When the learned counsel for the appellants, commenced his treatment of issue No 2, he announced that the only processes the court must look into to determine limitation are the writ of summons and the statement of claim of the plaintiff. It is pertinent to mention that a court could determine whether or not a cause of action is statute barred from the writ of summons and the statement of claim if the computation of time reveals itself from those documents or processes. However, it is sometimes the case that computation of time for the purposes of limitation statutes would only be possible from the evidence adduced by the parties. See: DR. CHARLES OLADEINDE WILLIAMS V. MADAM OLAITAN WILLIAMS (2008) 10 NWLR (PT.1095) 364 at 383, SAVANNAH BANK OF NIGERIA LTD. V. PAN ATLANTIC SHIPPING & TRANSPORT AGENCIES LTD. (1987) 1 NWLR (PT.49) 212
Thus, a trial court can only make a finding on whether an action is statute barred after pleadings are filed, if the issue is raised in limine or after evidence based on the pleadings have been led. See AINA V. JINADU (1992) 4 NWLR (PT.233) 91, SALAMI V. SAVANNAH BANK LTD. (1990) 2 NWLR (PT.130) 106.
Surprisingly, learned counsel for the appellants himself sought to put up the defence of limitation based on the evidence led by the parties in this case.
Indeed, if the plaintiffs/respondents writ of summons and statement of claim were to be examined for this purpose all that could be gathered from the combined effect of paragraphs 2, 3, 4, 5, 6 and 7 of the plaintiffs/respondents amended statement of claim is that the plaintiffs cause of action arose in year 2003 in terms of paragraph 6 of the said amended statement of claim that “Based on the instrument quoted above, letter dated 2nd October, 2003, was addressed to Princess Mrs. Tejumade Alakija Head Of late OBA ADESOJI ADEREMI family. This letter shall be relied upon at the trial of this action”
Meanwhile, pleadings were exchanged and evidence led in the case. It became apparent from the evidence by the parties that the subject matter of the land in dispute at Lagere (Iremo) Ile – Ife bares a radical title belonging to Ooni – in Council with a tenure based on customary Law. Section 1 (2) of the limitation law, Osun State states that:
“Nothing in this law shall affect actions in respect of title to land or any interest in land by customary tenure”
It is also clear from case law that limitation statutes are not applicable to actions in respect of any matter regulated by customary law: see: OGUNKO V. SHELLE (2004) 6 NWLR (PT.868) 17.
In the instant case, limitation law cannot apply to the land in dispute as evidence led by the parties revealed that the land is subject to the native law and custom of Ile – Ife.
Similarly, I cannot agree with the learned counsel for the appellants that the defence of laches avails the appellants in this case. The reasons are as follows: First, there is the uncontradicted evidence from the plaintiffs respondents that the document Exhibit POA 2 or POA 4 on which their claim was based was discovered in year 2003. Secondly, there is equally the unchallenged evidence from the respondents that the appellants predecessor was the de facto administrator of their father’s estate after the later’s death in 1957 until his (Ooni’s) demise in 1980 under native law and custom. Thirdly, the registration of Exhibit POA 2 or POA 4 gives actual notice of the possessory interest of the respondents predecessor in title to the whole world including the appellants predecessor in title.
In these circumstances and for the above reasons, it cannot be safely said that the respondents slept over their rights on the land in dispute before they brought this action in year 2006.
Issue No 2 is also resolved against the appellants.
In this appeal, the appellants filed eight (8) grounds of appeal but did not formulate any issue (s) on grounds 2, 4, 5 and 8. Grounds 2, 4, 5 and 8 of the appellants grounds of appeal are deemed abandoned and accordingly struck out. Where no issue for determination is formulated from a particular ground of appeal, that ground of appeal is deemed abandoned and would be struck out. See: A.N.P.P. v. I.N.E.C. (2004) 7 NWLR (Pt.871) 16, BHOJSONS PLC. V. DANIEL – KALIO (2006) 5 NWLR (PT.973) 330, BAYERO V. MAINASARA & SONS LTD. (2006) 8 NWLR (PT.982) 391.
Finally, having resolved the two (2) issues in this appeal against the appellants. The appeal lacks merit and it is accordingly dismissed.
There shall be costs of N30,000 in favour of the respondents.
SOTONYE DENTON WEST, J.C.A.: I have had the privilege of reading the lead judgment just delivered by my learned brother, Mojeed Adekunle Owoade, JCA, who dealt convincingly with all the issues raised in this appeal that leads me to adopt his reasoning and conclusions as my own, giving me no alternative than to concur with the said judgment.
In fact he made a professional sojourn into the history of the ownership of the land in issue, leaving me no alternative than to concede and so it serve no useful purpose to further dwell on same. I also find the appeal as lacking in merit and I accordingly also dismiss same. I abide by the consequential orders made therein especially the order of N30,000.00 costs in favour of the respondents.
CORDELIA IFEOMA JOMBO-OFO, J.C.A.: I read before now the draft copy of the judgment of my learned brother OWOADE, JCA just delivered and I quite agree with the reasoning and conclusion reached therein. The appeal indeed lacks merit and ought to be dismissed. The appeal is accordingly dismissed.
I abide by the order as to cost.
Appearances
Eyitayo OlakunleFor Appellant
AND
A. F. FabunmiFor Respondent
