SARK POWER GENERATION NIGERIA LIMITED v. CHIEF OLUWO ODENEYE AKINWUNMI & ORS
(2014)LCN/7191(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 13th day of May, 2014
CA/I/292/09
RATIO
WHEN THE LOCUSSTANDI OF A PARTY IS RAISED
It is the law that a party prosecuting an action would have locus standi where the reliefs claimed would confer some benefit on such a partly, see, SENATOR ADESANYA v. PRESIDENT OF NIGERIA (1981) 2 N.C.L.R. 373 and DUKE & ORS v. HENSHAW 6 WACA 240.
It is trite that once the locus standi of a party (or parties) is raised, the issue must be taken and considered first as locus standi raises the issue of competence and jurisdiction of the court, see GARBRIEL MADUKOLU & ORS v. JOHNSON NKEMDILIM (1962) 2 SCNLR 341 at 348. His lordship Baramian, J.S.C. in this respect had this to say:
“Any defect in competence is fatal, for the proceedings are a nullity however well conducted and decided: the defect is extrinsic to the adjudication.”
See, also, KLIFCO LIMITED v. PHILLIP HEIZMANN A-G HORICON LTD (1996) 3 NWLR (Pt. 436) 276; OBA OYEWUNMI AJAGUNGBADE II (Soun of Ogbomosho) & TWO ORS v. GABRIEL AFOLABI LANIYI & TWO ORS (1999) 13 NWLR (Pt. 633) PAGE 92 and LAWAL v. SALAMI (2002) 2 NWLR (Pt. 752) 687 at 710.
The issue of locus standi is a condition precedent to any action before the court and so being is a threshold question. It goes to the root of the whole of an action and ought to be decided at the earliest stage of the proceedings in order to save legal expenses and time and before the merits of the action are considered. See, THOMAS v. OLUFOSOYE (1986) 1 NWLR (Pt. 18) 669, BOLAJI v. BANGBOSE (1986) 4 NWLR (Pt. 37) 632 and PEPPLE v. CINEEN (1990) 4 NWLR (Pt. 142) 108. Locus standi affects the jurisdiction of the court before which the action is brought, because if there is no locus standi to file the action in the first place, the court cannot properly found jurisdiction to enteftain the action, see, C.B.N. v. KOTOYE (1994) 3 NWLR (Pt. 330) 86 at 73. Per CHIDI NWAOMA UWA, J.C.A.
LAND LAW: WHO BEARS THE BURDEN OF PROVING ENTITLEMENT TO A DECLARATION OF TITLE TO LAND
This is an action for declaration of title to the land in dispute, as I stated earlier in this judgment, the burden of proving his entitlement to the declaration sought was on the Claimant who can only succeed on the strength of his case and not on the weakness if any of the Appellant’s case or failure to cross-examine the Claimant’s witnesses on particular points. See, BELLO v. EWEKA (1981) N.S.C.C. p.48 at p.61 lines 28-45, KODILINYE v. ODU (Supra) where Webber, C.J. Sierra-Leone, in this respect held thus:
“The onus lies on the Appellant to satisfy the court that he is entitled on the evidence brought by him to a declaration of title.”
See, also ITUAMA v. AKPE-IME (2000) 12 NWLR (Pt. 680) p.156 at p.168 paras, F-G and EZIONWU v. EGBO (2006) 5 NWLR (Pt. 973) p.315 at p.328 Para. F. per CHIDI NWAOMA UWA, J.C.A.
WHEHER FAILURE TO CROSS EXAMINE AMOUNTS A WITNESS AMOUNTS TO ADMISSION BY THE ADVERSE PARTY
Even though it is trite that failure to cross-examine a witness may amount to admission by the adverse party but, it is equally trite that a reasonable court or tribunal with respect is not necessarily bound to accept any and every unchallenged evidence ipso facto established hook line and sinker if the quality of such evidence has no backing and not commendable. See, OMOREGBE v. LAWANI (1980) 3-4 SC 108; NIGERIAN MARITIME SERVICES LTD v. AFOLABI (1978) 2 SC 19; and JALINGO v. NYAME (1992) 3 NWLR (Pt. 231) 538 at 545; also SOMMER v. F.H.A. (1992) 1 NWLR (Pt. 219) p.560-551 paras. G-A. Per CHIDI NWAOMA UWA, J.C.A.
JUSTICES
MONICA B. DONGBAN-MENSEM Justice of The Court of Appeal of Nigeria
CHIDI NWAOMA UWA Justice of The Court of Appeal of Nigeria
HARUNA SIMON TSAMMANI Justice of The Court of Appeal of Nigeria
Between
SARK POWER GENERATION NIG. LIMITED Appellant(s)
AND
1. CHIEF OLUWO ODENEYE AKINWUNMI
(Head of Odeneye Family of Oke Afa Omotedo)
2. AYINDE SOWUNMI ODENEYE
3. ALIRATU ODENEYE
4. OLALEKAN ODENEYE
5. ALHAJI KELANI BALOGUN ODENEYE
(For themselves and on behalf of Oke Afa village, Washima, Obafemi Owode LGA)
6. TOTAL ESTATE AND PROPERTIES LIMITED
7. THE REGISTRAR OF TITLES OGUN STATE Respondent(s)
CHIDI NWAOMA UWA, J.C.A. (Delivering the Leading Judgment): The 1st – 6th Respondents herein were the original Claimants at the High Court of Ogun State, Abeokuta Division, presided over by Jibodu, J. On 18th June, 2009, judgment was given in favour of the 1st – 6th Respondents in terms of the reliefs sought in their Writ of Summons and Statement of Claim. The Appellant’s counter-claim was dismissed.
The 1st – 6th Respondents herein as claimants commenced the action at the lower court against the Appellant and the 7th Respondent herein (as Defendants) vide a writ of summons and statement of claim filed on 12th September, 2008 praying for the following reliefs:
(a) “Declaration that the disputed land measuring 6.581 hectares more particularly described and delineated on plan No. OG/1331/2008/86/D dated 08/09/2008 drawn by Festus A. Ogunleye, Registered Surveyor situated at Oke Afa village, Wasinmi, Obafemi Owode Local Government, Ogun State over which Plaintiff have been exercising maximum acts of ownership and possession by virtue of the traditional history a6 of possession and judicial pronouncement is plaintiff’s land.
(b) Perpetual injunction restraining 1st Defendant, his agents, servants and/or privies from disturbing the possession of Plaintiffs on the said disputed land.
(c) N500,000.00 as general damages for trespass on the disputed land, and
(d) An order directing 2nd Defendant to expunge the C of O granted 1st Defendant from its Deed Registry.”
The Appellant herein as the 1st Defendant at the trial court filed a defence to the action of the 1st – 6th Respondents and counter claimed against the 1st – 6th Respondents as follows:
a. “A DECLARATION that the counter claimant is the holder of a certificate of occupancy No. 026372 dated 20th July, 2007 issued by the Ogun State Government of Nigeria over an area of land measuring 6.581 hectares along Lagos/Ibadan Expressway, Arepo in Ifo Local Government Area of Ogun State and more particularly delineated on Survey Plan No. LC/1768(OG).
b. A DECLARATION that the counter claimant is the beneficial owner of the said land, measuring 6.581 hectares along Lagos/Ibadan Expressway, Arepo in Ifo Local Government Area of Ogun State and more particularly delineated on Survey Plan No. LC/1768(OG).
c. AN ORDER OF PERPETUAL INJUNCTION restraining the Defendants whether by themselves, their servants, agents and or privies from intermeddling with the said land measuring 6.581 hectares along Lagos/Ibadan Expressway, Arepo in Ifo Local Government Area of Ogun State and more particularly delineated on Survey Plan No. LC/1768 (OG).
d. THE SUM of N50,000,000.00 (Fifty Million Naira) being general damages suffered by the counter claimant for the repeated acts of trespass committed by the Defendant.”
The background facts are that the Respondents as plaintiffs instituted this suit against the Appellant claiming declaration of title to the disputed land amongst other things. The land in dispute was said to measure approximately 6.581 hectares. The Respondents claimed that the land is located at Oke Afa Village, Wasinmi, Obafemi Owode Local Government of Ogun State, while the Appellant pleaded that the land is situated at Arepo, Ifo Local Government of Ogun State.
The Respondents relied on traditional history of first settlement and possession by their ancestors of the disputed land and also the Judgment in suit No. AB/257/2001 (delivered on 19/1/2007) in which the acquisition of the land in dispute in that case by Ogun State High Court was allegedly voided by Olopade, J sitting in Abeokuta Judicial Division of the Ogun State High Court.
The Appellant relied on state grant, namely, a statutory right of occupancy evidenced by certificate of occupancy granted by the State Governor, tendered as Exhibit “D3” as the root of title. While the 1st – 5th Respondents made out that their ancestors were the first settlers on the disputed land who were said to have enjoyed undisturbed possession and exercised maximum rights of ownership over the land in dispute. The 6th Respondent claimed that she purchased the land in dispute from the 1st – 5th Respondents in April 2008 while the Appellant was said to have trespassed unto the land in August 2008.
The Appellant made out that the Respondents (1st – 5th) who relied on traditional history of first settlement did not plead any date on when their first ancestor settled on the land in dispute. It was also alleged that the statement of claim was silent on the various names of the various family heads, principal members and other ancestors of the 1st – 5th Respondents who inherited and occupied the land in dispute at various times.
It was stressed that the land in this suit is larger than the land claimed in Suit No. AB/257/2001, even though the lower court held that the land in dispute in this case (6.851 Hectares) is an integral part of the land litigated upon in Suit No. AB/257/2001 (3.537 hectares).
The lower court relied on the judgment in Suit No. AB/257/01 to hold that the acquisition of the land in dispute had been voided by Olopade, J, and that Ogun State Government had no title to pass to the
Appellant, when she subsequently granted a statutory right of occupancy and issued a certificate of occupancy in favour of the Appellant.
The lower court upheld the Respondents’ contention that the land in dispute is part of the land litigated upon in Suit No. AB/257/2001 and the decision in Suit No. AB/257/2001 had voided the acquisition of the disputed land.
The Appellant was unhappy with the decision and appealed to this Court. From his nine (g) grounds of appeal six (6) issues were formulated for the determination of this appeal. They are as follows:
“(i) Whether the 1st – 6th Respondents have not established their sufficient locus standi to institute and maintain the action for declaration of title, damages and injunction for trespass against the Appellant in respect of the land in dispute. (Ground 7)
(ii) Whether the 1st – 6th Respondents sufficiently pleaded facts and adduced evidence to support their claim or declaration of title. (Ground 2)
(iii) Whether the identity of the land in dispute was sufficiently and satisfactorily proved before the trial Court. (Grounds 3, 4 and 5)
(iv) Whether the learned trial judge was in error in his refusal to invoke the provisions of Section 149(d) of the Evidence Act in respect of non-production of Plan No. OGE/58/83 in the face of the available evidence before the trial court. (Ground 1)
(v) Whether the learned judge correctly interpreted and applied the decision of Olopade J, in Suit No. AB/257/2001 in the consideration of Case before it. (Ground 9)
(vi) Whether the learned trial judge rightly voided the Certificate of Occupancy issued to the Appellant in respect of the land in dispute. (Grounds 6 and 8)”
The 1st – 6th Respondents’ learned counsel observed that the Appellant did not mention his counter- claim in his brief of argument in the issues formulated for determination of the appeal before this Court. It is the contention of the learned counsel to the 1st – 6th Respondents that the counter-claim has been abandoned since no issue was raised or argued in its support.
The 1st – 6th Respondents formulated the following issues for determination:
(i) “Whether in spite of the 1st – 5th Respondents’ failure to sufficiently plead facts and adduce adequate evidence in support of traditional history of first settlement, the learned trial judge correctly or wrongly held, that the Respondents, discharged the burden of proving their entitlement to declaration of title to the land in dispute. Ground 2
(ii) Whether in spite of the Respondents’ failure to tender the Survey Plan No. OGE58/83 which was the basis of the decision in Suit No. AB/257/2001 and the obvious differences in the sizes between the land in dispute in this suit and Suit No. AB/257/2001 as well as differences in the names and Local Government Councils of the location of the land, the learned trial judge rightly or wrongly held that the land in dispute in both cases is the same land. Grounds 1, 3, 4 and 5.
(iii) Whether learned trial judge correctly interpreted and applied the decision of Olopade J. in Suit No. AB/257/2001 to the Appellant despite the fact that neither the Appellant nor her grantor was a party to Suit No. AB/257/2001. Ground 9.
(iv) Whether in the light of Section 5(2) of the Land Use Act 1978, all existing customary interest in the disputed land became extinguished upon the grant of statutory right of occupancy in favour of the Appellant by the Governor of Ogun State. Ground 6.
(v) Whether the learned trial judge rightly or wrongly voided the acquisition of the land in dispute by Ogun State Government without the joinder of Ogun State Government whose act of acquisition was the Respondents’ sole cause of action as a party to this suit. Ground 8.
(vi) Whether the 1st – 5th Respondents who had admittedly alienated their interests in the disputed land in favour of the 6th Respondent still have the locus standi to institute and maintain an action for declaration of title to the land which they had alienated in favour of the 6th Respondent, Ground 7.”
The 7th Respondent herein who was the 2nd Defendant at the trial court, filed no brief of argument.
When the appeal was argued, the learned senior counsel to the Appellant Prof. Taiwo Osipitan (SAN) appearing with Emmanuel Harrison Esq., Oluwatoyin Adisa and Tola Ogunlewe adopted and relied on his brief of argument dated and filed on 18/5/10 deemed properly filed and served on 28/10/10 and his reply brief dated and filed on 15/6/11 deemed properly filed and served on 14/2/14 in urging us to allow the appeal.
In arguing his first issue, it was submitted that the 1st – 5th Respondents who were the plaintiffs in the lower court based their claim on traditional history of first settlement on the disputed land by their ancestors, while the Appellant made out that the land claimed by the Respondents is different from the land claimed by the Appellant.
Alternatively without conceding that the land claimed by the parties is the same, it was argued that the Respondents’ claim ought to have been dismissed by the lower court because the statement of claim of the Respondents had no vital particulars to sustain their claim of Traditional History of first settlement on the disputed land. Reference was made to paragraphs 1(a), 2(a), (3a) and (3b) of the statement of claim at pages 5-6 of the printed records of appeal. It was submitted that the names of the children, grand children and other descendants who inherited the land in dispute after the demise of Odofin Amusa’s (the original settler) were not specified. It was the contention of the learned counsel to the Appellant that there was no basis for upholding the traditional evidence of first settlement adduced by the Respondents and there was no basis for the Appellant to have cross-examined the Respondents’ witnesses on the traditional evidence as there was no cogent evidence to cross-examine on, reliance was placed on the following cases, AKPORO v. UGHALA (1995) 8 NWLR (Pt. 411) P. 118 at p. 128 paras C-E; SOMMER v. F.H.A. (1992) 1 NWLR (Pt. 219) pp. 560-561 paras. 6-A.
It was further submitted that this is an action for declaration in which the burden of proving their entitlement sought was on the Respondents as claimants, who would succeed on the strength of their case and not on the weakness (if any) of the Appellant or the Appellant’s failure to cross-examine their witnesses on particular issues. See, BELLO v. EMEKA (1981) N.S.C.C. P. 48 at P 61 lines 28-45; ITUAMA v. AKPE-IME (2000) 13 NWLR (Pt. 680) p. 156 at P. 168 paras. F-G and EZIONWU v. EGBO(2006) 5 NWLR (Pt. 973) p. 316 at p. 328 para. F.
On the Appellant’s second issue, it was submitted that the lower court was wrong to have held that the land subject matter of Suit No. AB/257/2001 (3.537 hectares) and the land covered by the Appellant’s certificate of occupancy (6.351 hectares) is part of the land litigated upon in AB/257/2001. It was argued that it is not possible for a bigger portion of land to be part of a smaller portion of land that since 3.537 hectares is smaller in size than 6.851 hectares the latter cannot be part of the former.
It was argued that the survey plan No. OGE/58/93 containing the area and features of the land litigated upon in Suit No. AB/257/2001 pleaded by the Respondents was withheld by them, we were urged to invoke Section 149(d) of the Evidence Act, reliance was also placed on the following cases, ANSA v. ISHIE (2005) 15 NWLR (Pt. 948) P. 210 at P. 225 paras. B-C, AGBI v. OGBEH (2005) 8 NWLR (Pt. 926) p. 40 at p. 116 paras. C-D and N.A.S. LTD v. UBA PLC (2005) 14 NWLR (Pt. 945) P. 421 at P. 441 paras. G-H. It was argued that it was wrong for the learned trial judge to have expected the Appellant as 1st defendant to have tendered the said plan No. OGE/58/83, page 220 of the printed records.
It was the contention of the learned senior counsel to the Appellant that the dimension of the land litigated upon in Suit No. AB/257/2001 was 3.537 hectares and not 3,337 as falsely pleaded by the Respondents in the Statement of Claim, reference was made to paragraphs 6, 12 and 13 of the Statement of Defence, page 95 of the printed records. It was the submission of the learned counsel that the Respondents in their Reply did not deny the dimension of 3.537 hectares of land as the basis of the judgment in Suit No. AB/257/2001, see, paragraphs 1(c), (d), (e) and (f). It was argued that the judgment in AB/257/2001 was restricted to 3.537 in the survey plan OGE 58/83 which was admitted by the Respondents. It was contended that the learned trial judge was wrong to have expected the Appellant to prove what had been admitted by the Respondents, see, VEEPEE INT. LTD v. COCOA IND. LTD. (2008) 13 NWLR (Pt. 1105) p. 486 at p. 517 paras. C and H.N.B. LTD. v. GIFTS UNIQUE (NIG.) LTD (2004) 15 NWLR (Pt. 896) P. 408 at P. 432 paras. F-G.
On the Appellants third issue it was submitted that at Page 220 of the records of Appeal, the trial court made it clear that the prior nullification of acquisition of the land in dispute in Suit No. AB/257/2001 was the basis of the nullification of the Appellant’s Certificate/Statutory Right of Occupancy: Exhibit “D3′, (the Judgment is Exhibit “C2”). The Appellant it was argued, is not bound by the decision which the Appellant and her grantor were not parties to.
The Respondents herein were the plaintiffs in suit No. AB/257/2001 sued for trespass to the land in the above suit, the Defendant therein raised the issue of acquisition of the land in dispute as a defence, the claimants did not seek and could not have sought nullification of the acquisition as part of their reliefs and did not seek nullification of the said acquisition of the land by Ogun State Government. The Court below was said to be wrong to have held that nullification of the acquisition of the disputed land was the basis of the Court’s decision in Suit No. AB/257/2001.
It was argued that it was wrong for the trial Court to have held that the judgment, Exhibit “C2” was used to void the statutory right of occupancy granted in favour of the Appellant by Ogun State Government. It was stressed that the land in dispute is not the same as that litigated upon in Suit No. AB/257/2001.
Further that, neither the Appellant nor her grantor, Ogun State Governor was a party to suit No. AB/257/2001, therefore that the decision in the above suit cannot bind the Appellant and her grantor who were not parties to the suit. It was argued that the conditions for the application of record estoppel/Estoppel per Rem Judicata were not satisfied and cannot be applied for the use of the judgment in Suit No. AB/257/2001 in the present suit, these are: (1) the parties in Suit No. AB/257/2001 and the present suit must be the same, (2) the subject matter of the two suits must be the same, (3) the judgment in Suit No. AB/257/2001 must be final and (4) the judgment in Suit No. AB/257/2001 must be the judgment of a Court of competent jurisdiction.
See, OKUKUYE v. AKWIDO (2001) 3 NWLR (Pt. 700) PAGE 261 AT PAGE 303 PARAGRAPHS, E-F; OMNIA (NIG.) LTD v. DYKTRADE LTD (2007) 15 NWLR (Pt. 1058) PAGE 609 AT PAGE 576 PARAGRAPHS, F-H.
It was submitted that the parties and the subject matter are not the same in the two cases to justify the application of record estoppel or the doctrine of priority applied by the trial Court. It was submitted that neither the Appellant nor Ogun State Government is bound by the decision in AB/257/2001 in which they were not parties, reliance was placed on the following cases, NDULUE v. IBEZIM (2002) 12 NWLR (Pt. 870) AT PAGE 165, PARAGRAPH G and BABATOLA v. ALADEJANA (2001) 12 NWLR (Pt. 728) PAGE 597 AT PAGE 615 PARAGRAPHS, C-D.
The subject matter of this suit and Suit No. AB/257/2001 were said to be different. The land in suit No. AB/257/2001, it was argued is 3.537 hectares while the land in dispute now is 6.581 hectares. The Respondent as Plaintiff was said to have altered the dot after 3 to a coma in the figure 3.537 to make the total area in dispute 3.537 as against 3.537 hectares which was actually in dispute. We were urged to resolve this issue in the Appellant’s favour.
The Appellant’s issues four and five were argued together. It was the submission of the Learned Senior Counsel that the Appellant is the grantee of statutory right of occupancy made by the Governor of Ogun State evidenced by a Certificate of occupancy by virtue of which the Appellant is a tenant of Ogun State Government. Further, that by virtue of Section 5 (2) of the Land Use Act upon the grant of Statutory Right of Occupancy in favour of Appellant by the State Governor over the land, all existing interests especially customary right of occupancy in respect of the land are extinguished, therefore that the Appellant’s interest as a grantee of Statutory Right of occupancy was indefeasible and thus overrides any other existing customary interest in the same land, reliance was placed on the following cases, ADOLE v. GWAR (2008) 11 NWLR (Pt. 1099) 562 AT 587 PARAGRAPHS. A-B; G.C.M. LTD. v. T.P.H. LTD (2006) 10 NWLR (Pt. 989) PAGE 502 AT 511 PARAGRAPHS, C-D and OLAGUNJU v. ADESOYE (2009) 9 NWLR (Pt. 1146) PAGE 225 AT PAGE 265 PARAGRAPH H. We were urged to hold that the grant of Statutory Right of occupancy in favour of the Appellant extinguished all prior interests in the land in dispute and that the failure of the Respondents to join the Appellant’s grantor in the suit is fatal to the voiding of Appellant’s title to the disputed land by the lower Court.
The Appellant’s sixth issue challenges the 1st-5th Respondents’ locus standi to institute and maintain the action in respect of the disputed land. It was submitted that from the pleadings and evidence before the Court, these Respondents had alienated their interests in the land in dispute through sale/assignment of disputed land to the 6th Respondent reference was made to paragraph 2 of the statement of claim to the effect that 1st-5th Respondents had alienated their interests in the land.
It was argued that the 1st-5th Respondents ought not to have been granted the declaratory reliefs and injunctive orders over the disputed land, the reliefs are at page 222 of the printed records, granted in their favour despite the fact that their interests had been alienated in favour of the 6th Respondent, see, IGE v. FARINDE (1994) 7 NWLR (Pt. 354) PAGE 42 AT PAGE 64 PARAGRAPHS, C-D and SANYAOLU v. COKER & ANOR (1993) N.S.C.C. PAGE 119 AT PAGE 129 LINES 39 – 40.
The trial Court was said to have lacked the jurisdiction to award any relief in favour of the 1st-5th Respondents.
On the part of the 1st-6th Respondents, their learned Counsel, Wunmi Okeremi Esq. appearing with Kolawole Abiri, Oludotun Osho and Tosin Babatunde adopted and relied on the 1st-6th Respondents’ Brief of Arguments dated and filed on 1/11/10, formulated six issues that were substantially similar to those of the Appellant’s in urging us to dismiss the appeal.
The 1st-6th Respondents’ first issue is similar to the Appellant’s sixth issue in which the locus standi of the 1st-5th Respondents was challenged since they had alienated their interest in the land in dispute through sale/assignment to the 6th Respondent the Court below lacked the jurisdiction to have awarded any relief in favour of the 1st-5th Respondents.
It was argued that the challenge is a misconception and an afterthought since the locus standi of the 6th Respondent whose title is derived from the 1st-5th Respondents was not challenged, secondly that the appellant counterclaimed against the 1st-6th Respondents for declaration of title, injunction and damages for trespass in respect of the same parcel of land in dispute and thereby conceded that 1st-6th Respondents have sufficient legal interest in the land in dispute which is also the subject matter of the counter claim by which it waived its right to complain about parties in this matter, see, ADIO v. A.G. Oyo STATE (1990) 7 NWLR (Pt. 163) 448 AT 497, PARAS F-G. It was argued that by counter claiming against the 1st-5th Respondents, the appellant recognized them. Further, that even though it is jurisdictional, the issue of locus standi was not raised at the lower court and cannot be raised now, the appellants having counter claimed against them in the lower court.
It was argued that SANYAOLU v. COKER (supra) would apply if the interest in the land being litigated upon before a court is in a third party, who is not a party to the suit, it was argued that Sanyaolu’s case support’s the Respondents’ case.
On their second issue, (which is similar to the appellants issue one), the learned counsel to the 1st-6th Respondents did not only rely on traditional history of first settlement to lay claim to the land in dispute but also relied on Acts of Possession and ownership of adjacent land, which were sold by the 1st-5th Respondents to other individuals. It was submitted that the entire evidence on their traditional history, acts of possession, acts of selling, farming and litigating on portions of the land in dispute was never challenged or controverted in any way by the Appellant before the lower court. It was argued that the appellant having counter claimed also put his title in issue. It was argued that the trial judge resolved the issue of ownership/title of the land in dispute on preponderance of evidence, that is, the party who proved better title.
It was submitted that the CW2 who testified in line with the 1st-6th Respondents’ pleadings was not cross examined on the evidence of traditional history. It was stressed that the 1st-6th Respondents did not rely only on traditional evidence in proof of their title as erroneously contended by the appellant, it was argued that proof of one of the five ways to prove title is enough, see, IDUNDUN v. OKUMAGBA (1976) 9-10 SC 227.
It was submitted that since the appellant made no reference to his counter claim that was dismissed by the lower court it should be deemed abandoned.
The Respondents’ third issue is whether the identity of the land in dispute was sufficiently and satisfactorily proved. It was submitted that the land in dispute measures 6.581 hectares, verged green in Exhibit ‘C’ (the composite plan No. OG/1331/2008/86/D prepared by CW1), see, paragraph 5 (a) of the statement of claim, page 7 of the Records of Appeal. It was submitted .by the learned counsel to the 1st-6th Respondents that CW1 was not cross examined on the correctness of Exhibit ‘C’. Even though the Appellant raised issues of dissimilarities in beacon numbers of the land described in survey plan No. OGE58/83A dated 25th January, 1983 tendered in suit No. AB/257/2001, it was the contention of the learned counsel that all the parties know the land in dispute, which was also the subject matter of the counter claim in the lower court.
It was argued that the size and location of the land the Appellant claimed in the counter claim is the same parcel of land now in dispute in which the 1st-6th respondents were the plaintiffs. Further, that the Appellant did not produce another survey plan to contradict the contents of Exhibits C. Further, that the DW3 under cross examination confirmed that Exhibit D2 (the portion claimed in the counter claim by the Appellant) falls within Exhibit C (the 1st-6th Respondents, composite plan) page 169 of the printed records. It was argued that the Appellant who put the identity of the land in dispute in issue ought to have produced his survey plan to counter that of the 1st – 6th Respondents, Exhibit ‘C’ showing the land in dispute, reliance was placed on the case of OGUN v. AKINYELU (2004) 18 NWLR (Pt. 905) 365 AT 384 PARAS C-H, 389 – 390 PARAS H-B.
It was concluded that the Appellant has not shown that the findings of the trial court on the identity of the land in dispute is perverse. We were urged not to disturb the trial court’s finding and resolve this issue in favour of the 1st to 6th Respondents.
On their fourth issue, on non-tendering of survey plan No. OGE/58/83 utilized in the earlier suit, it was submitted that the same land in the above plan was described and verged in survey plan OG/1134/2004/03, tendered as Exhibit C in suit No. AB/257/01, tendered as Exhibit C1 in the present suit. It was argued that there was no need to tender survey plan No. OGE/58/83 since the contents were embedded and incorporated in Exhibits C and C1 tendered and admitted in the present proceedings as confirmed by CW1, CW2 and DW3 the Appellant’s expert witnesses and that the Appellant should have tendered the said Plan which they had access to as it is a public document.
Further, that the appellant did not file a counter survey plan to dispute Exhibits C and C1; we were once again urged to discountenance the appellant’s argument on this issue.
The 1st-6th Respondents’ issues five and six were argued together, the issues as to whether the trial court correctly interpreted and applied the decision of Olopade J. in suit No. AB/257/2001 in considering the present suit and whether the trial judge rightly raised the certificate of occupancy issued to the Appellant in respect of the land in dispute, these issues are similar to the appellant’s third issue.
In support of these issues, the learned counsel reviewed the judgment of Olopade, J. particularly pages 219 – 220 to the effect that survey plan No. OGE/58/83 is subsumed in Exhibit C, which was listed in AB/257/2001 and the evidence of DW2 Ayodeji Oregun confirming same. The judgment was argued to be valid until set aside; see ODJEVWEDJE v. ECHANOKPE (1987) 1 NWLR (Pt. 52) 633 AND ADEBAYO v. BABLOLA (1995) 7 NWLR (Pt. 408) 383 at 410, to the effect that it nullified the Ogun State government’s acquisition. Olopade, J. in his judgment, Exhibit C2 at pages 37-38 also faulted the Appellants inability to persuade the court of his title via Government acquisition and a certificate of occupancy that is a valid acquisition upon which to base a certificate of occupancy in respect of the land in dispute.
The learned counsel submitted that there was no valid acquisition of the plaintiffs’ land in the earlier suit AB/257/01. It was the contention of the learned counsel that if the purported acquisition of the plaintiffs’ land by the Ogun State Government failed as held in AB/257/01, the Appellant herein cannot rely on any Certificate of Occupancy issued by the same Ogun State Government in its favour. It was argued that the appellant is a privy of Ogun State Government in respect of the Plaintiffs’ Land on which the defence of acquisition failed in Suit No. AB/257/01. It was argued that Ogun State Property and Investment Company (OPIC) was the 2nd Defendant in the previous suit and represented the interest of Ogun State Government and that any decision given against OPIC would bind the Ogun State Government.
It was the submission of the learned counsel that the Appellant is a privy in the estate of the Ogun State Government in respect of the land shown in Exhibits C and C1, particularly the area verged green in Exhibit C, also in Exhibit D2.
In alternative argument, it was submitted that the Appellant based its title to the land in dispute in its defence and counter claim on (1) purchase from Onikoyi Family (2) certificate of Occupancy from Ogun State Government while the 1st-6th Respondents gave evidence of traditional history and acts of ownership which was preferred by the trial court supported by the evidence of CW1 – CW3 which were said not to have been controverted. The Appellant’s purchase from Onikoyi family was said to be shown in Exhibit D2, a Sale Agreement dated 7/8/06 alleged not to have been proved thus rendering Exhibit D3 worthless.
In the alternative, it was submitted that even if the Certificate of Occupancy issued in favour of the Appellant was not affected by Exhibit C2, the Appellant was said not to have proved the title of its grantor, Onikoyi family. The trial court was said to have been right to have nullified the certificate of occupancy, Exhibit D3 issued in favour of the Appellant. We were urged to affirm the judgment of the trial court.
In his reply brief the learned senior counsel to the Appellant Prof. Taiwo Osipitan (SAN) on points of law, on the 1st-6th Respondents’ submissions on issue one, it was submitted that in the light of the 1st-5th Respondents’ admission of (a) prior alienation of their interests in the disputed land and (b) parting with possession of the land to the 6th Respondent they (1st-5th Respondents) lack the locus standi to claim declaration of title to the disputed land. It was argued that the presence of the 6th Respondent as a party in the suit in the lower court does not confer locus standi on the 1st-5th Respondents who had alienated/sold the disputed land to the 6th Respondent. It was argued that there can be no joint locus standi between a vendor and a purchaser of a property which would enable them jointly sue for declaration of the title to a land which the vendor admittedly sold to the purchaser, see, RE: NDIC (2007) 7 NWLR (Pt. 1032) P. 54 at P. 66 paras. E-F, OKOLI v. OJIAKOR (1997) 1 NWLR (Pt. 479) 48 at 60-61, H-A, AMUDA v. AJOBO (1995) 7 NWLR (Pt. 406) P.170 at P.182 E-F, EKE v. MILITARY ADMINISTRATOR, & IMO STATE (2001) 13 NWLR (Pt. 1052) 531 at 550, D, BUHARI v. OBASANJO (2003) 17 NWLR (Pt. 843) P. 236 at P. 484, OBASANJO v. YUSUF (2004) 9 NWLR (Pt. 877) 144 at 190 Para. F-G
On alleged waiver of locus standi and jurisdiction, it was submitted that claims and counter claims are independent/cross actions, therefore filing of a cross action does not affect the locus standi of a party to the substantive suit, reliance was placed on the following cases, GOWON v. IKE OKOGWU (1994) 2 NWLR (Pt. 326) 355 at 364, F, DABUP v. KOLO (1993) 9 NWLR (Pt. 317) 254 at 270. D, DANGOTE v. PLATEAU STATE (2001) 9 NWLR (Pt. 717) p. 132 at 151, Paras. A-B, NDLEA v. OKORODUDU (1997) 3 NWLR (Pt. 492) p. 221 at P. 242 Paras B-D and EKPUK v. OKON (2001) 44 WRN 85 at 101.
On the Respondents’ second issue, it was submitted that they ignored the need to plead and lead evidence of the particulars of their original and intermediate ancestors as well as subsequent members of their families, who at different times, occupied and exercised acts of ownership over the disputed land. It was reargued that the Respondents did not plead and prove the traditional history they relied upon, see, AKANBI v. SALAWU (2003) 13 NWLR (Pt. 838) P. 637 at PP.649 – 650 Paras H-A, NWOKOROBIA v. NWOGU (2009) 10 NWLR (Pt. 1150) p. 553 at 573 Para. H amongst others.
The learned senior counsel re-emphasized on his previous argument that the 1st-6th Respondents did not lead evidence to support their pleadings as to their root of title, through traditional history and acts of ownership and cited more legal authorities relied upon.
On the Respondents’ third issue, the learned senior counsel stressed on the point that the land in dispute in the present case measures 6.581 hectares and cannot rightly form part of the land litigated upon in AB/257/01 which measured 3.537 hectares. We were urged to hold that the 1st-6th Respondents failed to prove the issue joined on the identity of the disputed land.
Further, that Exhibits C and C1 the survey plans relied upon in the trial court were tendered by learned counsel from the bar and no evidence was given by any surveyor to reconcile the plan tendered and the land in dispute. It was argued that the trial court ought not to have resolved the issue of identity of the land in favour of the Respondents, see, ARO v. FABOLUDE (1983) Vol. 14 N.S.C.C. p. 43 at p. 49 lines 6-22; 1 SCNLR 58; F1983 2 SC 75; NWOGO v. NJOKU (1990) 3 NWLR (Pt. 140) p. 570 at p. 581 Paras. G-H, OBIASO v. OKOYE (1989) 5 NWLR (Pt. 119) p. 80 at 96 Para. D, ODUTOLA v. ODERINDE (2004) 12 NWLR (Pt. 888) p.574 at p.586 paras. F-G, P. 588 paras. A-C and ELIAS v. OMO-BARE (1982) NSCC p.92 at p.98. It was concluded that the evidence obtained from the DW3 under cross-examination was not supported by pleadings and therefore goes to no issue and ought not to have formed the basis of the court’s judgment, see, OKWEJIMINOR v. GBAKEJI (2005) 5 NWLR (Pt. 1079) p.172 at p.196 paras. C-E, OTUO v. NTEOGUNULE (1996) 4 NWLR (Pt. 440) p.56 at p.72, Para. B and ALIYU v. ADEWUYI (1996) 4 NWLR (Pt. 442) P. 284 at 291.
On their issues four, five and six, it was argued that the Appellant in the lower court pleaded more than one root of title, (1) direct grant of statutory right of occupancy by the Governor of Ogun State, pursuant to Section 5(1)(a) and (2) of the Land Use Act tendered as Exhibit D3 (2) purchase of land from Onikoyi Family land that where there are two roots of title a plaintiff need not prove both, one would suffice, see, EGBO v. AGBARA (1997) 1 NWLR (Pt. 481) p. 293 at P. 319 para. A and NWAOFOR v. ONWUZIMIGBO (1996) 3 NWLR (Pt. 434) p.111 at 119E amongst other.
It was further submitted that the 1st-6th Respondents did not raise the issue of alleged agency relationship between Ogun State Government and OPIC in the lower court and it was not the basis of the Judgment of the lower court and was not pleaded, to argue same in this court would require filing a Respondent’s Notice which the 1st-6th Respondents did not do in compliance with Order 6 Rule 2 of the Court of Appeal Rules, 2007, see, C.S.D., ANAMBRA STATE v. ONUZULIKE (1991) 8 NWLR (Pt. 212) p. 706 at p. 714 para. B and OGUMA v. I.B.W.A. (1988) 1 NWLR (Pt. 73) p. 658 at p.581, paras. F-G.
Alternatively, being a new issue on agency, that the 1st – 6th Respondents ought to have sought and obtained the leave of this Court to argue the issue of agency, we were urged to discountenance the submissions, see, U.T.B. LTD. v. DOLMETSCH-PHARM (NIG.) LTD (2007) 16 NWLR (Pt. 1061) p.520 at p.539-540 H-A. We were urged to ignore agency relationship between the Ogun State Government and OPIC.
In conclusion, it was submitted that in Suit No. AB/257/2001 the parties, subject matter and issues were not the same as the present case therefore the order in the previous case was that the DW1 in that suit failed to persuade the court that there was a valid acquisition upon which to base a certificate of occupancy in respect of the land in dispute, the court was said not to have nullified the acquisition. The earlier judgment was said not to be applicable to the present case. It was submitted that Suit No. AB/257/2001 is void and against Ogun State Governor who granted statutory right of occupancy in favour of the Appellant on account of the non-joinder of the Governor/Government of Ogun State as a party in the suit see, HABEEB NIGERIA BANK v. OPOMULERO (2001) 15 NWLR (Pt. 690) at 315. We were urged to allow the appeal.
The 7th Respondent as noted earlier in this judgment did not file any brief of argument and had nothing to urge the court.
The Appellant’s sixth issue and the 1st-6th Respondents first issue raised the issue of the 1st-5th locus standi or lack of it to institute this action in respect of the land in dispute, seeking for declaration of title, damages and injunction for trespass against the Appellant.
It is trite that once the locus standi of a party (or parties) is raised, the issue must be taken and considered first as locus standi raises the issue of competence and jurisdiction of the court, see GARBRIEL MADUKOLU & ORS v. JOHNSON NKEMDILIM (1962) 2 SCNLR 341 at 348. His lordship Baramian, J.S.C. in this respect had this to say:
“Any defect in competence is fatal, for the proceedings are a nullity however well conducted and decided: the defect is extrinsic to the adjudication.”
See, also, KLIFCO LIMITED v. PHILLIP HEIZMANN A-G HORICON LTD (1996) 3 NWLR (Pt. 436) 276; OBA OYEWUNMI AJAGUNGBADE II (Soun of Ogbomosho) & TWO ORS v. GABRIEL AFOLABI LANIYI & TWO ORS (1999) 13 NWLR (Pt. 633) PAGE 92 and LAWAL v. SALAMI (2002) 2 NWLR (Pt. 752) 687 at 710.
The issue of locus standi is a condition precedent to any action before the court and so being is a threshold question. It goes to the root of the whole of an action and ought to be decided at the earliest stage of the proceedings in order to save legal expenses and time and before the merits of the action are considered. See, THOMAS v. OLUFOSOYE (1986) 1 NWLR (Pt. 18) 669, BOLAJI v. BANGBOSE (1986) 4 NWLR (Pt. 37) 632 and PEPPLE v. CINEEN (1990) 4 NWLR (Pt. 142) 108. Locus standi affects the jurisdiction of the court before which the action is brought, because if there is no locus standi to file the action in the first place, the court cannot properly found jurisdiction to enteftain the action, see, C.B.N. v. KOTOYE (1994) 3 NWLR (Pt. 330) 86 at 73 .
In the present action the locus standi of the 1st – 5th Respondents has been challenged on the premise that these Respondents alienated their interests in the land in dispute through sale/assignment of the disputed land to the 6th Respondent. The contents of paragraph 2 of the Statement of Claim, pages 5-6 of the printed records of appeal, is not disputed by the parties, to the effect that the 1st – 5th Respondents had divested themselves of their interest in the land in dispute in favour of the 6th Respondent through sale/assignment.
In the case of IGE v. FARINDE (1994) 7 NWLR (Pt. 354) P. 42 at P. 68 Paras C-E, His Lordship Iguh, JSC in this respect held as follows:
“There can be no doubt that a plaintiff who claims to have sold his land to a purchaser cannot obviously turn round to claim a declaration of title to the very land he has sold. See, SANYAOLU v. COKER (1983) 3 SC 124 at 163-164, (1983) 1 SCNLR 168.” (Underlined mine for emphasis.)
In SANYAOLU v. COKER (supra); (1983) N.S.C.C. p.119 AT 129 lines 38-43, the Apex Court held thus:
“A plaintiff cannot have what he himself says he has given away. A plaintiff who says he has sold his land to a purchaser cannot obviously turn round to claim a declaration of title to the very land he has sold.”
See, also RE-NDIC (2007) 7 NWLR (PT. 1032) p.54 AT p.66, OKOLI v. OJIAKOR (1997) 1 NWLR (Pt. 479) 48 AT 60-61, H-A, AMUDA v. AJOBO (1995) 7 NWLR (Pt. 406) p.170 at p.182 E-E, EKE v. MILITARY ADMINISTRATOR, IMO STATE (2001) 13 NWLR (Pt. 1052) 531 at 550 D.
In the present case, the 1st – 5th Respondents who had sold their land to the 6th Respondents turning round to claim for a declaratory relief over the same land, perpetual injunction, general damages for trespass on the land in dispute and order directing the 2nd Defendant to expunge the certificate of occupancy dated 20/07/07 granted to the 1st Defendant from its Deed Registry, is like eating their cake and still having it! I hold that the 1st-5th Respondents having alienated their interests in the disputed land in favour of the 6th Respondent had no locus standi to maintain any action over the same land which they admittedly sold to the 6th Respondent.
The Respondents had argued that since the Appellant counterclaimed against the 1st-6th Respondents for declaration of title, injunction and damages for trespass in respect of the same parcel of land in dispute, thereby conceded that 1st – 6th Respondents have sufficient legal interest in the land in dispute which is the subject of the counter-claim by virtue of which it waived its right to complain about the constitution of the parties in the matter. To this I would say that it is trite that a counter claim is a distinct and separate action, subject to the same rules of court. If the wrong parties have taken action against a defendant, the fact that the defendant also has taken out an action vide his counter claim does not make the former proper parties, two wrongs do not make a right, see, DABUP v. KOLO (1993) 9 NWLR (Pt. 317) 254 at 270 and GOWON v. IKE-OKOGWU (1994) 2 NWLR (Pt. 326) 355 at 364F. Whether the Counter Claimant (Appellant herein) sought reliefs against the proper parties or not would have to be resolved if the issue arose in the counter claim, it does not depend on the failure or success of the main claim.
The 1st-6th Respondents had also argued that the Appellant had waived his right to complain having taken out a counter-claim against them. The issue of substantive jurisdiction cannot be waived even by consent of the parties. The 1st-6th Respondents did not challenge the action taken out against any of the 1st-6th Respondents and cannot rightly do so now. Procedural jurisdiction could be waived where not timeously raised, see, NNPC v. ZARIA & ANOR (2014) LPELR-22362 AND KWAA v. KWAKWA 3 WACA 176.
The learned counsel to the Respondents conceded that the issue of locus standi is an issue that borders on jurisdiction which can be raised at any time even on appeal, therefore, I need not go further on this. The cases of OKOYE v. LAGOS STATE GOVERNMENT (1990) 3 NWLR (Pt. 136) 115 at 125 and UNITED NIG. CO. LTD v. NAHMAN (200) 9 NWLR (Pt. 671) 177 at 189 relied upon by the Respondents are not applicable, they would have been if the 1st-5th Respondents were held to have vested interest in the land in dispute, having divested themselves of their right, they no longer have any interest to protect in the land in dispute, since I have held and it is not disputed that they sold their land to the 6th Respondent from their claim.
It is the law that a party prosecuting an action would have locus standi where the reliefs claimed would confer some benefit on such a partly, see, SENATOR ADESANYA v. PRESIDENT OF NIGERIA (1981) 2 N.C.L.R. 373 and DUKE & ORS v. HENSHAW 6 WACA 240.
The 1st-5th Respondents have not shown that they have special or sufficient interest or right to be heard on the question before the court. From the cause of action, I hold that they have none. In the absence of the locus standi of the 1st-5th Respondents, I hold that the lower court lacked the jurisdiction to have awarded the reliefs in favour of the 1st-5th Respondents.
In the present case, the Appellant has not challenged the locus standi of the 6th Respondent who has made out that it derived title from the 1st-5th Respondents and a co-plaintiff in the lower court. The 1st-5h Respondents are hereby struck out. This issue is resolved in favour of the Appellant. I am of the view that the 6th Respondent could sustain the action and consequently this appeal and I so hold.
The Appellant’s first to fifth issues are similar to the Respondent’s issues two to six but differently couched. I would resolve the rest of the issues as formulated by the Appellant, but would reformulate the Appellant’s first issue (Respondent’s second issue) thus:
Whether the 6th Respondent sufficiently pleaded facts and adduced evidence to support its claim for declaration of title to the land in dispute.
In an action for declaration of title to land the onus is on the Claimant to prove his title upon a preponderance of evidence or on the balance of probabilities. He must succeed on the strength of his own case and not on the weakness of the defence, except where the defendant’s case supports his case. See, ONWUGBUFOR v. OKOYE (1996) 1 NWLR (424) 252; SHITTU v. FASHAWE (2005) 14 NWLR (946) 671; EZE v. ATASIE (2000) 9 WRN 73 at 88; ADESANYA v. ADEROUNMU (2000) 13 WRN 104 at 115 lines 10 – 35.
The methods by which a Claimant may establish title to land were settled by the Supreme Court in the well known case of IDUNDUN v. OKUMAGBA (1926) 9-10 SC 227. They are:
(a) By traditional evidence;
(b) By production of documents of title duly authenticated and executed;
(c) By acts of ownership over a sufficient length of time numerous and positive enough as to warrant the inference of true ownership;
(d) By acts of long possession and enjoyment;
(e) Proof of possession of connected or adjacent land in circumstances rendering it probable that the owner of such connected or adjacent land would, in addition be the owner of the land in dispute.
The Claimant is not required to prove all the five ways, as rightly argued by the learned counsel to the 6th Respondent. He would be entitled to a declaration if he establishes any one of them.
From the totality of the pleadings and evidence before the lower court, as adduced on the Claimant’s side (now 6th Respondent); it claimed title through purchase from the family of Odofin Amusan who were said to have migrated from Igbein Abeokuta several years ago and settled on the land in dispute. After the demise of Odofin Amusan, the land was said to have been inherited by his children, grand children and descendants who exercised acts of ownership over the land. There was no evidence to prove or trace how the land was handed down the line to named individuals or progenitors who inherited the land as family property after the death of Odofin Amusan. After his death none of the children, grand children and other descendants was named up to the point of those who actually sold to the 6th Respondent. The children after Odofin Amusan, were not identified in the pleadings or evidence in the lower court. The names and history of those who sold to the 6th Respondent were never pleaded nor given in evidence in the lower court to justify and prove how the land in dispute got to the 6th Respondent. No principal members or family heads who could have sold the land to the 6th Respondent were mentioned. I am in agreement with the submissions of the learned senior counsel that there are gaps in the root of title of those who allegedly sold the land in dispute to the 6th Respondent, who relied on traditional evidence/history of first settlement. The particulars of those who came after the supposed first settler Odofin Amusa were missing.
The learned counsel to the Respondent had argued that because there was no cross-examination of the plaintiffs’ witnesses, the evidence was unchallenged/uncontradicted. In AKPORO v. UGHALA (1995) 8 NWLR (Pt. 411) p.118 at p.128 paras. C-E, Edozie, J.C.A. in his contributory judgment in this respect held that:
“It is a misconception that because a party did not cross-examine a witness on an issue, that evidence has become unchallenged when that party had led evidence which materially contradicts the witness on the issue.
The learned trial judge was in grave error to have held that the defendant had accepted the plaintiffs evidence on traditional history of the land in dispute because the plaintiffs were not cross-examined thereon…..By so holding, he abdicated his responsibility in evaluating the evidence of the defendants’ traditional history. That was a misdirection which occasioned a miscarriage of justice.”
Even though it is trite that failure to cross-examine a witness may amount to admission by the adverse party but, it is equally trite that a reasonable court or tribunal with respect is not necessarily bound to accept any and every unchallenged evidence ipso facto established hook line and sinker if the quality of such evidence has no backing and not commendable. See, OMOREGBE v. LAWANI (1980) 3-4 SC 108; NIGERIAN MARITIME SERVICES LTD v. AFOLABI (1978) 2 SC 19; and JALINGO v. NYAME (1992) 3 NWLR (Pt. 231) 538 at 545; also SOMMER v. F.H.A. (1992) 1 NWLR (Pt. 219) p.560-551 paras. G-A.
This is an action for declaration of title to the land in dispute, as I stated earlier in this judgment, the burden of proving his entitlement to the declaration sought was on the Claimant who can only succeed on the strength of his case and not on the weakness if any of the Appellant’s case or failure to cross-examine the Claimant’s witnesses on particular points. See, BELLO v. EWEKA (1981) N.S.C.C. p.48 at p.61 lines 28-45, KODILINYE v. ODU (Supra) where Webber, C.J. Sierra-Leone, in this respect held thus:
“The onus lies on the Appellant to satisfy the court that he is entitled on the evidence brought by him to a declaration of title.”
See, also ITUAMA v. AKPE-IME (2000) 12 NWLR (Pt. 680) p.156 at p.168 paras, F-G and EZIONWU v. EGBO (2006) 5 NWLR (Pt. 973) p.315 at p.328 Para. F.
In my considered view, I am of the opinion that the learned trial judge was therefore wrong to have held at Page 221 of the printed records that the Claimant had sufficiently proved title to the land in dispute, the finding is not borne out of the records before the lower court. The 6th Respondent was unable to establish the title of those it claimed to have derived its title from, the descendants of Odofin Amusan. I therefore, resolve this issue in favour of the Appellant.
The Appellant’s second issue covered the Respondent’s third and fourth issues. The issue as to whether the land in dispute was sufficiently and satisfactorily proved and whether the trial judge was in error in refusing to invoke the provisions of Section 149(d) of the Evidence Act in respect of non-production of plan No. OGE/58/83 in the face of the available evidence before the court.
The land in dispute no doubt measures 6.581 hectares as shown in paragraph 5(a) of the statement of claim, pages 6-7 of the printed records, described and delineated on Plan No. OG/1331/2008/D dated
08/09/2008 said to be situated at Oke Afa village, Wasinmi, Obafemi Owode Local Government, Ogun State, tendered through the CW1 as Exhibit ‘C’ while the Appellant made out that it is the holder of a Statutory Right of Occupancy granted by the Governor of Ogun State, No. 026374 dated 20th July, 2007 registered as No. 6 at Page 6 in Volume 659 of the Lands Registry in Abeokuta, the certificate of occupancy (C of O) Exhibit D3 covered an area of 6.581 hectares in Arepo, Ifo Local Government Area, Ogun state delineated on Survey Plan No. LC 1768 (OG) dated 1st February, 2007. Obafemi Owode Local Government Area and Arepo, Ifo Local Government Area of Ogun State have not been shown to be one and the same Local Government Area but differently described. See, paragraphs 8, 9 and 10 of the Statement of defence, page 95 of the printed records and paragraphs 1, 4, 7 and 8 of the 1st defendant’s counter claim as well as reliefs two and three in the counter claim, pages 96-97 of the printed records. The learned trial judge also agreed and acknowledged the fact that there is a disagreement as to the area of location, the tower court was therefore wrong to have held that there was consensus on the identity of the land in dispute as between the claimant and the 1st defendant, page 219 of the printed records. The line of legal authorities relied upon by the Claimant of NWOKOROBIA v. NWOGU (2009) 10 NWLR (Pt. 1150) p. 553, AROMIRE v. AWOYEMI (1972) 1 ALL NLR (Pt. 1) 101 and MAKANJUOLA v. BALOGUN (1989) 3 NWLR (Pt. 108) 192 and SALAMI v. GBODOOLU (1997) 4 NWLR (Pt. 499) 277 would be applicable where there is no doubt and there is no disagreement as to the location but the land known or given different names by the parties. The onus is on the plaintiff seeking the declaration to establish with certainty the precise identity of the land he is seeking declaration of title over, GBADAMOSI v. DAIRO (2007) 3 NWLR (Pt. 1021) 282 at 300. The claimant has failed to establish the location of the land it is seeking declaration over and I so hold.
The dimension of the land that was in dispute in Suit No. AB/257/2001 is 3.537 hectares, verged red in Exhibit ‘C’ in the Judgment of Olopade, J, Exhibit ‘C2’, Page 20 of the printed records. The land covered by the Appellant’s certificate of occupancy is 6.851 hectares, obviously the larger portion cannot be rightly held to be part of the smaller portion as erroneously held by the trial court. The land in dispute cannot therefore form part of the subject matter litigated upon in the former suit. Survey Plan No. OGE/58/83 containing the area and features of the land litigated upon in the former suit was tendered and admitted in evidence as Exhibit ‘C’. In paragraph 4(a), page 6 of the printed records, the Claimant pleaded the judgment Exhibit C2, of Suit No. AB/257/2001 and the survey plans and all the court processes in suit No. AB/257/2001 and in the same paragraph gave the measurement of the land in dispute as 3,537 hectares as opposed to 3,537 hectares. The Respondent who pleaded the survey plan used in the former case was duty bound to tender same in evidence but failed to do so. It is the law that if the plan had been tendered before the lower court in the present case it would not have been favourable to the Respondent’s case. By Section 149(d) of the Evidence Act the presumption is that had the Survey Plan No. OGE/58/83 been tendered, it would have been against the interest of the Respondent, see, ANSA v. ISHIE (2005) 15 NWLR (Pt. 948) p.210 at p.225 paras. B-C, AGBI v. OGBEH (2005) 8 NWLR (Pt. 926) p. 40 at p.116 paras. C-D and N.A.S. LTD. v. U.B.A. PLC. (2005) 14 NWLR (Pt. 945) p. 421 at p. 441 paras. G-H relied on by the learned senior counsel to the Appellant which are applicable. At page 220 of the printed records, the lower court expressed the view that the Appellant should have tendered the said plan. The Respondent made positive averments that it would rely on all survey plans tendered and processes filed in Suit No. AB/257/2001 to show that the land in dispute formed part of the land litigated upon in the above case, while the Appellant pleaded that the land in dispute was not part of the subject matter of AB/257/01. The burden was on the Respondent to prove that the land in dispute formed part of the land litigated upon in Suit No. AB/257/2001. The Appellant as defendant was not duty bound to tender any document in disproof that the land previously litigated upon and the present one are the same or the present one contained in the former. This would be like an accused straining himself to prove his innocence, rather than the prosecution proving its case against an accused in a criminal trial. It is trite that he who asserts proves. In OLUFOSOYE v. BAKARE (1993) 1 NWLR (Pt. 272) p.747 at 759 paras. G-H it was held that it is the law that he who asserts has the burden to prove his assertion. The case of VEEPEE INT. LTD v. COCOA IND. LTD (2008) 13 NWLR (Pt. 1105) 486 SC at 508 paras. A-B is appropriate on this point. His Lordship Muhammad, JSC of the Apex Court in this respect held thus:
“In our adversarial system of litigation in this country, the law places the burden of proving an existing fact which is claimed by a party who would otherwise fail if no evidence at all were given on either side. (Sections 135-137 of the evidence Act, CAP. 112, LFN, 1990). The Evidence Act requires further that the burden of proof as to any particular fact lies on that person who wishes the court to believe in its existence, unless it is provided by any law that proof of that fact shall lie on any particular person. (Section 139 of the Evidence Act.)”
If the plan in the earlier case had been tendered the extent would have shown whether as held by the lower court in this case’ the land now in dispute formed part of the land litigated upon in the earlier case.
The Appellant in his paragraphs 6, 12 and 13 of the statement of defence gave the measurement of the land in the earlier suit as 3.537 as opposed to 3,537 stated by the Respondents. It is clear that in the Respondents reply to the above pleadings in paragraph 1(c) – (f) shows that the area litigated upon in the earlier suit was restricted to 3.537 hectares in the survey plan No. OGE/58/83. I hold that the lower court was wrong to have shifted the burden to the Appellant as defendant to have produced the Plan the Claimants pleaded and relied upon in the earlier case. This issue is resolved in favour of the Appellant.
The Appellant’s third issue deals with the lower court’s interpretation of the earlier judgment and its bindingness on the Appellant.
At Page 220 of the printed records of appeal, the learned trial judge held that the prior nullification of acquisition of the land in dispute in the earlier suit was the basis of the nullification of the Appellant’s Certificate/Statutory Right of occupancy, Exhibit D3. It is noteworthy that the Appellant and her grantor, the Ogun State Government were not parties in the earlier suit before Olopade J, where the present Respondents were the plaintiffs in the former suit where they also sued for trespass, they did not seek any relief for nullification of the acquisition by the Appellant. In my view, the point made in the earlier decision was that the defence of acquisition raised by the defendant in the earlier case was unsuccessful since judgment was given in favour of the Plaintiffs therein.
It is noteworthy also that the Appellant herein and its grantor, the Ogun State Governor were not parties in the earlier suit.
It is trite that a decision cannot be binding on a non-party to the suit. See, NDULUE v. IBEZIM (2002) 12 NWLR (Pt. 780) p.139 at p.165, para. G; (2002) 5 SC (Pt. 11) 124, His Lordship Iguh, JSC in this respect said thus:
“It is my view also that a judgment obtained against a person who was not a party to the proceedings and is not caught by the doctrine of estoppel or standing by smacks of injustice and ought not to be allowed to stand.”
On the other hand, for record estoppel to apply, for the Appellant and her grantor to be bound by the earlier decision certain conditions must be met or satisfied. They are:
(1) The same question must be for decision in both proceedings (which means that the question for decision in the current suit must have been decided in the earlier proceeding).
(2) The decision relied upon in support of the plea of issue estoppel must be final.
(3) The parties must be the same (which means that parties involved in both proceedings must be the same per se or by their privies).
See, OKUGO v. NWOKEDI (1997) 8 NWLR (Pt. 517) 467 at 481, EZEWANI & OTHERS v. ONWORDI & OTHERS (1987) 4 NWLR (Pt. 33) 27 and AKINKUNMI v. SADIQ (1997) 8 NWLR (Pt. 516) 277 at 289.
The parties in the previous case and the present one are not the same, the subject matter of the suits are not the same, the issues are different. No doubt it was a final judgment and the court was one of competent jurisdiction as required.
The absence of the Appellant or its privies in the earlier case is fatal, the parties in the earlier case and the present one are not the same, the subject matter is not the same in extent and location therefore record estoppel or doctrine of priority applied by the lower court cannot operate. See OKUKUYE v. AKWIDO (2001) 3 NWLR (Pt. 700) p.761 at p.303 PARAS. E-F and OMNIA NIG. LTD v. DYKTRADE LTD (2007) (supra). In my view, the lower court ought not to have utilized the earlier judgment in AB/257/2001 in holding that the Appellant’s acquisition had been nullified by the earlier decision in that the conditions for record estoppel to apply did not exist in this case. This issue is resolved in favour of the Appellant.
With the Appellants fourth and fifth issues, as to the effect of grant of statutory right of occupancy and correctness or otherwise of voiding grants and statutory right of occupancy, the Appellant no doubt is a beneficiary or grantee of statutory right of occupancy by the Governor of Ogun State, evidenced by a certificate of occupancy.
Section 5(2) of the Land Use Act provides thus:
“Upon the grant of a statutory right of occupancy under the provisions of subsection (1) of this section, all existing rights to the use and occupation of the land which is the subject of statutory right of occupancy shall be extinguished.”
By virtue of the above provision, upon the grant of statutory right of occupancy in favour of the Appellant by the State Governor over the land, all existing interests especially customary right of occupancy in respect of the land are extinguished. By this, the Appellant’s interest as grantee of a statutory right of occupancy overrides any other existing or claimed existence of any customary interest in the same land. Section 5(1) of the Land Use Act, 1978 makes it lawful for the Governor to grant statutory right of occupancy to any person in respect of land, whether or not in an urban area, and whether the person is already in possession of the land or not. Section 5(1)(a) of the Act provides as follows:
“It shall be lawful for the Governor in respect of land, whether or not in an urban area –
(a) to grant statutory rights of occupancy to any person for all purposes.”
In OLAGUNJU v. ADESOYE (2009) 9 NWLR (Pt. 1146) p.225 at p.265 Paras. H, the Apex Court per His Lordship, Ogbuagu, JSC held thus:
“Also to be stressed is that it is now settled that a statutory right of occupancy automatically extinguishes all existing rights in respect of the parcel of land over which it is granted. See also the case of TITILAYO & 4 ORS v. CHIEF OLUPO & 4 ORS (1991) 7 NWLR (Pt. 205) 519 at 530, (1991) 9-10 SCNJ 20. Sections 2 and 5 of the Act, were interpreted in the case of OLOHUNDE v. PROF ADEYOJU (2000) 6 SCNJ 470, (2000) 10 NWLR (Pt. 676) 562.”
On a grant under Section 5(2) of the Act extinguishing all existing rights to the use and occupation of the land so granted see also, ADOLE v. GWAR (2008) 11 NWLR (Pt. 1099) 562 at 587- paras. A-B and G.C.M. LTD v. T.P.H. LTD (2006) 10 NWLR (Pt. 989) p.502 at 511 paras. C-D.
The Claimant had argued that OPIC represented the interest of Ogun State Government and any decision given against OPIC will bind the Ogun State Government, the issue of OPIC acting as agent of the Ogun State Government did not arise in the lower court and the issue was not addressed or resolved and cannot rightly at this stage form part of the case of the Respondent that by this the Appellant is a privy in estate of the Ogun State Government in respect of the land shown in Exhibits C and C1, verged green in Exhibit C, represented in Exhibit D2.
Having held earlier in this judgment that the 6th Respondent, the only surviving Claimant/Respondent in this appeal did not plead and successfully lead evidence of how his grantor (through claimed sale) got to own the land in dispute supposedly sold to it, the line of cases relied upon by the learned counsel to the Respondent is not applicable, these are OGUNLEYE v. ONI (1990) 2 NWLR (Pt. 135 745 at 782-783, AMINU v. OGUNYEBI (2004) 10 NWLR (PT, 882) 451 at 481 and ESO v. ADEYEMI (1994) (Pt. 340) 558. The case of OLOHUNDE v. ADEYOJU (Supra) also relied upon, in the con in which it was cited would apply where the 6th Respondent as Claimant has established his title and also flaunts a certificate of occupancy. But, in the present case I have held that the 6th Respondent has not been able to prove the root of title of those through whom it claims.
In my humble but firm view, I am of the opinion that the failure to join the Appellant’s grantor in the earlier suit is fatal and the lower court wrong to have nullified the certificate of occupancy, Exhibit D3 issued in favour of the Appellant on the basis of the decision in AB/257/2001. I resolve issues four and five in favour of the Appellant.
In the final analysis, I hold that the appeal is meritorious, I allow same. The judgment of the Ogun State High Court delivered by A. O. Jibodu, J in Suit No. AB/304/08 delivered on 18th June, 2009 is hereby set aside. I award costs of N50,000.00 (Fifty thousand Naira) in favour of the Appellant.
MONICA B. DONGBAN-MENSEM, J.C.A.: I find issue two formulated by the Appellant as intriguing and would like to add a few words to the lead judgment on the said issue. The said issue goes thus:
“whether in spite of the Respondents failure to tender the survey Plan No. OGE/58/83 which was the basis of the decision in Suit No. AB/257/2001 and the obvious differences in the sizes between the Land in dispute in this Suit and Suit No. AB/257/2001 as well as the differences in the names and Local Government Councils of the location of the Land, the learned trial Judge rightly or wrongly held that the Land in dispute in both cases is the same Land. Grounds 1, 3, 4 and 5.”
In a claim for title to land, a failure to establish the clear identity of the land would send the claim into the dungeon of no relief. Identity of the land therefore defines the status of a party who seeks a declaration to title. (See Anyanwu & Ors v. Uzowuaka & Ors (2009) LPELR-515 (SC) @ 34-35 & Odunze & Ors v. Nwosu & Ors (2007) LPELR-2252(SC) @ p.25).
At hearing of this appeal, the learned SAN Prof. Taiwo Osipitan for the Appellant emphasized the issue of the identity of the land with a particular reference to the size of the land in issue. Under issue two of the six issues raised for determination, the Appellant barter about the error of the learned trial Judge which misplaced the burden of proof.
It is the contention of the Appellant that in spite of the fact that the identity of the land in question had been admitted by the Respondents, the learned trial Judge insisted that the Appellant, as defendant had the burden of proof. A portion each of the pleadings of the parties will clarify this point. Prof. Osipitan cited the pleadings, paragraphs 6, 12 & 13 of the statement of defence @ page 95 of the record:-
“(6) The Defendant avers that the said Survey Plan No. OGE/58/83A dated 25th January, 1983 referred to in paragraph 5 (supra) covers an area measuring 3.537 hectares (approximately Three and half hectares) at Oke-Afa Village, Wasimi, Obafemi Owode Local Government Area and demarcated with beacons JK559, JK561, JK553, JK 564, GAG10410, GAG10411, GAG10412, GAG10413, GAG10414, GAG10415 and GAG10416,
(12) Further to paragraph 4 (a) of the statement of claim which is denied, the 1st Defendant avers that the Land covered by the judgment is Suit No. AB/257/2008 covers an area of land measuring 3.537 (Three and a half) hectares and not 3,537 (Three Thousand, Five Hundred and Thirty-seven) hectares as erroneously stated therein.
(13) The Defendant avers that the 1st-5th Claimants are neither holders of a Customary right of occupancy nor holders of a statutory right of occupancy over the said land measuring 3.537 hectares or 3,537 hectares or any other Land.
The Respondents in their reply brief stated as follows:-
“1(c) Survey Plan OGE 58/83 dated 25th January, 1983 only related to the area trespassed on by Julius Berger Plc (1st Defendant in the said Suit) it was upon the area that the Defendant’s were perpetually restrained in the said Suit from carrying out excavation of the said:
(d) The Dispute Plan was based on Survey Plan No. OG/1134/2004 which was Exhibit C in Suit No. AB/257/2001.
(e) Survey Plan No. OG/11734/2004/03 showed the entire area claimed by the Claimants in the said Suit No. AB/257/2001 and upon which the defence of acquisition canvassed by Ogun State Government failed.”
That the pleading’s show unequivocally, that the land in issue in the judgment of AB/257/2008 was 3.537 (three and a half) hectares and not 3,537 (Three Thousand, Five Hundred and Thirty-seven) hectares. At page 10 of the Appellant’s brief of argument that:-
“…Respondents did was to fraudulently increase the total area of land litigated upon in Suit No. AB/257/2001 by replacing the dot immediately after 3 with a coma thus achieving 3,537 hectares of the land as against 3.537 hectares litigated upon in that Suit…”
That in spite of the positive assertion of the Respondents and their “bragging” about relying on and producing the Survey Plan, but failed so to do, the learned trial Judge failed to see through their game, the Appellant is agitated about the failure of the learned trial Judge to invoke the provisions of Section 149 (d) Evidence Act Cap. E40 LFN 2004 (Repeated) now section 167(d) of the Evidence Ad 2011 against the Respondents who in fact had the burden of proof. In substantiation of this argument, several cases were cited among which are, N.A.S. Ltd v. UBA Plc (2005) 14 NWLR (Pt. 945) p. 421 @ p. 441, Veepee Int. Ltd v. Cocoa Ind. Ltd (2008) 13 NWLR (Pt. 1105) 486 SC @ 508, Agbi v. Ogbeh (2005) 8 NWLR (Pt. 926) p.40 @ p.116 and Ansa v. Ishie (2005) 15 NWLR (Pt. 948) p. 120 @ 225, in which the Supreme Court per Pats-Acholonu, JSC Held that:-
“A civil case is won on the preponderance of evidence of the Plaintiff but where the court of appeal is convinced that the case of the Appellants is deficient in substance and weight or mired in confusion and not readily understandable, it cannot assist the Appellant. The Appellants failed to produce the judgments they pleaded. The presumption is that there were no such documents.”
The facts are indeed resounding that the Respondents who averred the positive bear the burden and responsibility of adducing evidence in support of their assertions that the land in dispute is part of the land in Suit. No. AB/257/2001. They had the duty to produce the survey plans and all requisite documents to proof the positive avowal. The evidential principle is conveyed in section 136 of the Evidence Act and is often referred to as the burden of proof on the pleadings. This burden is in addition to the general burden provided for in Section 731 of the Evidence Act
The learned trial Judge therefore fell into error by failing to apply the provisions of section 167(d) of the Evidence Act which invocation would have enabled his lordship to find in favour of the Appellant.
For this and the more detailed reasons in the lead judgment prepared by my learned brother Chidi Nwaoma Uwa, JCA, I too hereby allow this appeal and adopt the consequential orders made in therein.
HARUNA SIMON TSAMMANI, J.C.A.: I agree with my learned brother, C. N. Uwa, JCA that the appeal bse allowed for being meritorious. It is accordingly allowed by me.
I abide by the order on costs.
Appearances
Prof. Taiwo Osipitan (SAN) with Emmanuel Harrison Esq. Oluwatoyin Adisi and Tola OgunleweFor Appellant
AND
Wunmi Okeremi Esq. with Kolawole Abiri, Oludotun Osho and Tosin Babatunde for 1st – 6th Respondents,
7th Respondent served but absentFor Respondent
