Wema Bank Plc V. Mrs. Abiola Adesina (Nee Okunubi) & Anor. (2006)

LawGlobal-Hub Lead Judgment Report

RAPHAEL CHIKWE AGBO, J.C.A.

At the Lagos State High Court at its Lagos Judicial Division the respondent in this appeal had as plaintiff in suit No. LD/44 77/94 claimed of the defendant now appellant in his statement of claim as follows:-

“WHEREOF the Plaintiff claims against the Defendant:-

1. A declaration that by inheritance through his father’s WILL, the Plaintiff is the owner of the land at No. 24, Akanni Street, Lagos, comprised in Title No. LO 0054 registered pursuant to the Registration of Title Law Cap. 124, Laws of Lagos State and being Plot 17 of the Lagos Central Planning Scheme Sub-area 5.

2. Damages for trespass.

3. An Injunction restraining the Defendant and its officers, agents or servants from trespassing or continuing to commit acts of trespass on the said land.”

Pleadings were filed and exchanged and the case went to trial. Evidence was led by both sides and thereafter parties through Counsel addressed the court. In a considered judgment the court below held as follows:-

“On the whole, the plaintiff’s claim succeeds in its entirety and I hereby make the following orders:

(1) This court hereby makes a declaration that by inheritance through his father’s Will, the plaintiff is the owner of the land at No. 24 Akanni Street, Lagos Comprised in title No 0058 registered pursuant to the Registration of Titles Law Cap. 124 Laws of Lagos State and being plot 17 of the Lagos Central Planning Scheme

(2) N900.00 as damages for trespass

(3) The defendant is hereby restrained by themselves, any of its officers, agents or servants from trespassing or continuing to commit acts of trespass on the said land.

Costs of the action is N25,000.00 in favour of the plaintiff’.

Not being satisfied with this judgment, the appellant filed this appeal and in its further Amended notice of Appeal dated 6th October 2000 and filed the same day set out its grounds of appeal as follows-

GROUNDS OF APPEAL

“1. The learned trial Judge erred in law when she held that

“Title to the land in dispute was never in the acquiring authority hence no title could be re-conveyed to the Plaintiff since he is entitled to same by virtue of his father’s Will” (underlining mine) when:

(a) The validity of the Plaintiff/Respondent’s father’s Will is subject to same being duly proved and properly admitted to Probate before it can confer any legal right on the Plaintiff/Respondent.

(b) There was no evidence before the learned trial judge that the plaintiff/respondent’s father’s Will was ever so proved and/or admitted to Probate.

(c) No opportunity was given for any interested person to enter a caveat.

(d) The grant of probate not being automatic, it is necessary to give legal effect to the intention of the Testator as contained in Exhibit B in order to be valid.

(e) Dealing by anyone with anybody whose interest is subject of a Will which has not been proved and therefore not admitted to probate will not in law validate such transaction.

(f) There was no evidence of any Deed of Assent in respect of the property in dispute to the Plaintiff/Respondent by the Executors, which in any case, the Executors would have been incompetent to execute without the Will having been proved and admitted to Probate.

(g) The Respondent therefore had no legal right to ground a cause of action against the Appellant in respect of the property, 24 Akanni Street, Lagos and the requisite locus to maintain same.

(h) The purport of the Central Lagos Land (Acquisition) Law Cap. 22, Laws of Lagos State made on the 21st April 1975 absolutely vesting the properties in Central Lagos including that of the Plaintiff without any further assurance seemed to have been overlooked by the learned trial judge in arriving at her decision that the property was never vested in the acquiring authority.

(2) The learned trial Judge misdirected herself on the facts when she held that:

“The evidence in this case which I accept is that the Plaintiff inherited the land in dispute by virtue of Exhibit B and as such he is the owner to whom the Lagos State Government could return the land. In deed and in fact the Lagos State Government acknowledged the Plaintiff as such as individual and publicly made this known in the Lagos Horizon Newspaper Exhibit “D by dealing with him in respect of 24 Akanni Street, Lagos. There is no evidence before me that anybody else applied to be considered as the original owner in respect of the land in dispute.”

(3) The learned trial Judge erred in law acted without jurisdiction when she held that:

“The onus of prove that the Plaintiffs father had been diverted of ownership in 1951 rested throughout the case on the Defendant….The issuing of public notice of acquisition does not immediately vest the little to land compulsorily acquired in the acquiring authority. Until a Certificate of Title is issued, title to the land compulsorily acquired still vests in the original owners. In the case of Laguro vs. Tuku (1985 4 WLR pt. 33 at pages 99-100 the Court of Appeal in previous cases on the issue of publication of acquisition notice has this to say: –

………. .i think although the witness on both sides spoke of “acquisition” by the government, there is no evidence as rightly submitted by Chief Williams that the government has obtained any Certificate of Title to the land and on authorities of Atunrase & Ors vs Federal Commissioner for Works & Housing (supra): City Property Development Ltd. vs. Attorney-General Lagos State (supra) and Lion Buildings Ltd vs Shodipe (supra) until this has been done, title to the land remains vested in the Respondent in this case. The Supreme Court put it succinctly in Atunrase & Ors vs Federal Commissioner for Works & Housing (supra). Above it is stated thus: –

“We think we ought to make it clear that, in the absence of any particular statutory provision to the contrary, the issuing of the public notice of acquisition, does not immediately vest the title to the land in the Government, but that the latter ay acquire it only after satisfying the provisions of Public Lands Acquisition Act requiring that a Land Certificate should be obtained as proof of title”.

In this case, the Defendant did not produce before the court any Certificate of Title to the land in dispute or to any portion of land part of which is the land in dispute. I therefore reject the defence of vesting of the land in the predecessor of the Defendant as canvassed by counsel and hold that up till the time when the father of the plaintiff made the Will (Exhibit B) in 1952 the property in dispute vested in him and he was perfectly entitled to transfer same to his son, the Plaintiff

(4) The learned trial Judge erred in law and on the facts when she held that:

“I hold that a case of trespass has been made out against the Defendant who as I have said earlier had no right to ownership or possession of the land in dispute”.

The Learned trial judge erred in law in awarding to the Respondent excessive damages of N900,000.00 and cost when”

(a) The Respondent did not prove at trial any act of exclusive possession of the land in dispute at anytime nor any right to such possession.

(6). The judgment is against the weight of evidence before the court. ”

From these grounds of appeal the appellant distilled the following issues for determination.

“1. Whether upon the evidence before the court and as required by law, the respondent has proved that he was entitled to a declaration of title by inheritance through his father’s Will (Exhibit B) of the property in dispute and had the requisite locus to institute and maintain the suit;

2. Whether Notice No. 347 of 1951 published in the Official Gazette No. 13 Volume 38 of 15th March 1951 of the Federal Government of Nigeria and the Central Lagos Land (Acquisition) Law Cap 22 made on the 21st April 1975 did validly vest the property in Central Lagos including that claimed by the Respondent in the acquiring authority, contrary to the decision of the learned trial judge, as to have divested the respondent and his predecessor-in-title of any further interest thereon, from the date of acquisition.

3. Whether the learned trial judge was right to have raised the issue of validity or otherwise of the acquisition of the land in dispute suo motu in her judgment and resolving same against the appellant, without hearing the parties thereon and when no issue was joined by the parties on same in their pleadings before her.

4. Whether upon the evidence before the learned trial judge, the respondent made out a case of trespass against the appellant as to entitle him to an award of the excessive damage of N900,000.00 and for Order of Injunction.”

The respondent adopted the issues for determination as set out by the appellant upon the death of the respondent in this appeal, this court on 25th February 2004 substituted the original respondent with Abiola Adesina (nee Okunubi) and Chief Isaac F. Akintade both of who are Executors/Trustees of the estate of Niyi Okunubi.

In oral argument the appellant tied issue 1 to ground 2, issue 2 to ground 1, Issue 3 to ground 3 and issue 4 to ground 4. The appellant not having formulated issues from grounds 5 and 6, the said grounds of appeal having been abandoned are hereby struck out.

Issue No. 1 is whether upon the evidence before the trial court and as required by law, the respondent has proved that he was entitled to a declaration of title by inheritance through his father’s will (exhibit B) of the property in dispute and had the requisite locus to institute and maintain the suit. It is to be noted that this issue was formulated from ground 2 of the grounds of appeal. This ground is reproduced hereunder

(2) The learned trial Judge misdirected herself on the facts when she held that:

“The evidence in this case which I accept is that the Plaintiff inherited the land in dispute by virtue of Exhibit B and as such he is the owner to whom the Lagos State Government could return the land. Indeed and in fact the Lagos State Government acknowledged the Plaintiff as such as individual and publicly made this known in the Lagos Horizon Newspaper Exhibit “D by dealing with him in respect of 24 Akanni Street, Lagos. There is no evidence before me that anybody else applied to be considered as the original owner in respect of the land in dispute”.

PARTICULARS

(a) The notice, Exhibit D and information contained in Exhibit C – copy of the Lagos State Gazette, which authorized the return of the remnant of the acquired land back to the original owners is a mere expression of Government’s intention and not a conclusive proof of the Plaintiff/Respondent’s right to a declaration of Title to the land in dispute against the Appellant on the basis of a Will which was never proved or admitted to probate.

(b) The right of the Plaintiff/Respondent to the return of the landed property is even conditional upon meeting requirements specified in the Gazette and above all, it is to be returned where it is feasible to do so.

(c) There is evidence before the court that the right of a 3rd party i.e. the Appellant has intervened.

(d) Both Exhibits C (the Gazette) & D (Newspaper Horizon) Publication of Tuesday 21/7-8/93) concerning the procedure for the return of the acquired landed property are mere formalities, and did not return or vest the property in the Respondent.

(e) From the evidence before the court, all payments made by the Respondent to the Urban Renewal Board were not demanded by the Board hence there was no acknowledgment of the payments by way of Official Receipts despite several demands made on it by the Respondent vide Exhibits F-F2 and G.

(f) The property was not at anytime released to the Respondent by the Urban Renewal Board nor was it vested in him by any other authority of the Lagos State Government.”

This ground of appeal complains specifically that the trial judge misdirected herself on the facts set out therein. Ex facie the ground complains of no error in law. A critical look at the particulars of this ground of appeal discloses that the particulars in themselves do not constitute the misdirection alleged. They are rather used to expand the ambit and scope of the ground of appeal. This the appellant cannot do. – See Briggs vs C.L.O.R.S.N. & ORS (2005) 12 NW R (pt 938) 59. Appellant’s counsel had conceded that paragraphs (a) and (f) of the particulars ought not to be there and asked the court to strike out those paragraphs. I find not only paragraphs (a) and (f) but all the paragraphs of the particulars as unnecessary expansion of the scope of ground 2 of the grounds of appeal. The said particulars are hereby struck out. All arguments founded on those particulars go to no issue.

In formulating issue No. 1 the appellant raised the issue of the respondent’s locus standi. This is an issue of law that cannot by any stretch of imagination be founded on the misdirection of fact complained of in ground 2 of the grounds of appeal. That issue falls outside the scope of ground 2 and cannot be entertained therein.

The appellant had argued that the learned trial judge had misdirected herself on the facts in accepting that by exhibit “B” which is the will of the respondent’s late father the respondent inherited the land in dispute. This argument is founded on two grounds (a) the property the subject matter of the dispute was acquired by the government in 1951 while exhibit “B” the will was made in 1952; (b) The will exhibit “B” was not proved by admission to probate. The appellant had argued at the court below that the respondent had admitted that the government had in 1951 acquired the land in dispute and paid compensation for it. That being the case, all the interests of the late respondent’s father in the land became extinguished and the late respondent’s father had nothing to devise to him in 1952. The court below however stated that the notice of acquisition and payment of compensation do not on their own without more divest the respondent’s father of title to the land in dispute. She held that to divest the respondent’s father of his title, the government must in addition to the notice of acquisition and payment of compensation obtain a Land Certificate in respect of the acquired land. She held that the government, having not obtained a Land Certificate in respect of the land in dispute, the title never left the respondent’s father. She is right. The Supreme Court in Atunrase & Ors vs. Federal Commissioner for Works and Housing (1975) 1 ALL NLR (pt.1) 331 after construing Ss 25 and 26 of the Public Lands Acquisition Act came to the same conclusion.

On the issue of the want of probate, its importance is underscored by the fact that to confer title to property on the beneficiary of a Will, (i) the testator must have died and (ii) the Will must have been admitted to probate. It is on admission to probate that a will ceases to be ambulatory. See Igbiodu vs Igbiodu 1 NWLR (pt585) 27 at 37. It is only when a Will has been proved that the court can take cognizance of its content and act thereon. See Emeeheta vs Ogueri (1997) 8 NWLR (pt.516) 323.

It is not in dispute in the instant case that the testator had died. The court below found as of fact that the Will exhibit “B” was proved. This was buttressed by the fact that exhibit “B” the Will was certified on 10/10/71 by the Probate Registrar. The usual way to establish in court that a Will has been proved is to produce in court a copy of the will certified under the seal of the court – See Emeeheta vs Ogueri supra, Lijadu vs Franklin (1965) ALL NLR 114.

The argument by the appellant that this method of establishing that a Will has been proved avails only the executors is at best preposterous. The court below was right in holding that exhibit “B” was proved. Having established that exhibit “B” was proved, the court was right to look at its content and act thereon. The testator did devise on the late respondent in his will exhibit “B” his interest in the land in dispute and the court below was right in holding that the late respondent acquired interest in the land in dispute by inheritance vide exhibit “B”. Issue 1 is hereby resolved in favour of the respondents.

Issue No.2 is whether Notice No. 347 of 1951 published in the Official Gazette No. 13 Volume 38 of 15th March 1951 of the Federal Government of Nigeria and the Central Lagos Land (Acquisition) Law Cap 22 made on 21 April 1975 did validly vest the property in Central Lagos Including that claimed by the respondent in the acquiring authority contrary to the decision of the learned trial judge, as to have divested the respondent and his predecessor in title of any further interest thereon from the date of acquisition.

Both parties agree that notice No. 347 issued in 1951 in which the Government gave notice of acquisition of the land in dispute. It is also not in dispute that the Central Lagos Land (Acquisition) Law was made in April 1975. However, as argued by the respondent, the Central Lagos Land (Acquisition) Law and its effect on the suit was not canvassed at the court below. It is a new issue, which cannot be raised in this court without the leave of court. The prior leave of this court not having been sought or obtained, issue No.2 as formulated is incompetent and cannot be sustained See Uko vs Ekpenyong (2006) 5 N LR (pt 972) 70, Jiddun vs. Abuna (2000) 14 NWLR (pt 686 209. Even if I should hold that prior leave is unnecessary to import the provisions of the Central Lagos Land (Acquisition) Law, the said law was specifically made in relation to land acquired in Central Lagos. That being so, the law constitutes a special defence which must be specifically pleaded and proved. Not having been pleaded in the Statement of Defence nor proved in the court below, it cannot be raised in this court. – See Kano vs Oyalekin (1993) 3 NWLR Pt.282) 399. Issue No.2 is hereby struck out.

Issue No.3 is whether the learned trial judge was right to have raised the issue of validity or otherwise of the acquisition of the land in dispute suo motu in her judgment and resolving same against the appellant without hearing the parties thereon and when no issue was joined by the parties on same in their pleadings before her. The appellant argued that issues were not joined on whether or not there was an acquisition of the land in dispute nor on the payment of compensation for the acquired land. Counsel argued that issues not having been joined, there was nothing in that regard for the court below to adjudicate upon. Counsel is correct that both parties were agreed that there was an acquisition in 1951 vide the acquisition notice and that government paid compensation for the acquired land. However, it is the judge who determines the effect in law of a given state of facts. In the instant case the judge did not question the validity of the contentious acquisition. The only issue she determined was whether in law title had passed to the acquiring authority. That determination she is entitled to make from the set of facts placed before her by the litigants, and that determination she made in the instant case – See Arabami vs Advance Beverages Ltd (2005) 19 NWLR (Pt.959) 1, Nwadiaro vs Shell Dev. Co. Ltd (1990) 5 NWLR (pt 150) 322.

Issue No.4 is whether upon the evidence before the learned trial judge, the respondent made out a case of trespass against the appellant as to entitle him to an award of the excessive damage of N900,000.00 and for order of injunction.

It is to be noted that ground 4 of the further amended grounds of appeal upon which the issue of damages and injunction, were formulated is completely silent on damages and injunction. The issue formulated, to the extent that it deals with damages and injunction is to that extent incompetent.

In issue No.4 the appellant, argues very strongly that the respondent did not establish possession and therefore did not make out a case of trespass. Trespass is the unlawful entry upon land or direct or immediate interference with its possession and to maintain an action in trespass to land, the plaintiff must have a present possessory title, actual or constructive – See Egharevba vs Oruongha (2001) 11 NWLR (Pt 724) 318, Badiru vs Ozoh (1986) 4 NWLR (pt38) 728.

A person may not be in actual possession of a thing. But if he has legal authority over the thing and manifests an intention to exercise dominion and control over the thing either personally or by an agent he is in constructive possession of it – See Egharevba vs. Oruongba supra.

The respondents are not in actual physical possession of the land in dispute. But it has been adjudged that title rests in them. They have evinced a desire to exercise dominion and control over the land personally. They can therefore be said to be in constructive possession. The appellant claims to be in possession of the land the subject matter of the dispute. It also claims title. Where two persons claim possession at the same time, possession resides in the person with better title – See Egharevba vs Oruongha supra, Ekpan vs. Ugo (1986) 3 NWLR (pt26) 63. In the instant case, the respondents clearly have better title than the appellant.

This appeal must fail and it is hereby dismissed with N10,000.00 costs to the respondents.

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Other Citations: (2006)LCN/2056(CA)