Alhaja Sobalaje Eleran & Ors. V. Dr. Atiku I. Aderonpe (2008)
LawGlobal-Hub Lead Judgment Report
HELEN MORONKEJI OGUNWUMIJU, J.C.A.
This is an appeal against the judgment of Hon. Justice J. F. Gbadeyan sitting at Ilorin High Court Kwara State delivered on 30/11/2006.
The facts which led to this appeal are stated as follows:
The Respondent as Claimant instituted this action culminating in this appeal. By the endorsement on the Writ of Summons, the Respondent claimed the following reliefs against the Appellants at the lower court.
“WHEREOF the Claimant claims against the Defendants jointly and severally are as follows:
(1) A declaration that with the offer, and acceptance coupled with the payment of consideration in full he acquires title to and a vested Right in commercial Plot 9 TPS/MISC168 along Ajase-Ipo Road, Ilorin.
(2) A declaration that the 1st Defendant’s act of going unto commercial plot 9 TPS/MISC 168 Ajase-Ipo Road, Ilorin in a manner adverse to the Claimant’s title and vested Right is illegal and in trespass.
(3) General damages of #5m for the trespass committed by the 1st Defendant on the Claimant’s land aided by the 2nd and 3rd Defendants.
(4) A declaration that the Claimant is entitled to Statutory Right of Occupancy over Plot 9 TPS/MISC 168 along
Ajase-Ipo Road, Ilorin.
(5) Perpetual Order of Injunction restraining the Defendants by themselves, Agents, Servants and privies from committing further acts of Trespass on the Claimant’s land of going unto the land for any purpose whatever.”
The Respondents’ evidence accepted by the lower court was that he applied for allocation of commercial plot within the Government laid out plot along Ajase-Ipo Road, Ilorin designated TPS/MISC/168 and was allocated plot 9 by a letter dated 17th April, 2005.
Thereafter, the Respondent met all payment considerations on 26/4/05 and was given a layout plan denoting his commercial plot 9 on TPS/MISC/168. The then Commissioner instructed that he be taken to the plot of land and he was given a plan showing the land in dispute which was admitted as Exhibit 6 at the lower court. Thereafter a dispute developed on the plot between the 1st Appellant and the Respondent with each claiming the same plot. The parties were invited to appear before the Land Use Allocation Committee on 22/11/05 to settle the matter. The Respondent sent his agent one Chief Jacob O. Alere. The Committee adjourned matters for eight days after hearing the parties and instructed them to do nothing on the land until the Committee’s decision was made known. The 3rd day, on 24th November, 2005, the 2nd Appellant a new Commissioner for Lands informed the Respondent’s agent that he had authorized the 1st Appellant to start developing the land. The Respondent refused to accept the new Commissioner’s decision claiming it was unilateral and an abuse of power.
The Appellants claimed that the 2nd Appellant discovered an error in the numbering of the layout and had to renumber the layout. A new plot was then allocated to the Respondent which the Respondent refused to accept. They claimed that the 1st Appellant had paid all fees in respect of the plot by March 2005 and she was issued Statutory Right of Occupancy No. KW14389 in respect of the same plot on 14/12/05.
The Respondent gave evidence and called a witness while the Appellants called one witness. At the end of the trial and in a considered judgment, the learned trial judge granted reliefs 1, 2, 4 and 5 as claimed. He declined to grant the relief for damages.
The Appellants have filed this appeal against that judgment.
The Appellants adopted the brief dated 22/11/2007 and filed on 23/11/2007. The 1st Appellant filed a separate notice of appeal and filed a separate brief of argument. The 2nd and 3rd Appellants filed a joint Appellants’ brief dated 8/10/2007. The Respondent’s counsel conceded that both Respondent’s briefs in response to the 1st, 2nd and 3rd Appellants’ briefs were out of time. He sought orally for and was granted extension of time to file the briefs subject to immediate payment of fees in default. He adopted the brief filed on 24/1/2008 in answer to the 1st Appellant’s brief and the brief filed on 22/11/2007 in answer to the 2nd Appellant’s brief. He also withdrew the preliminary objection contained in paragraph 1.20 of each brief as being irrelevant and the court struck out the portions of the said brief. The appeals of the 1st Appellant on the first hand and the 2nd and 3rd Appellants on the 2nd hand had been consolidated by the order this court on 25/9/2007.
The 1st Appellant and the 2nd and 3rd Appellants respectively distilled two similar issues for determination in this appeal. The issues as formulated by the Solicitor-General Ministry of Justice Mr. S.A. Mohammed Esq. are stated below-
“1. Whether the Respondent established his case beyond reasonable probability to entitle him to the reliefs granted by the lower court.
- Whether having regard to the state of pleading and evidence in this action, the learned trial judge properly consider and evaluate the evidence to arrive at his decision.”
The Respondent on the other hand formulated two Issues for our consideration. They are set out below-
“i. Whether the purported grant by the Appellants of the Respondent’s commercial plot 9 on TPS/MISC.168 along Ajase-Ipo Road, Ilorin to Alhaja Sobalaje Eleran seven months after the Respondent had paid all consideration and placed on the plot is valid and competent.
ii. Whether the trial High Court properly evaluated the evidence led before granting the declaratory and injunctive orders sought for by the Respondent.”
I am not quite sure that the issues as couched by either of the parties reflect the case being made out by the grounds of appeal. I will endeavour as I have the right to do to formulate two issues which I think are more apposite and will meet the ends of justice.
The first is whether the trial judge properly evaluated the evidence led by both parties before arriving at his decision.
The second is whether on a balance of probabilities the Respondent had proved his claim to the declaratory and injunctive reliefs granted by the lower court.
Now to the first issue of whether the trial judge properly evaluated the evidence, on this issue the briefs the 1st Appellant’s counsel and that of the 2nd and 3rd Appellants’ counsel are almost word for word the same thing. One wonders who copied whom. In any case the learned Solicitor General’s brief for the 2nd and 3rd Appellant was filed first in time. I will make references to the 2nd and 3rd Appellants’ brief and call it the Appellants’ brief. The Appellants’ counsel argued that the lower court failed to properly evaluate the evidence before it. Counsel argued that the learned trial judge misconceived the facts in his evaluation and findings when he held at Pg. 122 of the Record that –
“It is trite law that in any situation, as in the instant case where a Statutory Right of Occupancy is granted to another private individual over a plot of land held by another individual without his consent such a statutory Right of Occupancy has been held illegal, invalid, null and void.”
Both counsel submitted that the issue of revocation as envisaged by Section 28 of Land Use Act, 1978 does not in any way arise in this case. The revocation envisage by Land Use Act is in respect of a Right of Occupancy and not allocation of land in principle upon which a Right of Occupancy has not been granted.
Both counsel further argued that the finding of the trial judge was contrary to the evidence before the court and that the judge misconceived the facts by comparing this case with the case of Foreign Finance Corp. v. L.S.D.P.C. & 2 Ors. (1991) 5 SCNJ 52 at 70 since the issue of revocation of land allocation is quite different from the issue of revocation of statutory Right of Occupancy.
Both learned counsel for the Appellants then urged the court to re-evaluate the evidence in order to arrive at a just decision. They cited Saruma v. Lagga (2002) 3 NWLR Pt. 754 Pg.322 at 350; Adetoro v. Ogo OIuwakitan Trading Co. Ltd (2002) 9 NWLR Pt. 991 Pg. 157 at 207.
The Respondent’s counsel on this point replied that the law is that evaluation of evidence lies squarely within the exclusive competence of the trial judge. He cited Mufutau Bakare v. The State (1987) 3 SCNJ 1 and Igbamude Obodo & Anr. v. Emmanuel Ogba & Ors. (1987) 3 SCNJ 82. The Plaintiff/Respondent seeking declaratory orders must prove his case and may also rely on Defendants/Appellants case which supports his own case. He cited John Bankole v. Mojidi Pelu (1991) 8 NWLR Pt. 211 Pg. 523 at 550.
Counsel further submitted that the Respondent’s case contain crucial and critical allegations against the 1st Defendant, Alhaja Sobalaje Eleran. He argued that the 1st Appellant had a dispute on plot 6 on TPS/MISC.168, and in resolving the dispute she was moved to a different land and different location on plot 5 TPS/MISC.182 which she accepted and renounced her claims on Plot 6 TPS/MISC.168. However the 1st Appellant failed to testify or file and process at the lower court. Respondent’s counsel submitted that since the 1st Appellant offered nothing for evaluation before the trial court, the evidence remained unchallenged and had to be deemed established. Counsel cited A.G. Kwara v. Raimi Olawale (1993) 1 SCNJ 208 at 223; Ijebu Ode L.G. v. Adedeji Balogun & Co. (1991) 1 SCNJ 18-19.
Counsel further argued that the evidence of the sole witness for the 2nd and 3rd Appellants at the lower court was mere hearsay as he had absolutely to impute into any of the acts which led to the litigation. He submitted further that contrary to the assertion of the Appellants, the learned trial judge on Pg. 117-119 of the Records clearly considered the evidence adduced by the defence and put the correct probative value on it.
My Lords, while reviewing the evidence, the learned trial judge on Pg.117 – 119 of the Records tried to reflect in his judgment the salient points of the case for the 2nd and 3rd Appellants as put forward by their sole witness. Earlier on, his Lordship had highlighted all the salient points in the evidence led by the Respondent and his witness. His Lordship took parts to highlight and weight both evidence on the imaginary scale of justice as required by law. His Lordship had this to say on Pg. 117 of the Record in respect of the 1st Appellant.
“Exhibit D1 is the written deposition of 1st and 2nd Defendants’ witness. It must, however, be borne in mind that the first Defendant though served all the court processes neither entered appearance nor choose to defend this suit. She, therefore has not filed any pleading that she can call any witness or proffer any evidence to prove.”
The evaluation of and ascription of probative value to the evidence adduced by parties is the primary duty of the trial judge. It is not proper for an appellate court to interfere when the duty has been properly carried out by the trial judge. See Salihu Okino v. Yakubu Obanebira & Ors (1999) 12 SCNJ 27, (1999) 13 NWLR Pt, 636 Pg. 535; Dan Awaza Bashaya & 7 Ors. v. The State (1998) 4 SCNJ 202, (1998) 5 NWLR Pt. 550 Pg. 351.
The burden rests on the party alleging improper evaluation of evidence to identify or specify the evidence improperly evaluated and to show that if the error had been corrected, the conclusion reached would have been different. See Richard Igago v. The State (1999) 12 SCN 140, (1999) 6 NWLR Pt. 608 Pg. 568.
The Appellants have not specified the specific evidence improperly evaluated by the trial court. What they have quarreled with is his Lordship’s conclusion based on the evaluation of the evidence before him. It is his Lordship’s conclusion that was highlighted by the Appellant’s counsel in their brief.
In ground 4 of the Appellant’s grounds of appeal, the following legal conclusion from the learned trial judge was highlighted:
“The totality of the credible evidence of the three witnesses in this case clearly establishes the claimant’s vested title since April, 2005 whereas the possession of a purported statutory Right of Occupancy on its own, is only a prima facie evidence of title. Whereas in this case, there is a subsisting approval coupled with physical possession of the plot, the person in possession has a better title.” ( Pg. 122 of the Records)
Part of the particulars of the ground of appeal was that the finding did not represent the state of evidence before the court. There is a big difference between a judge not evaluating evidence and not giving probative value to the evidence. When there is a claim that there is no evaluation or improper evaluation of evidence, it means the trial judge did not consider that evidence at all or considered it as immaterial to the case of the party who pleaded and proved it. Where no probative value is attached to a piece of evidence it means the learned trial judge did not consider that evidence proffered as sufficient proof of the fact on which it was led and in aid of which it was adduced. In this case, from the grounds of appeal and the Appellants’ briefs it seems to me that their quarrel is neither of the above reasons but rather one relating to how the learned trial judge directed himself in arriving at legal conclusions based on the evidence before him.
In sum, I am of the view that the learned trial judge properly evaluated the evidence brought before him before arriving at the conclusion being challenged. This issue to my mind is completely unmeritorious and I resolve same in favour of the Respondent.
The 2nd issue is whether on a balance of probabilities the Respondent had proved his claim to the declaratory and injunctive reliefs granted by the lower court.
The Appellants’ counsel argued that the Respondent did not prove the claims before the lower court. They argued that the Respondent did not prove ownership of the land or his title to it by any of the ways laid down by the Supreme Court in Idundun & Ors v. Okumagba & Ors. (1976) 10 NSCC Pg. 445 at 453 – 454.
Both learned Appellants’ counsel argued that for a Claimant to succeed in a claim for declaration of title to land he or she must prove any of the ways enunciated in Idundun v. Okumagba in order to succeeded in his claim for declaration of title.
They submitted that from the record of proceedings the Respondent did not base his claim on any of the above mentioned heads, instead he based his claim on the fact that a letter of allocation was issued to him by the 3rd Appellant. They submitted that in the circumstances, the Respondent having based his title on the letter of allocation must proof that the letter of allocation confers title on him both in law and fact.
They also submitted that the letter of allocation issued to the Respondent does not confer title on him as stipulated in the letter of allocation itself. It is to be noted that the letter of allocation issued to the Respondent was in principle and most especially paragraphs 3 (ii) of the Respondent’s letter of allocation provide thus:
“You should not occupy or develop the plot until……
(ii) Approval for the grant of Right of Occupancy is formally conveyed to you and you have accepted it.”
They equally submitted that the allocation does not confer title on him until approval for the grant of Right of Occupancy is formally conveyed to the Respondent.
They submitted that in this respect that parties are bound by the terms of the agreement between them and no extrinsic terms can be read into the written agreement. They cited Layade v. Panalpina World Transport Nig. Ltd. (1996) 7 SCNJ 1 at 14-15; Koiki vs. B. V. Magnusson (1999) 8 NWLR Pt. 615 492 at 514; Jeric Nig. Ltd. v. V.B.N. (2000) 15 NWLR Pt. 691 Pg.447 at 462 – 463; S.32(1) Evidence Act.
Both counsel argued that the grant of the plot by mere allocation did not vest title in the Respondent. It was submitted that where the Appellants in this case were able to prove better title, the declarations should have been refused by the lower court. They cited Ogundairo v. Okanlawon (1963) 1 All NLR 358; Faleye v. Otapo (1995) 3 NWLR Pt. 381 Pg. 1 at 32-33; Sasegbon Laws of Nig. First Edition Vol. 14 at Pg.675.
Counsel argued that it is the evidence of the 2nd and 3rd Appellants that the 1st Appellant was issued a letter of allocation in respect of the plot in question and the 2nd Appellant further granted the 1st Appellant a statutory right of occupancy and put her in possession.
The Claimant with the better title had a right to a declaration of title and since the 1st Appellant has a statutory Right of Occupancy she has a better title. See Olosunde v. Oladele (1991) 4 NWLR Pt. 188 Pg. 713 at 728; Lion Budding Ltd. V. Shodipe (1976) 12 S.C. 13; Bello v. Eweka (1981) 2 S.C. 101.
On the contrary the learned Respondent’s counsel argued that after the Respondent paid all statutory fees and he was placed on the land, the allocation is valid and competent. He argued that the Appellants’ sole witness at page 109 of the Record pointedly admitted as follows under cross-examination:
“The only duty of the Claimant (Respondent) is to pay all statutory consideration and the Ministry has a duty to issue him the Right of Occupancy.”
He argued that the only defence proffered by the Appellants is that seven months after the right of the Respondent had vested in commercial plot 9 on TPS/MISC.168, they discovered that exhibit 6 the original layout plan was drawn in error and via an internal memorandum it was redrawn. The redrawn plan was tendered as Exhibit D10, and by Exhibit D10 the Respondent’s plot 9 became plot 6 and was allocated to Alhaja Eleran. Thus the Respondent became totally deprived as he was not told what his plot 9 had become.
Counsel submitted that to allow the Appellants to defeat the Respondent’s vested right over commercial plot 9 in TPS/MISC.168 by their wrongful act and failure to issue him a Statutory Right of Occupancy seven months after his possession will be to allow fraud against the Respondent, which this court should not do.
He also submitted that as at 24th November, 2005 when the Appellants authorized Alhaja Eleran to go unto the Respondent’s land in the guise that it had been redrawn and made plot 6, and 14th December, 2005 when they purportedly issued her with a statutory Right of Occupancy the Appellants no longer had any right to convey over plot 9 on TPS/MISC.168 regardless of whatever number tag they placed on the plot as interest over that portion of land in TPS/MISC.168 had vested in the Respondent. The maxim Nemo dat quod non habet defeats the Appellants’ purported grant to Alhaja Eleran as the land as at November/December, 2005 had vested in the Respondent and cannot be recovered except on a breach which is not the case. The grant of commercial plot 9 on TPS/MISC.168 by the Appellants to Alhaja Sobalaje Eleran as residential plot 6, seven months after the plot had vested in the Respondent is in the circumstance of this case incompetent and invalid, and the purported Statutory Right of Occupancy is incompetent for having an invalid root. He cited Potter Dapub v. Haruna Bako Kolo (1993) 12 SCNJ I, II.
My Lords, the main basis of the Appellants’ attack on the judgment of the lower court to my mind is the fact that the learned trial judge held that the Respondent had acquired some title to the land in dispute immediately he was allocated the land, paid all statutory fees and he claimed he was put in possession. The Appellants are of the view that mere allocation and payment of consideration cannot confer any title on the Respondent and the trial judge erred in considering the evidence and holding otherwise.
The learned trial judge held as follows on this issue on Pg. 122 of the Record:
“The crucial issue is the effect of the approval given to the claimant’s application for a commercial plot on TPS 168. It is undenied that he applied for a commercial plot and he was offered the plot in April. Apart from documentation, he was physically taken to the plot by the relevant Ministry official on the order of the Honourable Commissioner and he was shown the plot on ground. He had 90 days to pay the necessary consideration failing which the plot could be allocated to another person without any notice to the claimant. He paid the consideration within time and demarcated the land as evidence of possession. Thus between the claimant and the State Government a legally enforceable contract for specific performance was concretized.
It is in this regard that the evidence of DW1 that the only duty the claimant had was to pay the consideration while the Ministry owed him a duty to issue him the Statutory Right of Occupancy over the plot. He was merely reiterating one sacrosanct truth that turned out to be adverse to the defence.
The claimant having been shown the plot which he quickly demarcated to take possession after paying the necessary consideration in law an (sic) in equity, the claimant became vested with an enforceable title over the plot…………
The right of an individual on a plot can only be extinguished by revocation not for the benefit of another private individual but for public use (purpose).
See Section 28 of the Land Use Act 1978.”
It is common ground that on the 26th April, 2005 the Respondent consequent on the allocation of plot 9 on TPS/MISC.168 along Ajase-Ipo Ilorin to him vide Exhibit 1 paid all heads of consideration totaling N172,300.00. It is a further common ground that consequent on the payment he was given by the 2nd and 3rd Appellants Exhibit 6 a plan denoting all the plots with his plot 9 marked in black ink. Subsequently on the instruction of the Commissioner in the Ministry of Lands and Housing, Officers of the Ministry went unto the land with the Respondent and definitively identified his commercial plot 9 on TPS/MISC/168 and placed him on it. The Respondent testified that after the land was with certainty identified he clearly demarcated it without let or challenge. See page 102 of the Record, and the depositions of the Respondent on oath at pages 8 – 11 of the Record.
My Lords, the Respondent claimed at the lower court declaration of title to the plot of land, damages in trespass and injunction against the Appellants.
I agree with learned Respondent’s counsel that there are five ways in which ownership of title may be proved as stated by Fatai- Williams J.S.C. (as he then was) in Idundun v. Okumagba’s case cited supra and reiterated in Christian Ewo & Ors v. Ogbodo Ani & Ors. (2004) 1 SCNJ 272. I think it is pertinent to point out however that Idundun v. Okumagba deals with five disjunctive ways in which ownership of land can be proved and not ways of acquiring title to land e.g. matters of evidence rather than substantive law of acquisition of title. See Alh. Karimu Adisa v. Emmanuel Oyinwola (2000) 6 SCNJ 290, (2000) 10 NWLR Pt. 674 Pg. 116.
Where an action in trespass is coupled with a claim for injunction, it automatically gives rise to issue of title to land. See Nnanyelugo Odukwe v. Mrs. Ethel Ogunbiyi (1998) 6 SCNJ 102, (1998) 8 NWLR Pt. 561 Pg. 339.
Where there is a claim for declaration of title, the court is obliged to concern itself with –
(a) The precise nature of the title claimed e.g. whether title is claimed by virtue of conveyance, purchase or long possession or original ownership.
(b) The existence of evidence to establish the title of the nature claimed. See Adetutu Adesanya v. Alh. S.D. Aderonmu & Ors (2000) 6 SCNJ 242.
Thus in a claim for declaration of title to land, trespass, injunction etc the nature of possession claimed must be capable of raising a presumption of ownership under S.146 of the Evidence Act. Thus it must be de jure exclusive possession, not mere occupation. See Cosmos Ezukwu v. Peter Ukachukwu & Anr (2004) 7 SCNJ 189 and Olohunde v. Prof. Adeyoju (2000) 6 SCNJ 470 and (2000) 10 NWLR Pt. 676 Pg. 562.
It is clear from the documentary evidence led by the parties that the Respondent could not take possession even after meeting all financial obligations until his legal title had been perfected with the issuance of a Right of Occupancy. Paragraph 1 of Exhibit 1 states as follows-
“With reference to your application for commercial plot, I am happy to inform you that you have been allocated in principle Plot 9 Block TPS/MISC.168.”
Paragraph 3 states as follows –
“You should not occupy or develop the plot until-
(i) The premium demand above is paid in full;
(ii) Approval for the grant of Right of Occupancy is formally conveyed to you and you have accepted it;
(iii) The Town Planning Authority approves the relevant building plan.
(iv) An authorized official of the Department has identified the plot to you.
(v) Adequate compensation is paid where applicable.”
Paragraph 4 provides that the allottee cannot demarcate or do anything on the plot until all the conditions in paragraph 3 have been met. Thus strictly speaking the Respondent cannot be taken to be in exclusive possession of the land in dispute.
I quite agree in principle that it is the law that “rights which have vested will not be affected by subsequent change in policy, decision or even the law.” See Oba Oyebade Lipede & Ors. vs. Chief Adio Shonekan (1995) 1 SCNJ 184. When a party acquires a vested right by ostensible recognition, the person who gives such recognition is estopped from denying the existence of the right. See Chief Joseph Oyeyemi v. Commissioner for Local Government Kwara State (1992) 2 SCNJ 266 at 278 where the Supreme Court held –
“Courts have a duty to protect vested rights, as otherwise lawlessness will reign. So they have always taken the view that any attempt by a competent authority to take away a citizen’s vested rights must be done in strict compliance with the law and any laid down procedure therefore. See Ojo v. Governor of Oyo State (1989) NWLR Pt. 95 Pg. 572; Wilson v. Attorney- General of Bendel State (1985) 1 NWLR Pt. 4 Pg. 572; Hart v. Military Governor of Rivers State (1976) 2 FNLR 215 at 226-7.”
The crux of the matter is what is the nature of the right which became vested in the Respondent consequent on the offer made by the 2nd Appellant in Exhibit 1 to purchase government commercial land and his acceptance of that offer by paying all required fees. Let us not forget that ownership of land or title is vested in the Governor of the state under the Land Use Act. The individual can only acquire possessory title. See Isaac Ogualaji v. Attorney-General Rivers & Anr (1997) 5 SCNJ 240, (1997) 6 NWLR Pt. 808 Pg. 209. Interest in land is thus limited to right to entitlement of right of occupancy under S.40 of the Land Use Act. See John Eze & Ors v. Ohiefuna (1995) 7 SCNJ 75, (1995) 6 NWLR Pt. 404 Pg. 639.
In this case no legal estate that is statutory right had been conferred by the State on the Respondent. Thus only an equitable interest was acquired by him. Only an equitable interest is acquired by a lessee or purchaser under a transaction when his title deeds have not been perfected after he has paid the required consideration. See Thomas Awaogho & Ors. v. Chukwu Eze (1995) 1 SCNJ 157, (1995) 1 NWLR Pt. 372 Pg. 393.
We must distinguish this case from the cases of Provost Lagos State College of Education & Ors v. Dr. Kolawole Edun & Ors. (2004) 6 NWLR Pt. 870 Pg. 476; (2004) 2 SCNJ 156; Alh. Kari v. Alh. Isa Ahha Ganaram (1997) 2 SCNJ 38 and Alh Abdulsalam Teniola v. Alh. Mustapba Olubunkun (1999) 4 SCNJ 92.
In Provost, LACOED v. Edun cited supra, there was no dispute regarding the fact that the Respondents had been in possession of the land since 13th January, 1972, built houses and had a poultry before the Appellants trespassed on the land in June 1992 a period of over twenty years. The claim that the land had been acquired by government in 1976 was refused by the Supreme Court. The Supreme Court held that the Respondents were in actual physical and uninterrupted possession up till the time of acquisition by government and allocation to the Appellant. The Supreme Court held at page 497 of the N.W.L.R Pt. 870 as follows-
“It is a basic principle of law that in a claim for damages for trespass to land, the Plaintiff, to succeed, must establish exclusive possession of the land in dispute at all times material to the commission of the alleged tort by the Defendant. See Olagbemiro v. Ajagungbade III (1990) 3 NWLR Pt. 136 Pg. 37; Adebanjo v. Brown (1990) 3 NWLR Pt. 141 Pg. 661; Ogbu v. Ani (1994) 7 NWLR Pt. 355 Pg. 128; (1994) 8 SCNJ 355.
And where two parties make conflicting claims to possession of the same land, the possession being disputed, the law ascribes possession to the person that can prove better title to the land in dispute. See Awoonor Renner v. Deboh (1935) 2 WACA 258; Umeobi v. Otukoya (1978) 4 SC 33.”
The facts of this case must also be distinguished from the facts in Iragunima v. R.S.H.P.D.A. (2003) 12 NWLR Pt. 834 Pg. 427 where the Supreme Court upheld the claims for title, trespass and injunction of an equitable holder of a leasehold after the execution of the deed and pending the consent of the Governor upon the Governor selling the land to a third party as an abandoned property. The Supreme Court held that the evidence was clear that the Governor had given approval for the renewal of the lease for 60 years after the original lease expired only the official conveyance of approval was not yet perfected. There, the 2nd Respondent vendor had been in exclusive possession since 1/1/64 before the government sold the property as abandoned property to the 1st Respondent on 8/5/86. The Supreme Court held that since the government ought to have given consent to the renewal of the lease since 1982, that equity regards as done that which ought to have been done and upheld the claim of the 2nd Respondent to title etc.
My own humble view of the facts of this case is that at best the Respondent would have had an equitable interest in the land if the conditions of allocation under paragraph 3 had been fully implemented and he was in actual physical possession of the land. What existed between the parties was merely an agreement for the sale of land. The process of grant of any title be it equitable or legal was still at the inchoate stage.
This case is almost on all fours with the case of Kari v. Ganaram cited supra in which a temporary right of occupancy was held to be a mere administrative licence, permit or privilege but does not confer on or vest in the licencee any title, interest or estate in such party. The Supreme Court held that a person with a prior temporary right of occupancy who was in possession had no better title than a person later granted a Statutory Right of Occupancy as the former vest no rights whatever on the grantee. In the light of the above position of the law, I am constrained to hold that no enforceable right to claim title, damages, trespass etc vests in Respondent by the mere allocation of a plot of land “in principle” as evidenced by Exhibit. 1.
I agree with the Appellants’ counsel that the case of Foreign Finance Corp v. L.S.D.P.C (1991) 5 SCNJ 52, also reported as Osho v. Foreign Finance Corp. (1991) 4 NWLR Pt. 184 Pg. 157 is not at all on all fours with this case and the legal issues are quite different. The learned trial judge ought not to have followed it as the basis of his judgment. It was a misdirection to hold that the circumstances and facts were similar and apply the same law.
In the Foreign Finance Corporation’s case, the Supreme Court held that revocation of a Right of Occupancy must be by one of the modes prescribed by S.44 of the Land Use Act and must be for public purpose and that revocation for public purpose does not include revocation of the right of one grantee for purpose of vesting it in another. Where revocation is based on breach of terms of the certificate of occupancy, the aggrieved party must be accorded fair hearing prior to the revocation. Where there is a subsisting grant, any other deemed grant would be invalid. See Emmanuel Ilona v. Sunday Idakwo (2003) 5 SCNJ 330. The Respondent attacked the grant of a right of occupancy to the 1st Appellant, however the opposition would have been valid if the Respondent had an interest that had ripened to an equitable or better still legal interest in the land.
It is unfortunate that in this case, the Respondent’s counsel claimed title to land, trespass, injunction etc at the lower court. Perhaps a claim for money had and received, consideration having failed would have had a better chance of success. I notice that neither party suggested that the Respondent be given another plot in replacement of the one taken. If it had been a case between individuals, perhaps a claim for specific performance of the contract of sale would have had a better chance of success. However this is a case under the Land Use Act between the Government and an individual. See International iles Ltd. v. Dr. Ademola Aderemi (1999) 6 SCNJ 46; (1999) 8 NWLR Pt. 614 Pg. 268.
Suffice it to say that the 1st Appellant’s right of occupancy no matter how it was obtained gives rise to the presumption of title and exclusive possession until it is rebutted. I do not think the Respondent was able to rebut this presumption at the lower court. See Potter Dabup v. Kolo (1993) 12 SCNJ 1.
I must say that while writing this judgment my sympathies were entirely with the Respondent. But sentiments should never be allowed to interfere with the law. This was not a case of equal equities in which the earlier in time would have prevailed. This is Nigerian Land Law. I must say however that we should look at – shall I say – the layman justice of this case rather than the legal justice.
Let us look at the layman justice of this case. If the plots were renumbered, could not the Respondent still have the plot allocated to him but with a different number? I have to say that administrators who are to deal with citizens should be even handed and impartial. One Commissioner gave the Respondent land and his successor peremptorily took it from him. There must be appearance of the rule of law not the rule of whims and caprice in the management of human affairs. That is how civilized government should function.
It is unfortunate that the state of our land law prevents us from protecting the Respondent from frivolous, high handed administrators who engage in reckless administrative decisions adherence to equitable principles. Enough of the sentiments.
For reasons given above, the Respondent was not entitled to any of the reliefs granted by the lower court. The appeal has merit and it is hereby allowed. The judgment of the lower court is hereby set aside.
Appeal Allowed.
Other Citations: (2008)LCN/3033(CA)
