Boye Industries Limited & Anor. V. Adisa Sowemimo (2009)
LawGlobal-Hub Lead Judgment Report
ISA AYO SALAMI, J.C.A. (OFR)
The Plaintiffs now respondents instituted an action against the defendants, appellants herein, claiming as per their amended writ of summons and amended statement of claim as follows:-
“A declaration that the purported sale of the land in dispute to the Defendants and the subsequent purported certificate of occupancy issued to the 1st Defendant purportedly covering the land in dispute is null and void and of no effect for lack of title on the part of the 1st Defendant’s vendors.
ii. A declaration that the 1st Plaintiff is entitled to the statutory right of occupancy over the land in dispute covering 1.452 hectres shown on survey plan No Kesh/L/775 A dated 7th January, 1980 opposite the International Trade Fair Complex along Badagry Express Road, Onireke, Lagos.
iii. A perpetual injunction restraining the Defendants by themselves, their agents, servants, privies and assigns from further trespassing on the land in dispute as shown on survey plan No Kesh/L/775A dated 7th January 1980 opposite the International Trade Fair Complex, Badagry Express Road, Onireke, Lagos and/or from molesting, harassing, embarrassing, disturbing and/or in any way preventing the plaintiffs, their servants, agents privies and assigns from the plaintiffs’ peaceable occupation and possession of the land in dispute or in any wise tampering with same.”
The defendants, the appellants herein counter – claimed against the first plaintiff, first respondents herein after as follows –
“(i) The sum of N2 million being damages for trespass committed by the 1st plaintiff on the Defendants’ parcel of land lying, being and situate at Opposite International Trade Fair Complex, Badagry Express Road, Onireke Village, Lagos as shown on certificate of occupancy registered as No 87 page 87 volume 1983 p at the Lands Registry Lagos.
Pleadings were filed, exchanged and settled at the amended statement of claim as well as amended statement of defence and counter-claim. The matter went for trial. On the issues joined, the respondent called two witnesses including the first plaintiff himself. The defence called three witnesses including second defendant. At the end of adducing evidence, learned counsel for both parties addressed the court. Learned trial judge in a reserved and considered judgment accepted the respondents’ case and dismissed that of the appellants.
The appellants not being happy and dissatisfied with the judgment appealed to this court on three grounds of appeal.
In accordance with the court’s practice and procedure briefs of argument were filed and exchanged. The appellants’ brief contained the following issues for determinations.
“(a) whether the learned trial judge was right in treating the grant of the land in dispute by the Lagos State Government to the Defendants as an invalid grant.
(b) whether there was justification for the learned trial judge’s peremptory rejection of the uncontroversted evidence of the hand writing expert (DW2).
(c) whether the learned trial judge’s conclusion that the plaintiffs had proved their claim and the Defendants had failed to prove their counter – claim is supported by the preponderance of evidence.”
The respondents failed to formulate separate issues for determination in this appeal. They merely adopted and relied on the appellants’ formulations.
The first issue by the appellants touched upon the validity of the acquisition of the land by the Lagos State Government. Learned counsel for appellants conceded that the general statement of law that land acquired for public purpose must be used for that purpose. However, learned counsel for appellants further contended that, in the light of the evidence and the con of this suit, the trial court could be right. Learned counsel submitted that there was no dispute between the parties that there was indeed an acquisition as evidence by Gazette, exhibit K, by Lagos State Government of a large area of land which the land in dispute forms part of. Secondly and quite significantly reference was made to the testimony of p.w.2 whose family, Ado, the respondents traced their root of title to that not only was the acquisition challenged but his family had sued and obtained compensation from the Lagos State Government over the acquisition.
Learned counsel for appellants further submitted that Ado family had nothing more in the land to sell to the respondents or anyone at all.
Learned counsel for respondents in his reply contended that the burden to prove the acquisition lies on the appellants who assert that there was acquisition. Learned counsel for appellant submitted that exhibit K was a notice of intention to acquire or to revoke. The revocation or acquisition can only be valid if the notice or notices are served on the owner or occupier in accordance to section 44 of the Land Use Act, 1978.
Learned counsel for respondents also denied the allegation of the learned counsel for appellants that respondents’ second witness admitted that the land in dispute formed part of a larger piece of land acquired. Learned counsel for respondents referred the court to what the witness said at pages 255 and 359 of the record of proceedings.
It is trite that the mere issuance or acquisition of a certificate of occupancy does not and cannot confer title in respect of a parcel of land it purports to cover where no such title either existed or was available to be transferred. It is clear from the provisions of section 34 of the Land Use Act that any person without title to a parcel of land in respect of which a certificate of occupancy is issued acquire no right or interest which he did not have before the certificate – Kyari v Alkali (2001) SC (Pt 11) 192; Ogunleye v Oni (1990) 2 NWLR (Pt 135) 745. This is the weakness a certificate of occupancy issued in such circumstances as it is never associated with title. A certificate of occupancy does not stop the court from enquiring into the validity or existence of title of the person asserting possession before the issue of the certificate.
I agree with the learned counsel for respondents that learned counsel for appellants distorted the evidence of second plaintiff witness to the effect that not only was the acquisition never challenged but that his family had in fact sued and obtained compensation from the Lagos State Government over the acquisition. What plaintiff second witness said at p. 359 of the record was that:
“We have sued the Lagos State Government to the Land Tribunal for compensation in respect of International Trade Fair Complex.”
And at page 255, the same witness peremptorily declared that- “The land in dispute has not been acquired by the Lagos State Government.”
Clearly these pieces of evidence delivered fatal blow to the submission of the learned counsel for appellants that the principle of law learned trial judge relied upon does not avail him in the light of the facts and the con of the case. In view of denial by second plaintiff witnesses that the acquisition have been challenged, the right to do so by the Ado family is not extinguished contrary to the postulation of the learned counsel for appellants. The right of Ado family is extant. There is no evidence that Ado family had accepted validity of the revocation of their right and accepted valuable consideration for it. That they did is just conjured from fertile imagination of the learned counsel for appellants.
This takes me to the question of whether there was valid revocation of the respondents’ right in the land in dispute. Exhibit K is the Gazette of Revocation of Right of Occupancy and Notice of intention to take Possession given under the Land Use Act NO.6 of 1978. It is the submission of the learned counsel for respondents that the notice merely constitutes an intention on the part of the government to acquire or revoke the interest in the land which does not vest until the notice of acquisition is served on the owners under sections 28 and 44 of the said Land Use Act, Cap. L.5 of the Laws of Federation of Nigeria 2004. The relevant subsections of section 28 of the Act read as follows:
“(6) The revocation of a right of occupancy shall be signified under the hand of a public officer duly authorized in that behalf by the Governor and the notice thereof shall be given to the holder.
(7) The title of the holder of a right of occupancy shall be extinguished on receipt by him of a notice given under sub-section (6) or on such later date as may be stated in the notice.”
(underlining mine)
It is conclusive on those two subsections that the right or interest of a person in a piece of land is extinguished once a notice signified by a public officer authorized by the Governor in that behalf is served on the holder of a right of occupancy. In other words, notice must be given to the holder of right of occupancy before the revocation of his right of occupancy and the notice must be served in accordance with the provisions of section 44 of the same Act. See N.E.W v Denap Ltd (1999) 10 NWLR (Pt 525) 1062, 1085 and Laguro v Toku 1986 4 NWLR (Pt 33) 90 cited in the respondents brief.
The correct reference in Denap’s case is (1997) 10 NWLR (Pt 525) 481.
There is no evidence before the court below and this court that the notice of acquisition of right of occupancy pursuant to section 28 of the Land Use Act, Cap. L.5 was ever served on the respondents or Ado family, who were adjudged owners of the land in dispute in exhibits H, J and J1, judgments of the High Court which was respectively affirmed by the Court of Appeal and Supreme Court in accordance with section 44 of the Act.
The Land Use Act is an expropriatory statute which encroaches on an individual proprietary right and must be construed fortissimo contra preferentes in other words must be construed strictly against the acquiring authority by leaning sympathetically towards the citizen whose right is being invaded: Ononuju v A.G Anambra State (1998) 11 NWLR (Pt 573) 304, 330; Garba Abiore & Ors vs Sa’radu Yakubu & Ors (1991) 5 NWLR Pt. 190,130,251; Din v A.G Federation (1988) 4 NWLR (Pt 87) 149, 187.
On the issue of mode of service of notice on the respondents, section 44 of the Land Use Act Cap L.5 provides as follows-
“44. Any notice required by this Act to be served on any person shall be effectively served on him-
(a) by delivering it to the person on whom it is to be served;
(b) by leaving it at the usual or last known place of abode of that person; or
(c) by sending it in a prepaid registered letter addressed to that person; or
(d) in the case of an incorporated company or body by delivering it to the secretary or clerk of the company or body at its registered or principal office or sending it in a prepaid registered letter addressed to the secretary or clerk of the company or body at that office; or
(e) if it is not practicable, after reasonable inquiry to ascertain the name or address of a holder or occupier of land on whom it should be served, by addressing it to him by the prescription of ‘holder’ or ‘occupier’ of the premises (naming them) to which it relates, and by delivering it to some person on the premises or, if there is no person on the premises to whom it can be delivered by affixing it, or a copy of it, to some conspicuous part of the premises.”
I had opportunity to discuss the section just quoted above in extensor in my dissenting judgment in Ononuju v A.G Anambra State (supra) at 333 – 335 which discussion reads thus –
“In this connection, the first and second respondents relied on the evidence of one Nwoye, which evidence has been expunged. In the absence of Mr. Nwoye’s evidence, on whether or not the appellants were served by affixing the notice to trees on the land and no other witness testified in the manner he did, it is well nigh impossible to hold that proper service of the notice of revocation has been effected on the holders or occupiers, the appellants herein, in the manner prescribed in section 44(e). In case the expunction of the testimony of Mr. Nwoye, the defence third witness, was improper I wish to observe that neither the notice nor a copy thereof was tendered and admitted in evidence. It is, therefore, in the circumstance, impossible to examine it to ascertain that it was duly made, that is signified by appropriate person and it declares such land is required by government for public purpose in accordance with the provisions of section 28 of the Act, Cap. 202. Subsections 4 and 6 thereof provide as follows –
“(4) The Governor shall revoke a right of occupancy in the event of the issue of a notice by or on behalf of the President if such notice declares such land to be required by the Government for public purposes.”
Having defaulted to produce the notice or a copy thereof in evidence, the respondents lost a golden opportunity to show that the preparation of the alleged notice was in order. That is to say that it contained information to the effect that the parcel of land sought to be acquired is required by the Federal Government for public purpose and was signified by the President or on his behalf.
Subsection 6 of the same section is in the same terms, except the powers is exercisable by the governor. It states as follows –
“(6) The revocation of a right of occupancy shall be signified under the hand of a public officer duly authorised in that behalf by the Governor and notice thereof shall be given to the holder.”
I am not unaware of Exhibit K, the Anambra State Official Gazette No. 16 Vol. 15 of 3rd May, 1990.
The first and second respondents contended that the Publication in the gazette satisfies the requirements of section 44(e) of the Act. I do not think so because I look for notice given by publication in gazette in vain either in subsection (e) or any other subsection of section 44, which provides for modes of service.
It follows that it is not the intendment of the Legislature that publication in the gazette satisfies the requirements of section 44 of the Act. If it were the intention of the maker of the legislation, it would have so provided. Parties in litigation cannot by consent or unilaterally or through their counsel amend legislation to serve their own ends or purpose. Learned counsel for first and second respondents contended that service through the gazette was service to the whole world. She referred to the case of Nwosu v Imo State Environmental Sanitation Authority (1990) 2 NWLR (Pt. 135) 688 at page 702. I have examined the authority cited and am respectfully of the firm view that it is not applicable in circumstance of this case as it did not turn on the issue of service of notice under section 44(e) of the Land Use Act, Cap. 202. Nwosu’s case was one of the master and servant relation. Learned Director of Civil Litigation, Anambra State, referred to the case of Anaedu v Nwachukwu, suit No. FCA/B/800/80 delivered on 21st October, 1988 and was cited with approval in the unreported case of Igwegbe v Nwosu, suit No. CA/E/274/87 delivered on 18th December, 1989 and contended that “in the above cases, service of notice by gazette was equally effective service and extended the ambit of section 44(e) of the Land Use Act.” I cannot lay my hands on the two unreported judgments cited by learned counsel for the first two respondents.
It is, therefore, not clear whether the words I have put in quotation above were her own exposition of the law or the ratio decidendi of the court.
It is equally not clear to me if the notices contained in the respective gazette publications were served on the occupiers or holders as laid down under section 44(e). If the answer is positive then it can be deemed as a compliance otherwise I dare say that a mere publication in a gazette be it Federal or State, is not in compliance with the provisions of section 44 of Land Use Act, Cap. 202. The function of any court is to interprete the words of a statue. It is not for courts to legislate. Where the provisions of an enactment are inadequate it is not for the court to take it upon itself to effect amendment to perfect the inadequacy.
It is the function of the relevant legislature to carry out the requisite amendment.
The proposition of law is encapsulated in the Maxim jus dicere et non jus dare, that is to say to declare the law, not to make it. To contend that those judgments extended the ambit or scope of section 44 is to say the least, respectfully, preposterous. In a not dissimilar situation it was observed by this court per Salami, J.C.A., in the case of Olatunji v Military Governor, Oyo State & ors (1995) 5 NWLR (Pt. 397) 586 at 599 as follows –
“The oblique proposition by counsel for the two sets of respondents that publication in the gazette was sufficient notice to appellant does not avail them nor hold water. That is not the intendment of the maker of the law, if it were it would have expressly said so. The publication in the gazette is a constructive notice to the whole world and not a substitute for personal service enjoined by the enabling legislation. A very careful reading of sections 28 and 44 of the Land Use Act would disclose that publication in gazette and local newspapers are not modes or manners of effecting service under the Land Use Act.
It does appear that omission of publication in the gazette and newspapers is to further emphasise to acquiring authorities that the legislature has in mind personal service only as it left the acquiring authority with no option.
Publication in the gazette or newspapers is a mere grafting of a manner of serving notice prescribed under section 9(3) of Public Lands Acquisition Law on the provisions of section 44 of the Land Use Act.”
It is observed that the notice comprised in Exhibit K was signified by one Daniel Nwagu Ongele, Commissioner for Works, Lands and Transport, Anambra State of Nigeria. The notice of revocation in the circumstance of this case should be signified by the President or on his behalf as provided by section 28(4) of the Act. Mr. Daniel Nwagu Ongele is not a public officer of the Federation, indeed he does not pretend to be one and there is no evidence that the power of the President had been delegated to him. If the power is assumed to have been delegated to the Governor by virtue of alleged request to acquire land required by Federal Government for public purpose, there is no evidence that he has sub-delegated the same. But this the Governor cannot do because of the maxim delegatus non potest delegare. A delegate cannot delegate; the person to whom an office is donated cannot properly devolve the function to another unless he be expressly authorised to so act. In the circumstance, the respondents, particularly first and second, failed to give the required notice. The notice comprised in the Exhibit K is equally ineffective and does not satisfy the requirement of section 28 (4) and (6). That being the case the acquisition of the land in dispute is inchoate.
The learned Director of Civil Litigation, Anambra State rightly, in my view, conceded in the first set of respondents’ brief that in an acquisition of land it is settled law that property does not vest until notice of revocation of right of occupancy or acquisition is served on the holders in the manner prescribed by the Act. See section 28(7) of the Act, Cap 202 which provides as follows –
“(7) The title of the holder of a right of occupancy shall be extinguished on receipt by him of a notice given under subsection (6) of this section or on such later date as may be stated in the notice.”
“See Bello v. Diocesan Synod of Lagos (1973) 3 SC 103, 142; Ogunleye v Oni (1990) 2 NWLR (Pt. 135) 745 cited in first and second respondents’ brief and Osho v. Foreign Finance Corporation (1991) 4 NWLR (Pt. 184) 157 cited in the briefs of both appellants and first set of respondents.
See also Olatunji v. Military Governor of Oyo State (supra) at 599 where the Court of Appeal per Salami, J.C.A. said-
“It is, therefore, crystal clear that respondents, particularly first, second and third, made practically no effort to serve the appellant with the notice to revoke his right or interest on the land. The failure to effect personal service of the notice on the appellant in accordance to the manner set out in sections 28 and 44 of Land Use Act (supra) is a gross violation of or serious departure from the set out procedure. Service personally on the appellant is sine qua non of revocation of his interest in the land in dispute and cannot be dispensed with. It cannot be dispensed with because it is after the service in the manner laid down by reading those two sections together that the right of the appellants is revoked.”
The respondents having failed to establish compliance with the provisions of the Act, the acquisition, in my view, is bad ab initio and any act predicated upon the unlawful acquisition is equally bad. The acquisition on behalf of the Federal Government as well as subsequent grant to the third respondent are bad. Nemo dat qui non habet or nemo dare potest quod non habet meaning he who hath not cannot give or no man can give that which he has not. The purported grant to the third respondent is void ab initio because nothing comes out of nothing, that is ex nihilo nihil fit.” See also Lagos State Development & Property Corporation & Others v Foreign Finance Corporation (1987) 1 NWLR (Pt 50) 413, The Attorney General of Bendel State & Ors v Aideyan (1980) 4 NWLR (Pt 118) 646, 676 S.C; Osho & Anor v Foreign Finance Corporation & Another (1991) 4 NWLR (Pt 184) 157, SC and N.E.W Ltd v Denap Ltd (1997) 10 NWLR (pt 525) 481.
From the foregoing, the notice ought to have been served on the respondents because, as far back as 1978 he had bought the property from Ado, Odan Parapo and Onireke families severally. Indeed he concluded purchase from Ado family in 1975. At the time of the acquisition and revocation of the interest of the holder or occupier in 1981, the Gazette Publication was given on 26th November, 1981, the Ado family or any of the families contending for the parcel of land had no interest in the property.
They had divested themselves of their respective interest, if any, and vested same in the respondents by the various acts of sale. What is being driven at is that the method of service of notice of revocation of a right of occupancy needed or necessary under section 28 of the Land Use Act is as prescribed in section 44 of the Act. In the case at hand, there is no evidence that any revocation notice was served on the plaintiffs/respondents in the manner stated in section 44 of the Act. See Osho v Foreign Finance Corporation & Anor (1991) 4 NWLR (Pt 184) 157. A fortori as the revocation was invalid the grant of right of occupancy of the land in dispute to the appellants was an exercise in futility. Nemo dat quod non habet: Atunrase & Ors v Federal Commissioner for Works and Housing (1975)1 All NLR (Pt 1) 331, Olosunde v Oladele (1991) 4 NWLR (Pt 188) 713. The purported certificate of occupancy, exhibit L issued to appellants is null and void and of no effect ab initio.
Appellants’ issued 1 is resolved against them and in favour of respondents.
On issue 2, learned counsel for appellants contended that first plaintiff acted not only as a witness to the transaction between the Onireke family and the defendants but that he had also acted as the contractor who sand filled and erected a fence on the land in dispute for the defendants. In support of this contention, learned counsel for appellants further contended that second defence witness, a handwriting expert, testified to the effect that he examined and compared the signatures on Onireke receipt and certificate, exhibits N and O as well as the quotation for the sand filling and erection of the fence exhibit N1 with that on an affidavit previously deposed to by the first respondent and had found that the three signatures belong to the same person. Learned counsel for appellants opined in the appellant’s brief that the cross-examination of the expert was neither extensive nor destructive of his testimony. He argued that his testimony remained uncontroverted and unchallenged. Learned counsel for appellants was astonished when the learned trial judge failed to accept the evidence of the witness and proceeded to compare the signature on his own accord.
Learned counsel read to the Court, the cases of Sunday Modupe v The State (1988) A NLR 371,375 and Yau v Dikwa 2001 FWLR (pt 62) 1987, 2015.
For the respondents, it was submitted that the learned trial judge assessment of the expert witness’ testimony was correct or proper. Learned counsel for respondents then read the testimony of the witness in chief as well as under cross – examination and argued that the cross examination seriously dented the quality of his testimony especially when the witness agreed to using photo-copy of the disputed documents instead of photographed copies coupled with the fact that the witness admitted that after he had seen the things on video spectral comparator the thing is wipe out from the scene. Learned counsel for respondents equally argued that in view of the denial of the involvement of the first respondent in the appellants’ allegation the learned trial judge rightly personally compared the disputed signatures to arrive at his decision.
In the case of Lawal v Commissioner of Police 1960 WRNLR 75 it was noted that the jury or the judge sitting without a jury can compare in court the disputed writing with an accepted writing of the maker of the disputed document. Section 108(1) of the Evidence Act provides that to ascertain whether a signature, writing, finger print impression or seal belongs to a person by whom it purports to have been made, any signature, writing, finger print impression admitted or made by that person may be compared with the one sought to be proved notwithstanding that the signature, writing or finger print impression had not been produced or proved for any other purpose. To enable the court to do the comparison, the court is authorised under section 108(2) to direct any person in court to write any words or figures or make finger print impression. But where expert evidence is adduced, as in the instant appeal, the court cannot ignore such evidence and resolve the issue himself by making comparison under this or any other provision. To establish in R v M.A. Omisade & Ors 1964 NMLR 67, that one of the accused persons paid a visit to the naval base in furtherance of the allegation of conspiracy the prosecution tendered the visitor’s book of the base. A police handwriting expert gave evidence which apparently favoured the defence that the signature in the book alleged to be that of a particular accused was in fact not his. The trial judge discarded the evidence of the expert, described him as in-expert and resolved the matter himself by comparing the signature in the visitor’s book with other writing of the accused and found as a fact that it was the accused who made the signature. The Supreme Court in holding that the trial court’s finding was erroneous stated thus – at page 86 –
“We do not share the view of the learned judge that he can so discard the evidence of the hand writing expert confused though it was.”
The position would have probably been different had there been evidence from a person familiar with the writing of the accused which went against that of the expert. To decide the issue the trial judge would have freely compared the disputed writing with other writing of the accused with a view of resolving the conflicts between the two witnesses.
Learned trial judge, therefore, wrongly discarded the evidence of the police handwriting expert by resolving the matter himself on comparison of the two disputed signatures. It is not clear if the learned trial judge considered the writing of the first respondent contained in the affidavit, exhibit F, because he merely said
“I have taken careful look at the 2 signatures upon a calm view, I would not agree that the alleged signatures of the same person in EXHIBITS N and N and N1 are one and the same.”
He was ominously silent on exhibit F.
Be that as it may, generally the question to be examined and determined is whether the two documents were properly produced in evidence. A person seeking to prove due execution of a document or that the writing on a document is that of a particular person has a duty to call the person who is alleged to have executed or made the writing as his own witness. This requirement is, however, mellowed down by the provisions of section 105(1) of the Evidence Act. It provides thus –
“105(1) A person seeking to prove the due execution of a document is not bound to call the party who executed the document or to prove the handwriting of such a party or of an attesting witness in any case where the person against whom the document is sought to be proved.
(a) produces such document and claims an interest under it in reference to the subject matter of the suit, or
(b) is a public officer bound by law to procure its due execution, and he has dealt with it as a document duly executed.”
It is next to ascertain if the circumstances of this appeal saved this document. The first exemption does not avail the appellants. The respondents did not produce the documents nor sought an interest under it in reference to the subject matter of the suit. The respondents against whom the document is sought to be proved are not public officers nor have they dealt with the documents as duly executed ones.
The formal proof of the document is equally waived by the provisions of section 105(2) of the Evidence Act Cap E 14 of the Laws of the Federation of Nigeria, 2004. The provisions of section 105(2) of the Act is without prejudice to the right of a litigant to adduce in evidence any document in the manner set out in section 97 and 122 of the Evidence Act which permits secondary evidence to be put in evidence as well as documents which purports or is proved to be 20 year old. The documents at the time they were put in evidence were neither secondary evidence nor documents purporting or proved to be twenty year old.
The formal proof of a document can always be waived by parties to a civil suit but clearly not in criminal cases: Okeke v Obidife & Others 1965 NMLR 113; 1965 All NLR 50. There is no material on the record tending to show that there was waiver of formal prove of the documents in dispute in the instant appeal. The parties having not waived established proof it is incumbent on the appellants to prove the writing on the documents formally.
On the third issue, in the instant appeal, the decision of the learned trial judge is not perverse. The burden of proof, in the light of the claims before the learned trial judge, on the plaintiff is to prove a better title which burden was sufficiently discharged on balance of probability. The respondents led evidence of how they had to buy the same parcel of land ex abudenti cautela from three contending groups, namely Ado family, Odan Parapo and Onireke family. He called first plaintiff witness, a member of Ado family, who testified to the effect that the property in dispute belonged to his family which sold it to the first respondent. The witness further adduced evidence of litigations they had with various rival claimants including Oniba of Iba whom the Onireke family, the appellants’ vendors, admitted were their landlords. The decision in these cases were resolved in favour of the respondents’ vendors, Ado family.
The appellants, on the other hand, predicated their claim on a purchase they made from Onireke family. It was made on the purported introduction of the family to him by the first respondent who had himself out of his ignorance of the true position paid to three different groups, viz, Ado family, Odan Parapo and Onireke family. The appellants on their own showing disclosed that Onireke family agreed that they were tenants of Oniba of Iba. The same Oniba had consented in a judgment in the Supreme Court, exhibit G, that the land in dispute forms a portion of a large parcel of land belonging to Ado family.
In this connection, learned trial judge inter alia observed as follows –
“I have adverted my mind to the totality of the evidence placed at the disposal of this Honourable Court for the determination of this case along with the addresses of both counsel and after putting the oral and documentary evidence on the imaginary scale of justice. I wish to observe as follows:-
That there are various judgments tendered in this suit, these judgments are exhibits “G” in suit No
/HIC/25/61 which went to the FCA in FCA/L/150 and Supreme Court in SC/24/1979 Exhibit H suit No LD/213/76 Exhibit ‘J’ FCA/L/95/1978 Exhibit ‘J1″ and J2 SC 61/198 All were in respect of the large area of land in which the land in dispute forms a portion.
The land in dispute is at Onireke Village and Onireke Village is included. Exhibit ‘J3′ is a Survey Plan of the land. All these judgments were in favour of Addo family”
(underling mine)
The finding of the learned trial judge set out above is not being challenged on this appeal. It subsists. The effect of the finding is that on the strength of the decisions of the courts including Supreme Court produced before the trial court, which accepts them, Ado family is the owner of the land in dispute and at the time it sold to the respondents was solely competent to do so. The title acquired by the respondents derived from a competent source consequently the respondents have better title than the appellants whose vendor had no title to part with. Nemo dat quod non habet: This aphorism is still valid today as at its beginning.
The purported introduction of the appellants to the Onireke family as the owners of the land in dispute by the first respondent is incapable of vesting the family with title to the land which they could vest in the appellants. If the contention of the appellants is accepted it would have the effect of strangers to a land owing family vesting ownership in the property in an entirely different family. Parties cannot consent to vest title of land in a stranger. It is highly improbable that a purchaser would lead a prospective buyer to buy his own land. In the circumstances of this case, if the appellants’ case were accepted, the judgments of the various courts including the Supreme Court exhibited before the trial Court would be rendered nugatory. The quantum of evidence which was placed on the imaginary scale by the plaintiffs/respondents out weighed that of the defendants/appellants. The plaintiffs’ case, therefore, preponderates. In a civil case the burden of proof is on the preponderance of evidence. Abiba Magaji v Odofin (1978) 4 SC, 91.
The effect of non – joinder of the acquiring authority, viz Lagos State Government on the out come of this suit was never canvassed both in the court below and in this court. This court is, therefore, reluctant to raise same at this stage because it is trite that an appellate court will concern itself with only the real issues of fact placed before the trial court and not speculative or fanciful matters See Akeredolu v Akinremi (1986) 2 NWLR (Pt 25) 710, 715 where the Supreme Court observed as follows –
“It has long been established that this court will not render an advisory opinion nor will it deal with a matter which is speculative or academic. The court deals with live issues.”
In Eperokun v University of Lagos (1986) 4 NWLR (Pt 34) 162, 177 Obaseki, JSC, pronounced on the matter thus –
“This court has held repeatedly that it is not part of its function to entertain and decide hypothetical questions, that is questions not arising from the facts of the case”
The question was more forcefully put by Obaseki, J.S.C in Chief Ejowhomu vs Edok – Ete. Mandilas Ltd (1986) 5 NWLR (Pt 39) 1,30- 31 thus-
A trial court may have committed grave errors in its judgment in a manner which stirs the informed mind of the appeal court judges for correction, but it is settled law that if the parties to the matter are satisfied with the judgment, there is nothing the justices of the Court of Appeal can do. The justices can only maintain studied silence or observe that there was no appeal before them on the point. If one of the parties is aggrieved and decides to appeal on grounds which do not raise the grave errors observed as issue to be debated and determined the justices are still powerless and hamstrung in tackling the errors. But if the party adversely affected by the errors through careful reading, wisdom and vigilance spots the errors and takes the matter on appeal on grounds complaining of those errors, it is then and then only that the Court of Appeal under our law can deal with the issue.
Generally, appeal courts without statutory provision have no jurisdiction to disturb settled issues not properly brought as well as those not brought before them.”
(underlining mine)
The issue of whether the action is properly constituted or otherwise is not, on the circumstances of this case, open to us.
The appeal fails and is dismissed. The decision of the learned trial judge, Martin, J., including all the consequential orders are affirmed.
There will be an order of this Court as to costs which is assessed at N50,000.00 in favour of the respondents.
Other Citations: (2009)LCN/3110(CA)
