Chief Adeyemi Lawson & Anor Vs Chief Ayodele Ajibulu & Ors (1997)

LAWGLOBAL HUB Lead Judgment Report

OGUNDARE, J.S.C.

The plaintiff Chief A.A. Ajibulu who is a legal practitioner, in 1975 bought a piece or parcel of land measuring 15.05 acres from the Aina Ala Adeniyi families of Agbara village. He affixed on the land a signboard bearing his names as the owner. He later noticed that Chief Adeyemi Lawson was encroaching on the land. Chief Lawson approached him to sell the land to the latter but plaintiff refused.

The land was later acquired by the Ogun State Government and released to Chief Lawson’s company for development. Plaintiff then instituted his action, first against Chief Lawson alone and, at subsequent stages in the proceedings, he joined Chief Lawson’s Company – Lawson and Company (Nigeria) Limited as 2nd defendant and the Commissioner for Lands and Housing Ogun State and the Attorney-General and Commissioner for Justice, Ogun State as 3rd and 4th defendants respectively.

In his final pleadings that went to trial, plaintiff averred, inter alia as follows:

“5. The plaintiff is the owner of the parcel of land measuring 15.05 acres situate lying and being at Agbara village near Igbesa, Egbado Division of Ogun State of Nigeria and parallel to Lagos-Badagry Road.

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7. By virtue of an instrument dated the 5th of March, 1975 and registered as No. 51 at page 51 in Volume 1692 at the Lands Registry at Ibadan (and now at Abeokuta) the said piece of land vested in the plaintiff as the freehold owner of it and he was put in possession of same.
8. The plaintiff was put in possession by his vendors who were the accredited representatives of Aina Ala Adeniyi families of Agbara village in Egbado Division of Ogun State of Nigeria.
9. That since the sale to the plaintiff, the plaintiff had been exercising rights of ownership without any interference or disturbance whatsoever until it was discovered that the defendants had been encroaching on the said piece of land.
10. That 1st and 2nd defendants forcibly entered into the said piece of land destroyed the signboard bearing the names of the plaintiff which was installed on the land and started to carry out survey work without the consent of the plaintiff between the end of 1976 and early part of 1977.
11. The plaintiff wrote letter of warning to the 1st defendant to desist from his act of trespass but the 1st defendant refused to heed the warning.
12. In March, 1977 the 1st defendant invited the plaintiff to his Grailand Hill residence two times as contained in two letters dated 3/3/77 and 18/3/77 respectively and he offered to compensate the plaintiff for the act of trespass by paying him (plaintiff) a sum of N200.00 per acre for the whole piece of land in dispute but the plaintiff refused.
13. The Ogun State Government and 3rd and 4th defendants claimed ownership of the said piece of land and purported to have leased same to the 2nd defendant without the consent of the plaintiff.

13a. The plaintiff was not served with any notice personally or otherwise by the 3rd and 4th defendants or Ogun State Government of any intention to acquire the piece of land in dispute compulsorily or otherwise.

14. The 2nd defendant had unlawfully leased the said piece of land to a company known as Food Specialities (Nigeria) Limited for over one million naira.
15. The 2nd defendant had not been using the said piece of land for public purpose but for its own private, profit making purposes.”

He claimed, as per paragraph 18, the following:

“(1) Declaration of entitlement to Statutory Certificate of Occupancy of that piece or parcel of land lying situate and being at Agbara village near Igbesa, Egbado, Ogun State and more particularly described and marked ‘Red’ on the plan attached to Deed of Conveyance Registered as No. 51 at page 51 in volume 1692 of the Lands Registry at Ibadan (now Abeokuta).

(2) N2,000.00 (two thousand naira) damages for trespass committed on the piece of land by the defendants and their agents, servants and privies.

(3) An injunction restraining the defendants, their servants privies and agents from committing further act of trespass upon the said piece of land.

(4) Declaration that the purported acquisition of the said piece of land under the Public Lands Acquisition Law Cap. 105 Laws of Western Nigeria, 1959 by the 3rd and 4th defendants is incompetent, unlawful, null and void for failure to satisfy sections 8(1) and 9 of the Public Lands Acquisition Law, 1959.

(5) Declaration that the purported acquisition of the piece of land in dispute under Public Lands Acquisition Law, Cap. 105 Laws of Western Nigeria, 1959 for public purpose from a private individual i.e. the plaintiff and later leased to another private company i.e. 2nd defendant by the 3rd and 4th defendants and Ogun State Government for private profit making purpose does not come within the purview of the Public Lands Acquisition Laws of Western Nigeria. 1959 and therefore it is unconstitutional ultra vires, null and void.

(6) Setting aside the said acquisition in respect of the land in dispute.”

The 1st and 2nd defendants filed a joint defence the penultimate paragraphs of which read:

“3. The 1st and 2nd defendants deny paragraphs 5, 6, 7, 8, 9, 10, 11, 12, 14 and 15 of the Amended Statement of Claim and put the plaintiff to a strict proof thereof.

4. The 1st and 2nd defendants aver that the 1st defendant acting as agent of 2nd defendant acquired 51 parcels of farm land comprising and making up a total area of 429 acres from several farmers owners for a total sum of N91,416.00 between February, 1973 and April, 1973.
5. On the purchases of each parcel of farmlands, the 1st and 2nd defendants were put into possession of all the aforementioned parcels of farmlands and in March, 1973, the 1st and 2nd defendants instructed their Surveyor A.O. Adebogun to go on the land and survey all the 51 parcels of farmlands.
6. The Surveyor accordingly surveyed all the parcels of land in April, 1973 and consequently produced a survey plan dated 27th April, 1973.
7. The said survey plan was duly counter-signed by the Surveyor General of Western Nigeria on the 24th of May, 1973.
8. The aforementioned purchases of the 51 parcels of farmlands were duly ratified and conveyed to the 1st defendant, who was at all material times acting as an agent of the 2nd defendant, by the land-owing families, namely the Idoluba Chieftaincy family of Igbesa and the Ilamiro/Ilase families of Igbesa and Agbara by a Deed of Ratification and Conveyance dated 13th day of August, 1973 and Registered No. 18 at page 18 in volume 1492 at the Land Registry in the office at Ibadan.
9. Accordingly, the 1st and 2nd defendants had been in occupation and possession of all the above mentioned parcels of land for 4 years before the plaintiff in trespass against the possession of the 1st and 2nd defendants, came on the land in 1977.
10. That when the 1st and 2nd defendants got to know in 1977 of the acts of trespass committed by the plaintiff on the land of the 2nd defendant the 1st defendant sent written notes demanding that the plaintiff should come and see the 1st defendant who warned him against the consequences of further acts of trespass on 2nd defendant’s land.
11. The 1st and 2nd defendants shall rely on all the recitals and facts stated in the aforementioned Deed and Ratification and Conveyance dated 13th day of August, 1973 in denial of the allegations of trespass made by the plaintff against the 1st and 2nd defendants.
12. The 1st and 2nd defendants aver that by Ogun State Notices Nos. 109 and 110 of the 19th May, 1977 the Government of Ogun State gave notice of Acquisition (by virtue of the Public Lands Acquisition Law) of some area of land at Agbara measuring 80 square kilometers for the purpose of developing same into housing estate, Industrial and Economic Estate and for the general development of the State.
13. The 1st and 2nd defendants state that by a Deed of Lease dated the 12th of June, 1978 the Ogun State Government leased to the 2nd defendant, Lawson and Company (Nig) Ltd., an area of land of Agbara measuring 454 hectares for a period of 99 years. The area leased included the land mentioned in paragraph 8 above.
14. The 1st and 2nd defendants state that before the Acquisition they had acquired other farmlands in Agbara Area about 2,000 acres of land for purposes of developing it into a mini-town. Some conveyances registered as No. 22 at page 22 and No. 23 at page 23 both in volume 1771 of the Lands Registry in Ibadan and also No.18 at page 18 in volume 1492 of the Lands Registry, Ibadan will be tendered in proof of the fact that the 1st and 2nd defendants had other piece of land in Agbara area before the acquisition.

14a. The 1st and 2nd defendants state that all their land totalling over 2,000 acres were included in the said acquisition.

14b. The 1st and 2nd defendants state that only a fraction of their land within the acquisition was leased to the 2nd defendants by the Ogun State Government.

15. The 1st and 2nd defendants state that in pursuance of the lease of 12/6/78 made to the 2nd defendant by the Ogun State Government the said 2nd defendant has subleased portions of the land, the subject matter of the lease, to various individuals whose names are mentioned in the lease.
16. The lease granted by the State Government covered only a portion of the second defendant’s land as it was restricted to the first phase of the 2nd defendant’s scheme on which infrastructural developments had been commenced before the Public Acquisition.
17. The 1st and 2nd defendants in denial of paragraph 15 of the Amended Statement of Claim aver that the lease of the Ogun State Government to the second defendant was negotiated, agreed and granted on the basis that the well defined and well planned project of the second defendant which had already been commenced on the land before acquisition and on which very heavy and substantial investments in infrastructural developments had been established were deemed to be in accordance with the objectives of the government for development of industrial estate and residential estates for public purposes and these were agreed to be compatible with and in furtherance of the public purposes for which the public acquisition was made.
18. The 2nd defendant was granted the relevant lease on the condition inter alia that it must finance and execute its programme as planned and found acceptable to Government providing infrastructural facilities for public use at an intial costs of over 9 million naira. Such costs have risen so far high as the development of the leased land continued.
19. The 1st and 2nd defendants state that Ogun State Government has also transferred a very large area of the land acquired to OPIC (Ogun State Property Investment Corporation) for the purpose of carrying out its scheme that is laying it out into housing; industrial and commercial estates.
20. That OPIC has since laid out the area into residential and industrial and commercial zones and leased same out to various people and organisations who have put up factorial and residential buildings on part of it.
21. The 1st and 2nd defendants will rely on the detailed terms of the said lease dated 12th June, 1978 and in particular the terms of the schedules attached thereto in proof of the intent of the Government of Ogun State to constitute the 2nd defendants into agents of State Government for the execution and furtherance of the Public Purposes for which the Public Acquisition was made.

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24. The 1st and 2nd defendants aver that since the 2nd defendant is only a lessee of the Ogun State Government the plaintiff cannot rightly make a claim against either the 2nd defendant or the 1st defendant.
25. The 1st and 2nd defendants will contend further that by virtue of the said acquisition, the High Court has no jurisdiction to entertain this suit.”

For their part, the 3rd and 4th defendants in their joint Further Amended Statement of defence pleaded, inter alia as follows:

“3. The 3rd and 4th defendants deny paragraphs 5, 6, 7, 8, 9, 13a, 14, 15, 16, 17 and 18 of the Amended Statement of Claim and put the plaintiff to the strictest proof thereof.

4. With reference to paragraphs 5, 6, 7, 9, 13, 13a and 16 of the amended statement of claim, the 3rd and 4th defendants say that all that parcel of land at Agbara in the then Egbado South Local Government Area of Ogun State including the plaintiff’s land in dispute was acquired for public purpose by the Ogun State Government in accordance with the provisions of the Public Lands Acquisition Law Cap. 105 Laws of Western Nigeria, 1959 since May, 1977. Notice of intention to acquire this parcel of land was given in accordance with the law and was also published as Ogun State Notice 109 in the Ogun State Gazette No.8 Vol. 2 of 19th May, 1977.
5. The 3rd and 4th defendants aver that the Notice of Acquisition was also published in the Nigerian Tribune edition of 16th May, 1977. xxxx
6. The 3rd and 4th defendants say that the plaintiff in compliance with the said Notice lodged with the Ogun State Ministry of Works and Housing, completed claims Forms in respect of the piece of land the subject matter of this action, and ‘some others covered by the said Acquisition and is therefore estopped and precluded from alleging non-service of Notice of intention to acquire by the Ogun State Government. The 3rd and 4th defendants will rely on the said claims forms at the hearing of this case.
7. The 3rd and 4th defendants aver with reference to paragraph 13 of the Amended Statement of Claim that a portion of the land acquired by the said Acquisition was leased to the 2nd defendant by the then Military Governor of Ogun State by virtue of the powers conferred on him by the Crown (now State) Lands Law Cap. 29 Laws of Western Nigeria. A copy of the said lease will be relied upon at the hearing of this case.
8. The 3rd and 4th defendants deny committing any act of trespass or deprivation of the plaintiff of his property in the piece of land, the subject matter of this action.

9a. The 3rd and 4th defendants say that the High Court has no jurisdiction to entertain this action.

10. Whereof the 3rd and 4th defendants say that the plaintiff’s claim against them be dismissed with substantial costs against the plaintiff on the following grounds:-

(a) That the plaintiff is caught by the equitable doctrines of estoppel and acquiescence.

(b) That the plaintiff’s claim discloses no cause of action that could be sustained in law against the 3rd and 4th defendants.

(c) That the plaintiff’s claim is misconceived, frivolous and an abuse of the process of the court.”

The action proceeded to trial at which evidence was led by the parties. After addresses by learned counsel for the parties, the learned trial Judge, in a reserved judgment, found for the plaintiff and adjudged as hereunder:

“From the foregoing and all the authorities cited, I am compelled to hold, and I so hold:

(i) that the 1st defendant committed acts of trespass on plaintiff’s land at Agbara in Egbado South Local Government Area of Ogun State in 1976 and 1977;

(ii) that the 2nd defendant trespassed unto the plaintiff’s land in 1978 when it was let into possession under a lease agreement which Ogun State Government had no power to grant;

(iii) the Ogun State Government committed acts of trespass by purporting to acquire the land in dispute for public purpose which eventually proved to be for the benefit of an individual.

It is hereby declared that the plaintiff is the right person entitled to certificate of occupancy to that piece or parcel of land lying and situate at Agbara village, near Igbesa, Egbado South Local Government area of Ogun State and more particularly described and delineated on the Plan attached to a Deed of Conveyance (Exhibit’ A’) registered as Number 51 at page 51 in Volume 1692 of the Land Registry, Ibadan (now Abeokuta).

The 1st and 2nd defendants and the Ogun State Government, their servants and/or agents are hereby restrained from committing further acts of trespass on the plaintiff’s land as described in the plan attached to Exhibit’ A’ in these proceedings.

The defendants are hereby ordered to pay to the plaintiff the sum of N1,500.00 as damages for their acts of trespass.”

The learned Judge held that the court had jurisdiction to entertain plaintiff’s action. He also held that the acquisition of the land in dispute by the Ogun State Government was invalid, because it was not for public purpose.

The defendants were naturally unhappy with this judgment and they all appealed to the Court of Appeal which Court dismissed the appeal. Akanbi, J.C.A. (as he then was), in his lead judgment with which Sulu-Gambari and Akpabio, J.J .C.A. agreed, concluded thus:

“Finally, it is clear to me that in this case the acquisition was not made for a public purpose. It was made for the benefit of the 2nd defendant as evidenced by the lease made to it. The result is that I am unable to agree that the decision of the trial court is wrong. I find no fault in it. Accordingly, the appeal fails and it is dismissed by me…”

The 1st and 2nd defendants (hereinafter are referred to as the appellants) have further appealed to this Court upon six grounds of appeal. Briefs of argument were filed by the appellants and the plaintiff (hereinafter is referred to as the respondent). The 3rd and 4th defendants filed a declaration pursuant to Order 2 rule 10, Supreme Court Rules, to the effect that “they do not wish to be present or represented by counsel at the hearing of the above-mentioned appeal”. They did not file any brief either. At the oral hearing of the appeal before us learned counsel for the appellants and respondent proffered oral arguments on the issues arising for determination in this appeal.

Two main questions arise for consideration and these are (1) Did plaintiff prove his title to the land in dispute and (2) Is the acquisition of the land by the Ogun State Government valid

Plaintiff’s Title:

Perhaps this is the simpler of the issues to resolve. Plaintiff claimed a declaration of title. A long line of cases beginning with Kodlinye v. Mbanefo Odu (1935) 2 WACA 336 had laid it down that the onus of proof in an action for declaration of title lies on the plaintiff. Except in few cases such as where the defendant claims exclusive ownership of family land (see: Atuanya v. Onyejekwe & Anor (1975) 3 SC 161 at 168, the onus never shifts. And to succeed, the plaintiff must rely on the strength of his own case and not on the weakness of the defence, although the weakness of the defendant’s case may at times strengthen the plaintiff’s case – See: Elias v. Omo-Bara (1982) 5 SC 25. The plaintiff must prove his title by clear, emphatic, satisfactory and cogent evidence; he cannot rely on the mistake of the defendant to succeed – See: Onibudo v. Akibu (1982) 7 SC 60 at 84-85 where Aniagolu, J.S.C. observed:

“Inspite of this obviously unacceptable ‘mistake’ of the defendants, the burden of proof was upon the plaintiff’s to prove their title clearly emphatically and satisfactorily. It may not be an unattainable height requiring mathematical exactitude, but certainly a plaintiff has not yet set himself on the journey of discharging the onus by presenting to court inconsistent and contradictory story based upon inconclusive evidence of family lineage. The rigours of proof may somewhat have been ameliorated by the opinion of Privy Council in Stool of Abinahina v. Chief Kojo Enyimadu (1953) A.C. 207, yet, the fact remains, that in order to get the court to declare title in a plaintiff, the proof of ownership must be by facts which are cogently satisfactory.”

And this Court in Bello v. Eweka (1981) 1 SC 101 has laid it down that a party claiming to be entitled to a declaration of title has to satisfy the court by evidence and not by admissions in the pleadings of the other party, of his entitlement to the title claimed. It is equally the law that the plaintiff’s title must first be decided upon before the defendant’s – See: Aromire v. Awoyemi (1972) 2 SC 1 at 11.

This Court has also laid it down in Idundun v. Okumagba (1976) 9/10 SC 227 at 246-250 that ownership of land may be proved in any of five ways, that is to say, (1) by traditional evidence; (2) by production of documents of title which are duly authenticated; (3) by acts of selling, leasing, renting out all or part of the land, or farming on it or on a portion of it; (4) by acts of long possession and enjoyment of the land and (5) by proof of possession of connected or adjacent land in circumstances rendering it probable that the owner of such connected or adjacent land would, in addition, be the owner of the land in dispute.

Having discussed above the principles of law, I now turn to the facts of this case. Plaintiff in support of his claim to title, pleaded thus:

“7. By virtue of an instrument dated the 5th of March, 1975 and registered as No. 51 at page 51 in volume 1692 at the Lands Registry at Ibadan (and now at Abeokuta) the said piece of land vested in the plaintiff as the freehold owner of it and he was put in possession of same.

8. The plaintiff was put in possession by his Vendors who were the accredited representatives of Aina Ala Adeniyi families of Agbara village in Egbado Division of Ogun State of Nigeria.”

I pause here to observe that there is no averment in the above pleadings that Aina Ala Adeniyi families owned the land they conveyed to plaintiff nor how they came to own the land, In effect, there is nothing in plaintiff’s pleadings that he acquired title to the land in dispute from one whose ownership of the land was established. Production of documents of title alone is not sufficient to discharge the onus on a plaintiff to prove the title he claims; he must go further to trace his root of title to one whose ownership of the land has been established.

It is clear from the plaintiff’s pleadings alone that he must fail in his claim for declaration of title,

To prove his title, plaintiff gave evidence and deposed:

“I know the land in dispute. It is in Agbara village in Egbado South Local Government Area of Ogun State. I own this parcel of land About 1972, I met one Alhaji Folorunso Idowu whose family is Aina Ala and Adeniyi family. They agreed to sell the land in dispute to me. We agreed about the price and they took me to view this said piece of land. I paid the price on 5/3/75, the land was conveyed to me. Before the conveyance I took a surveyor to survey the land which is about 15.5 acres. A plan was produced and a deed of conveyance was executed by the accredited representatives of Aina Ala and Adeniyi families.”

He called as PW2 one Alhaji Folorunso Idowu who testified thus:

“I live at Agbara. I am a driver. I know the plaintiff. I also know the land in dispute. Aina Ala family was the original owner of the land in dispute. I am one of the principal members of this family. About 1975, the plaintiff approached us to buy the land in dispute. We discussed and came to an agreement which led to selling the land in dispute to him. I was one of the vendors of the land to the plaintiff. We first gave a temporary receipt but after full payment, we signed some documents on oath in court. My name is No.4 on Exhibit “A”.

He also called one Ashimi Ajose as a witness who testified thus:

“I know the plaintiff and the land in dispute. I am one of the vendors of this land. The original owner of this land is Aina Ala. The plaintiff bought this parcel of land about II years back. I put my thumb impression on the document of sale.”

This is all the evidence in support of plaintiff’s claim to title. Idowu’s and Ajose’s evidence to the effect that:

“The original owner of this land is Aina Ala”

goes to no issue as no such facts was pleaded. It is not in evidence how Adeniyi family who joined in executing the conveyance to plaintiff came into the picture. In any event, the totality of the evidence of plaintiff and Ashimi Ajose can hardly be described as proof of plaintiff’s title to the land.

The learned trial Judge found:

“The deed of conveyance executed by Aina Ala Adeniyi family was admitted in evidence as Exhibit’ A’. The defendants do not in any way dispute that the said family was the original owner of the land or that the sale to the plaintiff was in any way irregular.”

Later in his judgment the learned Judge said:

‘Throughout the pleadings and the evidence in these proceedings, the title of the plaintiff was not in dispute prior to the acquisition of the said land by the Ogun State Government.”

Again he observed:

“The plaintiff called two witnesses to confirm that the land in dispute was actually sold to him by Aina Ala family. As I indicated above, this was not in dispute.”

With profound respect to the learned trial Judge, his observations run contrary to the grain of the pleadings and evidence led by the parties. It would appear that the learned Judge put the burden on the defendants to disprove plaintiff’s title. Paragraph 3 of the further amended statement of defence of the appellants not only denied paragraphs 7 and 8 (among others) of the plaintiff’s amended statement of claim and put the plaintiff to a strict proof thereof, paragraphs 8 and 9 of the said statement of defence set up appellants’ title to the land in dispute and averred that plaintiff was a trespasser in respect thereof. The appellants put in a plan, Exhibit ‘M’ which shows vividly that the land in dispute claimed by the plaintiff is within the land conveyed to the appellants by their own reports in 1973.

Again, paragraph 3 of the Further Amended Statement of Defence of the 3rd and 4th defendants denied paragraphs 7 and 8 of the plaintiff’s pleadings. In paragraph 4 of this statement of defence, reference was made to “all the parcel of land at Agbara in the then Egbado South Local Government Area of Ogun State including the plaintiff’s land in dispute. Reading the said statement of defence as a whole, reference to the land in dispute as “plaintiff’s” is obviously a mistake by the 3rd and 4th defendants. This mistake would however not relieve the plaintiff of discharging the onus on him to prove his title, relying on the strength of his case. Even if the phrase “plaintiff’s land in dispute” is taken as an admission by the 3rd and 4th defendants, it is still of little help to the plaintiff who had the onus to prove his title by evidence and not by admissions in the defendants’ pleadings Bello v. Eweka (supra).

The approach of the learned trial Judge to the issue of plaintiff’s title was palpably wrong and if he had properly considered the pleadings and the evidence in the light of the applicable legal principles he would have found that the plaintiff failed miserably in proving his title and his claim (1) to a declaration ought to have been dismissed.

The learned trial Judge’s finding on plaintiff’s title was challenged by the appellants and the 3rd and 4th defendants in the court below. The following passage appears in the lead judgment of Akanbi, J.C.A.:

“Learned Senior Counsel also said that the trial Judge misdirected himself by holding that the defendants had not challenged the plaintiff’s claim of title to the land in dispute. He said that paragraph 8 of the amended statement of defence was not only a clear challenge to the plaintiff’s title but also a positive assertion of the defendants’ title and how it was acquired. He added that 1st defendant produced in proof, three deeds of conveyance – Exhibits J, K and L – executed by defendant’s vendors and also said in evidence that:-

‘If the plan in Exhibit A is the one in respect of which the plaintiff saw me, it does not belong to him. It belongs to me.’

Consequently, it was submitted that from both the pleadings and the evidence it was clear that the 1st and 2nd defendants had taken the position that they bought the land claimed from the original owners who were not plaintiff’s vendors.”

Regretably, however, that Court rather resolved it by a consideration of the pleadings and evidence beclouded the issue with the question of the validity of the acquisition by the Ogun State Government. Akanbi, J .C.A. commented as follows:-

Having regard to the order in which learned counsel presented his oral argument, it is perhaps better to deal first with this aspect of counsel’s submission. Firstly, the submission ran against the grain of the defendants’ earlier argument that had been canvassed to the effect that the land claimed by the plaintiff herein was an infinitesimal portion of a vast area of land – 80 sq. kilometers – acquired by Ogun State Government for the purpose of developing it into ‘an industrial and residential estate and that the terms of the lease subsequently executed in favour of the 2nd defendant showed clearly that the government was very concerned that those purposes should be carried out.’

Indeed under the heading ‘the material facts of the case on appeal’, the 1st and 2nd appellants in their brief stated inter alia

‘The area of land leased back to the 2nd defendant was much less than the area which the Ogun State Government acquired from it. It is out of the area leased back to the 2nd defendant that the plaintiff claim 15.05 acres the subject matter of this action.’

But perhaps, the more significant point to emphasise at this stage is the fact that the acquisition of the land in dispute as well as the lease granted to the 2nd defendant was made by the Ogun State Government. It was the Government who put the 2nd defendant into possession. That government has not disputed that fact that plaintiff’s land was part of the acquired land, and indeed was part of the land leased to the 2nd defendant. As between plaintiff and the government, the identity of the land in dispute was never in issue. At the trial, counsel for the 3rd and 4th defendants, Mrs. Olopade clearly stated in her address that the land in dispute was edged red in Exhibit L2. She was therefore in no doubt as to identity. Her main contention was that the acquisition was validly made for a public purpose and was validly leased to the 2nd defendant as per Exhibit H in that at the time the lease was granted, the plaintiff’s land along with others had become vested in the government and for that reason, the plaintiff’s claim ought to fail. Equally, in the same vein Chief Coker who appeared for the 1st and 2nd defendants at the trial, made the point that ‘The land in which Exhibit A falls is within Exhibit J which belongs to the 1st defendant and it (is) 429.1 acres. Exhibit A has a total area of 15.05 acres which was alleged to be owned by the plaintiff…

It is clear therefore that the parties as conceded by their counsel know the identity of the land being claimed by the plaintiff and therefore made no serious issue of it at the trial. I do not think that the evidence of the 1st plaintiff (sic) that the land in Exhibit A does not belong to the plaintiff alters the position. The apparent concessions made by counsel in the court below, as regards the identity of the land in dispute, takes this case out of the ambit of the case of Elias v. Omo-Bare (1982) 5 SC 25 on which appellant’s counsel relied to say that there was no proper identity of the land in dispute or the land allegedly trespassed upon by the defendants.

It is the law that where the identity of a land is known by the parties, a plan of the land in dispute may not be necessary. See: Daniel Allison Ihuluya & Ors. v. Dikiho (1976) 6 SC 97 at 108. Learned counsel for the 1st and 2nd defendants again singled out for argument one of the 6 points about which the trial Judge had noted that 1st defendant did not breathe a word in his evidence and this is:-

‘(b) The plans attached to all the Exhibits (Deeds of Conveyance) tendered by the parties were not connected to see whether what was sold to the 1st and 2nd defendants was what the plaintiff claims.”

He said that the above observation in effect meant that the trial Judge had found that the plaintiff had not discharged the burden on him to prove that the land leased back to the 2nd defendant was the land allegedly encroached upon.

With due respect to learned counsel, he has read into the above passage what the learned trial Judge has not said. What I understand the trial Judge to be saying is that having regard to the plaintiff’s evidence and the case made by him, he expected the 1st defendant in his evidence to say something on any of the six points so as to establish clearly that the plaintiff’s land is not included in the lease granted to the 2nd defendant. It must be noted that the 3rd and 4th defendants admitted acquiring massive acres of land at Agbara, including plaintiff’s land. The Notice of Acquisition did not say that plaintiff’s land was part of the land granted to OPIC. Throughout the case, the 3rd and 4th defendants did not make any such claim. On the contrary, it would appear from the evidence and submissions of their counsel that the plaintiff’s land, was included in the area leased to the 2nd defendant. The observation of the trial Judge cannot therefore in my view be said to be out of place.”

With respect to their Lordships of the Court below, they fell into the same error that the learned trial Judge made. They all seemed to put the burden on the defendants, particularly the appellants, to disprove plaintiff’s claim to title. This approach was not in line with all decided cases on the point. The conclusion I reach is that the concurrent finding of the two courts below on title to the land in dispute being in the plaintiff is perverse and must be set aside. I unhesitatingly dismiss plaintiff’s claim (1) for declaration.

I may at this stage deal with plaintiff’s claim for damages for trespass. The learned trial Judge found possession in the land in dispute to be in him as against the appellants. Plaintiff testified thus:-

“I took physical possession of the land, fenced it round and planted two signboards on the land saying ‘This land belongs to Chief Ayo Ajibulu. I cleared the whole area. The 1st defendant sometimes in 1976 or 1977 destroyed the whole fence and entered the said piece of land. The 1st defendant did not have any permission to do this. This led to some row between my vendors and the 1st defendant.”

Chief Lawson who testified in support of the appellants’ case, deposed that they took possession of the land acquired by them, which by Exhibit ‘M’ included the land in dispute, in 1973. Commenting on the evidence of Chief Lawson, the learned trial Judge said:

“It is my view that this witness did not hide anything. He spoke with candour and calmness throughout.”

Going by this view of the evidence of Chief Lawson, it must follow that the appellants were in possession of the land in dispute ever before the said land was sold to the plaintiff by the Aina Ala and Adeniyi families in 1975. When he made a fence round the land and affixed a signboard, he was trespassing on land in possession of the appellants. He was the trespasser and not the appellants. In any event, as both plaintiff and the appellants claimed to be in possession of the land, to succeed in trespass plaintiff must show better title to the land. This he failed to do. Had the courts below properly directed themselves on the evidence and the law, they would not have found, as they did, that plaintiff’s claim in trespass succeeded.

I am not unaware that the learned trial Judge in his further comment on the evidence of Chief Lawson said:

“But he did not touch any of the plaintiff’s following allegations, e.g.

(a) Plaintiff alleged that he bought his own parcel of land from Aina Ala Adeniyi family. This was not challenged, neither was that parcel proved to have been sold by another family to the 1st or the 2nd defendant.

(b) The plans attached to all the Exhibits (Deeds of Conveyance) tendered by the parties were not connected to see whether what was sold to the 1st or the 2nd defendant was what the plaintiff now claims.

(c) The plaintiff alleged that he fenced round his own parcel of land after the sale to him and that the 1st defendant (by his agents) demolished this fence: this was not challenged, or denied.”

The Court below, per Akanbi, J.C.A. made reference to part of this comment and used it against the appellants. Unfortunately, however, the learned trial Judge completely misconstrued the evidence before him, particularly that of Chief Lawson (who spoke with candour and hid nothing from the court) and Exhibit M. The conclusion I reach is that plaintiff’s claim in trespass ought to have been dismissed. And following the failure of his claims for title and damages for trespass, his claim for injunction ought also to have been dismissed. I hereby dismiss the claims.

VALIDITY OF OGUN STATE ACQUISITION:

In view of the conclusions I have reached on Question I, it might be said that it would not be necessary any longer to consider the second question of the validity of the acquisition by the Ogun State Government of the land in dispute. Considering, however, the time given to this issue by the two Courts below, it is my respectful view that this Court ought to consider and pronounce on it.

It is not in dispute that the Ogun State Government by Notice No. 109 published in the Ogun State Gazette No.8 Vol. 2 of 19th May, 1977 acquired a large area of land (including the land in dispute) at Agbara village. The land so acquired contained an area of approximately 80 square kilometres. The Notice was made under the Public Lands Acquisition Law and was said to be for public purposes. By the pleadings, and evidence in support, the purpose of the acquisition was to provide an orderly development of the land for commercial, industrial and residential purposes.

The entire land of the appellants was included in the acquisition. On the evidence before the court, the appellants had, at the time of the acquisition, expendeda sum of over N9 million in providing infra-structural development like road construction, drainage and sewerage on the land belonging to them. This, of course included the land in dispute. They had in fact laid out their own land into plots and, according to plaintiff’s evidence, part of the land in dispute had been leasedby the appellants to a company known as Food Specialities Nigeria Limited. This was the factual situation at the time Ogun State Government acquired land in the area. The appellants put in a claim of about N80 million compensation. The Ogun State Government, because it had not the resources to pay that huge sum as compensation and because the appellants were developing land belonging to them prior to the acquisition in the manner envisaged by the State Government for the development of the area and in respect of which the acquisition was made, decided to lease to the 2nd appellant the part of the land acquired from it and in respect of which development was already in progress. It may be observed that it was not the whole land taken from the appellants that was subsequently leased to them by the Ogun State Government but the part leased included the land in dispute. It may also be noted that plaintiff also put in a claim for compensation in respect of the land in dispute; this was on 13/6/77, that is, barely two months after the publication of the legal notice acquiring the land. Government had not decided on plaintiff’s claim for compensation when plaintiff instituted the action leading to this appeal. He challenged the validity of the acquisition of the land in dispute on the ground that as the land was subsequently leased to the 2nd appellant it could not have been said to be for public purpose.

The learned trial Judge relying on the decision of this Court in Chief D.O. Ereku v. Military Governor Mid-Western State of Nigeria & Ors. (1974) 10 SC 59 accepted plaintiff’s contention and held that the acquisition of the land in dispute was not for public purpose. He declared it invalid and set it aside. On appeal to the Court of Appeal the appellants and the other 2 defendants contended that the facts in Ereku’s case were not apposite to the facts of the case on hand and that, therefore, the learned trial Judge was wrong in relying on it to find that the acquisition was not for public purpose. The plaintiff advanced the same argument proffered at the trial court that as the land was taken from him and given to the 2nd defendant Ereku’ s case applied and the acquisition was invalid. The Court below Per Akanbi, J.C.A. (as he then was) held that Ereku’s case applied and affirmed the finding of the learned trial Judge. In his lead judgment the learned Justice of G the Court of Appeal observed as follows:-

“Counsel for the defendants have argued that this case is distinguishable from Ereku’s case. The area of differences highlighted are:-

(i) In this case, unlike in the Ereku’s case, the 2nd defendant had on its own acquired substantial parcel of land for its own purposes, expended money on it before the Ogun State Government embarked upon its own acquisition of land in the area including the defendant’s land. In the Mid-Western case, the lessee McDermott had acquired nothing on its own but relied entirely on the Mid-Western Government to acquire land for it.

(ii) In the Mid-Western case, the government acted only to help McDermott; in that the entire 50 acres which was compulsorily acquired, was leased to that Company. While in the present case only 456 hectares of land, out of 22,000 acres compulsorily acquired was ‘leased back’ to the 2nd defendant.

(iii) The area of land claimed by the plaintiff as compared with the total area of land acquired by government is too small to justify the charge that it was so acquired in order that it may be given to the 2nd defendant.

(iv) That in the Mid-Western case, the acquisition was made simply to help a private company, while in this case the government acquired the land to carry out urban, economic, residential and industrial development, as the 2nd defendant had planned to do on its own.

(v) There was no evidence that the acquistion was not for a public purpose.

In my view, these are distinctions which hardly make any serious difference. For they appear to ignore the fact that the main contention of plaintiff is that he is not in any way representing the other land owners whose lands have also been compulsorily acquired. Nor is he concerned with whatever government did with their land. His case simply, is that his land which was purportedly acquired for a public purpose was subsequently leased to the 2nd defendant – an act which he says the law views with disfavour. Thus, in the case of Chief Ereku v. The Military Governor, Mid-Western State of Nigeria (1974) 10 SC 59 at 66 the Supreme Court observed thus:-

‘Section 2 of the Public Lands Acquisition Law clearly contemplates acquisition for the public purpose of the State and not any private enterprise that might accidentally be of benefit to the community or a section of it.’

The acquisition of the plaintiff’s land and the subsequent lease of the land to the 2nd defendant cannot certainly in my view be described as a ‘public purpose of the state’. The argument that the 1st and 2nd defendants had previously acquired a larger parcel of land in the area than was leased to him, or that the development being carried out on the land by the 2nd defendant coincides with that of the government or OPIC or that money had been expended on the land by 2nd defendant, would not alter the fact that the lease was granted for the benefit of a private company – that is the 2nd defendant. And it is immaterial that there was some time lapse between the date of acquisition and the grant of the lease to the 2nd defendant. Nor is it of any moment that the 2nd defendant is carrying out on the land the same economic, industrial and residential activities as OPIC, the government corporation to which a larger portion of the acquired land was granted. It would perhaps have been a different thing, if the evidence was that plaintiff’s land was acquired and granted to OPIC for any of the purposes enumerated in section 2 of the Public Lands Acquisition Law.”

The same arguments proffered in the court below have again been advanced before us in this appeal. The question that arises is: Is the case of Ereku v. Military Government of Mid-Western State & Ors. (supra) applicable to this matter The facts in Ereku’s case run like this:-

“The Government of the Mid-Western State of Nigeria purported by a notice of acquisition dated April 13, 1966, to acquire compulsorily for the public purpose absolutely land situated in Warri in which the plaintiffs claim an interest. The Notice of Acquisition reads as follows:-

“Mid-Western Nigeria Notice No. 294 Public Lands Acquisition Law (Chapter 105) Lands Required for the service of the government of Mid-Western Nigeria Notice is hereby given that the following land near Igbudu Warri in the Warri Division of the Delta Province Mid-Western Nigeria is required by the Government for public purposes absolutely:

Description

All the parcel of land near Igbudu, Warri in the Warri Division, Delta Province Mid-Western Nigeria containing an area of approximately 50.00 acres the boundaries of which are described below”

This notice was dated April 13, 1966. The land in question was later leased by the Government of the Mid-Western State (Exhibit C) ‘for the term of ninety-nine years starting from the first day of

February, 1966’. According to Clause 2(C), the lease undertook as follows:-

‘To pay three years rent in advance on the execution of these presents provided that if the compensation awarded by a court of competent jurisdiction or otherwise agreed by the parties concerned with the acquisition of the demised land by the Government of Mid-Western Nigeria shall exceed 486pounds per acre then the lessee will pay so much additional rent in advance not exceeding two further years’91 rent in all as shall equal the difference between 486pounds per acre and the amount awarded by the Court or agreed as aforesaid.’

It is quite clear from this clause that the lease was for a permanent business transaction and not a temporary arrangement between the parties. Indeed, this particular point was not disputed at the trial because ‘the first to third defendants contend that they took possession of the said parcel of land at the time of acquisition for a public purpose, for which purpose the land was leased to McDermott Overseas Inc., a Panamanian Company, which has now been incorporated in Nigeria under the Companies Decree No. 61 of 1968 and whose objects i.e., fabrication of structures for oil industries, relates to mining industry and economic and industrial development of the Mid-Western State of Nigeria in particular and the Federation of Nigeria in general. The 1st to 3rd defendants will at the trial lead evidence to show that McDermott Overseas Inc. also employs a large number of Nigerians”. The defendants, in their amended statement of defence, further claimed that they were competent under the Public Lands Acquisition Law or any law to lease the parcel of land as they had done, maintaining that the lease of the land to McDermott Overseas Inc. was in compliance with the State Land Law. At the trial, counsel for the defendants also maintained that the lease in question was for a public purpose within the meaning of section 2 of the Public Lands Acquisition Law. Learned counsel insisted that ‘public purpose’ included ‘whatever resulted in the advantage to the public’. In any case, the learned counsel was of the view that, once the acquisition notice has specified that it was for ‘public purpose’, the matter is closed. This court per Elias, C.J.N. held:

“We also find ourselves in agreement with the submission of counsel for the appellants that acquisitions by the Government of the Mid-Western State for the private need of a private corporation or person is unlawful since by no stretch of the imagination can one say that the enterprises of the McDermott Overseas Inc., beneficial though it might be, can be regarded as being for ‘public purpose’ of the state.’ Section 2 of the Public Lands Acquisition Law clearly contemplates acquisition for the public purpose of the State and not any private enterprise that might incidentally be of benefit to the community or a section of it.”

Exhibit ‘H’ is the Deed of Lease whereby the Government of Ogun State leased to the 2nd appellant part of the land it acquired by Notice NO. 109 of 1977. A clear reading of the Deed reveals that the 2nd appellant had fully developed the land leased to it by provision of roads, sewerage and water and had also laid out the land into plots and made grants to numerous person and companies. According to the evidence of Chief Lawson, all these have been done before the acquisition by the Ogun State Government.

Considering the facts of this case, I would not agree with their Lordships of the two courts below that Ereku’ s case applies. Public purpose is defined in section 2 of the Public Lands Acquisition Law Cap. 105 Laws of Western State of Nigeria, 1958 applicable in Ogun State at all times relevant to these proceedings, as meaning:

“a public purpose as hereinafter defined insofar as such purpose relates to any matter with respect to which the Government of the Region has power to make laws, and includes:-

(a) for exclusive government use or for general public use;

(b) for or in connexion with sanitary improvements of any kind, including reclamation;

(c) for or in connection with the laying out of any new township or government station or the extension or improvement of any existing township or government station;

(d) for obtaining control over land contiguous to any port;

(e) for obtaining control over land the value of which will be enchanced by the construction of any railway, road or other public work or convenience, about to be undertaken or provided by the government;

(f) for obtaining control over land required for or in connection with mining purposes; and

(g) for obtaining control over land required for or in connection with planned rural development or settlement;

(h) for or in connection with housing estate, economic, industrial, or agricultural development and for obtaining control over land required for or in connection with such purposes;” (Italics are mine for emphasis).

Having regard to the purpose for which the land was being applied by the 2nd appellant before and after the acquisition it would appear to me that had the Courts below properly directed themselves on the definition of “public purpose” in the law, they would not have concluded, as they did, that Ereku’ s case applied.

Paragraphs (f)-(h) of the above definition allow Government to acquire land required for the purposes stated therein. The carrying out of such purposes need not be by the Government itself. It is under similar provisions in Federal statutes such as the Public Lands Acquisition Act (now replaced by the Land Use Act) that the Federal Government acquires land compulsorily and leases same to oil companies in furtherance of their oil prospecting activities. It has not been suggested that such acquisitions were not for public purpose.

The prevalent practice of Governments acquiring land compulsorily and leasing same to developers for housing estate, economic, industrial or agricultural development must be seen in the same light, that is, the involvement of the private sector in the orderly development of both the urban and rural areas. Ereku’s case is an example of naked exercise of power which the Court deprecated in that case. Such was not the case here.

The land in dispute is an infinitesimal portion of the entire land acquired and of the land subsequently leased to the 2nd appellant by the Ogun State Government. And perhaps more importantly is the failure of the plaintiff to establish his title to the land in dispute. These factors, in my respectful view, distinguish this case from Ereku’ s case (supra).

Having held earlier in this judgment that the plaintiff failed to prove his title to the land in dispute it follows that he lacked the locus standi to challenge the validity of the acquisition, by the Ogun State Government, of the land in dispute.

For the reasons I have given above I have come to the conclusion that this appeal must be allowed and it is hereby allowed. The judgment of the Court of Appeal affirming that of the trial High Court is hereby set aside. In its stead I order that plaintiff’s claims be dismissed in to-to. I award to the appellants N1,000.00 costs of the trial in the High Court, N350.00 costs of the appeal in the Court of Appeal and N1,000.00 costs of the appeal in this court.

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Other Citation: (1997) LCN/2742(SC)