Dr. A.O. Adebiyi V. Ivy Yewande Williams & Ors (1988)
LawGlobal-Hub Lead Judgment Report
AKPATA, J.C.A.
Does a plaintiff have to claim for a rectification of the register of title relating to a grant of statutory right of occupancy made in favour of the defendant in his action for a declaration that he, the plaintiff, is entitled to a statutory right of occupancy to the parcel of land in dispute? What is the legal position when the plaintiff establishes that the defendant’s land in a conveyance does not fall within the land in dispute? These and mare are the questions which have arisen in this appeal.
By a Writ of Summons dated 4th March, 1982, and as subsequently amended by leave of court, the plaintiffs as administratrix and administrator respectively of the estate of Chief Ayodele Williams (deceased) claimed for (1) a declaration that they were entitled to statutory right of occupancy to the parcel of land which situate at Owopetu Street, Off Ikorodu Road, Mushin, Lagos relating to the Deed of Conveyance dated 25th November, 1959 and registered as No.45 at page 45 in Volume 352 of the Lands Registry in the office at Ibadan and now kept in Lagos; (2) the sum of N5,000.00 being special and general damages for trespass committed and still being committed by the defendant; (3) a declaration that the Certificate of Occupancy dated 26th June, 1981, and registered as No.94 at page 94 in volume 1981B of the Register of Deeds at the Lagos State Land Registry obtained by the defendant, was irregularly obtained and therefore null and void; (4) a perpetual injunction to restrain the defendant and his servants or agents from committing further acts of trespass to, the said parcel of land.
Put briefly, it was the case of the plaintiffs, as pleaded in their statement of claim and supported by evidence of three witnesses, that a large tract of land, of which the land in dispute farmed a part, belonged to. Late Chief Ayodele Williams by a Deed of Conveyance, Exhibit 1, dated 25th November, 1959 executed in his favour by one Madam Rebecca Olayinka as attorney of Cyril Adeyemi St. Mathew Daniel, the original owner. The deceased took possession, planted cash craps and remained on the land until he died in 1973. No. one challenged his possession. He died intestate. Letters of administration to administer his estate, bath personal and real properties were granted to both plaintiffs by the Probate Registrar High Court of Justice, Lagos State.
The land was fenced round by the plaintiff with cement blocks up to.
D.P.C. level and the upper part with barbed-wire. In 1982, the defendant and his servants or agents destroyed the fence; and inspite of the fact that he was confronted and challenged by the plaintiffs, the defendant drove the plaintiffs’ labourers away from the land. Even though the matter was reported to the police the defendant continued with his acts of trespass and put up a building on the land.
The plaintiffs’ investigation revealed that the defendant had obtained a Certificate of Occupancy in respect of the land. The first plaintiff applied for and obtained a copy of the defendant’s Deed. On her instruction Joel Ogunsanya, a licensed surveyor who testified as P.W.3, prepared a composite plan Exhibit 10 from the survey plan of Exhibit 1, the Deed of Conveyance in favour of Late Chief Ayodele Williams, and the Survey Plan of the defendant’s Deed, Exhibit 9. The said composite plan showed that the land covered by the defendant’s Survey Plan fell on an already developed portion of the large tract of land of Late Chief Ayodele Williams, but completely outside the area in dispute. In effect, the defendant was operating outside the portion of land purportedly conveyed to him by virtue of the Certificate of Occupancy Exhibit 9.
It was however the case for the defence that the defendant purchased the land in 1978 from one Madam Bernice Adeotun who is now dead; and was given two receipts Exhibits 11 and 11A. The transaction was witnessed by the son of the vendor Mahatan Akingbehin, D.W.2. After he had been shown the land by D.W.2 the defendant instructed the licensed surveyor to produce a Survey Plan. It was with the plan produced by the surveyor that he obtained the Certificate of Occupancy Exhibit 9 from the Lagos State Government on 26/6/81, registered as No.94 at page 94 volume 1981B of the Register kept by the Land Registry in Lagos. His vendor was a member of Madam Tinubu family. It was her share of Late Madam Tinubu estate allotted to her in 1964 that she sold to the defendant.
On taking possession, the defendant fenced and erected a shed thereon and put a caretaker on it. He laid the foundation of a building on 15/10/81. He had commenced building and had reached the roofing level when the first plaintiff challenged him. There was no fence surrounding the land when he took possession. In his judgment dated 26th July, 1984, the learned trial Judge believed the first plaintiffs testimony and that of P.W.2, Isaac Adebayo Sobayo who was a Litigation Clerk to Late Chief Ayodele Williams and the caretaker of his landed property that the land was fenced round with cement blocks and barbed wire and that it was in that state when the defendant and his servants or agents destroyed it in 1982. He accepted the evidence of P.W.3, the licensed surveyor whose evidence relating to the composite plan Exhibit 10 was not challenged.
The learned trial Judge went on to hold that on the preponderance of evidence the plaintiffs as administratrix and administrator of the estate of Late Ayodele Williams were entitled to a declaration of title to a statutory right of occupancy to the parcel of land covered by the Deed of Conveyance Exhibit 1. Although he refused to declare as null and void the Certificate of Occupancy Exhibit 9, he held that the plaintiff had a better title to the land than the defendant and that the land was not vested in the defendant on 29th March, 1978, being the date of the commencement of Land Use Act. He was of the view that the land could not have been vested in the defendant as at the date of the Certificate of Occupancy, Exhibit 9, on the principle of nemo dat quod non habet. In the alternative, the learned trial Judge held that, on the assumption that the grant to the defendant by virtue of Exhibit 9 was valid, the land in dispute was not the land granted to him.
Although he was satisfied that trespass was established by the plaintiffs, the learned trial Judge held that the claim to special damages was not strictly proved and awarded only N250.00 as general damages. He granted the prayer of the plaintiffs for injunction, and accordingly made an order restraining the defendant by himself, his servants or agents from going on the land of the plaintiffs covered by Exhibit 1.
Dissatisfied with the decision, the defendant appealed to this Court on 2/8/84 on the ground that “the decision is against the weight of evidence.” In this Court, the appellant with leave of court filed three additional grounds of appeal which were copiously set out. He complained in effect against (1) the declaration made in favour of the respondents when in the light of the evidence the appellant held an indefeasible title to the land; (2) the acceptance of the evidence of P.W.3 without the learned trial Judge considering the peculiar facts of the case; and (3) the interpretation by the learned trial Judge of Section 50(1) of the Land Use Act in relation to the issues joined in the matter.
Learned Counsel for the appellant Mr. Solarin formulated six issues for determination as follows:
“(1) Whether in view of Sections 1 & 2 of the Land Use Act the defendant (Appellant) could be deprived of possession of the land in dispute due to a mistake or misplacement of the land on the plan attached to the Certificate of Occupancy when the identity of the land claimed by the parties are not in dispute.
(2) Whether the learned trial Judge was right in his interpretation and application of Section 50 (1) of the Land Use Act to the issues of the parties in the matter.
(3) Whether in view of Notes on Exhibit 10 and Section 5(2) of the Land Use Act, 1978 the plaintiff (Respondent) have further interest in the land in dispute at the time of the action in court.
(4) Whether Exhibit 9 is an indefeasible title.
(5) Whether the court was right in granting title to the plaintiff when the plaintiffs did not ask for (a) Rectification of the Register of Title (b) Remove from the Register the title of the defendant Appellant in view of Exhibit 9 Certificate of Occupancy.
(6) Whether the learned trial Judge was right in basing his judgment on a claim arising out of evidence which was neither pleaded nor on which issues were joined.”
The respondents’ counsel Dr. Olorinlade framed 5 issues. I intend to resolve this appeal on the issues framed in the appellant’s brief, while having an eye on the issues set out in the respondents’ brief.
When this appeal came on for hearing on 1/6/88, both counsel adopted their respective briefs of argument and proffered no oral evidence.
It was the contention of learned Counsel for the appellant in his brief of argument that the plaintiffs were not entitled to the declaration granted them as the title of the appellant was an indefeasible title unless revoked under Section 28 of the Land Use Act 1978. He added that before there can be a declaration in favour of the plaintiffs they must apply for rectification of the Register of Titles and removal from the Register the name and title of the defendant.
In support of his submission he cited Hassan Rihawi & Five Others v. Liadi Aromoshodun (1952-1955) 14 W.A.C.A. 204. In that case Verity C.J. (Nigeria) delivering the lead judgment of the West African Court of Appeal held at pages 207-208 that:
“The plaintiff could not secure in the present action the relief be sought, for before he could secure a declaration of his title whether in fee simple or in accordance with native law and custom it would be essential that he should secure a rectification of the register, establish his adverse estate and remove from the register the title of the first defendant. This was neither sought nor obtained and for this reason also I think the appeal must be allowed.”
In meeting the contention of learned counsel for the appellant, learned counsel for the respondents referred to Section 34(2) of the Land Use Act which slates as follows:
“Upon the grant of a Statutory Right of Occupancy under the provisions of sub-section (1) of this section, all existing rights to the use and occupation of the land which is the subject of this statutory right of occupancy shall be extinguished.”
He submitted that in effect before the appellant obtained his Certificate of Occupancy the land was already in possession of the respondents and were deemed holders of a Statutory Right of Occupancy. The land could therefore not be available to the Governor for purposes of a grant to defendant.
I agree with the learned counsel for the respondents. For one thing, there is no provision in the Registration of Titles Ordinance Cap 197 Laws of Nigeria 1948 similar to Section 34 of the Land Use Act. Secondly, the respondents have not been declared as holders of Certificate of Occupancy or that they have a Statutory Right of Occupancy. They were declared as being entitled to a statutory right of occupancy. In my view on presentation of such a declaratory judgment to the relevant authority a rectification of the register should be effected.
Although learned Counsel for the respondents cited no relevant decided authority on the point, there is however the case of Peter Dzungwe v. Oram Gbishe & anor. (1985) 2 N.W.L.R. (Part 8) 528, the facts of which are not necessary for the point in issue, where at page 548, Aniagolu, J.S.C. had this to say:
“There is another angle to this case. From the evidence led it is clear that the land in dispute is situate in a non-urban area known as Tsemker in Vandeikya Local Government Area. From the judgments in Exhibits C & D, the land “belonged” to the defendants. The word “belonged” must, of course, be construed advisedly as the radical title to all lands in Northern Nigeria was vested, and had for sometime been vested, in the Governor, the individuals having only “rights of occupancy” which term represented the nearest equivalent to rights ‘of ownership as obtained in the Southern part of Nigeria. This was all, of course, before the coming into force of the Land Use Act by Section 48 of which all existing laws relating to the registration of title to, or interest in land, became subject to such modifications, as would bring those laws into conformity with the Land Use Act or its general intendment. Section 36 of the Act has transitional provisions relating to land situate in non-urban area such as the land in dispute in this case. Sub-section (2) thereof deals with agricultural lands while sub-section (4) relates to developed lands. In either case the holder of the customary right of occupancy of such lands shall continue to hold the land and would be entitled, as of right, to a certificate of occupancy under the Act. Neither the Governor nor the Local Government would have a right to divest such land from the person in whom the land was properly vested, by the issue of Certificate of Occupancy over the land to another person in whom the land was not vested.”
There is also the case of Samuel Banire & Ors. v. Balogun (1986) 4 N.W.L.R. (Part 38) 746 at p.753 where the point was made by this Court (per Kutigi, J.C.A.) that Section 53(1) of the Registration of Titles law, Cap 121 Laws of Lagos State 1973 provides that “a parcel of land which is obtained in consequence of a forged disposition or any disposition which if unregistered would be void, is ineffectual to confer on the registered owner, any estate in the land” What this means is that where ab initio a person has an invalid title to land, the registration of the invalid title is not sufficient to confer on the “registered owner” any estate in the land. Also as stated in Kareem v. Ogunde (1972) 1 S.C. 182, registration based on defective title by a first registered owner confers no estate on the first registered owner and cannot avail him against a better title.
Learned Counsel for the appellant also relied on Section 5(2) of the Land Use Act which states:
“Upon the grant of a Statutory Right of Occupancy under the provisions of sub-section (1) of this section, all existing rights to the use and occupation of the land which is the subject of this statutory right of occupancy shall be extinguished.”
This section presupposes that the application for the grant was done above board. That the High Court has the jurisdiction to question a grant of a statutory right of occupancy by the Military Governor and make a declaration of title to a statutory right of occupancy is implicit in Section 39(1)(a) of the Land Use Act. It reads:
“(39)(1) The High Court shall have exclusive original jurisdiction in respect of the following proceedings:-
(a) Proceedings in respect of any land the subject of a statutory right of occupancy granted by the Military Governor or deemed to be granted by him under this Decree; and for the purposes of this paragraph proceedings includes proceedings for a declaration of title to a statutory right of occupancy;”
The position therefore is that Exhibit 9, the Certificate of Occupancy, granted to the appellant does not qualify as an indefeasible title. It was not necessary for the respondent to seek the relief of rectification by the Registrar of Titles. The fact that Section 1 of the Land Use Act vests all land in the territory of each State in the Military Governor of that State does not preclude the court from making relevant declarations in respect of any parcel of land as the case demands. As Oputa J.S.C. put it in the case of Salami & Ors. v Oke (1987) 9 and 10 S.C.N.J 27 at page 43, “the only innovation introduced by the Land Use Act was to divest any claimant of radical title and limit his claim to a right of occupancy.”
The learned trial Judge no doubt did not consider it necessary to declare Exhibit 9 null and void because the Certificate of Occupancy appears, going by Exhibit 10, to relate to another portion of land which, in the strict sense, was not put in dispute. I shall deal with the issue raised by Exhibit 10 presently.
In her evidence P.W.1, the first plaintiff, testified to the effect that the entire land purchased by her late father was not developed until 1973 after his death. According to her “part of the land was sold and these were developed except the land in dispute.” I hold the view that since a large portion of the entire land relating to Exhibit 1 had been developed and being one land, it is not wrong to conclude that the land as such was a developed land inclusive of the area in dispute.
The main issue in this case is whether the appellant was competent to challenge the respondents as to the ownership of the land in dispute. There is evidence from P.W.3, the licensed surveyor, and going by Exhibit 10 the composite plan that the parcel of land in respect of which the defendant was purportedly granted a Certificate of Occupancy falls outside the parcel of land now in dispute. The appellant made no effort to demolish the testimony of P. W.3 on this vital issue, either by way of cross-examination or by evidence of defendant or his witness to show that his certificate of Occupancy is related to the land in dispute.
The respondents, having shown that the land claimed by the defendant was outside the land in dispute, “there was no meeting place between claim of the defendant and that of the plaintiffs.” (See Isiaka Dosunmu v. Beatrice Joto (1987) 4 N.W.L.R. (Part 65) 297 at page 306). In the light of the evidence adduced by the respondents before the learned trial Judge, I find it difficult to appreciate the stand of the appellant in respect of the land in dispute.
Where it is clearly shown by a composite plan tendered by a licensed surveyor who prepared the plan, that the land allegedly granted to the defendant is not within the area in dispute, it behoves the defendant not to insist on the ownership of the land unless he can show that the licensed surveyor called by the plaintiff was mistaken. This, the defendant, now the appellant woefully failed to do. For learned counsel for the appellant to state in his submission that; “the error was in the surveyor who made the plan of the defendant” is an extraneous piece of evidence from the Bar which goes to no issue. The effort of learned counsel to show that there were conflicts in the evidence of P.W.1 and P.W.3 in an attempt to impugn the correctness of Exhibit 10 was baseless.
As rightly pointed out by the learned trial Judge, the onus was on the respondents to establish their claim on the strength of their case and not on the weakness of the defendant’s case. The learned trial Judge was satisfied that the plaintiffs discharged the onus. From the printed records, I am also satisfied that they did.
The position however it seems to me is that the learned trial Judge was wrong in granting a declaration in respect of the entire land covered by Exhibit 1. As I have already pointed out, there was evidence from P.W.1 that portions of the land had been sold and developed by those to whom they were sold. The declaration ought to have been made only in respect of the area verged blue in Exhibit 10. Plan J.O. 167/82, erroneously claimed by the defendant. The law is that where a party claims an area of land and only succeeds in establishing his claim to only a portion of the land and it is definite, the court can make a declaration in respect of that portion. (See Enoch Anlukwua v. Peter Ohia (1986) 5 N.W.L.R. (Part 40) 150 and Honcon Limited v. Emenike Wasurum (1987) 4 N.W.L.R. (Part 66) 646).
The judgment of the lower court is therefore varied by limiting the declaration and injunction granted the respondents to the area verged blue in Exhibit 10, Plan J.O. 167/82 of 23rd October, 1982. Otherwise, the appeal fails in its entirety. It is dismissed with costs assessed at N300.00 in favour of the respondents.
Other Citations: (1988) LCN/0061(CA)
