Job Kolawole Buremoh V. Alhaji Isiaka Akande (2000)

LawGlobal-Hub Lead Judgment Report

ONNOGHEN, J.C.A.

This is an appeal against the judgment of the High Court of Kwara State sitting in Ilorin Judicial Division in suit No. KWS/186/92 delivered by Hon. Justice A. O. Bamigbola on the 4th day of March, 1998 in which he granted some of the claims of the respondent/cross appellant then as plaintiff against the appellant.

The facts of the case include the following. On the 21st day of September, 1992 the respondent/cross-appellant caused a writ of summons to be issued on the appellant claiming the following reliefs, to wit:

“The plaintiff’s claim is that the defendant on a purported purchase from persons who are not the owners of land and had no claim whatever over their parcel of land situate at Tanke Iledu, Ilorin measuring 8.711 Acres applied and was issued a Certificate of Occupancy No. KW3356 of 30/6/80 and effective 19/12/79 for commercial purposes, without the plaintiff’s knowledge and consent as the rightful owners of the land.”

Whereof the plaintiffs claim as follows:

i. A declaration that the defendant’s Certificate of Occupancy No. KW3356 of 30/6/80, and effective from 19/12/79 is vitiated by fraud, and thus null and void.

ii. A declaration that the parcel of land situate at Tanke Iledu, Ilorin measuring 8.711 Acres belongs to the plaintiff.

iii. An order of this Honourable Court restraining the defendant by himself, his agents, servants and privies from going unto the land subject of his purported Certificate of Occupancy No. KW3356.”

The respondent/cross-appellant then followed it up with a statement of claim in which the reliefs reproduced supra were repeated:-

15. “The plaintiff shall upon the particulars in paragraph 14 above contend that the defendant’s Certificate of Occupancy No. KW.3356 of 30/6/80, effective 19/12/79 and covering 8.711 Acres at Tanke Iledu, Ilorin, is fraudulent.
16. The plaintiff shall contend that his family has neither parted nor been divested of her title to the piece of land lying, being and situate at Tanke Iledu, Ilorin along University of Ilorin permanent site Road, and no title to the defendant whose activities on the land is in trespass.
17. The plaintiff shall rely on all rules of law and equity applicable to this case.
18. Whereof the plaintiff claims as follows:

i. A declaration that the defendant’s Certificate of Occupancy No.KW3356 of 30/6/80, and effective from 19/12/79 is vitiated by fraud, and thus null and void.

ii. A declaration that the parcel of land situate, and being at Tanke Iledu, Ilorin measuring 8.711 Acres belongs to the plaintiff.

iii. An order of this Honourable Court restraining the defendant by himself, his agents, servants and privies from going to the land subject of his purported Certificate of Occupancy No. KW3356.”

It is the case for the respondent/cross-appellant that he represents his family in the matter and that the land in dispute forms part of a large piece or parcel of land belonging to his family at Tanke Iledu, Ilorin which shares boundaries with the University of Ilorin in permanent site road, the road of Agbabiaka village and Bawa Tanke Gbugbu road. That the land in dispute is at the centre of this land. That their forefather, Aliyu Alao also settled on the land from time immemorial and was the first to settle on the land. After he died Mallam Kasum took over as the head of the family. He was succeeded by Adigun who also used the land before his death. He was followed by Iliyasu Akande Aso as the head of the family. After him came the respondent/cross-appellant. That they leased the land to people for farming in return for farm products such as yam and maize. They also gave plots to people to build houses.

That the appellant was first noticed on the land in 1980 and was driven away. That it was the time when PW2 and DW2 started selling the respondent/cross-appellant’s family land. That Aliyu Ayinla, the late brother to the respondent sued PW2 & DW2 to the High Court. That following a settlement out of court PW2 and DW2 were told that the land in dispute belongs to the respondent’s family. Exhibit P1 was tendered as evidence of the settlement. That following the settlement, the case was withdrawn from court. That the family never gave the appellant the land nor was DW2 given any authority to sell the land to the appellant. That the Certificate of Occupancy was obtained wrongly.

On the other hand, the appellant’s case is that he knew the respondent for the first time in 1992 when the respondent instituted an action against him at the Upper Area Court, Ilorin challenging his ownership of the land in dispute. He denied that the land belongs to the respondent and his family. That the land belongs to DW2 from whom he purchased same. He tendered Exhibit D1 as evidence of the purchase. He did obtain a Certificate of Occupancy from the Kwara State Government, No. KW3356 which he tendered as Exhibit D2. Exhibit D3 is the Survey Plan attached to the Certificate of Occupancy. He has built on the land and had been operating a block moulding industry on the land since 1982. That PW2 is not a relation of DW2 nor did PW2 measure the land for the sale to him. He said he dealt only with DW2 and the PW2 only witnessed Exhibit D1. That Exhibits D3 & D4 do not represent the same land. That PW2 never informed him that the land belonged to Kaa Isale family or people. That the suit in the Upper Area Court was struck out because the land is subject to a Certificate of Occupancy. That he had been exercising acts of ownership over the land unchallenged until 1992.

As stated earlier in this judgment, at the conclusion of the proceedings, the learned trial Judge gave judgment to the plaintiff now respondent/cross-appellant, in part. Dissatisfied, the appellant has appealed to this court while the respondent has also, with leave of court, cross appealed.

Learned counsel for both parties have filed their respective briefs of argument in this matter.

Learned counsel for the appellant, Prince J.O. Ijaodola filed the appellant’s brief on 23/3/99 in which he distilled ten issues for the determination of this appeal. The issues are as follows:

“i. Was fraud properly pleaded and properly established?

ii. Did plaintiff have locus when his claim for title was dismissed?

iii. Was the plaintiff’s suit not caught by section 2(a) of the Public Officers Protection Law?

iv. Could Exhibit P1 made in 1992 bind the defendant whose land was purchased in 1977 (Exhibit D1) and covered by Certificate of Occupancy issued in 1980 (Exhibit D2)?

vi. Was it proper for the concerned trial Judge to hold that PW2 was the defendant’s vendor despite the fact that PW2 was a witness and signatory to Exhibit D1?

vii. Was it right for the learned trial Judge to hold that PW1, PW2 and PW3 were witnesses of truth in the circumstances of the case?

viii. Was it necessary to cross-examine a witness on unpleaded facts or to give rebuttal evidence on such facts?

ix. Did the learned trial Judge meticulously try the case? and

x. Was the defendant’s statement of defence evasive and an admission of the plaintiffs averments?”

The respondent/cross-appellant on the other hand, through his counsel, J. S. Bamigboye Esq, filed his brief of argument on 10/5/99 in which he raised the following as the proper issues for determination to wit:

1. Whether the respondent established his family’s customary ownership to the land in dispute between the parties.
2. Whether, if the answer to issue No. 1 above is in the affirmative the appellant has extinguished the respondent family’s customary ownership over the land subject of his Certificate of Occupancy No. KW 3356 of 30/6/80 to validate the Certificate of Occupancy.
3. Whether the appellant established any credible and valid root of title to predicate his certificate of occupancy over the land in dispute.
4. Whether if the answer to issue No.3 is negative, the appellant’s certificate of occupancy is not fraudulent.
5. Whether the admission by PW2 Alhaji Yusuf Adisa, and DW2 Jimoh Aliyu evidenced by Exhibit P1 resulting from the Customary arbitration pursuant to the withdrawal of Suit No. KWS/98/85 is not admission against the interest of the appellant to vitiate the title which he found his Certificate of Occupancy.
6. Whether the respondent has the locus standi to institute this action.
7. Whether this suit as against the appellant is caught by section 2(a) of the Public Officer’s Protection Law.
8. Whether this suit is caught by the doctrine of laches and acquiescence.
9. Whether any reasonable Court or tribunal could have given judgment in favour of the appellant.

That apart, there is another issue formulated by the appellant in his amended reply brief filed on 7/3/2000 arising from the additional ground No. 17 of the grounds of appeal which he was granted leave by this court to file. This is “whether the High Court has original jurisdiction in view of claim II.”

I am of the view that the issues as formulated by both counsel arise from the grounds of appeal and are closely knit. I will however adopt the issues formulated by learned counsel for the appellant in this matter.

On issue No. 1, learned counsel for the appellant, J.O. Ijaodola Esq, submitted that fraud was not properly raised in the statement of claim and that it was clearly abandoned in the plaintiffs evidence. That paragraphs 14 and 15 of the statement of claim do not constitute fraud. That it is a fraud committed by the defendant which must be pleaded and proved. That there was no allegation that the defendant knowingly purchased from non-owners in 1977. He then urged the court to hold that fraud was neither properly pleaded against the defendant nor given in evidence against him. He cited and relied on Adeoye v. Jinadu (1975) 5 SC 102; U.A.C. Ltd. v. J. E. Taylor (1934) 2 WACA 70; Tamakloe v. The B.T.C. Ltd. (1940) 6 WACA 231; Usenfowokan v. Idowu (1975) 1 All NLR 183; Usen v. B.W.A. Ltd. (1965) 1 All NLR 244, 247; Egbase v. Oriareghan (1985) 2 NWLR (Pt.10) 884 (1985) 10 SC 80 at 92; Order 25 rule 6 of the Kwara State High Court (Civil Procedure) Rules 1989.

The respondent on the other hand treated the issue as No.4 in his brief of argument. He submitted that the appellant had neither extinguished the customary ownership of the respondent on the land in Exhibit D3 nor has he shown evidence of title to the land by the persons who he claimed sold the land to him. That the appellant having failed to establish a valid title to the land on which he predicates his certificate of occupancy, that certificate is fraudulent. That PW2 has testified to the fact that even on the very day he measured out the land for the appellant, he was challenged by Alfa Salami of the family of the respondent but rather than the appellant putting himself on guard, he chose to procure a certificate of occupancy to legalise his illegality. That the Supreme Court has held in Universal Vulcanizing (Nig) Ltd. v. Ijesha United and Transport Co.Ltd. (1992) 11-12 SCNJ 243, 255; (1992) 9 NWLR (Pt.266) 388; Nnanyelugo C. Odukwe v. Mrs E. N. Ogunbiyi (1998) 6 SCNJ 102, 119-120; (1998) 8 NWLR (Pt.561) 339 that where persons who have no authority to pass title, purport to pass title over a property such a transfer is not only mala fide but fraudulent.

That the respondent pleaded and gave evidence to these effect:

(i) That persons who purported to sell to the appellant never had the power or authority to do so.

(ii) That the appellant knew of the above fact by several challenges offered to his stay on the land.

(iii) That in fact, a court action, Suit No.KWS/98/85 was instituted against Alhaji Yusuf Adisa, whom Jimoh Aliyu, appellant’s vendor called his care-taker and agent. That the suit was settled out of court upon the appellant’s vendor’s admission that they had no power to sell the land in dispute.

(iv) That the appellant claimed not to be aware of Suit No. KWS/98/85 but his witness DW4 surveyor Ilesanmi admitted knowledge of the suit.

That fraud no matter by who and at whatever stage vitiates title. For this learned counsel relied on Braimah v. Abasi (1998) 10 SCNJ 85, 105; (1998) 13 NWLR (Pt.581) 167. He then urged the court to hold that the appellant’s certificate of occupancy is fraudulent.

It is trite law that for a plaintiff to succeed on a case based on fraud, he must not only plead and give particulars of fraud, he must also prove same by evidence. The question then is what then is the state of the pleadings on this matter. The relevant paragraphs of the statement of claim are paragraphs 13, 14 and 15 of the statement of claim not just paragraphs 14 and 15 of the statement of claim as contended by learned counsel for the appellant. These paragraphs are reproduced hereunder:

“13. The plaintiff shall contend that no member of his family ever sold or in any manner passed title of the land to the defendant herein and no person was mandated to do so on their behalf.

14. The plaintiff shall contend that the title passed to the defendant by persons who are neither members nor mandated by his family is fraudulent.
15. The plaintiff shall upon the particulars in paragraph 14 above contend that the defendant’s certificate of occupancy No. KW3356 of 30/6/80 effective 19/12/79 and covering 8.711 Acres at Tanke Iledu, Ilorin, is fraudulent.”

P.W.1 testified inter alia as follows: “I know the defendant in this case. The defendant came upon our land unlawfully and he was making use of it… We first sighted the defendant on our land in 1980. Myself and my brother called Ayo Ayinla drove the defendant away on the land. As at the time we drove away the defendant in 1980, Alhaji Yusuf Adisa came from Kaa Oke family, Tanke Iledu and one member of his family called Jimoh Aliyu who lived at Gaa Saka started selling our land … Mogaji told Alhaji Yusuf and Jimoh Aliyu that the land belonging to the Kaa Isale people was the land they had been selling and not their own land. Alhaji Yusuf Adisa agreed to release our land to us… we did not give authority to any body to sell our land to the defendant. When we sent the defendant away from the land he told us he was not leaving the land because he had a certificate of occupancy over the land. The number of the C. of O. is KW 3356 of 30/6/80. The C. of O. was obtained wrongly. The land belongs to our family. Jimoh Aliyu of Gaa Saka has no power over our land I want the court to nullify the C. of O which the defendant obtained on our land “See pages 88-93 of the record.

Now PW2, one of those who sold or was privy to selling the land to the appellant testified inter alia as follows:-

“I know the land in dispute it is situate at Tanke Iledu Ilorin. I know Jimoh Aliyu … is my junior brother…. The defendant in this case was brought to me that he needed a piece of land at Kaa Isale. I showed the defendant an area of land whether he liked it. He said yes. I then measured an area of the land for the defendant… At the time I was measuring the land for the defendant one Alfa Salami challenged me. He is from Kaa Isale family. I replied him that the land belonged to my family. One Ayo Ayinla also from Kaa Isale family sued me … I agreed that the dispute be settled between us.

They told me to leave the land belonging to Kaa Isale for them. I told them I had sold all the land. They instructed me to return the purchase price to the respective buyers … I called the defendant and explained to him that we had taken a decision that I should return his money to him or give him an alternative piece of land. I told him I had no authority over the land… I make the defendant realise that I had no right over the land.”

What did the court find in relation to the matter under consideration? At pages 160 to 161 of the record, the learned trial Judge found as follows:-

“In view of the totality of the evidence adduced on the sale of the land neither PW2 Yusuf Adisa who the plaintiff claimed sold the land to the defendant nor DW2 Jimoh Aliyu belonged to the plaintiffs family of Kaa Isale. Both the PW2 and DW2 belonged to Kaa Oke family. One can easily come to form the opinion that plaintiff was right to have claimed that the sale was without authority of the owners of the land, the plaintiffs family.”

Again, at page 162, the court found as follows … “I find that there was a sale of plaintiffs family land by PW2 who was not a member of the plaintiffs family to the defendant. There was also nothing to show that PW2 had the authority of the plaintiffs family who owned the land to sell their land to the defendant – PW2 had no title to pass to the defendant… The sale of the land in dispute to the defendant is not only without authority but it is mala fide and even fraudulent…”

I have had to go through the pleadings of the respondent, the evidence and the judgment of the learned trial Judge so as to demonstrate clearly the merits of the complaint of the appellant, or otherwise.

From the pleadings it is my considered view that the respondent duly pleaded the issue of fraud and did give sufficient particulars therein to ground that plea.

That contrary to the contention of learned counsel for the appellant that no evidence was adduced by the respondent in proof of the alleged fraud, there is abundant evidence to establish the plea and that the lower court was right in so holding.

I agree with the submissions of learned counsel for the respondent that it does not matter whether the fraud was committed by the appellant and at what point in time. The fact that those who purported to sell the property to him know that they had no title to it neither do they belong to the family that owns the land shows that they have nothing to sell and that any such purported sale is fraudulent as well as any certificate of occupancy founded on the fraudulent sale of the respondent’s property.

Fraud vitiates title see Braimah v. Abasi (1998) 10 SCNJ 85 at 105, (1998) 13 NWLR (Pt.581) 167; Universal Vulcanizing (Nig.) Ltd. v. Ijesha United Trading and Transport Co. Ltd. (1992) 11-12 SCNJ 243 at 255, (1992) 9 NWLR (Pt.266) 388 and Odukwe v. Ogunbiyi (1998) 6 SCNJ 119, (1998) 8 NWLR (pt.561) 339.

On issue No. 2 learned counsel for the appellant submitted that once the plaintiff’s claim for title was dismissed, he lacked locus to institute the suit and the other claims ought to have been dismissed. Learned counsel then referred the court to the case of Titiloye v. Olupo (1991) 9-10 SCNJ 22 at 154, (1991) 7 NWLR (pt.205) 519 at 549 where the Supreme Court held per P.K. Nwokedi JSC as follows:

“I must however opine that once the court is of the view that the appellants had failed to establish their claim to customary right of occupancy over the land in dispute all contentions about the exercise of the Governor’s powers under the Land Use Act become hypothetical because the appellant would have no locus standi to agitate the issues.”

In his reply, learned counsel for the respondent treated the matter under his issue No. 6. He submitted that the respondent instituted the action for and on behalf of his family and the court duly found as such. The respondent is also the head of Kaa Isale family. That apart, learned counsel submitted that the submission of his learned friend to the effect that because relief No. 11 which sought a declaration to a parcel of land meaning 8.711 acres was dismissed the respondent had no locus standi, is misconceived. That relief No. 11 was refused for reasons stated at page 151 of the record, “that the evidence adduced by the plaintiff in proof of the exact boundaries of the whole of his family land is not satisfactory…but in respect of the land covered by the Certificate of Occupancy No. KW 3356 of 30/6/80…the location and identity is known to both parties.”

That where a plaintiff claims a wide expanse of land but only proves a portion of same, as in this case, one is entitled to judgment in respect of that portion. That the issue of locus standi is completely misconceived and not well taken, learned counsel further submitted. That the court held at page 159 of the record that “…the plaintiffs family is the customary owner of the land in dispute” and urged the court to resolve the issue in favour of the respondent.

Now section 6(6)(b) of the Constitution of the Federal Republic of Nigeria 1979 (hereafter) referred to as 1979 Constitution) being the applicable Constitution in this case is the foundation, on which the principles of locus standi is anchored.

It provides as follows:-

“(6) The judicial powers vested in accordance with the foregoing provisions of this section:-

(b) shall extend to all matters between persons, or between Government or authority and any person in Nigeria and to all actions and proceedings relating thereto, for the determination of any question as to the civil rights and obligations of that person”

(emphasis supplied).

In the case of Senator Adesanya v. President (1981) 2 NCLR 358 at 363 the Supreme Court per Justice Nnamani JSC held as follows:

“Section 6(6)(b) to my mind encompasses the full extent of the judicial powers vested in the courts by the constitution. Under it, the courts have power to adjudicate on a justiciable issue touching on the rights and obligations of the person who brings the complaint to court. The litigant must show that the act of which he complains affects rights or obligations peculiar or personal to him. He must show that his private rights have been infringed or injured or that there is a threat of such infringement or injury… The courts must operate within the parameter of the judicial power vested on them by section 6(6)(b) of the Constitution and that they can only take cognisance of justiciable actions properly brought before them in which there is a dispute, controversy, and above all, in which the parties have sufficient interest. The courts cannot widen the extent of this power which has been so expressly defined by the Constitution.”

It is trite law that a person includes a body corporate and a family as an entity. It follows therefore that any individual, body corporate or legal entity such as a family that has any matter for the determination of any question as to the civil rights and obligations of that person (body corporate) has the locus standi to approach the court by invoking the judicial powers of the country for the determination of the matters in controversy under the said section 6(6)(b) of the 1979 Constitution.

In the present case, the respondent, by the writ of summons sued the defendant for himself and the entire Kaa Isale, Tanke, Iledu and by paragraph 3 of the statement of claim the plaintiff averred that the land in dispute has been family land from immemorial. By paragraph 6 of the statement of claim the respondent averred that he is the present head of his family and did lead evidence in proof of these averment. It is trite law that the Head of family, a principal member and indeed a member of a family has the right and locus standi to sue either by himself or in a representative capacity to protect his interest as well as that of his kindred:- See Uzoechi v. Onyenwe (1999) 1 SCNJ 34 at 39, (1999) 1 NWLR (Pt.587) 339.

It is settled law that when a plaintiff claims a large parcel of land but fails to prove his title to same but succeeds in proving title to a smaller portion he is entitled to judgment to that portion proved. It is very clear from the pleadings and the evidence before the court that the land in dispute between the parties is one piece, not two and that it is covered by certificate of occupancy No. KW3356 of 30/6/80.

The court clearly found that piece of land belongs to the family of the respondent.

The lower court, held at page 159 of the record as follows:

“I hold that the plaintiffs family is the customary owner of the land in dispute.”

I agree with the learned counsel for the respondent that issue No.2 be resolved against the appellant and I accordingly do so. On issue No.3, learned counsel for the appellant stated that the plaintiff showed that he was aware that the defendant had obtained a Certificate of Occupancy since 1980 but did not file this suit until 1992. That the plaintiffs case was caught by section 2(a) of the Public Officers Protection Law. He referred the court to the case of Permanent Secretary, Ministry of Works etc. Kwara State v. Balogun (1975) All NLR 91.

On the other hand, learned counsel for the respondent treated the issue as No.7 and referred to section 277(1) of the 1979 Constitution for the definition of Public Officer and submitted that there are no facts to bring the appellant under that definition either as of the state or federal government so as to invoke the provisions of section 2(a) of the Public Officers Protection Law.

That the trial court had in an interlocutory ruling held that the claim against the appellant is not statute barred but the appellant has not appealed against that ruling and therefore cannot revisit the matter in the substantive appeal without leave of court.

That the appellant has not claimed to have acquired the land in dispute in the course of any public duty. He urged the court to resolve the issue against the appellant. I have carefully gone through the pleadings and evidence in this case. The statement of defence is at page 20 of the record and I am unable to see how this issue arises because it is no where pleaded in the statement of defence neither is there any evidence on record to establish same. It is trite law that submission of counsel, however brilliant, is no substitute for evidence. This is a clear example of such a situation. I am convinced that learned counsel for the appellant is confused. To make the position very clear, I reproduce the statement of defence hereunder:

“STATEMENT OF DEFENCE SAVE AND EXCEPT where the defendant expressly admits an allegation of fact in the statement of claim the defendant denies each and every allegation of fact in the statement of claim as if same were denied seriatim.

1. The defendant admits paragraph 2 of the statement of claim but says that the office at Taiwo Road, Ilorin, is a branch Office while the main office and block industry is covered by certificate of occupancy No.KW 3356 of 30/6/80 commencing from 19/12/79 which C of O the defendant hereby pleads and shall rely upon.
2. The defendant vehemently denies paragraphs 1, 3-18 of the statement of claim and avers that the plaintiff is a shameless liar as nobody ever challenged the defendant over the use of the land.
3. The defendant obtained the land now covered by C. of O. No KW3356 of 10/6/80 from Mallam Jimoh Aliyu of Gaa Saka via Ilorin as per an agreement dated 4/8/77, which the defendant hereby pleads and shall rely upon.
4. The defendant avers that the land now covered by the said C. of O. had been the Head Office of the defendant’s company Pro-Enter (Nig.) Ltd, since 1980 and that he established his block making industry on it since 1982, and the block making industry has been operative and operated since 1982 up till today without any interruption or interregnum whatsoever.
5. The defendant’s land is different and far away from the plaintiff’s land as shown by a compositive survey plan, which the defendant hereby pleads and shall rely upon.
6. The defendant also pleads the plaintiff/applicant’s motion dated 15/9… Which the plaintiff made ex parte for fraudulent reasons and these annexed Exhibits A and B both of which showed that the plaintiff’s land is different and distinct from the defendant’s land.
7. The defendant pleads the doctrine of laches and acquiescence.
8. Wherefore the defendant prays that the plaintiff’s suit be dismissed with substantial costs in favour of the defendant

Dated this 17th day of May, 1993.

Sgd

J. O. Ijadola

Defendant Counsel

Ileri Oluwa Law Office

27 Mubo Street, Ilorin.”

That is all there is to the statement of defence and there is no amended statement of defence in this matter. It is therefore clear that the submission of learned counsel for the appellant on the issue of Public Officers Protection Law is therefore more imaginary than real. In fact, the facts pleaded show that the appellant is not a public officer but a private business man who acted in his personal capacity and can therefore not take refuge under the Public Officers Protection Law. That apart, it is true that the appellant has not obtained the leave of either the lower court or of this court to argue the issue in view of the fact that he was earlier overruled in an interlocutory proceeding on the matter. That being the case issue No.3 is hereby resolved against the appellant.

On issue No.4, learned counsel submitted that the respondent’s suit was caught by the doctrine of laches and acquiescence. That the plaintiff’s evidence at page 92 lines 25-30 “shows that the defendant denied the title of the plaintiff and did not leave the land because he believed the validity of his C. of O.” That it is important to note that the defendant never dislodged his structures and continued to develop the land and operated his block-making industry on the land.

That the plaintiff ought to have gone to court long ago to judicially protect his alleged interest. He then urged the court to answer the issues in the affirmative. Learned counsel for the respondent treated this issue as his No.8 in his brief of arguments. He submitted that neither laches nor acquiescence is applicable to bar this suit. That the evidence of PW2 which is confirmed by DW2 is that he was challenged by one Alfa Salami of Kaa Isale family when he was seen measuring the land for the appellant That PW1 testified to the fact that when the defendant/appellant was sighted on the land around 1980 he was driven way and decided to sue PW2 who purportedly sold the land to the appellant in suit No KWS 98/85 which was later settled out of court. That DW4 stated that he was aware of that case even though the appellant claimed ignorance of same. That neither the respondent nor PW2 was cross-examined on the testimony relating to the challenge from members of the respondent family to the appellant’s presence on the land. That after the settlement of the suit out of court, the appellant was notified of the lack of authority in PW2 to sell the land to him but he decided to hold unto the land because he has a certificate of occupancy over the land. He then urged the court to hold that the doctrine of laches and acquiescence do not avail the appellant.

The learned trial Judge, at page 164 to 166 of the record, while considering this issue stated thus:

“Admittedly, if the defendant has been able to establish in court that he was misled into believing that the person who purportedly passed title to the land to him had the right to do so and that he had been exercising rights of ownership without let or hindrances, the doctrine of laches and acquiescence would come to his aid. Acquiescence implies fraud or the failure to act while the infringement was going on. Laches means the failure to take action for a long time after knowledge that the infringement had taken place… In this case evidence by the plaintiff and his witnesses which I prefer to that led by the defendant and his witnesses and believe did not show that the defendant came on the land and was using it without let or hindrance as claimed by him. The only persons who had legal capacity to deal with the land at the time the defendant purported to buy the land were the members of the plaintiff s family … In the instant case, however, the plaintiffs case which I preferred and believed shows that the defendant knew there was dispute over the land purchased by him. According to PW2 Yusuf Adisa a member of the plaintiffs family one Alfa Salami challenged the defendant when he first came on the land. He also stated he brought the decision in Exhibit P1 to the notice of the defendant that he (PW2) had no authority to sell the land to him. Also PW1’s evidence that in 1980 the defendant was driven away from the land by witnesses and his brother late Alhaji Ayo Ayinla when he was operating a block making industry on the land and did not come back there until sometime later.

The plaintiff (sic) cannot be taken seriously when he claimed that he was not aware of any dispute and even that court case in the High Court over the land in which his vendor was involved. This is because the defendant in that case PW2 herein whom I have found sold the land to the defendant and whose evidence I have believed testified that he was in contact with the defendant even after the sale to him and was briefing him DW4 licenced surveyor stated that he was very much aware of litigation between one Ayo Ayinla and Yusuf Adisa… I find it hard to believe the defendant. I am of the considered view having regard to the totality of evidence before me, that the defendant cannot claim that he built on the plaintiffs family land under a mistaken belief that the land was his own… I find the defendant is not entitled to a relief under the doctrine of laches and acquiescence.”

It is trite law that findings of facts is within the exclusive preserve of trial courts who have the opportunity to hear and observe the witnesses. It is also their duty to ascribe probative value to the evidence. In the present case the findings of the lower court supra is very much supported by the evidence which the trial Judge believed. The issue as to whether or not the doctrines of laches and acquiescence apply to his case, or is made out depends on the preliminary facts of the case as found by the learned trial Judge. By urging the court to hold that the doctrine apply amounts to asking this court to act on the unbelieved evidence of the appellant and his witnesses. This is never done. I see no reason whatsoever to interfere with the finding of fact painstakingly and ably made by this learned trial Judge. He did an excellent job in this respect and I commend him. It is therefore my view that based on the facts of this case the doctrine of laches and acquiescence do not apply to this case. Issue No.4 is therefore resolved against the appellant.

On issue No. 5 learned counsel for the appellant argued that Exhibit P1 of 1992 could not validly affect the defendant’s purchase of 1977 i.e. Exhibit D1. That it was not pleaded and there is no evidence that the defendant knew before buying the land that his vendor DW2 was not the lawful owner of the land. That the fact that DW2 was selling other plots in the vicinity justified an assumption that he was the lawful owner of the defendant’s plots. That Exhibit P1 cannot bind the defendant who was neither a party nor privy to that proceeding. He therefore urged the court to resolve this issue in the negative.

On his part, learned counsel for the respondent who treated the issue, also as No. 5 submitted that the admission by appellant’s purported vendors PW2 and DW2 both of Kaa Oke family as contained in Exhibit P1 that they do not have title to pass to appellant over the disputed land is binding on the appellant as admission against interest. That from the evidence as accepted by the trial court the appellant is a privy to both PW2 and DW2 from whom he allegedly derived his title to the land and is therefore bound by Exhibit P1, learned counsel further submitted that decisions of arbitrators are not only binding on the parties but on their privies for this learned counsel cited the case of Osunrinde v. Ajamogun (1992) 7 SCNJ 97 at 110, (1992) 6 NWLR (Pt.246) 156.

That Exhibit P1 is within the pleadings in paragraph 10 of the statement of claim.

I have gone through the records, the pleadings, evidence and judgment of the lower court as well as the relevant exhibits in this matter. It is clear that Exhibit P1 is adequately covered by paragraph 10 of the statement of claim which pleads as follows:-

“10. The plaintiff avers that the suit against the said Alhaji Yusuf Adisa was subsequently settled out of court and the plaintiff’s family by mutual consent had undisputed title over the entire parcel of land now in dispute.”

It is trite law that we plead facts, not the evidence with which the facts are proved. In this case, the fact of out of court settlement resulting in the title to the land indispute being affirmed in the respondent is pleaded. It is my considered view that Exhibit P1 is the evidence of that settlement and the facts so pleaded in paragraph 10 supra.

That apart, the lower court has found as a fact that the person(s) who sold the land to the appellant have no title to give to him. This means that as at 1977 when the appellant purported to buy, he bought nothing since it is a principle of our law that you cannot give what you do not possess. So it does not matter that the customary arbitration in 1992 confirmed the fact that the appellant’s alleged predecessors in title had no title, that confirmation relates back to the time they allegedly sold the land to the appellant. The contention that, Exhibit P1 cannot affect his title since it was made in 1992 while he had his title in 1977 is very much misconceived. What is void is void ab initio so says the law.

It is also important to note that from Exhibit P1 the trial court has held that there is evidence to prove that those who sold to the appellant had no title to the land in dispute. It is my view that having regard to the fact that the appellant allegedly derived his title from PW2 and DW2 who are bound by Exhibit P1, the appellant who is their privy is also bound by the said Exhibit P1. see Osunrinde v. Ajamogun ( 1992) 7 SCNJ 97, (1992) 6 NWLR (Pt.246) 156.

On issue No.6 learned counsel for the appellant submitted that Exhibit D1 cannot be modified by oral evidence of PW2 who was a witness to the sale. That PW1, PW2 and PW3 have colluded to disposses the defendant of his land unjustly. The issue is very much related to issue No. 7 which will be taken together. Under issue No 7 learned counsel for the appellant submitted that it was palpably wrong for the learned trial Judge, to accept PW1, PW2 and PW3 as witnesses of truth. That PW1 made efforts to give impression that DW1 left the land for some time and that the doctrine of laches and acquiescence do not apply. That PW2 was also unreliable. That he was a signatory to Exhibit D1 which states that DW2 sold the land to the appellant.

That PW2 later said the land involved in Exhibit D1 belongs to the respondent. That PW3 was not reliable too. He was a successor to the 2nd signatory to Exhibit D1 therefore a privy to Exhibit D1. On the other hand, learned counsel for the respondent argued that the evidence of PW1, PW2 and PW3 are constant, cogent and believable unlike the case of the appellant. That where grants are reduced unto writing, oral evidence is admissible to prove the capacity in which any person acted, for this learned counsel, referred to section 132(1)(a) of the Evidence Act. That DW2 who is alleged by the appellant to be his vendor testified as follows:

“I have never lived at Tanke – Iledu. We handed over the land to PW2 (Alhaji Adisa) to take care of the land. I and Yusuf Adisa are very close. In respect of the land at Tanke Iledu PW2 is my agent. I rely on the judgment of Yusuf Adisa … I cannot tell the extent of our land at Tanke Iledu. It is Alhaji Yusuf Adisa who knows the land. PW2 measured the land for defendant.”

That to all intents and purposes DW2 has said in effect that PW2 was the person who sold to the appellant and the court was right in holding that it was PW2 who sold to the appellant. That both PW2 and DW2 testified as appellant’s vendor and the counsel rightly found as such. As stated earlier in this judgment the findings of fact by the learned trial Judge which are not perverse cannot be interfered with on appeal particularly those that are based on credibility of witnesses, demeanour etc. The learned trial Judge has given credible reasons why he believes the evidence of PW1, PW2 & PW3. From the evidence it is true that it is the appellant who is very unreliable. PW1, PW2 & PW3 are consistent in their testimonies that it was PW2 who sold the land to the appellant, DW2 also stated the same in effect. That apart, the fact that PW2 and DW2 are from the same family was never challenged by the appellant nor was it also disproved. So whether the sale was by PW2 or DW2 as members of the same family that has no title to the land, the result is still the same no title passes to the appellant.

On issue No.8 learned counsel for the appellant submitted that an unpleaded fact goes to no issue and as such a party is entitled to ignore same. This issue has been adequately dealt with while dealing with the issues dealing with Exhibit P1. I did hold that the facts giving rise to Exhibit P1 were pleaded and Exhibit P1 is the evidence.

I am of the view that it was the duty of the appellant to cross-examine on the matter or call rebuttal evidence particularly as it is alleged that PW2 and DW2 are from the same family involved in the land dispute which decided that their family has no title to the land including the portion sold to the appellant.

On issue No. 9 learned counsel submitted that the learned trial Judge was not meticulous in considering the determination of the case before him. That the trial Judge was most casual in the treatment of the case from the beginning to the end. I think this is very much unkind to the learned trial Judge who has done his very best in this matter. I have gone through the record and I am satisfied that he did a very good job and deserves to be commended. When a lawyer has a bad case, he should be honourable and humble enough to acknowledge same. Also, learned counsel should be honourable enough to accept defeat without looking for a person to blame for his own inadequacies or a very bad case. It seems to me that learned counsel for the appellant is rather unhappy at the thoroughness of the learned trial Judge in this case. I hope learned counsel will desist from this very bad example to the younger ones at the Bar.

I commend the learned trial Judge, once more on the way he painstakingly evaluated the evidence in this case. The appellant put up a very poor case right from the pleadings and expected to win. When he lost of course he has to find an escape route in the trial Judge!

On issue No. 10 learned counsel submitted that it was wrong of the learned trial Judge to have held that the defendant’s statement of defence was a general denial and evasive and that the defendant had thereby admitted the plaintiffs averments.

I have earlier on in this judgment reproduced this statement of defence of the appellant in extenso. It will be seen clearly that the statement of defence is not only evasive but contains general denials. For instance, the appellant though denied that the land belongs to the respondent, failed to trace the root of title of his alleged vendor. In paragraph 2 for example he stated that he denies paragraphs 1, 3-18 of the statement of claim period.

In short, I am of the view that the learned trial Judge is right in saying that the appellant’s statement of defence is a general denial and evasive. Issue No. 11 is contained in the amended reply filed by the appellant on 7/3/2000. On it, learned counsel submitted that the learned trial Judge erred in law in not declining jurisdiction in view of claim II which raises an issue of customary title to the land. That original jurisdiction in such matter is in an appropriate Area Court. Learned counsel referred the court to section 41 of the Land Use Act and Oyeniran v. Egbetola (1997) 5 SCNJ 94, (1997) 5 NWLR (Pt.504) 122. Learned counsel for the appellant further submitted as follows and I quote:

“It is to be noted by my Lords that claims I & II are not incidental or ancillary to each other and each can stand alone. It was therefore wrong of the learned trial Judge to have exercised jurisdiction on the plaintiff/respondent/Cross-appellant’s claim of which are independent of each other.”

This is clearly a situation where we say that learned counsel was drawing a distinction without a difference.

However, in his reply learned counsel for the respondent submitted that the lower court had jurisdiction in the matter by virtue of section 39(1)(a) of the Land Use Act of 1978 because the action was commenced in respect of the competency of a certificate of occupancy No. KW 3356 of 30/6/80. That no Area Court has the power to inquire into such a matter. That the validity of the appellant’s statutory right of occupancy cannot be determined without an inquiry into the substance or otherwise of the respondent’s family’s customary ownership. Relying on the case of Akinfolarin v. Akinola (1994) 4 SCNJ, 30, 32 &43 (1994) 3 NWLR (Pt.335) 659 learned counsel submitted that where the substantive issue for determination is within the jurisdiction of the High Court the court is not precluded from adjudicating thereon merely because in the course of such an adjudication it becomes necessary to make other incidental or casual, into any matter in which jurisdiction vests in some other court. That the land is subject to a purported statutory right of occupancy the competence of which is the direct issue.

That section 41 of the Land Use Act is irrelevant in that the land is not subject to customary right of occupancy but statutory. He urged the court to hold that the High Court has jurisdiction in the matter.

I have gone through the record of proceedings and the judgment of the court below. To resolve the issue it is necessary to start from the pleadings of the respondent. This is important because we need to know whether there are two portions of land involved or just one and whether it is situate in a rural or urban area to make it subject to a customary right of occupancy or a statutory right of occupancy as unvisaged by the Land Use Act, 1978. The relevant paragraphs of the statement of claim are as follows:-

“13. The plaintiff shall contend that no member of his family ever sold or in any manner passed title to the land to the defendant herein and no person was mandated to do so on their behalf.

14. The plaintiff shall contend that the title passed to the defendant by the persons who are neither members, nor mandated by this family is fraudulent.
15. The plaintiff shall upon the particulars in paragraph 14 above contend that the defendant’s Certificate of Occupancy No.KW 3356 of 30/6/80, effective 19/12/79 and covering 8.711 Acres at Tanke Iledu, Ilorin is fraudulent.
16. The plaintiff shall contend that his family has neither parted nor been divested of her title to the piece of land lying, being and situate at Tanke Iledu, Ilorin … and no title to the defendant whose activities on the land is in trespass.
17. Whereof the plaintiff claims:

i. A declaration that the defendant’s certificate of occupancy No.KW3356 of 30/6/80 and effective from 19/12/79 is vitiated by fraud, and thus null and void.

ii. A declaration that this parcel of land situate, and being Tanke Iledu,Ilorin measuring 8.711 Acres belong to the plaintiff.

iii. An order of this honourable court restraining the defendant by himself, his agents, servants and privies from going to the land subject of his purported certificate of occupancy No.KW3356.”

From the pleading quoted supra, it is very clear and I hold that the piece or parcel of land involved in the dispute between the parties is one not two as the learned trial Judge and counsel for the appellant would want this court to believe.

That piece of land covered by certificate of occupancy No. KW 3356 of 30/6/80 is said to measure 8.711 Acres:- See paragraph 15 supra. It is the same certificate of occupancy No. and the acres that are repeated in paragraph 18(1)(ii) & (iii) supra. I therefore do not agree that there are two distinct pieces or parcel of land involved in the dispute between the parties: the totality of the pleadings does not even indicate so let alone say so.

So there is only one piece or parcel of land involved and is subject of a Statutory Right of Occupancy No. KW 3356 of 30/6180.

Now the appellant as DW1 testified at page 105 of the record to the effect that before this suit the plaintiff had filed one in the Upper Area Court which was struck out because the land was covered by a C of O. It was filed in September 1992.”

In order to resolve the issue as to who owns the land between the plaintiff’s family and those who allegedly sold the land to the appellant and in line with the pleadings of the parties and the evidence adduced the learned trial Judge had to go into the traditional history of the land involving customary law and practices.

What did the court find? At pages 151-152 of the record, the court made the following findings:

“In respect of the land covered by the C. of O. No. KW3356 of 30/6/80. Having regard to the pleadings and evidences, the court is left in no doubt that the location and identity of that land is known to both the plaintiff and the defendant parties, thus know the land covered by the C of O…

The onus is on the plaintiff to establish before the court the location, the size and extent of the land in dispute. The plaintiff has shown the land in dispute between the parties in this case is the land covered by the C. of O. in view of the evidence in court even though he did not tender any plan … I found the plaintiff even though unable to prove the exact boundaries of the whole land belonging to his family, he has through his oral testimony which I consider satisfactory shown to the court, the location and identity of the land in dispute between the parties…”

It follows therefore that with the land in dispute between the parties being subject to the statutory right of occupancy the High Court is the court with original jurisdiction to hear and determine the matter.

It must be remembered that relief No. II did not ask for a declaration that the plaintiff is entitled to a customary right of occupancy over the land in dispute. In any event, by the pleading and evidence the land in dispute is subject to a certificate of occupancy and therefore within the jurisdiction of the High Court of Kwara State. It is my view that the fact that the learned trial Judge found at page 159 of 282 the record thus:

“I hold that the plaintiff’s family is the customary owner of the land in dispute” and at page 164 as follows:

‘A customary right of occupancy is the title of a native or native community occupying lands in accordance with the rules of native law and custom, and which, therefore is not limited in time… “A customary right once acquired cannot be lost by mere none user or by waiver does not mean that the said land cannot be subject to a statutory right of occupancy. In section 5(1)(a) of the Land Use Act it is provided as follows:

“5(1) It shall be lawful for the Governor in respect of land, whether or not in an urban area:

(a) to grant statutory rights of occupancy to any person for all purposes.”

It is also provided in section 9(1)(b) of the said Land Use Act, 1978 as follows:-

9(1) It shall be lawful for the Governor:-

(b) When any person is in occupation of land under a customary right of occupancy and applies in the prescribed manner …to issue a certificate under his hand in evidence of such right of occupancy.”

Both parties are agreed that the land indispute is covered by a certificate of occupancy No. KW3356 of 30/6/80 granted by the Government of Kwara State. There is no evidence whatsoever that the land in dispute situates in the rural area neither have we been informed of any statutory instrument of Kwara State designating Tanke Iledu, Ilorin as a non urban area. In short there is overwhelming evidence that the land in dispute is within the urban area or being subject to the statutory right of occupancy issued by the Kwara State Government, is within the exclusive jurisdiction of the High Court of Kwara State and I so hold.

Now the respondent has by leave of this court, cross-appealed against the judgment under consideration and has filed a cross-appellant brief in which he raised a single issue for determination to wit:

“Whether the trial High Court was right in dismissing the cross appellant’s claim for a declaration of his family’s customary ownership to the land in dispute after holding that the plaintiffs family is the owner of the land in dispute.”

In his submissions learned counsel for the cross-appellant state that the plaintiff pleaded and gave credible traditional history of his family’s ownership of the land in dispute. That the identity of the land in dispute is not in doubt as Exhibit D3 is a survey plan produced by the appellant/cross-respondent of the land in dispute. That the cross-appellant is entitled to take benefit of the clear identity provided by Exhibit D3. That the lower court also found that the plaintiff established sufficient acts of ownership over the land in dispute consistent with this claim of title and held at page 159 of the record thus:

“I hold that the plaintiff is the customary owner of the land in dispute”

That the court was thus wrong in dismissing relief No.11 after the findings. That even if the land in relief II is now exactly 8,711 acres as claimed the court ought to have declared the appellant the owner of the land as Exhibit D3 to which he had held that the plaintiff has established customary ownership. That the reasonable consequence of the court’s conclusion that the plaintiff proved his family’s customary ownership to the land in dispute is a declaration that his family is the customary owner of the land. He then urged the court to so declare.

In his submissions learned counsel for the appellant/cross-respondent submitted that the land claimed by the respondent/cross-appellant is at variance with that in the certificate of occupancy which the appellant/cross-respondent was claiming. That according to Exhibit D3, the survey plan attached to the plaintiffs certificate of occupancy No. KW3356 of 30/6/80- Exhibit D2 – the land is 2.551 Hectares i.e. 6.304 Acres not 8.711 Acres as claimed by the respondent/cross- appellant. That the claim of the cross-appellant lacks definitive certainty. He then urged the court to dismiss the cross-appeal.

As earlier found in this judgment, when one looks at the totality of the statement of claim particularly paragraphs 15,18(i) (ii) and (iii) it is very clear that the land in dispute is one, not two though the respondent/cross-appellant pleaded and gave evidence to the fact that the said land in dispute forms part of a larger piece or parcel of land belonging to his family from time immemorial.

That notwithstanding both parties are agreed that the land in dispute between them is covered by the certificate of occupancy No. KW3356 of 30/6/80 which land is said to cover 8.711 Acres as pleaded in paragraph 15 of the statement of claim. It is very important to note the fact that the land in dispute between the parties is the land covered by certificate of occupancy No. KW 3356 of 30/6/80. When considering the case of the parties the learned trial Judge found at page 159 of the record as follows:

“In view of the above findings, I am of the view that the plaintiff has adduced sufficient evidence in proof of the traditional history as to his family’s ownership of the land as well as the family’s acts of ownership …

In the light of the foregoing and the authority of the Supreme Court, I found that the plaintiff has proved that his family has title to the land in dispute having proved by traditional evidence and the various acts of ownership.

I hold that the plaintiffs family is the customary owner of the land in dispute.” See also page 153 last paragraph.

As regards the larger portion of land belonging to the cross-appellant but not in dispute between the parties, the learned trial Judge found as follows at page 152 of the record:

“I found the plaintiff even though unable to prove the exact boundaries of the whole land belonging to his family, he has through his oral testimony which I consider satisfactory shown to court the location and identity of the land in dispute between the parties. Moreover, in view of the state of the pleadings and the evidence that the land covered in the certificate of occupancy was sold by PW2 to the defendant was part of the land plaintiff is claiming for his family, that DW4 did the survey plan Exhibit D3 used in processing the C. of O. Exhibit D2, the plaintiff can take advantage of that evidence and rely on Exhibits D2 the C. of O. and D3 the survey plan for his claim … Where plaintiff proves title to only a part of the land claimed, it is proper to grant him declaration of title to that only … I find plaintiff satisfied the requirement having proved the location and identity of the land in dispute.”

From the above quoted passages, the learned trial Judge is very consistent that the respondent/cross-appellant proved title to the land in dispute having established its location and identity. However, the whole thing changed when it carne to considering the reliefs claimed. At page 166 of the record, the learned trial Judge had these to say:

“Claim No. 11 by the plaintiff is praying for a declaration that the parcel of land situate at Tanke Iledu, Ilorin measuring 8.711 Acres belong to the plaintiff.” I have found earlier in this judgment that a plaintiff seeking a declaration of title to land must so describe the land to which it relates that the parties may know with a reasonable degree of certainty its location and its boundaries. A casual look at that leg of the claim will show it failed to meet that requirement, none of the parties gave the area of the land in dispute as 8.711 Acres. That claim fails…”

I am of the view that the learned trial Judge is in error in so holding. That error stems from the mistake in considering the land in claim II as being different from that covered by the certificate of occupancy No.KW 3356 of 30/6/80 which the court had consistently found to belong to the respondent/cross-appellant.

It is my considered opinion that the error committed by the learned trial Judge has resulted in a miscarriage of justice. It is therefore my view that the respondent/cross-appellant is entitled to the relief claimed.

In conclusion, it is my considered opinion that for the reasons assigned in this judgment the main appeal lacks merit and is accordingly dismissed. On the other hand, there are merits in the cross-appeal which is accordingly allowed. It is consequently ordered that the judgment of the High Court of Kwara State in suit No. KWS 186/92 delivered on 4th March, 1998 by Honourable Justice A. O. Bamigbola be and is hereby affirmed except as relates to relief or claim No. II therein which is hereby set aside and in its place judgment is hereby entered for the plaintiff/respondent/cross-appellant in the following terms:

Claim II: It is hereby declared that the plaintiff is entitled to Statutory Right of Occupancy over the piece or parcel of land situate and being at Tanke Iledu, Ilorin more particularly described and delineated in the plan attached to the Certificate of Occupancy No. KWS 3356 of 30/6/80 effective from 19/12/79.

There shall be no order as to cost.

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Other Citations: (2000)LCN/0854(CA)