Lion Buildings Limited V. M. M. Shadipe (1976)

LawGlobal-Hub Lead Judgment Report

UDO UDOMA, JSC

In their writ filed in the Ikeja Judicial Division of the High Court of Lagos State, in suit No. IK/102/69, the plaintiffs, Lion Buildings Limited, a Limited Liability Company, claimed against the defendant therein, M.M. Shadipe, the following: (1) A declaration of title to a piece or parcel of land situate at Mile 12 Ikorodu Road, Lagos and registered on 27th June, 1969 as No. 43 at page 43 in Volume 1292 in the Lands Registry at Lagos; (2) A perpetual injunction restraining the defendant and/or his agents from any further acts of trespass on the said land.   PAGE| 2   Pleadings were ordered and duly filed and delivered.  

In their pleadings and evidence at the trial of the suit, it was common ground between the plaintiffs and the defendant that the land, the subject-matter of the suit and in dispute between them, originally formed part of the stool lands of the Onikoro Chieftaincy Family at Mile 12, Ikorodu Road, Lagos; and that the said Onikoro Chieftaincy Family had continued their exercise of maximum acts of ownership in and over the land in dispute containing some 11.57 acres until the sale and conveyance of the same.

And whereas the plaintiffs’ case was that the ownership and possession of the land in dispute was continued by the Onikoro Chieftaincy Family until the said land was on 24th June, 1969 sold and conveyed to them for valuable consideration by the accredited representatives of the Onikoro Chieftaincy Family aforesaid, it was the case of the defendant that as far back as 1945, the Onikoro Chieftaincy Family had divested themselves of the ownership and possession of the said land by the sale thereof to one Matthew Adeyinka, the predecessor-in-title of the defendant, the said sale being manifested by a deed of conveyance executed in December, 1956 between the Onikoro Chieftaincy Family and Matthew Adeyinka aforesaid.

The plaintiff’s case was that immediately on the execution of the conveyance in their favour in 1969, they had entered into, and since thereafter had continued to remain in possession of the land in dispute and had exercised maximum acts of ownership in and over the same undisturbed until the defendant, without their leave or licence, broke and entered into the land in dispute and therein erected a temporary building and a fence around the said building, despite repeated warnings that the defendant should cease such acts of encroachment upon the plaintiffs’ right and of disturbance of the plaintiffs’ possession of the said land.

On the other hand, in his case, the defendant maintained that immediately in December 1963 when the land in dispute was demised to him by virtue of a deed of lease dated 21st December, 1963 and registered in the Registry of Lands in Ibadan as No0. 53 at page 53 in Volume 697 by Matthew Adeyinka, his predecessor-in-title, he had entered into possession of the same and thereon had exercised maximum rights and interests undisturbed as the lessee thereof until sometime in 1964, when one Dr. M.A. Majekodunmi, the Principal Director of the plaintiff company instituted proceedings against him claiming a narrow portion of land and got judgment; that sometime in October 1969, the Government of Lagos State notified the public of its intention to acquire the land in dispute compulsorily; and that despite the claims of the plaintiffs and the Notice of Compulsory Acquisition by the Government of Lagos State, he was still in possession of, and exercising all rights consistent with his lease in and over the land in dispute as the lessee thereof.

On 15th October, 1973, when the case came up for hearing before the learned trial judge (Bada, J.), learned counsel for the defendant applied that the claims of the plaintiffs be dismissed on the ground that since the filing of the suit, the land, the subject-matter thereof was the subject of a public notice of compulsory acquisition by Government; and that the land aforesaid had therefore become state land so that if even at the end of the day, the plaintiffs succeeded in establishing title thereto, the court would be unable to decree any title in their favour, the land having become vested in the State by reason of the Notice of Compulsory Acquisition. The defendant’s application was, however, refused, the learned trial judge over-ruling the submissions in support thereof.   PAGE| 3   case and came to the conclusion that the plaintiffs had failed to discharge the onus of proof placed upon them to entitle them to the decree of declaration of title to the land in dispute; and further that since the deed of conveyance on which the defendant rested his root of title was a suspicious document thereby also disentitling the defendant to the judgment of the court, he had no alternative but to non-suit the plaintiffs’ claims; which he did accordingly; and awarded the defendant N300.00 as costs against the plaintiffs.

Now, the present appeal is by both the plaintiffs and the defendant against the above mentioned judgment.  The complaint of the defendant against the judgment is three-pronged, and are: (1) that the learned trial Judge erred in law in not dismissing the plaintiffs’ claims in virtue of the Public Lands Acquisition Law which had vested the land in dispute in the Government; (2) that the learned trial Judge erred in law in non-suiting the plaintiffs instead of dismissing their claims, the plaintiffs having failed to discharge the onus placed upon them of establishing their claims to the satisfaction of the court; and (3) that the judgment is against the weight of evidence.    The appeal of the plaintiffs, on the other hand, is based on two main grounds. These are: (1) that the learned trial Judge erred in law in holding that the plaintiffs have not discharged the burden of tracing their title to the Onikoro Chieftaincy Family; and (2) that judgment is against the weight of evidence.  We proceed to consider the appeals and begin with the first ground of appeal by the defendant, which is: that the learned trial judge erred in law in not dismissing the plaintiffs’ claims by virtue of the Public Lands Acquisition Law, which had vested the land in dispute in the Government of Lagos State as State land.    

It was submitted by Mr. Akinrele, learned counsel for the defendant, that by virtue of Section 10 of the Lagos State Public Lands Acquisition Law (Cap.113), Notice of Compulsory Acquisition No. 236 of 14th October 1969, having been published in the Government Gazette of 24th October 1969, the land in dispute was by operation of law vested in the Government of Lagos State and therefore that the plaintiffs were no longer the owners thereof, with the result that, if at the close of evidence, the court was inclined to the view that the plaintiffs had successfully established their title thereto, the court would be disentitled to decree a declaration of title in favour of the plaintiffs since the land in dispute at that stage was already state land by reason of the Notice of Compulsory Acquisition. Learned counsel also referred to section 29 of the Public Lands Acquisition Law which relates to the form of summons to be issued to claimants to compensation in respect of land compulsorily acquired, and contended that it was immaterial whether or not a certificate of title was granted the Government by the court in respect of the land, the subject-matter of the acquisition, as the land to be acquired was already vested in the State.

We think that for the purpose and in the light of the submissions made to us in support of this particular ground of appeal, Sections 3(1)(a)(b); 5; 8; 9(3); 10; 18 and 25 of the Lagos State Public Lands Acquisition Law are all relevant and pertinent for consideration by this court.    In Section 3(1)(a) and (b) it is provided: “3(1) Where any lands are required for a public purpose by the State, the Military Governor may – (a) acquire such lands by agreement for any estate or interest; or (b) compulsorily acquire such lands for an estate in fee simple or for a term of years absolute, as he may think proper”.   Thus under this section, acquisition may be either by private treaty or by compulsion, and for effecting either of which proper mechanisms are prescribed, details whereof are not relevant for consideration in this appeal.  Now Section 5 of the law is in the following terms: “5. If the Military Governor resolves that any land required for a public purpose of the Lagos State shall be compulsorily acquired, the Permanent Secretary shall give notice to the persons interested or claiming to be interested in such lands or to the persons entitled by this enactment to sell or convey the same or to such of them as shall after reasonable inquiry be known to him (which notice may be as in Form A in the Schedule or to the like effect)”.   And Section 8 provides as follows: “8(1) The Military Governor may, by such Notice as aforesaid or by any subsequent notice, direct the persons aforesaid to yield up possession of such lands after the expiration of the period specified in the Notice, which period shall not be less than six weeks from the service of such Notice, unless the land is urgently required for the public purpose. (2) At the expiration of such period the Military Governor and all persons authorised by him shall be entitled to enter into and take possession of such lands accordingly”.  In Section 9(3) the provisions are in the following terms: “9(3) All Notices served under the provisions of this law shall be published once at least in the Lagos State Gazette”.

We must pause here awhile to note that apparently ignoring, as it were, the provisions of the law set out above, learned counsel for the defendant only cited and relied on Section 10 of the Law from which he appeared to have derived much inspiration in support of his submissions. It is therefore necessary that attention be now focused on that particular section of the law, the provisions whereof are as follows:   “10(1) If for six weeks after the service and publication as aforesaid of such Notice no claim shall be lodged with the Military Governor in respect to such lands, or if the person who may have lodged any claim and the Military Governor shall not agree as to the amount of the compensation to be paid for the estate or interest in such lands belonging to such person, or which he is by this law enabled to sell and convey, or if such person has not given satisfactory evidence in support of his claim or if separate and conflicting claims are made in respect of the same lands, the amount of compensation due, if any, and every such case of disputed interest or title shall be settled by the High Court, which court shall have jurisdiction to hear and determine in all cases mentioned in this section upon a summons taken out by the Military Governor, or any person holding or claiming any estate interest in any land named in any notice aforesaid, or enabled or claiming to be enabled by this Law to sell and convey the same”

It is to be observed that under the provisions of the Lagos State Public Lands Acquisition Law, option is given to the Military Governor of negotiating privately with a view to reaching agreement as to the compensation payable in respect of land compulsorily acquired for public purpose; and he has only to institute legal proceedings as a last resort on the issues of compensation and of conflicting claims as to title, and then only on the expiration of six weeks after the service and publication of the Notice prescribed by law.

It should also be pointed out that the Notice No. 236 dated 14th October, 1969, Exhibit D13, which was published in Gazette No. 25, Volume 2 of 24th October 1969, Exhibit D14, was strictly in accordance with the prescriptions contained in Sections 5, 8 and 9(3) of the Lagos State Public Lands Acquisition Law (Cap. 113). It follows therefore that prior to the expiration of six weeks from the date of the service and publication of the Notice of Acquisition, the rights, title and interests of the owners of lands to be compulsorily acquired remain unimpaired in the said land.

That must be so, because the Military Governor is also entitled to change his mind at any stage and to abandon his express intention of acquiring such lands. In particular, he is entitled by law to do so under Section 18 of the Law, the relevant provisions whereof are as follows:   “18(1) Nothing in this law shall be taken to compel the Military Governor to complete the acquisition of any land unless he shall have entered into possession of the land or has failed within one month of the judgment of the court to intimate to the court that he does not intend to proceed with the acquisition.    Provided, however, that the owner of the land and all persons entitled to any estate or interest in the land shall be entitled to receive from the Governor all such costs as may have been incurred by them by reason or in consequence of the proceedings for acquisition, and compensation for the damage (if any) which they may have sustained by reason or in consequence of the notice of intended acquisition”.

It seems clear to us that until the stage contemplated by Section 25 of the Lagos State Public Lands Acquisition Law is reached, the property in the lands sought to be compulsorily acquired does not pass to the state; and there can therefore be no question of the lands sought to be acquired being automatically vested in the state by reason only of the service and publication of Notice of Acquisition. In any case, under Section 26 of the Law, it is only the certificate of title issued by the court which is registrable and can “confer the estate or interest comprised or referred to therein against all persons, free from all adverse or competing rights, titles, interests, trusts, claims and demand whatsoever, subject to the terms and conditions, if any, therein mentioned”. The provisions of Section 25 of the Law, be it noted, are in the following terms:   “25. The Military Governor may, at any time after the expiration of six weeks from the date of the service and publication of the Notice mentioned in Section 5, apply ex-parte by summons to the High Court for a certificate of title to the whole or any part of the lands described in such Notice and upon such application the court shall, upon proof of the service and publication of the said notice, grant a certificate of title in Form D in the Schedule or to the like effect to the whole of the lands described in such notice or to that part thereof in respect of which the application is made, which certificate shall not be questioned or defeasiable by reason of any irregularity or error or defect in the notice or want of notice, or of any other irregularity, error or defect in the proceedings previous to the obtaining of such certificate”.    In terms of the provisions of Section 25 set out above or, indeed, of Section 26 of the Law, it is only the court by operation of law which is competent to grant on application an unquestionable or indefeasible certificate of title which “shall confer on the Military Governor in trust for the Government of the Lagos State, the estate or interest comprised or referred to therein”.

In the case on appeal on the evidence before the learned trial judge, the suit was filed in the Ikeja Registry of the High Court of Lagos State on 20th October 1969, Exhibit D13, was published in the Government Gazette No. 25, Volume 2 of 24th October 1969, Exhibit D14. Up to the time of the hearing of the suit and the conclusion thereof, there was no evidence that there was any application before the court in terms of Section 25 of the Law for a certificate of title to the land in dispute to issue. We think therefore that the submission by learned counsel for the defendant that a mere notification of Government’s intention to compulsorily acquire the land in dispute was sufficient to vest the land aforesaid in the State as State land, thereby depriving the plaintiffs of whatever estate or interest they might have in the said land was not only imprecise but totally misconceived, and must be, and it is rejected as unsound. See also J.B. Atunrase and 9 Others v. Federal Commissioner for Works and Housing (1975) 6 S.C. 1 at page 10, although based on the construction of Sections 25 and 26 of the Public Lands Acquisition Act (Cap. 167).    We are of the opinion furthermore, that on the authority of Esin v. Abasi and Others, (1963) 1 All N.L.R. 407 at page 415 until the provisions of Section 10 are complied with and compensation paid therefore, whether or not a certificate of title has been granted by the court, the plaintiffs in this case were not precluded from establishing their title to the land in dispute by an action in court. Indeed, it is by such an action that the question of the ownership of the land can properly be determined and the payment of compensation by Government facilitated.  It was also contended by the learned counsel for the defendant that the trial judge erred in law in non-suiting the plaintiffs’ claims instead of dismissing the same in view of his  conclusion that the plaintiffs had failed to discharge the onus placed upon them of satisfying the court that they were entitled to the declaration of title to the land in dispute. Here learned counsel for the defendant would appear to be on a firm ground in as far as the order of a non-suit as such is concerned. On examination of the proceedings in the court below, there appears to be nothing to indicate that either learned counsel for the plaintiffs or learned counsel for the defendant was heard on the question of a non-suit before the order was made. It has always been the view of this court that a non-suit ought not to be entered without first hearing learned counsel for both the plaintiff and the defendant on the matter. That for sometime now has been regarded as an inflexible rule of practice in this court.    In the course of the hearing of this appeal, the attention of the court was drawn to the new Rules of the High Court of Lagos State regulating Civil Procedure in relation to the power of the court to enter a non-suit. It is to be observed that unlike the old Supreme Court Rules which, until recently, were in vogue in the High Court of Lagos State, the present Rules of the High Court of Lagos State make no provisions at all for an order of a non-suit.    Now, the High Court of Lagos State, like all the High Courts in the Federal Republic of Nigeria, is a creature of both the Constitution and of a Statute or Decree or Edict, as the case may be, from which it derives its powers. Such an omission as in the present instance is certainly significant and is a pointer to the intention of the legislature in this respect, having regard to the fact that there was in the previous Rules a specific provision empowering the court to enter non-suits in certain circumstances.

The irresistible inference to be drawn from such an omission like the present must be that the legislature does no longer intend that the High Court of Lagos State be clothed with such a power. Which in effect means that the High Court of Lagos State, having been deprived of such a power, is not competent to order a non-suit in a cause or matter and for whatever reason. See also Alhaji Nurudeen Akinola Lawal v. National Electric Power Authority and Anor, (1976) 2 S.C. 109 at pp. 130-134.    The question is: Were the new Rules of the High Court of Lagos State in operation when judgment was entered in the court below resulting in the instant appeal? The answer to that question must be in the affirmative. The new Rules of the High Court of Lagos State came into operation in accordance with the provisions of Legal Notice No. 18 of 1973 on 1st September 1973. The hearing of this case in the court below, which had commenced on 15th October 1973 was not concluded until 5th March 1974 when judgment was reserved. Judgment was finally delivered on 19th March 1974 so that the whole trial of the case up to final judgment was caught by the new Rules and ought to have been conducted in accordance therewith.    In the circumstances, we hold, in so far as the issue of the entry of a non-suit as such is concerned, that it was not competent for the High Court (Bada, J.) on 19th March, 1974 to have non-suited the plaintiffs’ claims. The submissions of both counsel for the plaintiffs and for the defendant are therefore sustained in this respect.

The question then is: What order ought the learned trial judge to have made in the light of the evidence before him at the trial? According to the learned counsel for the defendant, the claims of the plaintiffs ought to have been dismissed, but according to the learned counsel for the plaintiffs, Chief Rotimi Williams, judgment ought to have been entered for the plaintiffs. That brings us to a consideration of the last ground of appeal argued by both counsel, namely, that judgment is against the weight of evidence.    

We think on this question of weight of evidence, we should predicate our examination of the evidence, which was before the learned trial judge with a quotation from an old judgment of the Full Court of Nigeria as to the principle on which a Court of Appeal should act when a judgment is appealed against as being against the weight of evidence.

It is a principle which we believe has been rendered sacrosanct by age and from which we venture to suggest no court should depart. The principle was enunciated in Macauley v. Tukuru, (1881-1911) 1 NLR 35, in these words:  

“When a judgment is appealed from as being against the weight of evidence, the Appeal Court must make up its own mind on the evidence, not disregarding the judgment appealed from but carefully weighing and considering it and not shrinking from over-ruling it, if, on full consideration, it comes to the conclusion that the judgment is wrong.  

If, however, the Appeal Court is in doubt, the appeal must be dismissed since the burden of proof is on the appellant”. As already stated, it was not in dispute that the land the subject-matter of the suit originally formed part of the stool lands of the Onikoro Chieftaincy Family; and subsequent acquisitions were also rooted in the Onikoro Chieftaincy Family, because according to the plaintiffs, the land in dispute was sold and conveyed to them for valuable consideration by the Onikoro Chieftaincy Family in 1969; but on the testimony of the defendant, he had obtained a lease of the land in dispute in 1963 from one Matthew Adeyinka who, as far back as 1945, had acquired the same from the Onikoro Chieftaincy Family, which acquisition was duly acknowledged by a deed of conveyance in 1956 by Onikoro Chieftaincy Family; which deed was registered as No. 16 at page 16 in Volume 689 of the Lands Registry at Ibadan.    

There was also no dispute as to the dimensions of the land in dispute which, according to the plaintiffs, contained some 11.57 acres; nor was there any disagreement as to the location since it was described as situate at Mile 12, Ikorodu Road, Lagos.

The real question at issue was simply this: Between the plaintiffs and the defendant who had a better title? Or to put it in another way: Between the plaintiffs and the defendant who could produce better evidence to show that the land in dispute had in fact been sold to them or him by the Onikoro Chieftaincy Family? It should be remembered that the dispute was not one between the plaintiffs or the defendant and the Onikoro Chieftaincy Family, but between the plaintiffs and the defendant both of whom claimed to have derived their title, rights and interests from the Onikoro Chieftaincy Family. “>

Other Citation: (1976) LCN/2175(SC)