Major Muritala Gbadamosi (Rtd) & Ors. V. H.r.h. Oba Tijani Adetunji Akinloye & Ors (2013)

LAWGLOBAL HUB Lead Judgment Report

KUMAI BAYANG AKA’AHS, J.S.C.

The issue in this appeal is whether the respondents who had earlier sold a portion of land vide a registered conveyance to the appellants can turn round to claim ownership of the same portion simply because the appellants had stood by and allowed the respondents to challenge the Lagos State Government who had revoked all rights of occupancy in and over a vast area of land in Lekki Peninsula in the Eti-Osa Local Government Area of Lagos State.

The background facts leading to this appeal are as follows:

In 1977 the respondents’ family sold a portion of the Ojomu Chieftaincy, family land measuring 254.558 hectares to the appellants’ father, late Gbadamosi Bandele Eletu. The land is situate and known as Osapa Village in Eti-Osa Local Government Area of Lagos State. The transaction done through a Deed of Conveyance dated 23rd August, 1977 was duly registered as No.36 page 36 Volume 1648 at the Lands Registry, Lagos. By the Lagos State Government Notices Nos. 10 and 14 published in the Lagos State Official Gazette of February 19th and 26th, 1987 respectively, the Lagos State Government compulsorily acquired a vast area of land spanning several kilometres consisting of many villages and settlements. The acquired land included the appellants’ Osapa Village. The respondents brought an action in Suit No. ID/1883/89 (Alhaji Fatai Ajetunmobi & Ors. v. The Attorney-General of Lagos State) to challenge the compulsory acquisition. Judgment in the suit was delivered on the 18th day of October, 1991 in which the court granted the following reliefs in favour of the Ojomu Chieftaincy Family:

(a) A declaration that the Plaintiffs are the persons entitled to a customary right of occupancy to all that piece or parcel of land shown in the plan attached to the statement of claim herein.

(b) A declaration that the customary right of occupancy vested in the Plaintiffs in and over the land mentioned in the claim hereof has not been validly or effectively revoked by the Military Governor of Lagos State.

(c)An injunction restraining all officers and servants of the Lagos State Government from committing acts of trespass on the said land or unlawfully making use of the same except with the consent of the plaintiffs.

After the said judgment the respondents entered an agreement with the Lagos State Government wherein portions of Ojomu Chieftaincy family land were granted to the Government of Lagos State whilst the Governor revoked the respondents’ right of occupancy over other portions of the aforesaid family land and thereafter excised areas from such portions vesting the same in the respondents. Following this agreement, the Ojomu Chieftaincy Family became the holders of a right of occupancy in and over the entire portions of land excised from the Government acquisition. The respondents then claimed that the present appellants who were neither a parry in Suit No. ID/1883/89 nor a party to the agreement entered into between them (respondents) and the Lagos State Government claimed proprietary rights over portions of Ojomu Family Land and committed several acts of trespass on the said land and this led the respondents to institute action against the appellants in Suit No. LD/2642/95. The appellants counter – claimed and averred that the land which was sold to their father was exempted from the Notice of Revocation and by virtue of the excision as contained in Lagos State Official Gazette No. 24 Volume 27 dated 23rd June 1994, the title over the affected portion of land at Osapa Village if any reverted to them (defendants). The respondents as plaintiffs filed a reply to the counter – claim alleging that all interests in the land granted to the defendants by the Deed of Conveyance dated 23rd August, 1977 abated when the Governor of Lagos State revoked all rights of occupancy in and over the vast area of land in Lekki Peninsula in 1981 and that since the revocation was not challenged by the defendants, it remained valid against them.

The learned trial Judge entered judgment against the defendants on issues settled where documents were admitted by consent of the parties without giving oral evidence. The judgment was affirmed by the Court of Appeal Lagos Division (herein referred to as the court below). It is against this judgment that the appellants have further appealed to this Court in their Notice of Appeal dated 14th June, 2004 containing eight grounds of appeal. In the amended appellants’ brief filed on 18/12/2012 which was deemed filed by order of court made in chambers on 20th March 2013 the appellants formulated the following six issues for determination:-

1. Whether the Court of Appeal was right when it held that because the appellants did not institute a separate action to challenge the revocation of their title the appellants’ title is extinct (Ground 4)
2. Whether the learned Justices of the Court of Appeal were right when they resolved appellants’ issue 1 against the appellants without considering the appellants’ arguments on the issue (Grounds 1, 2 and 8)
3. Whether the learned Justices of the Court of Appeal were right when they held that the judgment in Suit No. ID/1883/89 and the settlement agreement between the respondents and the Lagos State Government had extinguished the appellants’ title in favour of the respondents (Ground 3)
4. Whether the Justices of the Court of Appeal were not in error when they held that the appellants cannot benefit from Suit No. ID/1883/89 (Ground 5)
5. Whether the Court of Appeal was right when it held that the High Court rightly granted to the respondents a relief not claimed (Ground 6)
6. Whether the Court of Appeal was right in affirming the award of N500,000.00 damages for trespass when there is (sic) no evidence of trespass before the High Court (Ground 7).

The respondents also filed an amended brief on 28th March, 2013. They replied seriatim to the issues postulated and argued by the appellants without formulating their own issues.

On issue 1 which is pivotal to this appeal, learned counsel for the appellants submitted that the Court of Appeal was in error to hold that the appellants title became extinct since the appellants did not institute an action to challenge the revocation of their title by the Government. He referred to Suit No. M/779/93 – Major Murtala Gbadamosi Eletu (Rtd.) v. A. G. Lagos State & Ors. to challenge the Government’s revocation of the title to the land which ended in a term of settlement and was made the judgment of the Court as contained on pages 116 – 118 of the Records. He therefore submitted that the Court of Appeal’s holding that the title of the appellants is extinct on the ground that they did not challenge the revocation is most perverse. Learned counsel for the respondents maintained that the Court of Appeal was right in affirming the judgment of the Lagos State Government revocation of 1981. He argued that a methodical look at Exhibit C3 shows that the suit the appellants filed to challenge the revocation was commenced in 1993, two years after the revocation had been declared null and void in Suit No. ID/1883/89 instituted by the respondents wherein the Court affirmed the right and interest of the respondents over the whole land. He maintained that the judgment of the Court in Suit No. ID/1883/89 stands and has not been upturned and submitted that title over the whole land resided in the respondents since there is no appeal against it and it is deemed accepted by the party against whom the decision was entered and is therefore binding. He placed reliance on Iyoho v. Effiong (2007) 11 NWLR (part 1044) 31 SC and Adeyemi – Bero v. Omotosho (2008) 15 NWLR (part 1111) 576. He said that what transpired in Exhibit C3 is tantamount to a review of the decision in Suit No. ID/1883/89 which divested the powers of the Lagos State Government with respect to the portions of land vested in the respondents. Relying on the principle of nemo dat quod non habet which was applied in Ilona v. Idakwo (2003) 11 NWLR (Part 830) 53 learned counsel submitted that the Lagos State Government had no power, right or interest to transfer or alienate or enter any form of arrangement on any portion of land already declared by the Court in Suit No. ID/1883/89 as belonging to the respondents to anyone, the appellants inclusive.

The appellants filed a reply brief in which it was submitted that the decision in Ilona v. Idakwo (supra) supports the appellants’ case and proceeded to argue that the respondents misunderstood the arguments of the appellants when they cited Adeyemi – Bero v. Omotosho and Iyoho v. Effiong supra which are irrelevant to this case.

The crux of the respondents case at the High Court is that the judgment in Suit No. ID/1883/89 extinguished the title of the appellants to the land. This is evident in paragraphs 4, 5, 6, 7. 8 and 9 of the plaintiffs’ pleadings in Suit No. LD/2642/95 wherein they averred as follows:-

“4. Sometime in 1981, the Governor of Lagos State revoked all rights of occupancy in and over a vast area of land in Lekki Peninsula which included the aforementioned Ojomu Family Land.

5. The Plaintiffs herein brought an action against the Lagos State Government in respect of the said revocation.
6. By a judgment delivered in Suit No. ID/1883/89 (Alhaji Fatayi Ajetunmobi & Ors. v. The Attorney-General of Lagos State) the Court granted the following reliefs in favour of the Ojumo Chieftaincy Family:

(i) A declaration that the plaintiffs are the persons entitled to a customary right of occupancy to all that piece or parcel of land shown in the plan to the statement of claim herein.

(ii) A declaration that the customary right of occupancy vested in the plaintiffs in and over the land mentioned in claim (i) hereof has not been validly or effectively revoked by the Military Governor of Lagos State.

(iii) An injunction restraining all officers and servants of the Lagos State Government from committing acts of trespass on the said land or unlawfully making use of the same except with the consent of the Plaintiffs.

7. After that said judgment the Plaintiffs entered into an agreement with the Lagos State Government where under portions of Ojumo Chieftaincy Family Land were conceded, yielded or granted to the Government of Lagos State whilst the Governor revoked the Plaintiffs’ rights of occupancy over other persons of the aforesaid Family Land and thereafter excised areas from such portions vesting the same in the plaintiffs.
8. Following the agreement mentioned in paragraph 7 hereof the Ojumo Chieftaincy Family became the holders of a right of occupancy in and over the entire portions of land excised from Government acquisitions as herein before mentioned and other portions of Ojumo Family Land not acquired by the Government.
9. The Defendants who were neither a party in suit No. ID/1883/89 nor a party to the agreement entered into between the plaintiffs and the Lagos State Government now wrongfully claim propriety rights over portions of Ojumo Family Land and have committed several acts of trespass on the said land.”

In their Amended Statement of Defence and Counter – Claim in Suit No. LD/2642/95, the Defendant/Appellants pleaded as follows in paragraphs 2A, 7, 11 and 19:-

“2A Further to paragraph 2 above, the Defendants aver that in 1977 that plaintiff’ Family, that is Ojomu Chieftaincy Family of Ajiran through their accredited representatives among whom was the 2nd Plaintiff outrightly sold and conveyed a portion of the Ojumo Family Land described in paragraph 2 of the Statement of Claim and measuring 254.558 hectares and situated at Osapa Village in Eti-Osa Local Government Area of Lagos State to the Defendants’ father late Gbadamosi Bandele Eletu as evidenced by the Deed of Conveyance dated 23rd day of August 1977 and registered as No. 36 at page 36 in volume 1648 of the Lands Registry in Lagos. The said Deed of Conveyance with the plan attached is hereby pleaded and will be relied upon at the trial. The Defendants also plead and will rely at the trial on the composite plan No. SOL/1093/LA/OBD dated 17/3/97 prepared by A. O. Solesi, a licensed surveyor.

7. The Defendants aver that customary right of occupancy in respect of all that piece or parcel of farmland at Osapa Village, Eti-Osa Local Government Area, Lagos as shown on plan No. MD/77/90 dated 25/4/77 and made by M. O. Diya, licensed Surveyor referred to and attached to Deed of Conveyance dated 23/8/77 and made between CHIEF NUSA ADEBANJO OJUMO and eight (8) others including the 2nd Plaintiff all representing OJUMO CHIEFTAINCY FAMILY and GBADAMOSI BANDELE ELETU is vested in the Defendants by devolution of inheritance under the said Conveyance.
8. Further to paragraph 10 above, the Defendants aver that several years after the judgment in suit No. I/302/55 which was delivered on 12th December 1960, the Plaintiffs’ family in 1977 through their accredited representatives including the 2nd Plaintiff in this suit, by way of outright sale for a consideration conveyed to the GBADAMOSI BANDELE ELETU which land now vests in the Defendants.
9. Further to paragraph 18 above, the Defendants aver that their land falls under the exception to the Notice of Revocation mentioned in paragraph 16.2 above being a village already established before the Notice of Revocation or

ALTERNATIVELY

By virtue of the excision as contained in Lagos State Official Gazette No. 24 Volume 27 dated 23rd June, 1994 the title over the affected portion of land at Osapa Village, if any, reverted to the Defendants”

In the reply which was filed to the Statement of Defence and Defence to Counter – Claim the Plaintiffs pleaded in paragraphs 1 and 2 thereof…….

“1. With regard to paragraphs 3 and 7 of the Statement of Defence, the Plaintiffs aver that all interest in the land granted to the Defendants by the Deed of Conveyance dated 23rd August, 1977 abated when the Governor of Lagos State revoked all rights of occupancy in and over the vast area of land in Lekki Peninsula in 1981.

2. The Plaintiffs in response to paragraph 5 of the Statement of Defence aver that since the revocation was not challenged by the Defendants, it remains valid against them”.

It is not entirely true to say that the appellants could not claim any benefit that accrued to the respondents by virtue of the judgment in Suit No. ID/1883/89. At the time the respondents instituted that action against the Lagos State Government challenging the acquisition of the land, title to that portion of the land covered by exhibit C1 (the registered Deed of Conveyance) had already passed to Gbadamosi Bandele Eletu, the late father of the appellants. The interest which the respondents sought to protect in Suit No.ID/1883/89 included that of the appellants since the appellants derived their root of title from them and they sued for the whole of the Ojomu Chieftaincy Family Land. See:- Banire v. Balogun (1986) 4 NWLR (part 38) 746 at 753. When the Court declared that “the customary right of occupancy vested in the Plaintiffs in and over the land mentioned in claim (i) hereof has not been validly or effectively revoked by the Military Governor of Lagos State”, the interest of the parties returned to status quo before the purported acquisition. The respondents never disclosed to the Lagos State Government that they had divested themselves of their interest in the Osapa Village land and since the whole land was initially owned by the Ojomu Chieftaincy Family, it was logical that the Lagos State Government would return the land improperly acquired to the owners once the compulsory acquisition was rendered null and void by the Court.

The respondents have not been consistent in their claim to the land. In one breath they claim it was the acquisition by the Lagos State Government which was not challenged that extinguished the appellants’ right to the land while in another breath they are asserting that it was the declaration made by the Court in Suit No. ID/1883/89 in their favour that extinguished the appellants’ interest in the land.

It is not true as learned counsel for the respondents has submitted that the appellants sat by and failed to challenge the acquisition of the land by the Lagos State Government. It is of no consequence whatsoever that the appellants did not institute their action to challenge the acquisition the same time that the respondents took out their Writ in Suit No. ID/1883/89 or that the appellants did not join in that suit even if they were aware of it; neither does it lie in the respondents’ mouth to say that the appellants belatedly filed their action after judgment in Suit No. ID/1883/89 was delivered. It was for the Lagos State Government that had carried out the acquisition to challenge the late commencement of Suit No. M/779/93 by the appellants. The argument of learned counsel for the respondents that Suit No. M/779/93 (Exhibit C3) instituted by the appellants was a review of Suit No. ID/1883/89 and the reliance placed on Iyoho v. Effiong and Adeyemi – Bero v. Omotosho (supra) holds no water whatsoever. The appellants were never a party to Suit No. ID/1883/89 and notwithstanding the fact that suit No. ID/1883/89 was in respect of the whole of Ojomu Chieftaincy Family Land, the appellants had a right to institute Suit No. M/779/93 to challenge the Lagos State Government over its acquisition of Osapa Village covering an area of 254.558 hectares the title to which the appellants acquired by purchase from the respondents. The renunciation by the respondents of some portions of the acquired land in favour of the Lagos State Government could not affect the interest of the appellants since the respondents could not compromise the Osapa Village land in their settlement agreement with the Lagos State Government because they could not surrender what did not belong to them. Any negotiation embarked upon between the respondents and the Lagos State Government which led to the excision of some portions of the acquired land would be vested in the party whose interest was subsisting. And following the terms of agreement reached between the appellants and the Lagos State Government on 20th May, 1996 which became the judgment of the Court in Suit No. M/779/93 (Exhibit C3), the Excision Notice of June 23, 1994 should vest the 10 hectares (approximately 24.17 acres) reclaimed land in Osapa Village in the appellants. See. Dantsoho v. Mohammed (2003) 6 NWLR (Part 817) 457. It is quite ironic that the respondents who divested themselves of their title to the Osapa Village land since 1977 would be submitting that the Lagos State Government had no power, right or interest to transfer or alienate any portion of the land already declared by the Court in Suit No. ID/1883/89 as belonging to the respondents.

The respondents cannot eat their cake and have it. See: Coker v. Sanyaolu (1983) 14 NSCC 119 at 129 – 130; Okoli v. Ojiako (1997) 1 NWLR (part 479) 48 at 52. The judgment in Suit No. ID/1883/89 could not vest title on a party that had alienated that title. The reversion of the title must rest with the appellants.

It is necessary to take a critical look at the judgment of the trial court which was affirmed by the Court of Appeal. As stated earlier, the judgment in Suit No. LD/2642/95 was entered against the defendants (the present appellants) on issues settled where documents were admitted by consent and no evidence was given by any of the parties. Despite the pleadings in paragraphs 2A, 7 and 11 of the Amended Statement of Defence and Counter – Claim which were not denied in the reply filed by the Plaintiffs (now Respondents), the learned trial Judge still went ahead to hold as follows:

“…… there is no material evidence to link the purchasers in exhibit C1 with the Defendants in this suit. In like manner there is no material evidence to link the present plaintiffs with the vendors in Exhibit C1 that is the conveyance between Chief Amusa Adebambo Ojomu and Eight others and Gbadamosi Bandele Eletu. By not giving any material evidence or link between the purchaser in Exhibit C1 and the Defendants in this suit, the Defendants have no right or interest in any portion of land within the piece or parcel of land under and by virtue of the Deed of Conveyance dated 23rd of August, 1977 and registered as No. 36 at page 36 in Volume 1648 of the Land Registry at Lagos”

The learned trial Judge proceeded to hold that –

“…… the Plaintiffs by reason of excision are entitled to the statutory right of occupancy in respect of the whole land contained in Exhibit A5 and are entitled to hold the said land to the exclusion of the Defendants”.

The defendants who were dissatisfied with the decision appealed against it to the Court of Appeal complaining in Grounds 1 and 4 of the Notice of Appeal that –

“1. The learned trial Judge erred in law by repeatedly using in the judgment the phrase “there is no evidence” without first deciding whether the issues or questions for determination settled by parties’ counsel are issues or questions of law on admitted facts or issues or questions partly of the one kind and partly of another.

PARTICULARS OF ERROR

(a) Neither party gave evidence but relied on the issues/questions for determination settled by their counsel.

(b) It is trite law that it is the plaintiffs who have the burden to prove the case

(c) It was not open to the learned trial judge and indeed of any court to speculate upon matters which there was no evidence led as evident in this case.

(d) Parties agreed on the issues on points of law alone.

4. The learned trial Judge misdirected himself on the facts when he found that there is no evidence that the plaintiffs in Suit No. LD/2642/95 were the same people who conveyed land to GBADAMOSI BANDELE ELETU as evident by conveyance dated 23rd day of August, 1977 and Registered as No. 36 at page 36 in volume 1648 of the Lands Registry, Lagos.

PARTICULARS OF MISDIRECTION

(a) The land conveyed in 1977 to Gbadamosi Bandele Eletu, the father of the Defendants/Appellants herein was conveyed by the vendors as the Chiefs and principal representatives of the Ojomu Chieftaincy Family of Ajiran-

(b)Suit No. LD/2642/95 was instituted by the Plaintiffs/Respondents for themselves and as Representatives of the same Ojomu Chieftaincy Family of Ajiran

(c) The 2nd Plaintiff/Respondent (Chief Muritala Saka Odofin) was the 3rd Vendor as shown in Exhibit C1.

(d) It was not an issue before the Honourable Court as to whether the Respondents are the same people who sold the said land to Gbadomosi Bandele Eletu in 1977.

(e) The parties had agreed on the issues settled and particularly by paragraph 1 of the Reply to Statement of Defence and Counter – Claim that the Plaintiffs/Respondents’ family admitted paragraph 3(a) of the Defendants/Appellants’ Amended Statement of Defence. Rather the Plaintiffs/Respondents pleaded that the interest of the Appellants in the land had dated (sic)”

The issues which were distilled from these grounds were:-

“1. Whether issues having been settled by counsel, the learned trial Judge adopted the right legal approach in dealing with those issues before reaching his conclusion

2. Whether the learned trial Judge was right in holding that the Defendants have no right or interest in the land in dispute for the various reasons given in the judgment”

The lower court glossed over issue I and dismissed the appeal on the ground that the appellants did not challenge the Notice of Revocation published by the Lagos State Government in 1981.

The established legal procedure where issues have been settled by the parties were set out by Bello, JSC (as he then was) in Obijunru v. Ozims (1985) 16 NSCC (Part 1) 430 at 436 – 437 where he said:-

“it is commenced on the application of one of the parties or by the Judge suo motu who thereupon will proceed to ascertain and determine the material questions in controversy between the parties or may direct the parties to prepare such issues. Thereafter the questions will be reduced into writing and the Judge will settle them in the form of issues stating questions of law on admitted facts or questions of disputed facts or questions of one kind or partly another”Since there was no dispute as to the facts the parties agreed not to call oral evidence but tender documents. One of the facts admitted was the sale of Osapa Village to Gbadamosi Bandele Eletu. The High Court instead of identifying admitted and disputed facts as required where parties have settled issues, ignored the conventional practice and went ahead to hold that there was no evidence to show that the appellants were the heirs of the late Gbadamosi Bandele Eletu the purchaser in Exhibit C1. In doing this the court ignored the admission by the Respondents in their Reply to the Statement of Defence and Defence to Counter – Claim and arrived at a wrong decision. Also the High Court totally overlooked and ignored Exhibit C3 which clearly showed that the appellants challenged the revocation of their title by filing two suits which culminated in the settlement contained in Exhibit C3 dated 20th May, 1996. If the Court below had adverted its mind to these grave errors, the judgment would have been otherwise. All the above errors in the judgment of the High court were brought to the attention of the court below but it still went ahead to affirm the decision of the learned trial Judge.

The Respondents’ claim before the High Court was that the appellants were not competent to derive benefits from either the court order made in Suit No. ID/1883/89 or the settlement agreement entered in that suit because the appellants were not parties to both the suit and the settlement agreement made therein. Since the revocation had been set aside alier the respondents had parted with their ownership of Osapa Village which was listed in the excision Notice of 23rd June, 1994, the respondents could not claim any legal right to Osapa Village merely because the High Court had declared in Suit No. ID/1883/89 that the plaintiffs/Respondents were entitled to the statutory right of occupancy in respect of the whole land contained in Exhibit A5. The High Court erroneously held that excision of land contained in the official gazette No. 24 of Volume 27 of the 23rd June 1994 did not include “Land at Osapo Village”. Osapa is mentioned in paragraph 3(b)(ii) in the Lagos State of Nigeria Official Gazette No. 24 Vol. 27 of 23rd June, 1994 wherein it is stated that:

“The Lagos State Government hereby confirms and undertakes that the proposed revocation of the Plaintiffs’ Right of Occupancy in and over the aforementioned land will not include:

(a) ………………

(b) the areas specifically excised by the Lagos State Government from the operation of previous Notices of Revocation affecting the land which is the subject of these Terms of Settlement, viz (Customary Right of Occupancy)

(ii) Osapa 18.05 Ha”

The settlement agreement reached between the appellants and the Lagos State Government reduced the entitlement of the appellants from 18.05 Hectares to 10 Hectares.

As no evidence was taken in the High Court, the alleged trespass leading to the award of N500,000.00 (Five Hundred Thousand Naira) damages against the appellants was not proved and the Court of Appeal was in error to affirm the award.

I find that there is merit in the appeal and it is hereby allowed. The judgment of the Lagos High Court in Suit No. LD/2642/95 delivered on 11th October, 2000 which was affirmed by the Court of Appeal in CA/L/64/2001 on 12th May, 2004 are hereby set aside. The appellants are entitled to the statutory right of occupancy over 10 Hectares (which is approximately 24.l7acres) of the reclaimed land in Osapa Village which has been excised and assigned to them, a sketch plan of which was attached and marked ‘SCHEDULE 1’ to the terms of settlement dated 20th May, 1996 and made the judgment of the Court in Suit No. M/779/93. I award the following costs to the appellants against the respondents:

(i) N100,000.00 in this Court

(ii) 50,000.00 in the Court of Appeal

(iii) N50,000.00 in the High Court. This brings the total costs awarded against the respondent to N200,000.00

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SC.146/2005