Mrs. Grace Okpalugo V. Ligali Aderemi Adeshoye & Anor (1996)

LAWGLOBAL HUB Lead Judgment Report

BELGORE, J.S.C. 

This appeal concerns dispute on land in which the plaintiff (now first respondent, as he was at the Court of Appeal) claimed that he purchased it from his mother by virtue of Exhibit 1, a deed of conveyance.

According to him his mother also purchased it from one Alhaji Asani Taiwo Bakare and the evidence is Exhibit 2, another deed of conveyance. The plaintiff claimed at trial Lagos High Court that he was in possession of the land (now No. 57 Allen Avenue, Ikeja, Lagos) when Grace Okpalugo now appellant, and Alhaji Fasasi Olowolagba (referred to in the appellant’s brief of argument as “second respondent” when in fact he is a passive party to this appeal as he neither appealed, much less filed a brief) trespassed on it.

Apart from the conveyances which are Exhibits 1 and 2 aforementioned, the plaintiff also relied on Exhibit 3,judgment of Supreme Court delivered on 16th day of December, 1974 [Coram: Elias, C.J.N. Sowemimo, J.S.C. and Ibekwe, J.S.C.] reading as follows:

“Judgment of the Court

[Delivered by Elias C.J.N.]

Between: A.T. Bakare

v.

1. Karimu Owodina
2. Saka Owodina

Appeal is allowed. The judgment appealed from is set aside. The appellant is declared the owner of the land in dispute. Costs assessed at N80.00 in the Court below and at N127.00 in this Court.

The other reliefs sought are hereby granted as per plaintiff’s writ.”

This short judgment was perhaps written instantly on the Bench for it has not set out all facts and the arguments of the parties. It has also not set out the land in dispute even though the appellant is the same A.T. Bakare, mentioned by the respondent as his root of title, and the suit was not, as in the one now at hand, in a representative capacity. The claim of the plaintiff at the trial Court was for declaration that he was entitled to “a statutory right of occupancy” in respect of the land in dispute, N200.00 as special and general damages for trespass and perpetual injunction to restrain the defendants, their servants and or agents from entering or committing further acts of trespass on the land in dispute. The special damages claimed were set out as follows with the general damages:

1. Cost of purchase of the land in dispute together with their structures

and blocks and building materials N75,000.00

2. Cost of drawing, building and structural plan N 5,000.00
3. General damages N 120,000.00

Total N200,000.00

The defendants on their own set out the traditional history of their connection with the disputed land. In the Statement of Defence, the Defendants clearly in paragraphs 17, 18, 19, 20, 21, 22, 23, 24, 25, 26 and 27 set out how one Amore first settled on the land of which this one now forms part and exercised absolute rights thereupon. Amore died several years ago but left six children, to wit, Fayemi, Matemi, Faluyi, Olabisi, Omolabake and Aileru. Amore, before his death, partitioned the land among his children and each had vested in him or her absolute right. The defendants are descendants of Matemi, the second child of Amore. Matemi died leaving seven children and her children never partitioned the land. Sunmonu Apena headed the family; at his death, his son Tiamiyu Sunmonu Apena; and after Tiamiyu Sunmonu Apena, the 1st defendant, Alhaji Fasasi Olowolagba became the head of the family.

The trial Judge generally held that he believed the plaintiffs and that the defendant’s evidence was unsatisfactory by holding as follows:

“1. The plaintiff had established his ownership of the land through Exhibits 1 and 2, (the deeds of conveyance of his vendor and himself), exhibit 3 (the Supreme Court judgment between his predecessor in title and Karimu and Saka Owodina who were strangers to the parties to this case) and the oral testimonies of the witnesses.

2. The defendants evidence was unsatisfactory and in the face of failure to give conclusive evidence of their root of title, failure to give conclusive evidence of recent user, failure to prove the extent of the land originally settled on by Amore (the defendants predecessor in title) and the admission of the 1st defendant that his family lost the action in the High Court against A.T. Bakare (the predecessor in title of the plaintiff) which action was pending on appeal, they ought to lose.
3. The defendants were liable in trespass but only in respect of special damages claimed for the cost of drawing a building and structural plan for which he awarded N5,000.00 and general damages for which he awarded N100.00”

[Brackets, mine for emphasis]

Being aggrieved by this decision the defendants appealed to the Court of Appeal. The complaints at the Court of Appeal were that:

“(i) the plaintiff failed to establish his root of title

(ii) Exhibit 3, Supreme Court judgment in SC. 121/1974 (supra) was wrongly relied upon as conferring title on the plaintiff;

(iii) the learned trial Judge wrongly relied on a case No. ID/168/1975 before Lagos High Court but not tendered as evidence in Court even though pleaded but not admitted.

(iv) there were errors and misdirections by the trial Judge in evaluation of evidence, and

(v) the award of damages was erroneous in law”

The Court of Appeal in its judgment dismissing the defendants’ appeal arrived at some far-reaching conclusions. It held that though the plaintiff failed to establish his root of title beyond A.T. Bakare, whose root of title is unknown, that shortcoming would not avail the defendants because the plaintiff’s claim was “statutory right of occupancy” and not title because he was in possession. On the contention that Exhibit 3 (Supreme Court judgment) was wrongly used as confirming the title of the plaintiff, it held that learned Judge indeed erred but that it was proved that the predecessor in title of the plaintiff [i.e. A.T. Bakare], had some relationship with the disputed land and held that as a result of the evidence of the fourth plaintiff’s witness (P.W.4), the surveyor, the disputed land related to Exhibit 3. As to the use of the suit No. IK/168/1975 against the defendants, the Court of Appeal held that it was a correct approach by the trial Court even though the case was never before the trial Court as an Exhibit. Court of Appeal however never made any finding on misdirection by the trial Court on the claim of P.W.2 that she was put in possession of the land in dispute. It also never pronounced on the trial Court’s rejection of the defendants’ defence about the extent of the land originally settled on by their predecessor in title. The same lapse, according to the appellant, can be found in the plaintiff/respondent’s case at the trial Court; at any rate the plaintiff never went beyond A.T. Bakare whose antecedents on the land remains unknown in the proceedings in this appeal.

In the appeal before this Court the appellant raised the following issues:

“1. Whether, having accepted that the plaintiff failed to establish his root of title and having regard to the claims, the pleadings and the evidence led and the complaints of the defendants about the wrong evaluation of evidence and misdirections by the learned trial Judge, the Court of Appeal was justified in affirming the decision of the learned trial Judge entering judgment for the plaintiff declaring him entitled to a statutory right of occupancy over and possession of the land in dispute and granting an injunction restraining further trespass ‘

2. Whether the Court of Appeal was correct in affirming the decision of the learned trial Judge on damages

What is remarkable in this case is that the Court of Appeal held that the plaintiff/respondent’s root of title was not proved at the trial Court but that based on the claim before the trial Court for declaration of right to statutory right of occupancy, the claim was proved. This was in the light, according to the Court of Appeal, of the Land Use Act 1978. It is pertinent to quote the Court of Appeal rationale on the issue of Exhibits 2 and 3 reading as follows:

“The appellants have criticised the declaration made on the grounds that Exhibit 2 and Exhibit 3 upon which the learned Judge relied in giving judgment for the respondent did not show a better title or a superior title to that of the appellants.

Exhibit 2 does not tell how Bakare became owner of a large parcel of land. The nature of his ownership, whether it is by settlement, purchase, lease or possession. Exhibit 3 i.e. the judgment of the Supreme Court simply said Bakare is the owner of the land in dispute in that case and did not tell us more about how he came to own the land.

In short the origin of title of the predecessor in title of the respondent is very vague. I think the answer to this criticism is very simple. A look at the claim would reveal that respondent is not asking for declaration of title. What he is asking for is that he is entitled to a statutory right of occupancy based upon his possession of the land in dispute. Presumably he intends to use the judgment so obtained to get a statutory right of occupancy under the Land Use Act from the Military Governor of Lagos State.

The criticism of the appellants could have been relevant and may be sustained if this claim was for a declaration of title by the respondent. This distinction is important since the introduction of the Land Use Act. A right to a Certificate of Occupancy could either be based and grounded on the fact that you have title, possession, leasehold or whatever interest you have in the land.

A declaration of right of occupancy, which is what the respondent wanted, could be based on possession which is what he is claiming and that is what he is asking for in this case.

It is sufficient in my view for him as he did to prove that his predecessor in title, i.e. T. A. Bakare was declared an owner of the land comprised in the judgment in Exhibit 3. That the disputed land is within the layout of AT Bakare which has been approved by the Planning Authority.

The learned Judge made findings upon possession, due execution of the conveyance to the respondent’s predecessor in title, Exhibit 2. These findings which were rightly made were based upon the evidence of PW1, PW2, PW3 which the learned Judge accepted.

It is true that the learned Judge did not accept the evidence of the appellants and the story of the traditional history of the settlement on the land in dispute. The issue as I said as postulated by claim in the respondent’s writ of summons is, who is in possession of the land in dispute and not as to who owns the land in dispute.

On this, the judgment of the court below cannot in my view be faulted. It is true that the judgment in Exhibit 3 of the Supreme Court is not against the family of the 1st appellant because they were not parties to the judgment. But the matter does not end there.

The judgment is relevant in the present proceedings as showing that the prodecessor in title of the respondent had a relationship to whatever land is encompassed, or embraced or comprised in Exhibit 3. It is not a judgment in rem as the learned trial Judge said, and as rightly conceded by the respondent, it is a judgment in personam. It does not bind the appellants, but as it has transpired in evidence, there is the judgment of the Court in Suit No. IK. 168/75 which the 1st appellant lost while fighting on the issue of trespass against A.T. Bakare”

Learned justices of the Court of Appeal proceeded on this premise to admit that the parties never tendered the judgment in IK.168/l975, whose appeal was either pending in their Court or already decided, but it would suffice for the purpose of facts before them “that the facts as deposed by the first appellant shows that he lost the case for trespass on WHAT MUST BE THE LAYOUT OF BAKARE from Exhibits 1 and 2, the deeds of conveyance relied upon by the respondent.

The global view of the Court of Appeal on this matter seems to be that once you gain possession by whatever means, the Land Use Act automatically confers the right to be on the land in question through statutory right of occupancy if applied for; I find this stand a great misinterpretation of the Land Use Act. By finding possession through someone whose right to be on the land, not extending beyond that person is an unjustified assault on the intendment of the Act, i.e. S.39(1) of the Act which sets out the relief that High Court may grant. The Act in section 40 is very clear as it sets out clearly what should be done by the Court in actions on land pending before 29th March 1978, the date the Act came into operation. Possession simpliciter will not automatically confer right of statutory or customary right of occupancy, it must be shown that that possession was rightly conferred. The Court must look further beyond the possession. The traditional history of the land; the right to title before the Land Use Act which was subsisting up to when the Act came into commencement; who was in effective control of the land without challenge and not in stealth; all these must be put into focus. Exhibit 3 for its remarkable brevity has not indicated how AT Bakare came by plot of land now in issue; it is not even clear whether it concerns the land now in dispute. It is true Exhibit 3 is between AT Bakare and Karimu Owodina and Saka Owodina.

It is not shown that the defendants/respondents in that appeal were by any way agents of, relations of, or privies to the present 1st defendant. Possession based on transfer through a credible head title in historical perspective is what can ground entitlement to grant of right of occupancy. Aromire & Ors v. Awoyemi (1972) All NLR 105, 115; Amakor v. Obiefuna (1974) 1 All NLR 109, 116. The statement of claim at the trial Court, as found by the Courts below, avers only that AT Bakare passed possession to the plaintiff/respondent, but there is absolute void as to how this Bakare came by the land. The 1st defendant, traced the history of the land that was with his family over generations of which the one now in dispute forms part; both Courts below held this traditional history was irrelevant in view of the Land Use Act. Land Use Act is unfortunately not a monster it is being portrayed to be, neither has it wiped into oblivion the normal methods of acquiring possession through title or non-adverse possession; what the Act has done is to superficially control the land use by granting certain rights and converting existing rights as statutory right of occupancy or customary right of occupancy. Abioye & Ors. v. Yakubu & Ors, (1991) 5 NWLR (Pt. 190) 130, 236, 248]. In the present case, one party led copious evidence of traditional history through family roots that gave right to the land and possession; the other gave evidence of purchase through AT. Bakare, but nothing was before the Courts about how Bakare came about the land. The claim based on the root through this Bakare, in my considered view, goes nowhere to establish claim to the right of statutory or any right of occupancy in the plaintiff as the Courts below seemed to view the matter. The appellant’s root of title must not be cursorily ignored in view of the plaintiff’s simple claim through this Bakare. Exhibit 3, without more proves nothing in this case; it only established against the respondents therein the right of AT Bakare. The respondents in Exhibit 3 are neither linked by evidence or pleadings with the 1st defendant in this appeal; the land in Exhibit 3, unfortunately without further and better evidence cannot be linked with the land now in dispute. The evidence of the surveyor being extrinsic cannot be linked with Exhibit 3, nor could Exhibit 3 be linked with this disputed land. The evidence of the 1st defendant, as detailed as it is as to the root of title was never controverted by the plaintiff, now respondent. The trial court and indeed the Court of Appeal erred by holding that the Land Use Act consumed all the previous rights on land and once a person is in possession and no more, by whatever means, confers on that holder the right to statutory right of occupancy or customary right of occupancy. That revolution on land holding has not taken place. (Mogaji v. Cadbury (1985) 2 NWLR (Pt. 7). 393; Ogunleye v. Oni (1990) 2 NWLR (Pt. 135) 745, 751, 753.

The use of Exhibit 3 is, to say the least, unjustified in view of its limited scope. The trial Court held it to be judgment in rem. The Court of Appeal found this to be wrong and held it to be judgment in personam and that it did not bind the appellants who were not parties to it. By then turning round that it established possession in the plaintiff is a great error by the Court of Appeal; what it took away from the findings of the trial Court by the right hand, it gave back by the left hand.

The record of proceedings in Exhibit 3 was not before the Courts below and no link could be established between the land addressed in that case and the one now in dispute. Similarly, except by mere conjecture the respondents in Exhibit 3 cannot be linked with the 1st defendant in this case now on appeal. The position taken on this Exhibit 3 by the Courts below certainly offends sections 76 and 132 of Evidence Act. (Ebueku v. Amola (1988) 2 NWLR (Pt. 75) 128, 148, 149; Nzekwu & Ors. v. Nzekwu & Ors. (1989) 2 NWLR (Pt. 104) 373] It is only if the identity of the land in Exhibit 3 is ascertained from record of proceedings not exhibited in Court that some consideration of the evidence of PW 4, the surveyor, could perhaps link it with the land now in dispute.

The proceedings as well as the judgment in the suit IK 168/1975 was not exhibited and demonstrated before the Courts below though it was pleaded. As no evidence was led as to its contents which could only be one if it was tendered; the Court erred in giving it consideration.

The 1st defendant described the land as “forming part of a large track of and extending from Ikeja to Ojota and to Maryland up to the Airport Road by the Customs and Excise “. The plaintiff described the land as situate at Alade Village and extending to Oregun Stream, Ikeja in Lagos State of Nigeria ………….”

It is always for the plaintiff who asserts to prove his assertion as in the statement of claim. This he must do and do successfully, to win his case. The 1st defendant in this case appeared to have been saddled with a burden not his own; too much was expected of him to prove while the plaintiff’s case was based on fragile evidence as contained in Exhibits 1,2 and 3. The surveyor, PW4, testified that he had the plan of AT. Bakare’s layout but he never produced it in Court. This was made a strong point in the appellant’s case in the Court of Appeal but that Court erroneously ignored this very important point.

The learned trial Judge merely held he disbelieved the defendants and believed the plaintiff. He was in error in doing so in view of the evidence and the claim in this case. The 1st appellant copiously produced the evidence of traditional root of his title, and also of recent possession as indicated in the evidence of DW2; the Court of Appeal omitted adverting to this important evidence. Both parties relied on different roots to the right on the disputed land. The plaintiff claimed his root of title from A.T. Bakare without explaining how Bakare got there, and on the Land Use Act; the 1st defendant and the appellant relied on traditional history and recent acts of possession. I have held that the rights claimed under the Land Use Act are exaggerated and it is unfortunate that the 1st defendant’s case was ignored in its entire substance.

I therefore find great merit in this appeal and I therefore allow it. This disposes of the necessity for the consideration of the issue of damages. I enter the verdict of dismissal of the plaintiff’s claim. I award N1,000.00 as costs in this Court, N500.00 as costs in the Court of Appeal and N300.00 as costs in the High Court. If costs in the Courts below have been paid, they should be returned to the appellant.

KUTIGI, J.S.C.:

I read before now the judgment just delivered by my learned brother, Belgore, J.S.C. There is no doubt at all that the trial High Court erroneously held that the plaintiff had established his ownership of the land in dispute through Exhibits 1 & 2 (the Deeds of Conveyance of his vendor and himself, Exhibit 3 (Supreme Court judgment) and oral testimonies of the witnesses.

The Court of Appeal therefore having rightly in my view come to the conclusion that the plaintiff failed to prove his root of title had no alternative but to have dismissed the plaintiff’s claims. It was wrong and a serious error too, for the Court of Appeal to have held that because plaintiff’s claim was not for a declaration of title but for statutory right of occupancy based on the Land Use Act cap. 202 Laws of the Federation of Nigeria 1990, therefore the failure did not matter. It did, and does, matter. It is settled that save for alteration of the reliefs claimable in land disputes, the Land Use Act has not altered the general principles applicable thereto (See for example Abioye & Ors. v. Yakubu & Ors. (1991) 5 NWLR (Pt. 190) 130; Mogaji v. Cadbury (1985) 2 NWLR (Pt. 7) 393: Fasoro & Ors. v. Beyioku & Ors. (1988) 2 NWLR (Pt. 76) 236; Eronini & Ors. v. Iheuko (1989) 2 NWLR (Pt. 101) 46. F

It is for the above reason and others contained in the lead judgment of Belgore, J.S.C. that I too allow the appeal. The plaintiffs’ case is dismissed. This shall be the order of the lower courts. I endorse the order for costs.

OGUNDARE, J.S.C.: By a writ of summons issued in September 1980, the plaintiff (who is now the respondent) sued, as defendants, one Alhaji Fasasi Olowolagba and Mrs. Grace Okpalugo (who is now the appellant) for –

“(1) Declaration that the plaintiff is entitled to a Statutory right of occupancy and possession of all that piece or parcel of land known as Plot No. 12 in Block “E” in A.T. Bakare’s Allotment situate at Alade Village, Ikeja and now known as 59, Allen Avenue, Ikeja, Lagos State comprising an area of 50′ x 110′ sold and conveyed to the Plaintiff in 1977 and duly registered as No. 55 at Page 55 in volume 1610 of the Land Registry in the Office at Lagos.

(2) N200,000.00 (Two hundred Thousand Naira) being special and general damages for trespass committed on the plaintiff’s aforesaid land by the defendants, their servants and/or agents between July and September, 1980.

(3) Perpetual Injunction restraining the defendants, their servants and/or agents from entering the plaintiff’s aforesaid land or committing further acts of trespass upon the said land and from further or any other manner of interfering with the rights and interests of the plaintiff on the said land.”

The particulars of damages claimed were given in paragraph 16 of the amended statement of claim as follows:-

“(a) Special Damages:

1. Cost of Purchase of the land in dispute together with their structures and blocks and building materials N75,000.00
2. Cost of drawing Building and Structural Plan 5,000.00

(b) General Damages ; 120,000.00

N200,00.00”

Pleadings were ordered, filed and exchanged.

In his amended statement of claim, the plaintiff pleaded, inter alia as hereunder:

“2. That the land in dispute covers an area 50′ x 110′ and is situate at and known as Plot No 12. in Block E. in A.T. Bakare’s allotment at Alade Village, Ikeja, and now known as and described as No. 59, Allen avenue, Ikeja.

3. That the plaintiff bought the said land for valuable consideration in February, 1977 from Alhaji Muniratu Bolaji Adeshoye who immediately in 1977 installed the plaintiff in possession and the plaintiff has since been in undisturbed possession till July, 1980.
4. That Alhaja Muniratu Bolaji Adeshoye bought the land in dispute from Alhaji Asani Taiwo Bakare (deceased) of 42, Oju-Olokun.
5. The plaintiff avers that he became owner of the land in dispute under and by virtue of the Deed of Conveyance dated 21st February, 1977 and the attached plan registered as No. 55 at page 55 in volume 1610 of the Lands Registry in the Office at Lagos.
6. The plaintiff avers that he was installed into peaceful possession of the land in dispute in 1977 by his predecessor in title Alhaji M.B. Adeshoye who in turn derived her title from the original owner AT. Bakare (Deceased) as per the Deed of Conveyance dated 28th January, 1975 between Alhaji M.B. Adeshoye and A.T. Bakare and registered as No. 61 at page 61 in volume 1484 of the Lands Registry in the Office at Lagos which would be found upon at the trial of this action.
7. That the aforesaid A.T. Bakare’s title and claim to the land in dispute was confirmed by the Federal Supreme Court in Suit No. SC/121/1974,

Between:

A.T. Bakare ………Plaintiff/Appellant

Karimu Owodina and Others ………….Defendants/Respondents

8. That the aforesaid A.T. Bakare laid out the land into plots covered by Ikeja Area Planning Authority Approval No TPA 0429 dated the 10th August, 1971 within which falls Plot No. 12 in Block E, the land now in dispute between the plaintiff and the defendants.
9. That the plaintiff has already prepared and submitted a Building Plan for Approval on the land in dispute.
10. That since 1977 the plaintiff has been in physical possession of the land in dispute and erected a shed and fences thereon and employed a labourer to do farming works for him on the said land and now produce and marked as Exhibit LAA3 the photograph showing the position of the land In dispute as at June, 1980.
11. That in July 1980, the defendants and their servants/agents accompanied by hired thugs forcibly entered the plaintiff’s aforesaid land, destroyed his sheds, block fences and farming works thereon and I now produce and mark as Exhibit LAA4 the photograph showing the position of the site as at July, 1980 as a result of the defendant’s acts of trespass on the land.
12. That the plaintiff has been in an exclusive and undisturbed possession of the land in dispute since 1977 and exercising overt acts of ownership till July,1980 when the defendants and their servants/agents and workmen forcibly and unlawfully entered the land in dispute and destroyed the plaintiff’s structures, fences and blocks thereon.”

The two defendants to the action filed a joint statement of defence wherein they pleaded, inter alia as follows:

“2. The defendants deny paragraphs 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15 and 16 of the statement of claim and put the plaintiff to the strictest proof thereof.

3. With reference to paragraph 2 of the statement of claim, the defendants state that the 2nd defendant is the owner of a plot of land measuring 495.168 square metres, along Allen Avenue, Ikeja within the Lagos State Government, Opebi Scheme No TPH/003/73 and not an area of land of 50ft x 100ft in Block E in A. T. Bakare’s Allotment at Alade Village, Ikeja.
4. The defendants categorically deny paragraphs 3, 4, 5 and 6 of the Statement of Claim and state that neither Alhaja Muniratu Bolaji Adeshoye nor the plaintiff were ever owners of the defendants’ said plot of land; nor were they ever in possession thereof in any manner whatsoever.
5. The defendants state that the