Provost Lagos State College Of Education & Ors. V. Dr. Kolawole Edun & Ors (2004)
LAWGLOBAL HUB Lead Judgment Report
IGUH, J.S.C.
The proceedings leading to this appeal were first initiated in the High Court of Lagos State, holden at Ikeja. In that court, the plaintiffs claimed against the defendants as follows: –
“(i) N250, 000.00 special damages for unlawful destruction of structures and loss of properties as listed in paragraphs 20 and 21 above
(ii) N500,000.00 general damages for trespass.
(iii) A declaration that the plaintiffs were in lawful occupation of the said premises.
(iv) Costs.
(v) Further or other reliefs.”
Pleadings were ordered in the suit and were duly settled, filed and exchanged.
At the subsequent trial, both parties testified on their own behalf but called no witnesses.
The case of the plaintiffs is that they carried poultry business under the partnership name of Four Pillars (Nigeria) Associates at Kilometre 30, Oto Awori, Badagry Expressway, Lagos State on a piece or parcel of land acquired by the 1st plaintiff on the 13th day of January, 1972 from the Owokulehin-Idumosi family who are the undisputed radical owners of the land. No registered deed of lease or conveyance was executed by the parties in respect of this grant although the said family land owners issued a receipt to the 1st plaintiff in acknowledgement of his payment of the sum of E2,500.00 (Two thousand five hundred pounds only) to them as rent for “one acre plot situated at Oto-Awori for the years 1971 – 2031 (Fifty years)”. This receipt was tendered and received in evidence at the trial as exhibit 1. It is the plaintiffs` case that the 1st plaintiff went into immediate physical possession of this land on his acquisition of the said land. Along with the other plaintiffs, they also developed the property as a poultry farm and had at all material times run his poultry farm without interruption from any quarters. The plaintiffs gave copious evidence of what they established on this land which is now in dispute. These included the construction of two houses and four poultry sheds with thousands of layers and chicks. They also sank two bore holes on the land and. installed several air conditioners, deep freezers and various other properties which they carefully pleaded in paragraphs 20 and 21 of their statement of claim.
The plaintiffs stated that in 1982, the Lagos State College of Education moved into their said property, claiming title thereto by virtue of some acquisition notice. The defendants on finding the plaintiffs’ poultry farm on the land in dispute issued encroachment notices against the plaintiffs. As a result, the plaintiffs petitioned the Government of Lagos State per exhibits 5, 5A and 6A. In the meantime, the defendants’ agents carried out a valuation of the plaintiffs’ poultry farm which they assessed at N48,900.00. About the month of June, 1982, agents of the 1st defendant fenced in the plaintiffs’ farm, describing the same as part of Lagos State, College of Education. They thereby denied the plaintiffs right of access to their poultry farm. The plaintiffs further claimed that the defendants and their agents proceeded to demolish all the structures and property of the plaintiffs on the farm which they valued at N250,000.00 hence this action.
The defendants, for their part, admitted that the land in dispute originally belonged to the Owokulehin-Idumosi family but claimed that the Lagos State Government on the 12th September, 1972 acquired the same from the family for public purpose. This notice of acquisition was published in the official gazette of 16th November, 1972. They claimed that the land was allocated to the Lagos State College of Education for its permanent site. Sometimes in January, 1982, the College of Education moved into possession of the land preparatory to developing it and found poultry farm and two buildings of three rooms erected by the plaintiffs thereon. The defendants then caused contravention and demolition notices to be served on the plaintiffs’. They claimed that when the plaintiffs failed to comply with the said notices, the defendants demolished plaintiff’s structures on the farm.
At the conclusion of hearing, the learned trial Judge, Longe, J. after a review of the evidence on the 17th January, 1995 dismissed the plaintiffs’ claims in their entirety. He stated as follows:-
“Having failed on title or possession, I do not consider it necessary to review or consider the other claims of the plaintiffs. Such claims are predicated on their success for title or possession and having been warned by duly issued notices to remove the structures, their claims on them can not succeed.
The entire claims of the plaintiffs are hereby dismissed and there is judgment for the defendants in that all the plaintiffs’ claims failed.”
Dissatisfied with this decision of the trial court, the plaintiffs lodged an appeal against the same to the Court of Appeal, Lagos Division, which court in a unanimous decision on the 22nd day of July, 1998 allowed the appeal. It concluded: –
“In the final result, I allow the appeal. I set aside the judgment of Longe, J. delivered on 17th January, 1995. In its place there will be judgment for the appellants as follows: –
“1. N250,000.00 being special damages for unlawful destruction of structures and loss of properties listed in paragraphs 20 and 21 of the further amended statement of claim.
- Declaration that the appellants were in lawful occupation of the said premises.
The appellants are entitled to costs which I assess and fix at the sum of N5,000.00.”
Aggrieved by this decision of the Court of Appeal, the defendants have appealed to this court. I shall hereinafter in this judgment, refer to the plaintiffs and the defendants as the respondents and the appellants respectively.
Pursuant to the rules of this court, the parties filed and exchanged their written briefs of argument. In the appellants’ brief of argument, the following four issues are set out as arising for determination in this appeal, namely: –
“(1) Whether the learned Justices of the Court of Appeal were right in holding that the plaintiffs (now respondents) have better title to the land than the defendants (now appellants).
(2) Whether obtaining certificate of title or vesting deed is a pre-requisite for a valid compulsory acquisition of land under Public Land Acquisition Law or Decree of 1976.
(3) Whether document admitted as exhibit 10 was made by person interested in the subject-matter of the proceeding and therefore offends the provisions of S. 91(3) of Evidence Act, 1990
(4) Whether the learned Justices of the Court of Appeal were right to have held the appellants liable in damages for the destruction of the respondents’ structures and for loss of properties.”
The respondents, for their part, adopted the above four issues formulated by the appellants as sufficiently comprehensive for the determination of this appeal. I have closely examined the four issues agreed to by the parties and it seems to me that having regards to the grounds of appeal filed, they substantially represent the main issues for resolution in this appeal. I shall therefore, adopt them for my consideration of this appeal.
At the oral hearing of the appeal before us,Mr. Babatunde Fashola announced his appearance for all four appellants who admittedly are public officers in the service of the Lagos State Government and had been sued in this case in their public capacities. Asked by the court for his designation in the Ministry of Justice if he belonged to that Ministry or, in the alternative, whether he was a private legal practitioner retained to appear for the appellants in the prosecution of this appeal, Mr. Fashola frankly admitted that he was neither in the employment of the Lagos State Ministry of Justice nor was he a private legal practitioner briefed to prosecute the appeal on behalf of the appellants. He also admitted that he had no fiat or authorization whether from the Attorney-General of Lagos State or from any other authorized public officer to appear for the appellants in the appeal. He explained that, he was employed in the office of the Governor of Lagos State as a Chief of Staff to the Governor of Lagos State but that he neither applied for nor was he issued with a fiat or authorization by the Attorney-General of Lagos State to prosecute this appeal. In these circumstances it is plain that without a fiat, Mr. Babatunde Fashola cannot appropriately appear for the appellants in this appeal. Accordingly, the appellants were treated as unrepresented in the appeal although this was not any matter of great moment. This is because the appellants had properly settled and filed their brief of argument in the appeal by Lawal Pedro, Esq. of Attorney-General’s Chambers, Ministry of Justice, Lagos State. There is also a brief of argument of the respondents filed in reply to the said appellants’ brief of argument. In the circumstance, the appeal was taken as having been argued on the appellants’ brief of argument. The main contention of the appellants under issues 1 to 3 is that where, as in the present case, the two parties to a land in dispute claim title and possession thereto, the title being disputed, the plaintiff, to succeed in his claim for trespass must establish a better title to the land. The cases of Balogun v. Akanji (1992) 2 NWLR (Pt. 225) 591; Amakor v. Obiefuna (1974) 3 SC67 and Oba Fasikun v. Oba Oluronke (1990) 1 SC 16 at 36 – 37 were relied upon for this proposition. They submitted that the respondents as plaintiffs before the trial court failed to establish any title to the land in dispute and that their claims were therefore rightly dismissed by that court. They argued that certificate of title or vesting deed is not a prerequisite for a valid acquisition of land under the Public Land Acquisition Law or Decree No. 33 of 1976. The appellant argued that exhibit 10 was not made by a person interested in the proceeding and that the maker did not fall within the provisions of section 91(3) of the Evidence Act. They concluded by submitting that the appellants are not liable in damages for the destruction of the respondents’ property on the land in dispute as the demolition was not wrongful or unlawful.
They urged the court to allow this appeal.
The respondents, for their own part, submitted that they established a better title to the land in dispute than the appellants and that they had been in undisturbed de facto and legal possession thereof since the 13th day of January, 1972 until in 1982 when they were unlawfully forced out by the appellants. They argued that the appellants relied on a global acquisition of 120 square miles of land in November, 1972 which no where mentioned Ijanikin/Oto Awori, the location of the land in dispute. The purpose of the alleged acquisition was also not stated. They stressed that no service of the purported acquisition notice was effected on the respondents and no vesting certificate in respect of the land was applied for or obtained by the appellants. They argued that the only possession the appellants had was their forceful entry into and the destruction of the respondents’ various property on the land in dispute. They stated that the allegation of fraud made by the appellants with regard to exhibit 1 was neither pleaded nor was any evidence led by them in support thereof. It was further contended that exhibit 10 which the appellants relied upon was made during the pendency of this suit and by persons financially interested in the outcome of the case and that the court below was right in placing no weight on the document. They argued that there was no valid acquisition of the land in dispute by the appellants. They therefore urged the court to dismiss this appeal.
There can be no doubt from a close study of the claims before the court that what are essentially in issue in this case appear to be whether or not the plaintiffs/respondents were at all times material to the commission of the trespass complained of in lawful possession and/or occupation of the land in dispute and whether or not their claims in damages for trespass are sustainable.
It is a basic principle of law that in a claim for damages for trespass to land, the plaintiff, to succeed, must establish exclusive possession of the land in dispute at all times material to the commission of the alleged tort by the defendant. See Olagbemiro v. Ajagungbade III (1990) 3 NWLR (Pt.136) 37; Adebanjo v. Brown (1990) 3 NWLR (Pt. 141) 661; Ogbu v.Ani (1994) 7 NWLR (Pt.355) 128, (1994) 8 SCNJ 355. And where two parties make conflicting claims to possession of the same land, the possession being disputed, the law ascribes possession to the person that can prove better title to the land in dispute. See Awoonor Renner v. Deboh (1935) 2 WACA 258; Umeobi v. Otukoya (1978) 4 SC 33 etc. With these preliminary observations in view, issues 1 to 3 will now be considered together.
Issues 1 to 3 deal essentially with which of the parties hereto established a better title to the land in dispute. In this regard, the appellants relied on exhibit 9, the public notice of acquisition dated the 16th November, 1972. It was, however, not until in the month of January, 1982 that they decided to move into the land in dispute preparatory to developing it. The respondents, on the other hand, relied on exhibit 1, the receipt for the payment of E2,500.00 made by the 1st respondent to the Owokulehin-Idumosi family, the radical title owners of the land in dispute in respect of the 1st respondent’s acquisition of the land for the period 1971 to 2031. Exhibit 1 is dated the 13th June, 1972. The respondents further relied on their physical possession of the land. They claimed that they went into immediate physical and actual possession of the land on its acquisition and developed it as a poultry farm. They erected several houses and poultry sheds which harboured thousands of layers and chicks thereon. The respondents were in actual physical and uninterrupted possession of the land in dispute from the 13th January, 1972 until they were disturbed by the appellants sometime in January 1982.
In the first place, it cannot be disputed that exhibit 1 which was rightly admitted in evidence to prove payment of money by the 1st respondent to the radical title owners of the land in dispute coupled with the respondents’ effective physical possession of the land in dispute as far back as from the 13th January, 1972 gave rise to a good equitable interest and/or title to the land in dispute in favour of the respondents. see Isaac Ogunbambi v. Abowab (1951) 13WACA 222; Orosanmi v. Idowu (1959) 4 FSC 40.
In the second place, exhibit 9 relied upon by the appellants in proof of their title to the land in dispute made no specific reference to Ijanikin/Otto town or village where the land in dispute is situated.
In the third place, the rights of the respondents under exhibit 1 coupled with their undisputed physical possession of the land in dispute with effect from the 13th January, 1972 predated exhibit 9 and remained effective and unaffected until, at least, up to the 1st July, 1976 when the public Land Acquisition (Miscellaneous Provisions) Decree No. 33 of 1976 which made no provision for obtaining certificate of title or a vesting deed as prerequisite for a valid compulsory acquisition of land was promulgated into law. It ought to be observed, however, that the said Decree No. 33 of 1976 has no retroactive effect and did not therefore affect exhibit 9 which was published on the 16th November, 1972. In my view, it is indisputable that Decree No. 33 of 1976 is effective and relevant only to public acquisitions made after its enactment on the 1st July, 1976.
Now, the acquisition in issue was allegedly made before 1st July, 1976. It is not in contention that the law as it stood before the 1st July, 1976 was that the issuing of a public notice of acquisition did not per se immediately vest or confer title to the land in issue in the Government until a certificate of title to the whole or any part of the land is subsequently obtained and registered at the Land Registry. See Aturanse and others v. Federal Commissioner for Works and Housing (1975) 1 All NLR 331 at 339; City Property Development Ltd. v. A.-G., Lagos State and others (1976) 1 All NLR (Pt. 1) 28 etc. In the present case, the appellants were unable to show that they obtained a certificate of title or a vesting deed in respect of the land in dispute and may not therefore claim that title thereto was vested in them on the said 16th November, 1972 on which date exhibit 9 was published or on any other date thereafter.
There is one more point to be stressed on the question of which of the parties proved a better title to the land in dispute. In this regard attention must be drawn to the provisions of the Land Use Act, 1978 which came into effect on the 29th March, 1978. There is firstly the statutory right of occupancy granted by a State Governor pursuant to section 5(1)(a) of the Act and the customary right of occupancy granted by a Local Government under section 6(1)(a) of the Act. The second classification is the statutory right of occupancy deemed to have been granted by a State Governor pursuant to section 34(2) of the Act as against the customary right of occupancy deemed to have been granted by a Local Government under section 36(2). There therefore exist in both cases of statutory and customary rights of occupancy actual grant as well as deemed grant. An actual grant is naturally a grant expressly made by the Governor of a State or by a Local Government whilst a deemed grant came into existence automatically by the operation of law. See Savannah Bank (Nig.) Ltd. v. Ajilo (1989) 1NWLR (Pt. 97) 305; Alhaji Adisa v. Emmanuel Oyinwola and Others (2000) 10 NWLR (Pt. 674) 116 etc.
The respondents in the present case were in exclusive physical possession of the land in dispute and were using the same for agricultural purposes in a non-urban area or village called Otto/Ijanikin, Awori immediately before the commencement of the Land Use Act on the 29th March, 1978. They are therefore deemed holders of customary right of occupancy in respect of the land in dispute by operation of law at the commencement of the Land Use Act, 1978 on the 29th March, 1978. Their deemed grant is no less effective than a customary right of occupancy expressly granted by the appropriate Local Government. Deemed grants, whether of statutory or customary right of occupancy are as valid as express grants and may not be defeated by any unlawful subsequent dealing in respect of such land by the original owners thereof. This is because after a party has divested himself of interest in land or any res, no right vests in him to deal with such property any further. See Okafor Egbuche v. Chief Idigbo I NLR 140; Adamo Akeju v. Chief Suenu 6 NLR 87 etc. I will for all the reasons I have stated above resolve issues 1 to 3 against the appellants. I am in agreement with the court below that the respondents had better title to the land in dispute than the appellants.
There is finally issue 4 which poses the question whether the court below was right to hold the appellants liable in damages for the destruction of the respondents’ structures on the land in dispute. It is hardly in dispute that the respondents were at all times material to the commission of the trespass complained of in exclusive and peaceable possession of the land in dispute. The appellants without any justification invaded the land in dispute in the possession of the respondents and destroyed their properties thereon. All the items of the respondents’ property destroyed by the appellants were carefully pleaded and meticulously adduced in evidence. Indeed the appellants hardly controverted their values as testified to by the respondents. The special damages claimed by the respondents were meticulously pleaded and strictly proved as required by law. See Dumez (Nigeria) Ltd. v. Ogboli (1972) 1 All NLR 241; Jaber v. Basma 14 WACA 140.
Where evidence given by a party to any proceedings was not challenged by the opposite party who had the opportunity to do so, it is always open to the court seized of the matter to act on such unchallenged evidence before it. See Isaac Omoregbee v. Daniel Lawani (1980) 3 – 4 SC 108 at 117; Odulaja v. Haddad (1973) 11 SC 35; Nigerian Maritime Services Ltd. v. Alhaji Afolabi (1978) 2 SC 79 at 81.
I have carefully considered the findings of the court below on the issue of liability and the damages awarded in this case and I have no reason to interfere with its decision. Issue 4 is accordingly resolved against the appellants.
In the final result, this appeal is without substance and it is hereby dismissed with costs to the respondents against the appellants which I assess at N10,000.00.
SC.48/1999
