Reg. Trustees Of Apostolic Church Of Christ V. Reg. Trustees Of Grace Church Of Christ (2021)

LAWGLOBAL HUB Lead Judgment Report

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C. 

This appeal is against the judgment of the Court of Appeal, Lagos Judicial Division delivered on 4th February, 2011, setting aside the judgment of the High Court of Lagos State Coram M.O. Obadina, J delivered on 10th June, 2005.

​The facts of the case are as follows: The appellant is a Christian religious organisation which was registered in 1963. It had several branches, which included the Mushin Branch, which eventually broke away from the main organisation and was registered in 1996 as The Registered Trustees of Grace Church of Christ, the respondent in this appeal. In 1976, while he was still a pastor in the employment of the Appellant Church, the promoter of the respondent, one Pastor Igbeare, purportedly purchased a parcel of land at 23/25 Fayemi Street, Ejigbo Town near Mushin from the Agbeke Family. The purchase receipt was in Pastor Igbeare’s custody. The respondent applied for Land Information in respect of the land which yielded the information that the land had been acquired by the Lagos State Government as far back as 1972, vide Official Gazette No. 60 of 7/12/72 Volume 59. Realising that as at 1976 when the Agbeke family sold the land, it had been divested of title thereto, the respondent applied in its own name to the Lagos State Government for ratification of the sale. The respondent was consequently issued a formal letter of allocation of State Land. Upon the payment of the necessary fees, the respondent was issued with a Certificate of Occupancy on 24/8/97 in respect thereof.

It was the respondent’s contention that each branch of the church generated its own funds and that the branches were co-ordinate with and not subordinate to the headquarters. It was also its contention that it had deposited materials at 23/25 Fayemi Street, Ejigbo, preparatory to the construction of a permanent site for its church, which got lost. It was also contended that rather than take steps to object to the issuance of Certificate of Occupancy in its favour, the appellant proceeded to issue a notice of Revival Service scheduled to take place on the disputed land.

​Warning letters were written to the appellant to no avail, hence the institution of suit NO. ID/I/31/9 before the High Court of Lagos State, Ikeja Judicial Division vide Written Summons and Statement of Claim filed on 14/5/98.

​By their Further Amended Statement of Claim filed on 15/10/2003, the respondent, as plaintiff, sought the following reliefs against the appellant, as defendant:

1. A declaration that the plaintiffs are the persons or body of persons entitled to the Right of Occupancy of all that piece or parcel of land situate, lying and being at No. 23/25 Fayemi Street, Ejigbo Town near Isolo in Mushin Area of Lagos State of Nigeria, which piece of land is more particularly shown and delineated “RED” on Survey Plan No. MAF/5318/84L and covered by Certificate of Occupancy No. 68 at page 68 in Volume 1997N.
2. An order of perpetual injunction restraining the defendants by themselves, their privies, servants, agents and/or assigns from trespassing and/or further trespassing on the said land, subject matter of this suit.

3(a) Specific damages of N413,820.00 (Four Hundred and Thirteen Thousand Eight Hundred and Twenty Naira) only being the cost of the plaintiff’s fence on the land demolished by the defendant and building materials carried away by the defendant.

(b) General Damages N1,000,000.00 (One Million Naira only).

The Appellant filed an Amended Statement of Defence and Counter Claim on 9/5/2002.

It was the appellant’s contention that all the branches of the Apostolic Church of Christ (Spiritual Movement), including its Mushin Branch were under the control and authority of the parent body. It was averred that Pastor Igbeare was trained by the Church and posted to the Mushin Branch where he served with one Pastor Johnson Oyedipe and their salaries were paid by the parent body. It was also averred that the land in dispute was purchased with funds belonging to the parent body and in its name.

​It was averred that after the purchase of the property, the purchase receipt was kept in Pastor Igbeare’s custody, being the Vice President of the Church. That after it was discovered that the land was State land, efforts were made by the appellant to seek a release of the land from government acquisition. That Pastor Igbeare got wind of the application and surreptitiously pursued it on his own without the knowledge of the Headquarters and took advantage of the fact that the purchase receipt was in his possession to secure the release in favour of the respondent. It maintained that the property belonged to the Appellant’s church. It counter-claimed as follows:

1. The defendant adopts all the averments in the Statement of Defence from paragraphs 1-26.
2. The Defendant claims against the plaintiff for a declaration that the defendant is the only person legally entitled to the Certificate of Occupancy in respect of a piece or parcel of land situate, lying and being at 23/25, Fayemi Street, Ejigbo.
3. Declaration that the Certificate of Occupancy registered as No. 68 at page 68 in Volume 1997 issued to the plaintiff is null and void.
4. N500,000.00 being damages for trespass committed by the plaintiff on the said land at 23/25 Fayemi Street, Ejigbo, Lagos, which is in dispute.
5. Perpetual injunction restraining the Plaintiff, agents, servants and privies and/or assigns from committing further acts of trespass on the land in dispute.

The plaintiff/respondent filed a reply to the Amended Statement of Defence and Defence to counter-claim on 6/9/2002.

​At the trial, both parties led evidence and tendered documents in support of their respective positions. In a considered judgment delivered on 10th June, 2005, the plaintiff’s claims were dismissed. The defendant’s counter claim was granted in its entirety. The Court field that the land in dispute belonged to the defendant and that the plaintiff had no right to apply for ratification in respect thereof. The letters of ratification, Exhibits P3 and P4 and the Certificate of Occupancy, Exhibit P2, were declared null and void and of no effect.

The plaintiff (now respondent) was aggrieved by the decision and filed an appeal at the Court below. In its judgment delivered on 4/2/2011, the appeal was allowed and the judgment of the trial Court was set aside. The Court held that the Agbeke family, having been divested of its title to the land by the Government acquisition, Exhibit P14, had nothing to convey to the present appellant. It held that the respondent had proved a better title to the land. The judgment of the trial Court was set aside and all the plaintiff’s reliefs were granted.

​The appellant is dissatisfied with the judgment and has appealed to this Court vide its Notice of Appeal filed on 9/3/2011 and 2 additional grounds of appeal filed on 15/2/2012. Altogether it filed 7 grounds of appeal.

At the hearing of the appeal on 16/2/2021, A.M. MAKINDE, SAN adopted and relied on the Appellant’s Amended Brief of Argument filed on 6/11/2012 but deemed filed on 21/2/2018 along with a list of additional authorities filed on 15/2/2021, in urging the Court to allow the appeal. M.P. ANAUKYAA, ESQ. adopted and relied on the respondent’s brief filed on 29/10/2012 in urging the Court to dismiss the appeal.

​The appellant distilled 7 issues for determination as follows:

1. Whether from the totality of the evidence available to the Court below from the record the Court below was in error to have set aside the judgment of the Learned Trial Judge?
2. Whether the Court below was in error when it held that Exhibit P3 ratifies the occupation of the Plaintiff/Appellant in respect of government land which was said to have been acquired privately while at the same time stated that the Agbeke Family had nothing to convey to the Respondent now Appellant?
3. Whether the evidence before the Court below from the record of appeal established that the respondent had possession or the possession it had was in the name of the appellant and whether the certificate of occupancy can confer title on the respondent in the absence of the subsequent acquisition under the Land Use Act by the Governor?
4. Whether the Court below was in error when it granted all the reliefs of the Plaintiff/Respondent particularly its claims for special and general damages which were never proved by credible evidence?
5. Whether the Court below was in error when it held that there was no evidence from the record to show any admission as alleged?
6. Whether the Court below set up a case different from the one presented by the parties themselves in their pleadings and evidence?
7. Whether the Court below misapprehended and misapplied the facts of this case by its reference to a non-existent cross-appeal purportedly filed by the appellant made at the Court below at page 423 of the record which is part of its leading judgment stated inter alia ‘A’ careful scrutiny of the evidence reveals that the plaintiff/appellant had established his case on the preponderance of evidence while the respondent fails as it is hinged on the success or failure of the main appeals as the issues are virtually the same?

The respondent also formulated 7 issues thus:

(1) Whether having regard to the evidence before it the Court below was not justified in setting aside the judgment of the trial Court.

(2) Whether the Court below was in error to have held that Exhibit P3 ratified the occupation of the respondent in respect of the Land in dispute being State land, which the Agbeke family had been divested of title at the time of ratification.

(3) Whether evidence of possession of the land in dispute preponderates in favour of the respondent which is the only body that has valid title documents from the Lagos State Government.

(4) Whether the respondent was not entitled to the reliefs granted in its favour at the lower Court having regard to the evidence on record before it.

(5) Whether from the records there was any admission that is material in law to justify the grant of any relief(s) to the appellant by the trial Court.

(6) Whether the Court below set up a case different from the one set up the parties in their pleadings and evidence.

(7) Whether the lower Court’s reference to a cross appeal in the judgment occasioned a miscarriage of justice to the appellant.

From the facts and circumstances of this case, I am of the view that formulating 7 issues from the 7 grounds of appeal amounts to proliferation of issues. The appellant’s issues 1, 2, 3 and 5 can be collapsed into a single issue, to wit:

Whether from the totality of the evidence before it, the lower Court was justified in setting aside the judgment of the trial Court.

Issues 4, 6 and 7 can then be taken serially as issues 2, 3, and 4.

ISSUE 1

Learned counsel for the appellant submitted that in civil cases, the burden of proof has two meanings.

(a) The burden of proof as a matter of law and pleadings.

(b) The burden of proof in relation to additional credible evidence or the evidential burden.

See: Odukwe vs Ogunbiyi (1998) 6 SC 72.

He submitted that while the burden of proof in the first sense is always stable, the burden in the second sense may shift from one side to the other depending on where the scale tilts. See Osawaru Vs Ezeruka (1978) 6—7 SC 135. He contended that the preponderance of evidence tilted in the appellant’s favour. He submitted that the respondent’s evidence collapsed under cross- examination in relation to the following:

1. The owner of the receipt used for the ratification of the subject matter before the issuance of Exhibit P2.
2. The fact that the respondent was not in existence when the appellant’s receipt was used and therefore it was legally incapable of owning the subject matter.
3. The fact that PW1, the promoter of the respondent was an employee of the appellant until 1995 and his admission that he purchased the land for the appellant. He referred to pages 19-20 of the record.

Learned counsel submitted that the learned trial Judge meticulously evaluated the evidence before him before reaching the conclusion that the appellant was entitled to its counter-claim. He contended that the Court below failed to advert its mind to the fact that what the Lagos State Government did was to ratify the existing purchase or holding from the Agbeke family.

​Learned counsel submitted, referring to the pleadings of the parties, that contrary to the finding of the lower Court, both parties pleaded acquisition from the Agbeke family. He referred to the evidence of PW1 and DW1 who both pleaded that the Agbeke family was the original owner of the land prior to its acquisition. He submitted that the evidence showed that it was the appellant that purchased the land from the said family. He submitted that Exhibit P14, the Official Gazette, is sufficient evidence of the acquisition from the Agbeke family.

He referred to Exhibit P3, the Letter of Allocation to the respondent and submitted that the use of the word “ratification” therein acknowledged the existence of an existing right, which could only belong to the successors- in-title of the Agbeke family, i.e. the appellant. He noted further that the evidence before the Court shows that it was the Appellant who bought the land from the Agbeke family and this explains why the ratification refers to “previous private acquisition.”

​Learned counsel submitted that the basis for the validation of the Certificate of Occupancy in the respondent’s favour by the lower Court, was its finding that the respondent was in possession before it applied to the Lagos State Government for the allocation of the land, contrary to the evidence on record. He maintained that the respondent was not in existence at the time the land was purchased from the Agbeke family. He also referred to the evidence-in-chief of PW1 where he testified that the respondent was a branch of the appellant but not subordinate to it but testified under cross-examination, that the land belongs to the appellant and that he was with the appellant up till 1995 as its Vice President.

​Learned counsel argued that whatever possession the respondent had prior to its incorporation was that of the appellant and could not have been ratified by the appellant having regard to the fact that the respondent became a different legal entity upon its incorporation in 1996. He submitted that there was no evidence from which the lower Court could have inferred that the Lagos State Government subsequently re-acquired the land. He referred to Exhibit P3 and P4, which showed that the Government ratified the earlier private acquisition. He referred to Section 21 of the Public Land Acquisition Act Cap. 167 LFN 1958 and submitted that by that provision, the party in possession before the acquisition is the deemed holder of the title along with persons claiming under him, such as the appellant herein. He submitted that in the absence of evidence of a subsequent revocation and in the face of the fraudulent misrepresentation of facts by the respondent, the Court has powers to set aside the Certificate of Occupancy and declare the appellant the deemed holder of the Statutory Right of Occupancy. He submitted that the appellant pleaded and led evidence to prove fraudulent misrepresentation by the respondent.

On the issue as to whether there was any admission by the respondent that the land was purchased for the plaintiff, he referred to pages 20 and 24 of the record where PW1, Pastor Igbeare stated under cross- examination inter alia:

“The land was bought for Christ Apostolic Church, Mushin Branch. Mushin Branch was not registered then.”

and further:

“I agree that all the branches are under the Headquarters.

In 1976, the property in dispute belonged to Mushin Branch of the Apostolic Church of Christ, not the Grace Church of Christ.”

He also referred the respondent’s reply to the Statement of Defence and Defence to the counter-claim. He submitted that the averments therein and the respondent’s evidence reproduced above, were rightly acted upon by the learned trial Judge as supporting the appellant’s case. He referred to Lambe Vs Olayemi (2002) 12 NWLR (Pt. 748) 383.

He submitted that the issue of PW1’s use of the appellant’s receipt to apply for Certificate of Occupancy being ratified by the Mushin Branch where he was the Senior Pastor did not arise from the submissions of the respondent in its brief of argument under issue 2. He submitted that the issue was raised suo motu by the Court below, as opposed to the findings of the trial Court, which were supported by cogent and credible evidence. On this ground, he submitted that the appellant is entitled to a declaration in its favour. Relying on Egharevba Vs Osagie (2009) 12 SC (Pt 3) 123, he submitted that the lower Court has no right to interfere with the findings of the trial Court where such findings are well supported by evidence. He submitted that the Court, had made out a case different from what was presented by the parties, thereby occasioning a miscarriage of justice. See: Okwejiminor vs Gbakeji (2008) 1 SC (Pt. 3) 63: N.B.C.I. vs. Int. I Gas (2005) SC (Pt. 1) 63.

In response, learned counsel for the respondent argued that the issue before the lower Court was that the sale by the Agbeke family in 1976 was null and void, as they had been divested of their title by the 1972 Public Acquisition, which enured to the Lagos State Government by virtue of Section 1 of the Land Use Act, 1978. He submitted that it was the Agbeke family receipt that was used for the ratification. That the respondent applied for ratification vide Exhibit P3 and was granted approval in Exhibit P4. Consequently, Exhibit P2 was issued to the respondent. He submitted that as at the time Exhibit P2 was issued, the respondent had been duly registered as a corporate body.

He submitted that appellant failed to discharge the burden placed on it in an action for declaration of title, as laid down in Idundun Vs Okumagba (1975) 9–10 SC 22. He submitted that any purported title traceable to the Agbeke family by either of the parties is null and void. He contended that it is the party who can trace his root of title to the Lagos State Government that can succeed in a claim for declaration of title over the land in dispute. He observed that at the time of the ratification, PW1 was no longer an employee of the Appellant. He argued that there was no proof before the Court that the land was purchased for the Appellant. He submitted that the lower Court was right to have set aside the judgment of the trial Court, which the nullified the Certificate of Occupancy.

Learned counsel submitted, with reference to Exhibit P3, that the lower Court was right when it held that where there has been an acquisition for public purpose as shown in Exhibit P14, all prior interest thereon, whether standing to the benefit of the respondent or the Agbeke family stands extinguished. He submitted that the private acquisition referred to by the lower Court is the void sale made by the Agbeke family in 1976, when it no longer had title to pass by virtue of the 1972 Public Acquisition.

On the issue of possession, learned counsel submitted that the respondent was in possession by virtue of the title granted to it by the Lagos State Government and was therefore in lawful possession of the land. He maintained that the 1976 sale was a non-existing transaction.

​He submitted that the evidence on record is that the land was acquired in 1997 vide Exhibit P14. He submitted that by virtue of the Land Use Act, 1978, all lands within a state vests in the Governor of that State. He contended that there was therefore no need for a subsequent acquisition of the land by Lagos State Government and therefore Exhibit P3 conferred valid title on the respondent. He submitted that the learned trial Judge had no authority to set aside the Certificate of Occupancy or declare the appellant as the deemed holder of a Statutory Right of Occupancy.

Learned counsel submitted that whether or not there was an admission is of no moment, as the acquisition of the land prior to the sale renders the purported sale null and void. He referred to Akerele Vs Atunrase (1969) 1 ALL NLR 201; Ajuwon vs Akanni (1993) 9 NWLR (Pt. 316) 182 @ 207.

​In an action for declaration of title, the claimant may rely on any of the following methods to establish his case:

1. By traditional evidence.
2. By production of documents of title duly authenticated and executed.
3. By acts of ownership extending over a sufficient length of time, numerous and positive enough as to warrant the inference of true ownership.
4. By acts of long possession and enjoyment.
5. By acts of possession of connected or adjacent land in circumstances rendering it probable that the owner of such adjacent or connected land would in addition be the owner of the land in dispute.

See: Idundun Vs Okumagba (1976) 9-10 SC 227 @ 246: Nkado VS Obiano (1997) 5 SCNJ 33 @ 47: Owhonda vs Ekpechi (2003) 9—11 SCJ 1 @ 6; Arije vs Arije (2018) LPELR-4419 SC @ 34 B—G.

The onus is on the claimant to establish his title upon a preponderance of evidence or on the balance of probability. He must succeed on the strength of his own case and not on the weakness of the defence, if any, except where the defendant’s case supports his case. See: Arije Vs Arije (Supra): Kodilinye Vs Odu 2 WACA 336 @ 337: Onwugbufor Vs Okoye (1996) 1 NWLR (Pt. 424) 252: Nruamah vs Ebuzoeme (2013) 1 SC 31 @ 55—56.

In proof of its case, at the trial Court, the respondent relied on documentary evidence, to wit:

1. Exhibit P1: Certificate of Registration of The Grace Church of Christ dated 5th June 1996.
2. Exhibit P2: Certificate of Occupancy registered as No. 68 at page 68 in Volume 1997N at the Lagos State Land Registry dated 24/8/97.
3. Exhibit P3: Application for – Ratification of Occupation of Government Land dated 11/4/97.
4. Exhibit P4: Allocation of State Land through ratification dated 29/4/97.

It also relied on several receipts, showing payment of processing fees and taxes to the Lagos State Government.

As stated earlier in the review of the facts, it was the respondent’s contention that since the Lagos State Government had acquired the land in dispute in 1972, the sale of the land to either party by the Agbeke family in 1976 was null and void under the doctrine of nemo dat quod non habet. They had nothing to convey at the time. It was their contention that the respondent had every right to approach the Lagos State Government in 1997 for allocation of the land to it. On the other hand, it was also the respondent’s contention that as at 1976 when the land was purchased, it was purchased by the Mushin Branch of the Church in its own capacity and independent of the appellant.

​The appellant, on its part contends that the land was purchased for and on behalf of the parent organisation, by the pastor in charge of the Mushin Branch of the Church, who was also, at the time, the Vice President of the Church. It is significant to note that both parties claim to have purchased the land from the Agbeke family in 1976 but later discovered that at the time of the sale, it had already been under Government acquisition since 1972.

The land was acquired by the Lagos State Government under the Public Lands Acquisition Law Cap. 176 of 1958 before the promulgation of the Land Use Act, 1978. Sections 1 and 2(1) (a) of the Land Use Act, 1978 provide:

“1. Subject to the provisions of this Act, all land comprised in the territory of each State in the Federation are hereby vested on the Governor of that State and such land shall be held in trust and administered for the use and common benefit of all Nigerians in accordance with the provision of this Act.

2(1) As from the commencement of this Act-

(a) all land in Urban areas shall be under the control and management of the Governor of each State;”

​It follows therefore that with effect from 27th March, 1978, the land in dispute became vested in the Governor of Lagos State. It is equally trite that whoever purportedly purchased the land from the Agbeke family in 1976 had a defective title.

Section 5(1)(a) and 2 of the Act provide:

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

(a) to grant statutory right of occupancy to any person for all purposes;

(2) upon the grant of a statutory right of occupancy under the provisions of Subsection (1) of this Section, all existing rights to the use and occupation of the land which is the subject of the statutory right of occupancy shall be extinguished.”

The issue in contention here is, having discovered the defect in title, who had the right to apply to the Lagos State Government for ratification?

The Court below made the following findings at page 418 to 419 of the record:

“In an action for declaration of title, the plaintiff must not only establish the identity but must prove how he acquired the right to the said land. In this case, the identity of the land is not in dispute. However, there is no evidence of the acquisition from the Agbeke family as claimed. From the evidence led and exhibits tendered, I note in particular that Exhibit P3 ratifies the occupation of the plaintiff/appellant in respect of government land, which was said to have been the Appellant.

From the promulgation of the Land Use Act, 1978 Section 1 thereof, all lands are held in trust by the Government for the people. Where there has been acquired for Public purpose as shown by Exhibit P14, all prior interest thereron, standing to the benefit of the respondent or the Agbeke family, stand extinguished. Such a right may be transferred and re-conferred for overriding public purpose but certainly not for a private purpose.

The allocation to the Appellant who was said to be in possession of said land and who had applied for the title, is within the exercise of the power of the Lagos State Government.

It is a public purpose to allocate land for a place of worships. Exhibits P3 – the application for ratification of occupation of government land and allocation of same culminating into Exhibit P4, allocation through ratification and Exhibits P7, P8 and P9 (payment receipts and taxes) and Certificate of Occupancy (Exhibit P2) confers better title on the Appellant than that claimed by the Respondent who, though in occupation between 1990-1995 has been shown to be living on a piece of land in respect of which title to individual or family land had been extinguished. The transfer and issuance of Exhibit P2 to the Appellant is valid.”

(Underling mine).

Having regard to the facts of this case, it is pertinent to consider the basis upon which the respondent made its application to the Lagos State Government. Exhibit P3, dated 11th April, 1997, written on behalf of the Lagos State Government, reads as follows:

“The Grace Church of Christ

22, Araromi Street

Off Layi Oyekanmi

Ilasamaja

Mushin

Ref: Application for Ratification of Occupation of Government Land.

I am directed to inform you that the Military Administrator of Lagos State, Col. Mohammed Buba Marwa has approved your application for the ratification of your holding at Ejigbo covering an area of 1332.820 square metres delineated on Survey Plan No. MAF/5318/84L of 2/7/84 in Oshodi/Isolo Local Government Area of Lagos State.

3. You are please advised to contact the Executive Secretary of the Land Use and Allocation Directorate for further processing of your Certificate of Occupancy.
4. Thanks for your cooperation.

Signed:

Alhaji E.A. Fabolude

For: Chairman Ratification

(Underlining mine).

​Exhibit P4 dated 29/4/97, also written on behalf of the Lagos State Government, states in part:

“The Grace Church of Christ

22, Araromi Street

Off Layi Oyekanmi

Ilasamaja

Dear Sir,

Formal Allcation of State Land Through Ratification.

Please refer to your application for allocation of parcel of land situate at Ejigbo, Mushin and described on Survey Plan No. MAF/5318/84L dated 2nd July, 1984. Although, the land was acquired privately, it was found to fall within Muritala Mohammed Airport Acquisition (adjacent to) – residential zone while processing your application.

2. I am pleased to inform you that after due consideration of your application, the Military Administrator of Lagos State has approved that the land be allocated to you in accordance with the Land Policy of the present administration under the following terms and conditions: –

i. Size of Land: – 1332.820 sq. metres

ii. Type of Use – Residential

iii.

iv.

v.

vi.

vii.

viii.

ix.

…

Yours faithfully,

Signed

Adesegun Ogunlewe

Executive Secretary.

(Underling mine)

It is evident from these two exhibits that what the respondent applied for was the ratification of its holding, which had been acquired privately.

Black’s Law Dictionary, 8th Edition defines “ratification” as follows:

“Confirmation and acceptance of a previous act, thereby making the act valid from the moment it was done.”

The effect of ratification therefore, is to put the parties in the same position as they would have been had the act ratified been previously authorised. See: Vulcan Gases Ltd Vs Gesellschaft Fur Ind. Gasverwertung, A.G. (2001) 9 NWLR (Pt. 719) 610; Carlen (Nig) Ltd. vs Uni Jos (1994) 1 NWLR (Pt. 323) 631; Ogunseye Vs Registered Trustees of World Mission Agency Incorporated & Ors. (2017) LPELR-42767 (CA) @ 17-19 C-A.

​The act sought to be ratified was the invalid sale made by the Agbeke family. It was not an open application requesting for the allocation of any parcel of land within the Mushin Area. It was an application in respect of a specific parcel of land. Both parties relied on the acquisition from the Agbeke family, which was found to be defective. It would therefore not be correct, as stated by the lower Court to say that there was no evidence of acquisition from the Agbeke family. Both parties were ad idem on this issue. Also, from Exhibit P4 reproduced earlier, the property was not allocated to the respondent for a public purpose or for a place of worship. It was allocated for residential purpose. Where there are competing titles, which trace their root to the same source, the one who can show a better title prevails. See:Omiyale Vs Macaulay (2009) FWLR (Pt. 479) 399: Otukpo vs John (2013) ALL FWLR (Pt: 661) 1509; (2012) LPELR–25053 (SC).

It is also trite that a Certificate of Occupancy is only prima facie evidence of title or possession, but it is not conclusive proof of title to the land to which it relates. See: Registered Trustees Mission vs Olowoleni (1990) 6 NWLR (Pt. 158) 514: Otukpo Vs John (Supra): Adole Vs Gwar (2008) 11 NWLR (Pt. 1099) 562: (2008) LPELR-189 (SC) @ 17 D-E.

A timeline of events will give a clearer picture of what transpired in this case:

1963 – Incorporation of the Registered Trustees of Apostolic Church of Christ (Spiritual Movement).

1972 – Acquisition of Land in dispute by the Federal Government under the Public Lands Acquisition Act Cap. 167 of 1958.

1976 – Purported sale of the land in dispute by the Agbeke family.

1978 – Promulgation of the Land Use Act 1978.

1984 – Survey Plan No. MAF/5318/84L prepared.

11/11/87 – Pastor Igbeare (PW1’s) title changed from Prophet to Pastor and appointment as Vice President of Apostolic Church of Christ vide Exhibit D1.

5/6/1996 – Incorporation of Grace Church.

11/4/1997 – Application for ratification approved.

29/4/1997 – Formal Allocation to Grace Church.

24/8/1997 – Certificate of Occupancy issued to Grace Church.

​It is quite evident from the timeline above, that at the time of the transaction with the Agbeke family, which the respondent relied upon in its application for ratification, the Registered Trustees of Grace Church of Christ were not in existence. It is equally evident that many years later, in 1987, PW1, the promoter of the respondent, was still receiving instructions from the appellant in his capacity as the Pastor of the Mushin branch.

The learned trial Judge made some findings of fact as follows:

“PW1 admitted during cross-examination that as at 1976, the Plaintiff was not in existence. The Church at 14 Palm Avenue Street was a branch of the Defendant. The evidence of PW1 under cross-examination confirmed the testimony of DW1 that the Mushin Branch was under the Headquarters. The Pastor of the branch, PW1, was appointed by the Defendant vide Exhibit D1. As Pastor of Mushin Branch, PW1 was obliged to attend meetings at the Headquarters. On one occasion that he could not attend, he wrote a letter of apology, Exhibit D2.

Therefore, contrary to the assertion of PW1 that Mushin Branch was independent and was not subordinate to the Headquarters, the evidence before the Court showed otherwise. PW1 did not have power to ordain ministers at the Mushin Branch. They were presented by him to the Headquarters for ordination. The Ordination was done on 26th September, 2003, (sic: 1993) Exhibit D3. From 1976 when the land was purchased up until PW1 left Defendant Church to establish his own church, he never challenged the authority of the Defendant.

By PW1’s own admission in his pleading, contrary to his evidence in Court, it was the defendant’s church that commissioned him, DW1 and others to negotiate for and buy the land for the Mushin branch. In his words, “the land was bought for Christ Apostolic Church Mushin Branch”.

…

What PW1 did was to use his position as Vice President of the Defendant and his custody of the purchase receipt to surreptitiously apply for the certificate of occupancy for his church using the Defendant’s purchase receipt.”

The above finding of the learned trial Judge is fully supported by the evidence on record. Exhibit D2 written by PW1, Pastor Igbeare on 22nd April, 1994 was signed by him in his capacity as the Vice President of the Apostolic Church of Christ. In the programme for the Headquarters’ Ordination Ceremony held on 26th 1993, PW1 is referred to as representing the Mushin Branch of the Church.

​Furthermore, as pointed out by the learned trial Judge, PW1 admitted under cross-examination that all the branches of the Church were under the Headquarters and that in 1976, the property in dispute belonged to the Mushin Branch of the Apostolic Church. It could not have been otherwise because, the respondent did not come into existence until 1996. It debunks respondent’s contention that the Mushin branch was co-ordinate and not subordinate to the Headquarters. I agree with the learned trial Judge that PW1, being the Vice President of the Church, who had custody of the receipt issued by the Agbeke family, took advantage of his position and knowledge of the defect in title, and used the receipt to apply for ratification of the sale by the Agbeke family. In other words, Exhibits P2, P3 and P4 were obtained on the basis of fraudulent misrepresentation. Exhibit P2 could not confer a valid title on the respondent.

Having discovered that there was a defect in the title obtained from the vendors, the appellant was the party entitled to apply to the Lagos State Government for ratification of same and for the grant of a Statutory Right of Occupation in respect thereof. The learned trial Judge meticulously evaluated the evidence before him. His findings ought not to have been disturbed.

​This issue is accordingly resolved in the appellant’s favour.

ISSUE 2

Whether the Court below was in error when it granted all the reliefs of the Plaintiff/Respondent, particularly its claims for special and general damages which were never proved by credible evidence.

Having regard to my finding on issue 1, the respondent is not entitled to general damages for trespass. I have considered the arguments of learned counsel on either side on the claim for special damages. While it is contended on behalf of the appellant that the respondent gave no evidence in support of the claim for N413,820.00, being the costs of its fence destroyed and building materials allegedly carted away by the appellant, it is the appellant’s contention that no evidence was led in proof of the claim.

The respondent’s pleading with regard to the special damages can be found in paragraphs 19 and 20 of the Further Amended Statement of Claim at page 176 of the record:

“19. That the plaintiffs proposed to use the land, subject matter of this suit as a permanent site to conduct their services.

20. That the plaintiff later deposited building materials on the site of 23/25 Fayemi Street Ejigbo Lagos, subject matter of this suit as stated hereunder.

(The items were listed in sub-paragraphs (i)-(v))”

In support of its pleadings, PW1 testified for the respondent, inter alia:

“We bought building materials after we had fenced the land. The building materials got lost.”

There was no pleading that the building materials were removed by the appellant, its servants or agents. The respondents did not establish any nexus between the appellant and the loss sustained. The law is that special damages must be strictly proved by the person who claims to be entitled to them. The nature of the proof required depends on the facts and circumstances of the case. The evidence must however be credible. See: Oshinjirin Vs. Elias (1970) ALL NLR 151 @ 156: B.B. Apugo & Sons Ltd. Vs OHMB (2016) 13 NWLR (Pt. 1529) 206. British Airways vs Atoyebi (2014) 13 NWLR (Pt. 1424) 253. The receipts tendered by the respondent show that materials were bought. There was however, no evidence to establish the assertion that they were destroyed by the appellant.

In any event, having resolved issue 1 in the appellant’s favour, this issue is resolved against the respondent.

ISSUE 3

Whether the Court below set up a case different from the one presented by the parties themselves in their pleadings and evidence?

Learned counsel for the appellant submitted that the respondent did not plead or rely on the fact that Exhibit P2 was granted to it on the ground of overriding public interest for a place of worship. He argued that the Court is bound to confine itself to the issues raised by the parties before it, and where it raises an issue suo motu, the parties must be invited to address it before it reaches its decision. See: Shasi & Anor. Vs Smith Ors. (2009) 12 SC. (Pt.3) 1: A.G. Leventis vs Akpu (2007) 6 SC (Pt. 1) 239.

Learned counsel for the respondent submitted that the respondent pleaded in paragraph 19 of its 2nd Amended Statement of Claim that the land was required for a place of worship, which pleading was supported by the oral evidence of PW1.

​In light of the pleading and evidence on record, I do not agree with the appellant that the lower Court made out a case for the parties by raising the purpose for which the Certificate of Occupancy was granted. In the course of resolving issue 1, I noted that the Court below was wrong when it held that the Certificate of Occupancy was granted for overriding public purpose or as a place of worship. Exhibit P2 clearly states that the Certificate of Occupancy was granted for residential purpose. The appellant has not shown that it has suffered any miscarriage of justice in this regard. This issue is resolved against it.

ISSUE 4

Whether the lower Court’s reference to a cross-appeal in the judgment occasioned a miscarriage of justice to the appellant.

Learned counsel for the appellant noted that in concluding part of its judgment, the lower Court held thus:

“A careful scrutiny of the evidence reveals that the plaintiff/appellant had established his case on the preponderance of evidence while the respondent fails as it is hinged on the success or failure of the main appeal, as the issues are virtually the same.

…

For the foregoing, it is my decision that this appeal has merit. It succeeds and, in the corollary, the cross-appeal fails and is dismissed.”

​He referred to the record and observed that there was no cross-appeal filed at the Court below. He submitted that while a cross-appeal may fail where the main appeal succeeds, the situation is different where there is a counter-claim, as a counter-claim, in the eyes of the law is a separate action, which may depend on different facts and circumstances. He submitted that reliance on a non-existent cross-appeal is tantamount to reliance on an issue not connected with the real question placed before the Court for adjudication. He referred to:Ejowhomu Vs Edok- Eter Mandilas Ltd. (1986) 2 NSCC 1184.

In response, Learned counsel for the respondent submitted that it is settled law that it is not every slip or mistake made by a Court that would lead to the decision being overturned. He referred to:Onyemaizu Vs Ojiako (2010) 23 WRN 1 @ 11—12. He submitted that the appellant failed to show how the error or slip affected or influenced the decision of the lower Court or occasioned a miscarriage of justice. He referred to: Onifade vs Olayiwola (1990) 21 NSCC (Pt. III) 412 @ 432.

In resolving this issue, I am at one with the respondent. The reference by the lower Court to a cross-appeal is clearly an error or a slip as there was no attempt, in the course of the judgment, to determine a cross-appeal. The appellant has not shown what damage it has suffered by the error. As rightly submitted by learned counsel for the respondent, it is not every error or slip made by a Court that will result in the reversal of the decision. In addition to Onifade Ys Olayiwola (Supra), see also: Ikumonihan vs The State (2018) LPELR- 44362 (SC) @ 28-29 E-A: Abdulmumini vs FRN (2017) 12 SC (Pt. 1) 37: Owhonda Vs Ekpechi (2003) SCNJ 1: Kraus Thompson Organization Ltd. Vs. University of Calabar (2004) 4 SC. (Pt 1) 65: (2004) LPELR-1715 (SC) @ 18-19 E-A.

On the above authorities, the error must be fundamental and must have a crucial effect on the decision, thus occasioning a miscarriage of justice. The appellant has not satisfied this requirement in the instant case. This issue is therefore resolved against the appellant.

​In conclusion, notwithstanding the resolution of issues 3 and 4 against the appellant, there is merit in the appeal. It is hereby allowed. The judgment of the lower Court delivered on 4/2/2011 is hereby set aside. The judgment of the High Court of Lagos State delivered on 10/6/2005 is affirmed.

Costs of N500,000.00 is awarded against the respondent in favour of the appellant.

Appeal allowed.

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SC.270/2011