Joshua Ogunleye v. Babatayo Oni (1990) – SC


Joshua Ogunleye v. Babatayo Oni (1990) – SC

by “PipAr” B.C. Chima

Supreme Court – S.C. 193/1987


Certificate of occupancy.
Right of occupancy.
Physical possession.

The principle of pleadings has time and again been explained in law books and decided cases in this country that I shall be on the superfluous side to cite them. But suffice to restate that pleadings are meant primarily to let parties know each other’s case. They can even settle issues so as to save the Court’s time, by agreeing on those facts not in contest and leaving the Court to decide from received evidence based on those facts in pleadings contested, the justice of the case. Therefore all matters not denied in the pleadings whether raised in the statement of claim or statement of defence are taken as admitted. Facts emerging from any pleading, raising new matters and throwing new light on the adversary’s averment must be denied. If not denied, they are taken as admitted because there is no element of surprise or embarrassment. There are those occasions when Court suo motu can amend pleadings so as to bring the issues being fought by the parties into proper focus, but this is possible only when such amendment will not raise new issue or give the dispute of the parties entirely new colouration. The Judge who will suo motu amend of course must invite the parties to address him.  Amusa Yesufu Oba v. Hunmuani Ajoke (see Olisa Chukura’s Privy Council judgments 1841-1943) at page 1018; Ambrosini v. Tinko (1929) IX N.L.R.8. — Belgore, JSC.

Where developed land is not in urban area, the law is that the person in whom such land was vested before the Act came into commencement shall continue to have it vested in him as if he was a holder of a customary right of occupancy granted by a local government. It could therefore be seen that the Land use Act is not a magic wand it is being portrayed to be or a destructive monster that at once swallowed all rights on land and that the Governor or local government with mere issuance of a piece of paper, could divest families of their homes and agricultural lands overnight with a rich holder of certificate of occupancy driving them out with bulldozers and cranes. The law as it is that in areas not declared urban by a state government everybody remains where he has always been as if the new Act has vested in him a customary right of occupancy. — Belgore, JSC.

The fact that land is used as a market does not necessarily mean that it is communal land. A market is no doubt a public place which may be an open space or a building where people go to buy and sell goods. But it does not follow from the fact that it is a public place that the market belongs to the community and not to an individual or a group of individuals. Even if the market is communally owned evidence as to the community which owns it must be forthcoming before one can come to the conclusion that it belongs to that community. — Agbaje, JSC.

This court has made it clear in several decisions that if a party bases its title on a grant according to custom by a particular family or community, that party must go further to plead and prove the origin of the title of that particular person, family or community unless that title has been admitted. See on this Mogaji v. Cadbury Nigeria Ltd.  (1985) 2 N.W.L.R. (Pt. 7) 393 at 431 also Elias v. Omo-Bare (1982) 5 S.C.25 at pp.57-58. — Nnaemeka-Agu, JSC.

My first observation is that, contrary to what was the case with the Land Tenure Law of former Northern Nigeria which defined a “right of occupancy” as a “title to the use and occupation of land”, the Land Use Act, 1978, contains no such provision. It never associated the certificate with title. All it does is to give aright of occupancy to an “occupier”, an occupier meaning “any person lawfully occupying land under customary law and a person using and occupying land in accordance with customary law and includes the sub-lessee or sub-under lessee of a holder.” “Occupy” is not defined in the Act. But according to Oxford Universal Dictionary illustrated (3rd Edn.) Vol.2, p.1356, to “occupy” means “to take up, use up, fill (space or time).” It can therefore be seen that a person who occupies real property does not necessarily assert title or ownership to it. He does not even necessarily assert possession of it which not only entails physical possession (or right to possess) but also the intention to defend that possession against the whole world except, sometimes, the true owner. Title, on the other hand, implies the existence of facts from which the right to ownership and possession could be inferred, limitation being only in terms of time, depending as such a title is freehold or leasehold, and so on. — Nnaemeka-Agu, JSC.

Available:  Oyesunle Alabi Ogundare v. Shittu Ladokun Ogunlowo (1997) - SC

On the other hand, a certificate of occupancy only gives the right to use and occupy land. It neither confers nor is it necessarily an evidence of title. — Nnaemeka-Agu, JSC.

It must be noted that the Land Use Act never set out to abolish all existing titles and rights to possession of land. Rather, where such rights or titles relate to developed lands in urban areas, the possessor or owner of the right or title is deemed to be a statutory grantee of a right of occupancy under section 34(2) of the Act. Where it is non-urban land, the holder or owner under customary law or otherwise is deemed to be a deemed grantee of a right of occupancy by the appropriate Local Government under section 36(2). This court re-affirmed this position in the case of Dzungwe v. Gbishe & Anor.  (1985) 2 N.W.L.R. (Part 8) 528 at p.540. So, in a case like the instant, the issue is often who proved a better title or right to possess the land. Where, as in this case, a certificate of occupancy has been granted to one of the claimants who has not proved a better title, then it has been granted against the letters and spirit of the Land Use Act. The courts cannot close their eyes to the weakness of his case for entitlement to it and hold that his weak title has been strengthened by the grant of the certificate of occupancy. Indeed a certificate of occupancy properly issued under section 9 of the Land Use Act ought to be a reflection and an assurance that the grantee has to be in occupation of the land. Where it is shown by evidence that another person had a better right to the grant, the court will have no alternative but to set aside the grant, if asked to do so, or otherwise to ignore it. — Nnaemeka-Agu, JSC.

Belgore, J.S.C.

Professor Jegede.


The claims started as one for damages for trespass allegedly committed in 1984 over a piece or parcel of land situate, lying and being along Ife Road, Isale-Oni Area (Arikese) Osu in Atakumosa Local Government Area and for perpetual injunction restraining the defendant, his servants, agents and privies from further acts of trespass to the land.
The plaintiff based his claim on a grant made to him on the 16th day of January, 1978 by the Osu Community according to native law and custom. The document of grant was tendered as Exh. A. Further, the plaintiff had granted to him by the Commissioner for Lands and Housing, Oyo State, a certificate of occupancy, Exh.B, dated the 27th of June, 1983, and registered as No. 30 at p. 30 in Vol. 2514 of the register kept at Ibadan.

The defendant while not denying the complaint of entry into the land claimed that the land was his by right of inheritance from his father who died in 1947. The land in dispute, he claimed was originally owned by Ahere/Arikese people of Osu who made the grant thereof to the defendant’s father called Ezekiel Oni Aro Ifaturoti under native law and custom in 1936. It was an absolute grant for valuable consideration. His father was in possession thereof from 1936-1947 exercising various acts of ownership over the land. His father had a building on the land, a house comprising two large shops and four living rooms with a separate kitchen and bathroom. The house was roofed with corrugated iron sheets but had fallen into ruins. On the defendant’s father’s death his real and personal properties were partitioned and the land in dispute formed part of the defendant’s share of the inheritance.
The defendant vigorously denied that the plaintiff’s grantors owned the land in dispute and averred that Osu Community as a whole was a conglomeration of seven main District Groups or Settlements which was not a land-owning unit. He also attacked the genuineness of the plaintiff’s document of title. At the hearing in the High Court, each party called witnesses in support of his case.

The Trial court ruled in Appellant’s favor. Respondent appealed and got judgement. This is an appeal by the Appellant.


I. Whether the appellant pleaded and proved the title of the Osu Community to the land in dispute?

A. “In every litigation in the High Court where tenets of customary law and Statutes are applied, native law must be proved. Merely asserting that ‘it is under native law and custom” is not prima facie the native law and custom. It is not enough a fortiori where a defendant, as against the vague statement of claim, has averred clearly and in systematic order the traditional history of the area not contradicted by the plaintiff. Is it not the duty of the plaintiff to prove his case? Certainly in the face of the statement of defence, so meticulously tracing the historical movement of Ilesha people from certain eminent families to settle at Osu, each group dominating his own area, the burden fell on the plaintiff to do so more on his statement of claim and its cosmetic amendment not to mention the evidence he preferred which is devoid of any tradition. Loja Osu (or Loja of Osu), PW2, never mentioned his root of title. He merely said he granted the land to the plaintiff. Osu is not an ancient town, rather it looks more like a frontier settlement of people from urban area. The PW2 is only the second Loja of that place. What is more interesting is the admission under cross-examination by this Loja that he knew just a bit of the history of Osu and that he had no land at Osu, a clear affirmation of the statement of defence. Exhibit A prepared by one Emmanuel Adeyeye Adelakun (perhaps a letter writer), is surely not a document to be given the status of native law and custom, nor does it in the least claim to be a statement of traditional history. The Court of Appeal was thus right to have held that Exhibit A was void and that the plaintiff (now appellant before this Court) had no land vested in him by that document. That being so, the Court of Appeal [Omolou-Thomas, Ogundare, Sulu-Gambari, JJ.C.A.], thought it was wasteful exercise even to advert to the Exhibit B, the Certificate of Occupancy granted by the civilian government of Oyo State over the same land.”

Available:  Ofoke Njoku v. The State (1993)

B. “I am satisfied having regard to the state of the pleadings in this case that the Court of Appeal was right in requiring of the plaintiff not only pleas as to root of title of Osu Community to the land but also evidence in respect thereof. Nothing is pleaded by the plaintiff as to how Osu Community came to own the land in dispute. And as must be expected no evidence was led by the plaintiff in this regard. On the other hand, the defendant pleaded how the Community he alleged as the owners of the land in question came to own it. He gave evidence in support there. So the evidence as to ownership or acquisition of the land in dispute by a particular community was all one way coming as it were from the defendant alone. In my judgment the trial court was wrong in holding that the land in dispute originally belonged to Osu Community. The Court of Appeal in my judgment was right in holding that in the face of the pleadings and the evidence the conclusion was that the land in dispute belonged to Ahere/Arikese community of Osu Community and not to Osu Community and thereby upsetting the decision of the trial court and entering an order dismissing the plaintiff’s claims.”

C. “It can therefore be said that Exh. B [certificate of occupancy] is prima facie evidence that the plaintiff has exclusive possession of the land in dispute. However, at the end of the day, on the evidence for the defendant which the trial court did not accept but what it ought to have accepted having regard to the decision of the lower court, which I too endorse, it is clear that the land in dispute, which is in an urban area, was vested in the defendant immediately before the commencement of the Land Use Act and that it was then developed land. The following evidence from the plaintiff himself at the trial court in cross-examination reinforces me in the latter view:- “It is true the defendant’s father built a shop on the land in dispute at one time or the other.” The effect of section 34(2) of the Land Use Act is that the defendant shall continue to hold the land in dispute as if he were the holder of a statutory right of occupancy issued by the Military Governor under the Act in respect of the land. In short, the defendant is deemed or presumed to be a holder of a statutory right of occupancy in respect of the land as from the commencement of the Land Use Act i.e. 29th March, 1978. Exh. B, the plaintiff’s certificate of occupancy, could only have made him a holder of a statutory right of occupancy in respect of the land in dispute under the Land Use Act as from 27th June, 1983 the date it was issued.”
II. Whether the respondent had proven a better title to the land in dispute?

A. “Uncontradicted is the averment and evidence of the respondent that his father was granted the land in 1936. He called DW3 and DW4 to testify as to this averment in his statement of defence. DW3 Ezekiel Adejuyigbe Adesoyin, is of Arikese/Ahere quarters and of Ogboni descent where the land is situated. DW4 is a living witness of the grant in 1936. Respondent’s father took possession, developed the land by building a structure on it which he used for his business of produce buying. He died in 1947 and the respondent inherited it. The building on it fell into disuse and virtually in ruins. The respondent, none the less made his possession manifest by constructing drainages round the land. The land has buildings in the neighbourhood as in Exhibit A. Unless the land is acquired compulsorily in accordance with the provisions of the Act e.g. for overriding public interest, or for public purpose by the Local Government or State Government [See section 28(1), (2) (3) and (4) whereby compensation must be paid, nobody shall be deprived of his land. The state has no right to dispossess a person of his property lawfully acquired without reason and that reason shall be in the public interest with adequate provisions made in the enabling statute to pay compensation that is just. So has the Land Use Act done. The respondent never received any revocation notice, and no gazette or letter divested him of his right, customary right of occupancy which he was deemed to have. The purported right of occupancy issued by the Governor of Oyo State in 1983 is void and all the appellant has in his hand is a piece of paper having no value.”

Available:  John Nwachukwu v. The State [1986]

B. “In the instant case, the time the appellant’s vendors purported to grant the land in dispute to them, by Exh.A, on the 16th of January, 1978, they had nothing to grant, the maxim being nemo dat quod non habet.  Although a Military Governor of a State could, in a proper case, revoke the respondent’s right of occupancy, under section 28 of the Act, he did not do so before purporting to grant to the appellant a certificate of occupancy. Exh.B over the same land over which the respondent had a right of occupancy. In my opinion, such a grant of a right of occupancy by the Governor or a Commissioner on his behalf to a party when another person’s right of occupancy has not been revoked is invalid. The learned Counsel for the appellant cannot therefore be right when he submitted that the certificate of occupancy, Exh.B, reinforces the appellant’s title.”

C. “The Certificate of Occupancy granted to the plaintiff/appellant is of no help to his case, as the land covered by it was originally communally owned by the Ahere/Arikise faction of Osu Community before the former made a grant of it to the defendant/respondent’s father and who, on the death of his father inherited the same. The customary land tenure is in accord with the principle of the communal ownership of native land stated in the case of Amodu Tijani v. Secretary Southern Nigeria (1921) 2 A.C. 404. It is for these and the fuller reasons given in the lead judgment of my learned brother, Belgore, J.S.C., that I too hereby dismiss this appeal. I award N500.00 costs to the defendant/respondents.”
“I see no merit in this appeal except to re-iterate that the trial Judge erred in law by not following the time honoured principle of our law and practice of meticulously looking at the pleadings. He placed on the respondent a burden not in law his; it is for the plaintiff to prove his case and not rely on the weakness of the defence. In the instant case, the defence is strong, clear, unassailed and the supporting evidence rendered it uncontradicted. I dismiss this appeal with N500.00 costs.”



Amakor v.  Obiefuna (1974) 1 All N.L.R. (Part 1) at page 128 saying:- “Generally speaking, as a claim of trespass to land is rooted in exclusive possession, all a plaintiff need to prove is that he has exclusive possession, of the land in dispute. But once a defendant claims to be the owner of the land in dispute title to it is put in issue, and, in order to succeed, the plaintiff must show a better title than that of the defendant.”

Amodu Tijani v. Secretary Southern Nigeria (1921) A.C.399 as regards the character of the tenure of the land among the native communities in West Africa as follows at page 404:- “The next fact which it is important to bear in mind in order to understand the native land law is that the notion of individual ownership is quite foreign to native ideas. Land belongs to the community, the village or the family, never to the individual. All the members of the community, village or family have an equal right to the land, but in every case the Chief or Headman of the community or village, or head of the family, has charge of the land, and in loose mode of speech is sometimes called the owner. He is to some extent in the position of a trustee, and as such holds the land for use of the community or family. He has control of it, and any member who wants a piece of it to cultivate or build a house upon, goes to him for it. But the land so given still remains the property of the community or family. He cannot make any important disposition of the land without consulting the elders of the community or family, and their consent must in all cases be given before a grant can be made to a stranger.”





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