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Sunmonu Olohunde V. Professor S.K. Adeyoju (2000) – SC

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➥ CASE SUMMARY OF:
Sunmonu Olohunde V. Professor S.K. Adeyoju (2000) – SC

by “PipAr” Branham-Paul C. Chima.

➥ COURT:
Supreme Court – SC.15/1995

➥ JUDGEMENT DELIVERED ON:
Friday, June 30, 2000

➥ AREA(S) OF LAW
Title to land;
Certificate of Occupancy;
Pleadings;
Evidence led.

➥ PRINCIPLES OF LAW
⦿ CLAIM FOR TRESPASS COUPLED WITH INJUNCTION PUTS TITLE OF PARTIES IN ISSUE
It is an elementary principle of law that whenever a claim for trespass is coupled with a claim for an injunction, the title of the parties to the land in dispute is automatically put in issue. See Akintola v. Lasupo (1991) 3NWLR (Pt.180) 508 at 515; Abotche Kponuglov. Kodadja(1933)2W ACA24; Okorie v. Udom (1960) 5 FSC 162, (1960) SCNLR 326; The Registered Trustees of the Apostolic Church v. Olowoleni (1990) 6 NWLR (PU58) 514. The position is even much stronger where, as in the present action, the plaintiff claims a declaration that he is the person entitled, as against the defendant, to occupation and possession of the piece or parcel of land in dispute. The present action involves not only damages for trespass and perpetual injunction, but a declaration as to the plaintiff’s entitlement to the occupation and possession of the land in dispute. It cannot be doubted, in these circumstances, particularly having regard to the pleadings filed in the suit and the evidence of the parties, that the title of the parties to the land in dispute is what is primarily in issue in the case. This is simply because the law is well settled that when the issue is as to which of two claimants has a better right to the possession or occupation of a piece or parcel of land in dispute, the law will ascribe such possession and/or occupation to the person who proves a better title thereto. See Aromire v. Awoyemi (1972) 1 All NLR (PU) 10 at 12 Fasoro v. Beyioku (1988) 2 NWLR (Pt.76) 263 etc. In the same vein, where two parties are on land claiming possession, the possession being disputed, trespass can only be at the suit of that party who can show that title of the land is in him. See Awoonor Renner v. Daboh (1935) 2 WACA 258 at 259 and 263 Umeobi v. Otukoya (1978) 4 SC 33. — Iguh, JSC.

⦿ PLAINTIFF MUST RELY ON THE STRENGTH OF HIS CASE AND NOT WEAKNESS OF DEFENDANT’S CASE
The onus in such cases lies on the plaintiff to satisfy the court that he is entitled on the evidence brought by him to the declaration of title claimed. In this regard, the plaintiff must rely on the strength of his own case and not on the weakness of the defendant’s case. If this onus is not discharged, the weakness of the defendant’s case will not help him and the proper judgment will be for the defendant. See Kodilinye v. Mbanefo Odu (1935) 2 WACA 336 at 337 and Frempong v. Brempong (1952) 14WACA 13. Any evidence, however, adduced by the defendant which, to any extent is favourable to the plaintiff’s case will undoubtedly go to strengthen the case for the plaintiff. See Josiah Akinola and Another v. Oluwo and Others (1962) 1SCNLR 352, (1962) 1 All NLR 224 at 225, Oduaran v. Asarah (1972) 1 All NLR (Pt.2) 137, Idundun and Others v. Daniel Okumagba (1976) 9 – 10 SC 227. — Iguh, JSC.

⦿ PARTY MUST AS WELL ESTABLISH THE TITLE OF WHO HE TRACES TO
It is well settled that once a party pleads and traces his root of title in an action involving title to land to a particular person or source, and this averment, as in the present case, is disputed or challenged, that party, to succeed, as a plaintiff in the suit must not only establish his own title to such land, he must also satisfy the court on the validity of the title of that particular person or source from whom he claims to have derived his title. See Mogaji v. Cadbury Nigeria Ltd. (1985) 7 SC 59, (1985) 2 NWLR (pt.7) 393 at 431; Elias v. Omo-Bare (1982) 5 SC 25 at 37 – 38. — Iguh, JSC.

⦿ LAND WILL CONTINUE TO BE HELD BY THE PERSON IN WHOM IT IS VESTED BEFORE LAND USE ACT COMMENCEMENT
It is common ground that the land in dispute over which Exhibit B was issued in favour of the plaintiff is within the urban area of Ibadan. It is not in dispute that it is developed land within the provisions of section 5(1) of the of the Land Use Act 1978. Accordingly, pursuant to section 34(2) of the Land Use Act, the land in dispute shall continue to be held by the person in whom it was vested immediately before the commencement of the Land Use Act on the 29th March, 1978 as if such person was the holder of a statutory right of occupancy issued to him by the Governor under the Act. — Iguh, JSC.

⦿ CERTIFICATE OF OCCUPANCY IS NOT CONCLUSIVE PROOF OF RIGHT OF OCCUPANCY
I think the point must be stressed that a certificate of statutory or customary right of occupancy issued under the Land Use Act, 1978 cannot be said to be conclusive evidence of any right, interest or valid title to land in favour of the grantee. It is, at best, only a prima facie evidence of such right, interest or title without more and may in appropriate cases be effectively challenged and rendered invalid and null and void. See Lababedi v. Lagos Metal Industries (Nig.) Ltd. (1973) NSCC 1 at 6. — Iguh, JSC.

⦿ PARTY WITH A BETTER TITLE WILL DEFEAT PARTY WHO HAS A CERTIFICATE OF OCCUPANCY
Where a certificate of occupancy has been granted to one of two claimants who has not proved a better title, it must be deemed to be defective and to have been granted or issued erroneously and against the spirit of the Land Use Act and the holder of such a certificate would have no legal basis for a valid claim over the land in issue. So, too, where it is shown by evidence that another person other than the grantee of a certificate of occupancy had a better right to the grant, the court may have no option but to set aside the grant or otherwise discountenance it as invalid, defective and/or spurious as the case may be. See Joshua Ogunleye v. Oni (supra), Dzungwe v. Gbishe and Another (1985) 2 NWLR (Pt.8) 528 at 540. For a certificate of occupancy under the Land Use Act, 1978 to be therefore valid, there must not be in existence at the time the certificate was issued, a statutory or customary owner of the land in issue who was not divested of his legal interest to the land prior to the grant. — Iguh, JSC.

⦿ COURT WILL ACT ON UNCHALLENGED EVIDENCE
The law is well settled that where the 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 seised of the case to act on such unchallenged evidence before it. See Isaac Omoregbe v. Daniel Lawani (1980) 3 – 4 SC 108 at 117, Odulaja v. Haddad (1973) 11 SC 357, Nigerian Maritime Services Ltd. v. Alhaji Bello Afolabi (1978) 2 SC 79 at 81, Abel Boshali v. Allied Commercial Exporters Ltd. (1961) 2 SCNLR 322, (1961) All NLR 917. — Iguh, JSC.

Available:  Deacon J.K. Oshatoba & Anor v. Chief Johnson Olujitan & Anor (2000)

⦿ DUTY OF PARTY CLAIMING LAND THROUGH HISTORY OF OWNERSHIP
The law is clear that it is not enough for a plaintiff seeking a declaration of title to land to lead evidence to trace his title to a particular person. He must go beyond that to establish by credible evidence the root of that person’s title otherwise title will not be declared in him: See Mogaji v. Cadbury Nigeria Ltd. (1985) 2 NWLR (Pt.7) 393; (1985) 7 SC 59; Ogunleye v. Oni (1990) 2 NWLR (Pt.135) 745; Uche v. Eke (1992) 2 NWLR (pt.224) 433. — Uwaifo, JSC.

⦿ VESTED RIGHT IN A LAND MUST BE REVOKED IN ACCORDANCE WITH SECTION 28 LAND USE ACT
It is not in doubt that S.1 of the Land Use Act vests in the Governor of a State the land in that State to be held in trust and administered accordingly. All lands in urban areas are under his control and management. All other lands are under the control and management of the respective Local Governments subject to certain aspects of intervention and determination of the Governor. It is also not in doubt that under S.5(1)(a) of the Act, it shall be lawful for the Governor to grant statutory rights of occupancy to any persons in respect of land, whether or not in an urban area. Under S.5(2), when such a grant is made, all existing rights to the use and occupation of the land which is the subject of the statutory right of occupancy shall be extinguished. But these provisions so far referred to are certainly not to be applied to defeat vested rights recognised under the Act itself. They may admittedly, defeat “existing rights to the use and occupation of the land” but not vested rights unless such vested rights are first revoked under S.28 of the Act as appropriate. This may be (a) for overriding public interest, (b) by notice on behalf of the President for public purposes, (c) for breach of the provisions imposed by S.10 of the Act, (d) for breach of any term envisaged by S.8 of the Act, (e) for refusal or neglect to comply with the requirement specified as per S.9(3) of the Act. In all these cases, the revocation shall be signified by notice duly issued and shall become valid when received by the person with such vested right: See S.28(6) and (7) of the Act. It is an accepted legal principle that vested rights are not lightly taken away. Under the Land Use Act it must be in accordance with S.28 and in addition compensation is payable by virtue of S.29. A person granted a right of occupancy acquires a vested right. So also is a person deemed to have been granted a right of occupancy under the relevant provisions of S.34 of the Act. — Uwaifo, JSC.

⦿ DEEMED HOLDER OF RIGHT OF OCCUPANCY
The land in dispute being developed land before the Land Use Act came into force, who ever had it vested in him then was deemed to have continued to hold the land after the commencement of the Act as if he was the holder of a statutory right of occupancy issued by the Governor under S.5 of the Act. It then follows that no other person can be granted a right of occupancy unless S. 28 of the Act is complied with. Any right of occupancy otherwise purportedly granted is contrary to the provisions of the Act and will be of no validity. See Teniola v. Olohunkun (1999) 5 NWLR (Pt.602) 280. It will be set aside by the court in an appropriate case, or be discountenanced when relied on as against a subsisting holder or deemed holder of a right of occupancy. — Uwaifo, JSC.

➥ LEAD JUDGEMENT DELIVERED BY:
Iguh, JSC.

➥ APPEARANCES
⦿ FOR THE APPELLANT
Alhaji. A. Ishola-Gbenla.

⦿ FOR THE RESPONDENT
A. Akintola.

➥ CASE FACT/HISTORY
By a writ of summons issued on the 12th day of March, 1982 in the Ibadan Judicial Division of the High Court of Justice, Oyo State, the plaintiff, who is now the respondent, instituted an action against the defendants, now the appellants, jointly and severally claiming, as subsequently amended, as follows,.“Declaration that he is the person entitled to occupation and possession of the piece of land measuring about 20 metres by 60 metres (67ft x 200ft) covering an area of approximately 0.12 Hectre, situate at Akoka Village, Ife Road, Ibadan and more particularly marked and delineated on Plan No.L4 & L/D 2131 drawn by Laniyonu & Lawson, Licensed Surveyors and dated 2nd August, 1975 and attached to the certificate of statutory right of occupancy dated 9th January, 1981 Registered as No.9 at page 9 in volume 2357 of the Land Registry in Ibadan.”

The case, as presented by the plaintiff, viva voce, is that Beyioku was the Original owner of the land in dispute by first settlement. In 1975, PW5, Olalere Beyioku and other members of the Beyioku family sold the land in dispute to PW2, Daniel Wellington Aiyedun, and executed a deed of conveyance dated the 21st January, 1976 in his favour. This deed of conveyance, Exhibit G, was registered as No. 57 at page 57 in Volume 1881 of the Register of Deeds kept in the Land Registry at Ibadan. Daniel Wellington Aiyedun subsequently resold the same land in 1977 to the plaintiff for the sum ofN2,600.00 per the receipt Exhibit A dated the 1st March, 1977. The plaintiff claimed to have gone into possession of the land by clearing the same and that he planted gmelina arbona trees round its perimeter. He later applied for and was granted a certificate of statutory right of occupancy on the 9th March, 1981 by the Oyo State Government in respect of the Land. This is Exhibit Band it was registered as No.9 at page 9 in volume 2357 of the land Registry at Ibadan. He visited the land in January, 1982 and discovered that a mosque and an access road had been constructed on the land by the 2nd defendant and that the 1st defendant deposited heaps of sand thereon and uprooted his gmelina arbona trees, hence this action.

The defendants, on the other hand, denied the above claims of the plaintiff. In particular, they denied that gmelina arbona trees were ever planted on the land. They testified that Beyioku family land was on the right hand side of the old Ibadan to Ife road, facing Ife, while their Olohunde family land is on the left. The defendants’ case was that the land in dispute formed part of a large expanse of virgin land which was originally settled on by their ancestor, Olohunde, after the Kiriji war. Olohunde used the land for farming until his death when it devolved on his descendants who continued to use it for farming. They built houses on part of this land, established a mosque in 1950 thereon and had always used the access road on the land which was originally an ancient foot path. The defendants claimed to be the owners in possession of the land in dispute, having inherited it from their ancestor, Olohunde.

Available:  Alhaji Goni Kyari v. Alhaji Ciroma Alkali & Ors. (2001) - SC

At the conclusion of hearing, the learned trial Judge, Oloko, J, after a review of the evidence on the 29th September, 1983, found for the plaintiff.

Dissatisfied with this judgment of the trial court, the defendants lodged an appeal against the same to the Court of Appeal, Ibadan Division, which court in a unanimous decision on the 4th day of July, 1989 dismissed the appeal.

Aggrieved by this decision of the Court of Appeal, the defendants have further appealed to this court.

➥ ISSUE(S) & RESOLUTION(S)
[APPEAL ALLOWED]

I. Whether, with pleading and evidence at variance, the respondent had established his case and whether the court below was right in law to have held that the respondent who pleaded the original settlement of Efun as his root of title needed not to have proved the same?

RULING: IN APPELLANT’S FAVOUR.
A. THAT THE PLAINTIFF/RESPONDENT DID NOT PROVE THE TITLE OF THE PERSON HE TRACES HIS TITLE TO
“I cannot, with profound respect, accept the above reasoning of the court below and its subsequent finding that the plaintiff established and proved his case at the trial as well founded. The position would have been different if the plaintiff’s root of title, namely, first settlement on the land by Efun, was either admitted by the defence or not put in issue. In that case there will be no need to establish the same at the trial. Learned counsel for the plaintiff, in answer to a question from the court, did frankly concede, and quite rightly in my view, that the plaintiff failed to prove the title of Efun to the land in dispute. In the circumstance, it is clear to me that both courts below were in definite error by upholding the validity of the alleged sale of the land m dispute by Aiyedun to the plaintiff when there was no proof whatever by the said plaintiff of the root of title pleaded and relied on by him. In my view, the plaintiff woefully failed to prove his title to the land in dispute.”

“In the present case, there was no amendment of the plaintiff’s statement of claim to the effect that it was no more Efun but Beyioku that first acquired the land by settlement under customary law. Accordingly, since there was no evidence whatsoever in support of the averment in the plaintiff’s pleadings that Efun acquired the land in dispute by first settlement and that he made a grant thereof to Beyioku, neither Efun’s title nor that of Beyioku was established by the plaintiff. Consequently the Beyioku family had nothing to sell to PW2, Aiyedun, by virtue of the maxim, nemo dat quod non habet, that is to say, that no one can give that which he does not have. In the same vein, Exhibit G which is not worth the paper on which it was made became a nudum pactum and passed nothing to PW2. This being the case, the plaintiff purchased nothing from PW2 and did not therefore establish his claims as averred in his pleadings.”

B. EVIDENCE LED BY THE PLAINTIFF/RESPONDENT IS IN CONFLICT WITH HIS PLEADINGS
“Another fatal defect in the way of the plaintiff s case is the conflict between the root of title pleaded by him as against the evidence led by him at the trial on the issue. On the one part, the root of title pleaded by the plaintiff was traced to Efun as the original settler on the land and that the said Efun made a grant of the land to Beyioku. This is contrary to the case presented viva voce by the plaintiff to the effect that it was Beyioku who originally acquired the land in dispute. PW5 Olalere Beyioku, the Plaintiff’s star witness at the trial testified to this effect as follows: “I know the plaintiff in court. I also know the land in dispute. Beyioku was the original owner of the land in dispute” The learned trial Judge in summarising the evidence of the plaintiff in this regard stated thus:- “The case for the plaintiff as averred in his Amended Statement of Claim and his evidence before the Court is that the land in dispute originally belonged to Beyioku family who sold same to one David Wellington Aiyedun in 1976.” The Court of Appeal, for its own part, with regard to the same evidence of the plaintiff in respect of his root of title commented as follows:- “The plaintiff’s case as revealed by the pleadings and evidence is that the land in dispute originally belonged to Beyioku family. It was one Beyioku who settled on the land over 100 years ago. In 1976 one Olalere Beyioku (PW5) as head of the Beyioku family together with the principal members of that family, sold the land in dispute to David Wellington Aiyedun and executed a deed of conveyance dated 21st January, 1976 in his favour.” There is next paragraph 2.3 of the plaintiff’s own brief of argument in this court in respect of his root of title where he stated as follows:- “The plaintiff traced his root of title from one Beyioku who was in absolute possession of the land in dispute about a hundred years ago. When Beyioku died the land became vested in his children who were also in possession of the land in dispute till they died.” There is finally paragraph 5.2 of the same plaintiff’s brief of argument before this court where, again, he emphasized in relation to his root of title as follows: “The plaintiff’s predecessor in title Mr. DW Aiyedun was granted a conveyance of the land in dispute on 21st January, 1976 by the Beyioku Family who were the descendants of one Beyioku whom the two lower courts found was the plaintiff’s root of title”. It therefore seems to me plain that the radical title of the land in dispute was, on the evidence of the plaintiff, traced to Beyioku thus contradicting the averments as pleaded in paragraphs 4(a) – 4 (c) of his Statement Claim.”

“In the first place, it is beyond dispute that parties are bound by their pleadings and evidence which is at variance with the averments in the pleadings goes to no issue and should be disregarded by the court. See Emegokwue v. Okadigbo (1973) 4 SC 113; Ekpeyongand Others v. Chief Ayi (1973) 3 ECSLR411; Odunmosu v. A.C.B. (1976) 11 SC 261, Kalu Njoku and Others v. Ukwu Emeand Others (1973) D 5 SC 293. In my view, the viva voce evidence adduced on behalf of the plaintiff which traced his root of title to Beyioku ought not to have been received in evidence by the trial court and should have been disregarded by both courts below. This is because that evidence went to no issue as a party will not be allowed after pleading a particular set of material facts to turn round and base his case on a totally different set of facts without an amendment of his pleading. See Ehimare v. Emhonyon (1985) 1 NWLR (Pt.2) 177 at 184; Metalimpex v. Leventis (Nigeria) Ltd. (1976) 2 SC 91 at 102.”

Available:  K.A. Onamade & Anor. V. AFrican Continental Bank Ltd. (1997) - SC

C. THAT THE DEFENDANT/APPELLANT PROVED THEIR TITLE TO THE LAND, AND SUCH WAS UNCHALLENGED
“On the contrary, the defendants, as already stated, led copious evidence that the land in dispute formed part of a large parcel of virgin forest land which was acquired by first settlement under customary law by their ancestor, Olohunde. Thereafter, Olohunde immediately went into possession thereof and became the owner of the land until his death when it devolved on his descendants who continued to exercise maximum acts of ownership thereon. Indeed, they have houses, and a mosque which was built in 1950, on the land. The defendants and their family claimed to be the owners in possession of the land, having inherited it from their ancestor, Olohunde. The trial court acknowledged that the defendants’ family led evidence in line with their pleadings and that they traced their root of title to the land in dispute to Olohunde, the radical owner. Said the trial court.:- “On the other hand, the defendants testified in line with the averments of their Amended Statement of Defence. They traced their root of title to their ancestor, Olohunde, who settled on a large tract of land including the land in dispute many years ago.” It ought to be noted that the above observation of the trial court is clearly supported by the evidence of DW1 who gave copious traditional evidence in respect of their ownership of the land in dispute. It seems to me strange that the above traditional evidence led by the defendants in respect of their ownership and possession of the land in dispute was never challenged under cross-examination by the plaintiff. Not one single question was put to any of the three witnesses who testified on behalf of the defendants with a view to challenging the traditional history they led in evidence.”
.
.
II. Whether the court below was right in law by holding that the respondent was entitled to a grant of Exhibit ‘B’ – a certificate of statutory right of occupancy, when the respondent did not discharge the burden of proving that the land was vested in him before the commencement of the Land Use Act 1978?

RULING: IN APPELLANT’S FAVOUR.
A. NO PROOF THAT THE LAND WAS VESTED IN THE PLAINTIFF/RESPONDENT IMMEDIATELY BEFORE THE COMMENCEMENT OF THE LAND USE ACT
“In my view, the plaintiff who failed to establish that he had any right or title to or, indeed, any interest whatsoever, whether legal or equitable, to the land in dispute cannot by any means be rightly said to have had the land in dispute vested in him immediately before the commencement of the Land Use Act on the 29th March, 1978. He cannot, therefore, rightly be deemed a holder of a statutory right of occupancy under section 34 of the Land Use Act immediately before the commencement of that Act.”

“One more point must be made in connection with this abysmal failure on the part of the plaintiff to establish the right he claimed in respect of the land in dispute. This, as I have stated, is the fact that the evidence adduced by him as to his root of title was at variance with the averments in his pleadings in relation thereto and should therefore be discountenanced. In these circumstances, it is clear to me that the respondent was totally unable to prove any entitlement to the land in dispute.”

B. THAT THE LAND WAS PROPERLY VESTED IN THE DEFENDANT/APPELLANT BEFORE THE COMMENCEMENT OF THE LAND USE ACT
“Again, with profound respect, I think the court below was in error when it affirmed the plaintiff’s right to the possession of the land in dispute by holding that the same was lawfully vested in him immediately before the commencement of the Land Use Act. It is my view that the certificate of statutory right of occupancy, Exhibit B, was not validly issued to the plaintiff as the land it covers was at no time vested in him as required by law immediately before the commencement of the Land Use Act. On the contrary, it is my view that the said land was at all material times vested in the defendants’ family whose evidence of radical title in their ancestor, Olohunde, and the devolution of the land down to the said defendants was not challenged at the trial.”
.
.
III. Whether the Plaintiff/Respondent is entitled to damages for trespass and perpetual injunction?

RULING: IN APPELLANT’S FAVOUR.
A. THAT THE PLAINTIFF/RESPONDENT IS NOT ENTITLED TO DAMAGES OR PERPETUAL INJUNCTION
“On the issue of trespass, it is plain that only a person in possession of land in dispute at the material time can maintain an action for damages for trespass. See Olagbenro v. Ajagungbade 111 (1990) 3 NWLR(Pt.136) 37; Adebanjo v. Brown (1990) 3 NWLR (Pt.141) 661. I have already observed that where two parties contest possession or right to possession, the law ascribes possession to the party who has proved a better title to the land in dispute. See also Mogaji v. Cadbury (Nig.) Ltd. (1985) 7 SC 59 at 77 – 72, (1985) 2NWLR (Pt.7) 393; Onwuka v. Ediala (1989) 1 NWLR (Pt.96) 182. The plaintiff was unable to prove possession of the land in dispute and his claims in damages for trespass must be and are hereby dismissed. The same goes with the claim for perpetual injunction.”
.
.
.
✓ DECISION:
“In the final analysis, this appeal succeeds and it is hereby allowed. The judgments and orders of both courts below are hereby set aside and it is ordered that the plaintiff’s claims be and are hereby dismissed with costs to the defendants against the plaintiff which I assess and fix at N500.00 in the High Court, N1,000.00 in this Court of Appeal. and N10,000.00 in the court.”

➥ MISCELLANEOUS POINTS

➥ REFERENCED (STATUTE)
Section 34 Land Use Act 1974;

➥ REFERENCED (CASE)
⦿ CERTIFICATE OF OCCUPANCY GRANTED TO ONE WHO HAS NO BETTER TITLE CONTRADICTS THE LAND USE ACT
As the position was explained by this court in Ogunleye v. Oni (1990) 2 NWLR (Pt.135) 745 at 752,774 – 786: “This is the weakness of a certificate of occupancy issued in such a case. It is never associated with title. Thus, 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.”

➥ REFERENCED (OTHERS)

End

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