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In The Supreme Court of Nigeria

On Friday, the 27th day of April, 1990

S.C. 193/1987

 

 

Before Their Lordships

 

 

Andrews Otutu Obaseki

.......

Acting Chief Justice of Nigeria

Augustine Nnamani

   ....... Justice, Supreme Court of Nigeria

Salihu Modibbo Alfa Belgore

   ........ Justice, Supreme Court of Nigeria

Abdul Ganiyu Olatunji Agbaje

Justice, Supreme Court of Nigeria

Abubakar Bashir Wali

Justice, Supreme Court of Nigeria

 

Between

 

Joshua Ogunleye

.......

Applicant

 And 

Babatayo Oni

.......

Respondent

   

 

Judgment of the Court

Delivered By

Belgore, J.S.C.

 

The plaintiff/appellant took out a writ claiming before the High Court of Oyo State, sitting at Ilesha in Ilesha Judicial Division, the sum of N25,000.00 from the defendant/respondent for the act of trespass on a piece of land at Osu by the defendant. He also asked for perpetual injunction against the defendant, his servants, agents, privies or any one claiming through the defendant from any further act of trespass on the land.

 

The appellant based his claim on two premises, to wit, native law and custom, and on statutory certificate of occupancy granted him by the Governor of Oyo State on the same land on 27th day of June, 1983. The issues involved in the pleadings could be seen clearly by reproducing parts of the statement of claim and Statement of Defence:-

 

Statement of Claim

 

(1)  .....

 

(2) .....

 

(3) The plaintiff avers that on or about 16th day of January, 1978 he was granted a parcel of land at ARIKESE Street, along Ife/Ilesa Road, Osu by the Osu Community.

 

(4) The plaintiff avers that the grant was made under Native Law and Custom and the grant was evidenced by a document.

 

(5) Plaintiff avers that the land granted him measured about 200 feet and faced Ife/Ilesa Road.

 

(6) Plaintiff avers that the grant was made to him to build a petrol station.

 

(7) Plaintiff avers that he immediately went into possession and started to exercise all acts of ownership without anyone disturbing his possession or ownership thereof.

 

(8) Plaintiff avers that he caused the land granted him to be surveyed by A.B. Apatira, who prepared him a Survey Plan 2142. Plaintiff will rely on this Survey Plan at the hearing of the case.

 

(9) Plaintiff avers that he later applied for a certificate of occupancy and was granted one dated 27th day of June 1983 and registered as No. 30/30/2514 of the Lands Registry in the office of Ibadan (Plaintiff pleads the certificate of occupancy).

 

(10) Plaintiff will contend that on his application for certificate of occupancy that his claim in respect of the land was advertised and that there was no objection filed to his application.

 

(11) Plaintiff avers that he caused to be carried onto the land BLOCKS and lorry loads of GRAVEL towards constructing a petrol station for which purpose the land was granted him.

 

(12) Plaintiff avers that on or about the 12th day of February, 1984, when he went to the land in dispute found that someone has gone to the land with a caterpillar damaged all his Blocks, Survey Pillars and dispersed the lorry loads of gravels on the land.

 

(13) Plaintiff avers that on his inquiry found that it was the defendant who was responsible for the trespass and caused the damages.

 

(14) Plaintiff avers that he made the defendant understand that he would pay for the damages he caused the plaintiff by committing the acts of trespass enumerated in paragraph (12) above.

 

(15) The plaintiff avers that on or about 28th day of February, 1984, the defendant caused one L. Olufemi Komolafe (Solicitor) to write the plaintiff (The letter of 28/2/84 by Mr. L.O. Komolafe is pleaded).

 

(16) The plaintiff avers that unless, the defendant, his servants, agents, privies or any one claiming for or through the defendant are restrained, they may continue to go to the land to commit further acts of trespass.''

 

As against this statement of claim is a statement of defence, which from paragraph 3 makes the following disclosures in its averments:-

 

(3)    The defendant denies paragraphs 1, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14 and 16 of the plaintiff's Statement of Claim and therefore puts the plaintiff to the strictest proof thereof.

 

(4) With reference to paragraph 3 of the plaintiff's Statement of Claim, the defendant avers that the parcel of land purportedly granted to the plaintiff by the Osu Community on or about the 16th day of January, 1978, included and/or embraced the defendant's land situate, lying and being at ARIKESE/AHERE Street, Oke Omi, along Ilesa/Ife Road, Osu, in the Atakumosa Local Government Area of Oyo State of Nigeria.

 

(5) The defendant's said land at Arikese/Ahere Street, Oke Omi, Osu, is as shown on plan No. AAW/OY/5/84 dated the 2nd day of July, 1984 and drawn by Akin, A.A. Williams, Licensed Surveyor and attached herewith and marked Exhibit 'A'

 

(6) The boundary of the defendant's aforementioned land is as shown on the survey plan marked Exhibit 'A' and is as follows:

 

On the first side by Ilesa/lfe Road.

 

On the second side by Simeon's house/Breadfruit tree.

 

On the third side by a coconut tree.

 

(7) When the defendant came from Lagos on or about the 12th day of February, 1984, the defendant visited the land in dispute as the defendant used to do since the death of his father on November 15, 1947, but to the defendant's surprise, the defendant observed that some quantity of laterite had been deposited on the land. The defendant enquired from his relations at Osu about the strange laterite found on the land but none of them knew the person who deposited it there. Some of the defendant's relations even thought it was the defendant himself who deposited the laterite on the land in dispute in preparation for the defendant's proposed new building.

 

(8) On the same 12th day of February, 1984, the defendant hired a Caterpillar to level up the laterite deposited on the defendant's land together with the debris and/or ruins of the defendant's father's old building thereon in full preparation for the construction of the defendant's proposed new building.

 

(9) Also simultaneously on the 12th day of February, 1984, the defendant went to Ilesa and bargained with a contractor trading under the name and style of Rowos and Company Nigeria Limited to reconstruct a standard canal at the back boundary of the land in dispute so as to allow for free flow of water or easy drainage and run-off from the surrounding swampy terrain into the main gutter of the Ilesa/Ife Road which passes through the frontage of the defendant's land.

 

(10) The defendant avers that the sum of two thousand and seven hundred Naira (N2,700.00) was paid to the said Rowos and Company (Nig.) Limited for effecting the construction of the canal and in respect thereof a receipt was issued to the defendant.

 

(11) On the 13th day of February, 1984 the defendant caused some quantity of gravel to be deposited on his own land.

 

(12) On the 14th day of February, 1984, there was a meeting of the five wards at Oke-Omi, Osu in Chief Ejemo's house to which the defendant's uncle, Mr. Theophillus Ola-Oluwa was invited.

 

(13) The defendant says that it was at that meeting of the five wards that the defendant's uncle, Mr. Theophillus Ola-Oluwa was sent to the defendant by Chief Ejemo and some elders for the first time ever that the defendant should please permit the plaintiff to construct a petrol station on the land in dispute, as such a commercial venture by the plaintiff would bring further development to the Osu township.

 

(14) The defendant's uncle was amazed to learn about the message he was requested to carry to the defendant and had to cleverly dodge the said Chief Ejemo of Osu and the elders present by suggesting to them that it would appear more proper if a delegation of four people was sent to the defendant instead of entrusting him alone with the message but quickly added that he had his misgivings that such a delegation might not even yield any fruitful result as he knew very well that the defendant would not be prepared to yield an inch of the land in dispute to anybody.

 

(15) The defendant later came to know that it was the plaintiff who was responsible for depositing laterite on the land in dispute as found there on the 12th day of February, 1984, by the defendant.

 

(16) On the 15th day of February, 1984, when the defendant came back to Osu from Lagos, the defendant went on the land and found that the plaintiff had tampered with the gravel which the defendant deposited thereon on 13-2-84. The defendant further discovered that either the plaintiff and/or his agents, servants or privies had damaged, destroyed and completely defaced the canal constructed by the defendant along the back side of the boundaries of the land in dispute. The defendant lodged a complaint with the police at Osu in respect of the various acts of trespass committed on the defendant's land by the plaintiff.

 

(17) The defendant avers that the plaintiff further trespassed on the land in dispute on the 4th day of March, 1984, by depositing about one hundred concrete cement blocks thereon apparently to disturb the defendant from effectively carrying on with his building project on the said land. But before then, the defendant had briefed his lawyer, Mr. L. Olufemi Komolafe, to write a warning letter to the plaintiff about his acts of trespass on the land but the plaintiff failed to heed the warning by depositing the cement blocks thereon. The plaintiff's cement blocks are still on the land in dispute by now.

 

(18) As a result of the plaintiff's various acts of trespass on the defendant's land, the defendant caused an action to be instituted against the plaintiff at the ilesa High Court of Justice in Suit No. HIL/19/84. BABATAYO ONI versus JOSHUA OGUNLEYE. The defendant therefore avers that the land in dispute in the present suit is the same as the land in Suit No. HIL/19/84 where the defendant as plaintiff also tiled a plan of the land in dispute. The plaintiff was personally served with the defendant's Writ of Summons in Suit No. HIL/19/84 on 7-3-84 at Osu.

 

(19) The defendant avers that the defendant's land is within the land purportedly granted to the plaintiff by the Osu Community on 16-1-78 as claimed by him.

 

(20) The defendant avers that the area being claimed by the defendant and which forms the subject-matter of dispute between the defendant and the plaintiff is almost triangular in shape save for a minor bulge towards the middle of the side facing Ilesa/Ife Federal Highway which was so demarcated in accordance with the survey rules.

 

(21) The defendant avers that the entire Osu Community has no land of its own at Osu which it can grant to any one at all.

 

(22) The entire Osu Community was made up of a conglomeration of Seven main distinct Descent groups and/or settlement which came to converge at separate locations and points within Oso township at different times and dates.

 

(23) The said Descent groups are traditionally classified as follows:

 

(i) The descendants of the Ogboni of Ilesa who settled at ARIKESEI AHERE where the land in dispute is situate.

 

(ii) The Ogidigbasa/Aguja descendant group. These comprised people from Okesa Street. Ilesa and they either belonged to the Obanla Chieftaine',' or the Ejemo chieftaincy of Okesa Street, Ilesa. The defendant's grandfather, Ogunloke-Odo Ifaturoti, became the second Ejomo of Aguja, Osu, between 1941 and 1952 when he died.

 

(iii)   There was the Afon/Ikobi descendants group who settled at Ikobi, Afon and Oke-Oja Street in Osu. They were the direct descendants of the Owa-Obokun Adimula of Ijesa land.

 

(iv)   There was the Imelejo descendants group who settled at Imelejo Street, Osu.

 

(v)    The Ibo descendants group who were partly members of the Loro Chieftaincy family of Uesa. They settled at Ibo Street at Osu.

 

(vi)   The Obanifon descendants group. They forrned part of both the Odole/Arapate Chieftaincy groups at Ilesa and they settled at Osu.

 

(vii) Finally, there were the Elemoso and Ajido descendants groups who settled who settled at Elemoso Street, and Ajido Street respectively.

 

(24) The defendant avers that the ancestors of these descent groups had been living severally and jointly in their respective areas of settlements until recent years when the Owa Obokun Adimula of Ijesaland first appointed one of his sons as the Loja of the entire Osu Community for administrative purposes only. The present Chief Omolade Adeyokunnu was the second Loja of Osu. The Loja of Osu is not a landed gentry; he has no land anywhere at Osu or its environs.

 

(25) The defendant says that these separate and distinct descent groups became the lawful owners of their individual various areas of settlements within the township of Osu to the exclusion of any other descent group.

 

(26) The defendant further says that as each descent group started to expand in their own individual sectors of the town, they later began to inter-woven through grants and acquisition of land for building and farming purposes.

 

(27) The defendant's ancestors and family belong to the Ogidigbasa/Aguja descendants group who first settled at Odidigbasa/Aguja at Osu.

 

(28) The land in dispute was originally owned by the Ahere/Arikese people of Osu. The defendant's father called Ezekiel Oni Aro Ifaturoti took a grant of the said land from the Ahere/Arikese people under Native Law and Custom in the year 1936.

 

(29) Odofin Elegbeleye was the head of the Ahere/Arikese people of Oke-Omi, Osu at the time the defendant's father acquired the land in dispute.

 

(30) The defendant avers that the grant made to his father by the Ahere/Arikese descent group was an absolute one and is not subject to any reversible principle of law.

 

(31) The defendant's father paid all the customary gifts in respect of the grant to the Ahere/Arikese people. These included a sum of 1 :5s. (now N2.50); Kola-nuts, palm-wine and one bottle of Dry Gin.

 

(32)  The defendant avers that since the land was granted to his father in 1936, his father had been in possession thereof at all material times for many years.

 

(33)  The defendant's father exercised various acts of ownership on the land in dispute and erected a house thereon sometimes in 1936 when the grant was made to him.

 

(34)  The house built on the land by the defendant's father comprised two large shops in the front and four living rooms with a separate kitchen and what may be called an old type of bathroom at the back yard.

 

(35) The defendant's father's house on the land in dispute was roofed with corrugated iron sheets-a rare thing at Osu by that time. On the day the house was roofed, plenty of food and drinks were prepared and served to the people of Ahere/Arikese Quarters. At that time in 1936 very few houses were roofed with corrugated iron sheets at Osu.

 

(36) Many people had lived in the house built on the disputed land before and these included the following people:-

 

(i)    One Kian, an Ijebu man, who was a goldsmith by profession. Re lived in the house for several years between 1941 and 1956.

 

(ii)    Messrs. Bodunrin Arimoro and Asunni Olusesi who lived there sometimes between 1942 and 1946.

 

(iii)   Other members of the defendant's family also lived in the house between 1936 and 1958.

 

(37)  The defendant's father died on the 15th day of November, 1947 leaving behind him many children. Among them are Mrs. Rebecca Eto Famurewa, Jocob Sunday Oni, Folorunso Oni, Olaniyi Oni and the defendant. The defendant's father also left behind him many personal and real properties including the house built on the now disputed piece or parcel of land.

 

(38)   At the death of the defendant's father his personal and real properties were shared among his children in accordance with Ijesa Native Law and Custom as applicable at Osu and the land in dispute together with the house thereon then devolved on the defendant by way of inheritance under Native Law and Custom to the exclusion of all the other children of the defendant's father.

 

(39) The defendant avers that he always looked after the land and house and was responsible for clearing its surrounding premises after he inherited same from his late father and entered into immediate occupation and/or possession thereof.

 

(40) The said house which was built of mud wall and which was surrounded by swamps later collapsed on or about the year 1958. The defendant thereafter removed the iron sheets and the roofing plants, doors and windows of the house for preservation until the defendant would be strong enough to rebuild same on a very strong foundation.

 

(41)  Between 1958 and 1959 the defendant was a student of Apostolic Teacher Training College, Ilesa and was not in a position to rebuild the collapsed house but continued to take care of the premises personally by clearing the weeds thereof. Sometimes the defendant used to engage the services of hired labourers or close relations to help clear the premises of weeds.

 

(42) At all material times, the debris or ruins of the building walls were still discernable on the land in dispute when the premises were being cleared of weeds and many people at Osu used to praise the defendant for all his efforts in taking care of the land and pray that God would spare the defendant's life and give him strength to accomplish his desire and wish to rebuild the house.

 

(43) In the year 1976, when the defendant wanted to start a new building on the land in dispute, the present Ilesa/lfe Road was still under construction and it was not then known how much of the land would be affected by the new road, the defendant was constrained to refrain from continuing with the building project as it was rumoured that all the houses and lands along the present Ilesa/lfe Federal Highway were going to be affected by the new construction.

 

(44) The defendant says that after the Ilesa/Ife road was completed and it became certain that the defendant's land was not seriously affected, the defendant commenced the architectural designs of his proposed new building on the land.

 

(45) The defendant eventually submitted the plan of his proposed building on the land in dispute to the Atakumosa Local Planning Authority for approval. The defendant has since got an approved Building Plan in respect of the said piece or parcel of land. The defendant will rely on the said Building Plan at the trial of this suit.

 

(46) The defendant avers that under the Osu Native Law and Custom, once an absolute grant of any land is made to a person, the principle of reversion will not apply unless that person has no issue surviving him or has no blood relation of his own.

 

(47) When the defendant became worried as to the boldness of the plaintiff in his persistent acts of trespass on the defendant's land after the defendant's solicitor's warning letter, the defendant was forced to make further enquiries during which the defendant learnt it was probable that the plaintiff might have fraudulently and surreptitiously obtained a purported grant of the land in dispute from certain people at Osu. The defendant further learnt that it was probable that the plaintiff had relied on such a mischievious purported grant to obtain a Statutory Certificate of Occupancy in respect of the land.

 

(48) As a result of the information gathered, the defendant went to the Ministry of Works and Housing (Lands Division) to conduct a search on 9-3-84 for which the defendant paid a receipted search-fee of Ten Naira (N10.00).

 

(49) The defendant avers that the search conducted by him reveals the following facts:-

 

(i)    That the plaintiff has been issued with a Certificate of Occupancy dated 27th day of June, 1983 and registered as No.30/30/2514 of the Lands Registry in the Office at Ibadan.

 

(ii)    That the plaintiff relied on a document titled "Agreement For Grant of Land" dated the 16th day of January, 1978, for the grant of the said Certificate of Occupancy.

 

(iii) That the grantors of the purported grant were-

 

(1)    Oba Omolade Adeyokunnu (the Loja of Osu)

 

(2)    Chief Daniel Adedeji Ojo (the Ejemo of Osu)

 

(3)    Chief Samuel Ogunkolade (the Odofin of Osu)

 

(4)    Chief Ezekiel Ayeni Olowolofu (the Salaro of Osu)

 

(5)    Chief Emmanuel Ajileye (the Elemoso of Osu).

 

(iv)  That the purported grant was made for themselves and on behalf of Osu Community.

 

(50) The defendant avers that the purported grant was a fraudulent one in that:-

 

(i) Both the grant and the document relating thereto were back-dated apparently with an intention to beat the Land Use Act of March 29, 1978.

 

(ii) One of the purported grantors, Chief Samuel Ogunkolade was a stark illiterate who could neither write nor read but whose signature was forged on the document. This apart, the said Chief Samuel Ogunkolade had been totally and perpetually blind for over 10 years ago to be able to play and part with regards to the document.

 

(iii)    It was further revealed that the purported "Agreement for Grant of Land" was prepared by one Emmanuel Adeyeye Adelekun, A Solicitor & Advocate of B.41 Okesa Street, Ilesa, whereas the address of the said solicitor should have read A.158A Isinkin/Isokun Street, Ilesa, if the document was actually prepared on 16-1-78 because Mr. Emmanuel Adeyeye Adelakun was at all material times engaged in the Chambers of S. Olu Aoko at A.158A Ishinkin/Isokun Street, Ilesa, and did not set up his own personal Chambers or Office until sometimes in 1980 when he broke off from Mr. S. Olu Aoko 's Chambers and took up a premises at B.41 Okesa Street, Ilesa.

 

(iv)  When Mr. Emmanuel Adeyeye Adelekun broke off from the Chambers of Mr. S. Olu Aoko, Solicitor & Advocate, of A.158A Isinkin/Isokun Street, Ikesa, he first settled at Adeti Street, Ilesa from where he finally moved to B.41 Okesa Street, Ilesa sometimes in 1980. The "Agreement For Grant of Land" therefore must have been prepared when Mr. E.A. Adelakun moved into his B.41 Okesa Street, Ilesa premises sometimes in 1980 and not on 16-1-78.

 

 

(51)The defendant avers that the grantors of the plaintiff have no community land at Osu which they can grant to anybody.

 

 

(52)The defendant says neither the Loja of Osu nor the entire Osu community have any Community land at Osu.

 

(53) The defendant therefore relies on the maxim "Nomo dat quod non habet" and says that the grantors of the plaintiff have nothing to grant to the plaintiff.

 

(54) With regards to paragraph 11 of the plaintiff's Statement of Claim, the defendant says that the land in dispute has been declared unsuitable for a petrol station and as a result the plaintiff could not obtain any approved plan from the Atakumosa Local Planning Authority for the purpose of erecting any petrol station thereon.

 

(55) The defendant says with regards to paragraph 10 of the plaintiff's Statement of Claim that the defendant would not know that the land advertised has any bearing with his own land by reason of the following facts:-

 

(i) The boundary was not described as contained in the document on the "Agreement For Grant of Land".

 

(ii) The area of the two lands are different. The defendant's land measured approximately 1523.430 square metres while the purported land of the plaintiff measured approximately 2787.856 Metres.

 

(iii)  The plaintiff's land is described as being along Ife Road, Isale Omi Area, Osu while the defendant's own land is at Arikese/Ahere Street, Oke-Omi along Ilesha/Ife road, Osu. There is no place known, called, described and being referred to as "Isale-Omi" at Osu.

 

(56) WHERE OF the defendant says that the plaintiff's claim is speculative, frivolous, misconceived and an abuse of the processes of Court and should therefore be dismissed with heavy costs.''

 

In the face of the extensive and highly detailed statement of defence, the plaintiff did nothing more to his Statement of Claim. When trial therefore commenced, the defendant (now respondent) not only joined issue with the plaintiff on the following:-

 

(I) that the Osu community had no right to make any grant of land to the plaintiff as averred in the statement of claim;

 

(2) that the respondent's father had been in possession of the land in dispute since 1936 due to allocation to him by Ogboni settlers at Osu to which set of settlers from Ilesha he belonged;

 

(3) that the Oloja of Osu by tradition could not make the grant he purported to make to the plaintiff; in fact the institution of the Oloja of Osu is of recent origin, new, the incumbent who purported to make the grant in 1978 to the plaintiff was the second Oloja sent by Owa of Ijeshaland and chosen from Odole family of Ilesha. It was contended therefore that there was no hard customary evidence that the Oloja could grant any land at Osu.

 

(4) that Osu is not an old town but a mere settlement of recent time as frontier of Ijeshaland.

 

but also, in the statement of defence raised serious issues that remain up to now undisputed. Inter alia, he averred that all natives of Osu came from Ilesha in seven distinct groups to wit:-

 

(1) Arikese Akere, of Ogboni family, Ilesa, who control the area where the disputed land is situated.

 

(2) Ogidigbasa Aguja (of which the respondent's grandfather was the head i.e. Ejewo Aguja between 1941 and 1942). They came from Okesa, Ilesha and the group was made up of either Obanla Chieftaincy or Ejeme Chieftaincy.

 

(3) The Afo/Ikobi descendants who settled at Ikobi and were direct descendants of Owa Obokun Adimula of all Ijeshas.

 

(4) The Imelejo descendants who settled at Imelejo ward of Osu.

 

(5) Relations of Loro family of Ilesha called IIo who are at Ibo, Osu.

 

(6) A group that came from the families Odole and Arapate of Ilesha and referred to as Obanfon group.

 

(7) The group that has two branches Elemoso and Ajido descendants.

 

All these groups according to the respondent, settled in areas of Osu and the quarters of Osu where they stay bear their respective ancestral homes' names. Perhaps for administrative convenience, the Owa Obokun Adimula (for judicial notice, the Owa of Ijeshaland) seeing Osu prospering and growing decided to have coordinator of the activities of the various groups. He then appointed one of his children as the head of the town with the title of Loja. The present Loja, Omolade Adeyokunnu. P.W.2, is the second Loja to be so appointed and he was not a landed gentry in Osu since "separate and distinct descent groups" become owners of where they now occupy at Osu to the exclusion of any other group. The respondent belongs to the Ogidigbasa/Aguja descendants who occupy the quarters at Osu called by that name. The land in dispute was owned by Ahere/Arikese descendants, and it is situated in Ahere/Arikese quarters. But it was granted to the respondent's father by Ahere/Arikese people under native law and custom in 1936. The appellant in his statement of claim clearly averred in his paragraph 1 of statement of claim as coming from Imelejo Street as averred also in paragraph 23(iv) of statement of defence. The appellant never denied these very important statements of facts in the respondent's pleading. The foregoing, being not denied with all the opportunity available to the appellant to amend his statement of claim to fit in the new and all important averments in the respondent's statement of defence running to fifty-six paragraphs of very important facts that were not met by the appellant's statement of claim of mere sixteen paragraphs is stunning if not amazing. The principle of p1ieadings 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; Am brosini v. Tinko (1929) IX N.L.R.8. The appellants claim was fully traversed by respondent's statement of defence; but it did not end there. The statement of defence raised new issues to explain why appellant's case has no merit. The facts so raised in the defence are of historical significance that if true, the appellant's case would have no merit. The evidence in support of the appellant's case hardly departed from his statement of claim; of course if it did, such points of departure would have gone to no issue. The appellant thus consistently relied on his grant from Osu people (Exhibit A) and subsequent statutory certificate of Occupancy granted on the same piece of land by the Governor of Oyo State in 1983 (Exhibit B) as the main plank of his case despite the alarming important and damaging facts in the statement of defence that remain untraversed up to this moment, except for cosmetic attempt at the close of the evidence of both parties, when the counsel for the appellant, despite stiff opposition by the respondent on the principle of audi alteram partem, proposed to amend statement of claim by inserting after paragraph 5 thereof, a new paragraph 5(a) as follows:-

 

That the portion of land granted to the plaintiff by the Osu community formed portion of land, which was formerly used as market and which market has gone into ruins.

 

The motion proposing the amendment was argued as I said above, after all the evidence by both parties had closed. Trial Judge curiously enough, did not rule there and then, but merely wrote as follows;

 

Ruling to be delivered along with the judgment later.

 

He then proceeded to hear the addresses by both counsel. But what one would have understood easily by his reserving the ruling "along with the judgment" is that it would be contained in the judgment. That was not to be; for on 13th December, 1984, learned Judge delivered the ruling first and then went on to deliver the judgment. His ruling ended as follows:-

 

In my view the present amendment only underscores the claim of the plaintiff that the area in dispute is a community land.

 

I am satisfied that the present application is brought in good faith and it is hereby granted...

 

He proceeded immediately to read his judgment, after the ruling, in which he found for the appellant. He relied almost entirely on the amendment of the statement of claim and his opinion of the native law and custom in relation to rights of Chief and Heads of Community in relation to land. It is pertinent to quote him for his reasons in giving judgment in favour of the appellant:

 

. . . . In the case of  the defendant he claimed a grant of the land in dispute to his father one ODOHN ELEGBELEYE the head of AHERE/ARIKESE DESCENDANT People. No witness was called from Ahere/Arikese Descendant Group. In other words, the defendant failed to support by evidence the averment in his Statement of Defence supporting the grant made to his father in 1936. I prefer the evidence of grant as adduced in this court by the plaintiff to the purported and unhealthy evidence of grant adduced by the defendant. Let me state straight-away that I was impressed by the way the 2nd P.W. Chief Omolade Adeyokunnu -The Loja of Osu frankly and genuinely answered questions under cross-examinations. He appeared to me unruffled. I accept his evidence in its entirety.

 

The defendants struggled but in vain to dislodge the idea that communal land exists in Osu. The evidence before me as adduced by the plaintiff shows clearly that there is communal land at Osu:-

 

Communal land, as the word denotes, is land belonging to the community, village or family and never to an individual nor does it attach itself to a title". See the case:-S. Adetona & 2 Ors. V. T. Ajani (1959) W.R.N.L.R.213 at 216.

 

Too much energy was wasted on the contention that 2nd P.W., the Loja of Osu has no land of his own at Osu. Such exercise has overlooked the meaning and significance and responsibility of Chiefs and/or Heads of Community in relation to Communal land. Learned Counsel for the defendant strongly contested but in vain that the plaintiff had not traced the root of title of Osu Community. This claim by the defendant is ridiculous and portrays lack of understanding of the principle of native law and custom governing communal ownership. I therefore reject the submission of learned counsel for the defendant that plaintiff should prove the root of title of communal ownership. In any event, this is a civil case on which a party only succeeds on the preponderance of evidence. I am satisfied and I do hold that the evidence adduced by the plaintiff on the issue of grant, is more buoyant, convincing and heavily supported by the Statement of Claim.

 

Against this judgment the present respondent appealed to the Court of Appeal, Ibadan branch. In the lead judgment by Ogundare, J.C.A. learned Justice immediately hit the nail on the head and did so admirably. What learned trial Judge ought to resolve was simple, according to Ogundare, J.C.A., but that he ignored the issue. What was required to be resolved, said he, "was not what had a better grant but who had a better title." The plaintiff, it was held, had failed to establish a better title than that of the defendant, the main burden that rested on him as complainant! The judgment of this Court by Fatayi-Williams, J.S.C. (as he then was) in 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.

 

was relied upon by the Court of Appeal.

 

The Court of Appeal held that even the amendment of the Statement of Claim never cured anything in the face of the formidable statement of defence. Surely there was nothing in the statement of claim to indicate how Osu Community came into being, only the Statement of Defence avered to that. The Statement of Claim indicated nothing as to how the Osu Community owned the land that it granted the plaintiff through Oloja of Osu and other Chiefs. The Court of Appeal allowed the appeal and thus appeal to this Court.

 

Before this Court, Professor Jegede, of counsel for the appellant by motion urged the Court to allow him argue additional ground of appeal on point of law not canvassed and not fully adverted to in the Court of Appeal and on which Court of Appeal never pronounced or refused to pronounce upon His Brief of Argument already adverted to the issues. The application was granted. The appellant therefore had the following issues:-

 

(3)    Issues for Determination

 

(3.3) Whether the appellant pleaded and proved the title of the Osu Community to the land in dispute?

 

(3.4) Whether the Court of Appeal was right in placing the burden of proof on the appellant to trace the root of title of the Osu Community?

 

(3.5) Whether the respondent had proven a better title to the land in dispute?

 

(3.6) Whether the action should have been struck-out "suo-motu" by the Court of Appeal for want of necessary parties.

 

Earlier on there was application in Chambers for leave to appeal with application for time having been extended to appeal. The grounds of appeal, very interesting indeed, are of great importance in apprehension of the Land Use Act, 1978 No.6 Laws of the Federal Republic of Nigeria. I set out the first ground that pertains to the aforementioned Act and the two other grounds reading as follows:-

 

Grounds of Appeal:-

 

(1)    The learned Justices of the Court of Appeal erred in law and misdirected themselves on the facts by holding that the appellant failed to establish how the Osu Community, which granted the disputed land to him became the owners of the land.

 

Particulars

 

(a)   The plaintiff pleaded and tendered the Certificate of Occupancy issued to him by the Oyo State Government in respect of the disputed land.

 

(b)   The Certificate of Occupancy being a prima facie evidence of the title to the disputed land, dispenses with the need to trace the radical title of the Osu Community.

 

(c)   The evidential implication of the Certificate of Occupancy shifts the burden of disproving the title of the appellant and the Osu Community to the respondent.

 

(2)    The learned Justices of the Court of Appeal misdirected themselves on the facts in holding that the respondent had established a better title to the disputed land when:-

 

(a)    The respondent did not lead evidence in support of the Ijesha Customary Law of succession to immovables under which he purportedly inherited the disputed land.

 

(b)   The respondent did not lead proper evidence on the partitioning of his father's property.

 

(c)   The respondent failed to tender any letter of administration in respect of his father's estate.

 

(d) The 4th D.W. regarded the property as belonging to her father.

 

(e)(e)   The respondent failed to call any credible witness from Aherel Arikese family in proof of the grant of the disputed land to his father.

 

(f)    The respondent did not establish by evidence his claim of succession to the land.

 

(3) The judgment is against the weight of evidence.

 

Professor Jegede certainly wrote a brilliant brief for the appellant in the face of the gigantic odds that had been built up from the trial Court resulting in adverse result for the appellant in the Court of Appeal. In this Court, in the oral argument to amplify his brief, he emphasised more on the Land Use Act, 1978. It is true the Act is revolutionary and it was meant to streamline Land Use and management in the entire Federation. The pre-amble to that Decree was revolutionary enough. But I must say right now that that Law should not be construed, despite its revolutionary nature of vesting in the "Military Governor" of each State the land within that State "to be held in trust and administered for the use and common benefit of all Nigerians in accordance with the provisions" of the Decree [See S.l Land Use Act, supra]. It at once seems that nobody holds any land again but only the Military Governor. The powers of the Military Governor have been exhaustively explained by this Court in Savannah Bank V. Ajilo (1989)1 N.W.L.R. (Pt.97) 305. But of great importance is the phrase "subject to provisions of this Act; The Act in section 2 states:

 

2(1) As from the commencement of this Decree

 

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

 

(b)  all other land shall, subject to this Decree, be under the control and management of the Local Government within the area of jurisdiction of which the land is situated.

 

This sub-section should be read along with the section which states:-

 

(4)    Until other provisions are made in that behalf and, subject to the provisions of this Decree, land under the control and management of the Military Governor under this Decree shall be administered-

 

(a)    in the case of any state where the Land Tenure Law of the former Northern Nigeria applies, in accordance with the provisions of that Law;

 

and

 

(b)   in every other case, in accordance with the provisions of the State Land Law applicable in respect of State land in the State,

 

and the provisions of the Land Tenure Law or the State Land Law, as the case may be, shall have effect with such modification as would bring those laws into conformity with this Decree or its general intendment.

 

The Land Tenure Law of Northern Nigeria is still the law in the eleven States of Nigeria that formerly were part of former Northern Nigeria and State Land Laws are still the laws in the remaining States of the Federal Republic. To make for avoidance of doubt section 36 of the Act provides in Transitional Provisions as follows:-

 

36    (1)    The following provisions of this section shall have effect in respect of land not in an urban area which was immediately before the commencement of this Decree held or occupied by any person.

 

(2)    Any occupier or holder of such land, whether under customary rights or otherwise howsoever, shall if that land was on the commencement of this Decree being used for agricultural purposes continue to be entitled to possession of the land for use for agricultural purposes as if a customary right of occupancy had been granted to the occupier or holder thereof by the appropriate Local Government and the reference in this sub-section to land being used for agricultural purposes includes land which is, in accordance with the customary law of the locality concerned, allowed to lie fallow for purposes of recuperation of the soil.

 

(3)...

 

(4)    Where the land is developed, the land shall continue to be held by the person whom it was vested immediately before the commencement of this Decree as if the holder of the land was the holder of a customary right of occupancy issued by the Local Government, and if the holder or occupier of such developed land, at his discretion, produces a sketch or diagram showing the area of the land so developed the Local Government shall if satisfied that that person immediately before the commencement of this Decree has the land vested in him register the holder or occupier as one in respect of whom a customary right of occupancy has been granted by the Local Government.

 

It can therefore be clearly seen that the Decree of 1978 is not a Draconian document it is supposed to be. The land whether developed or undeveloped in any area not urban, that is to say rural area, held by a person under a recognised customary tenure before the commencement of the Decree in March, 1978 would continue such rights and privileges on the said land subject to provisions of the Decree. Whether developed or undeveloped, the holder shall hold such land as if a customary right of occupancy had been granted to him by the local government of that area. If a person desires to alienate such land, his privilege of "presumed grant" may have to be extinguished because he will have to invoke the provisions of S.36(3) (supra) to register his holding for full recognition that he has been issued customary right of occupancy. The holder of such land could invoke the provisions of S.36(3) (supra) at his discretion. 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 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.

 

Certainly in this case all the appellant did at the trial Court was that Exhibit A headed "Agreement for Grant of Land" was a grant to him by Loja of Osu of an abandoned market place. The Loja of Osu, a prince of Ilesa, and the second supreme head they ever had in that rural place was purportedly supported in the grant by other chiefs in the following terms:

 

WHEREBY the Grantors for themselves and on behalf of Osu Community grant under Native Law and Custom to the Grantee portion of the Grantors' land situate, lying and being at Arikese Street, Osu, Atakunmosa Local Government, Oyo State of Nigeria, which portion of land measured 150 feet by 200 feet and bounded as follows:-

 

On the first side by Ife/Ilesa Road,

On the second side by Mr. Simeon's building,

On the third side by Mr. Taiye Egbeniboni's building and

On the fourth side by Mr. Ogunjuyigbe's building.

 

... with the appurtenances thereon for an estate of inheritance absolute in possession and free from all encumbrances.

 

The above extract of Exhibit A is not proof of custom of Osu. Exhibit A, I must say, is purported to be a legal document and not native law and custom. There is no statute of Oyo State declaring what native law and custom of Osu or Atakunmosa Local Government, Osu to land is. 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 afortiori 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 proferred which is devoid of any tradition. Loja Osu (or Loja of Osu), P.W.2, 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 P.W.2 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 [Omololu-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.

 

Uncontradicted is the averment and evidence of the respondent that his father was granted the land in 1936. He called D.W.3 and D.W.4 to testify as to this averment in his statement of defence. D.W.3 Ezekiel Adejuyigbe Adesoym, is of Arikese/Ahere quarters and of Oghoni descent where the land is situated. D.W.4 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 ~947 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 5.28(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.

 

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.

 

 

Judgmeent delivered by

Obaseki Ag. C.J.N

 

 

I have had the advantage of reading in advance the draft of the judgment just delivered by my learned brother, Belgore, J.S.C., and I find myself in agreement with him on the opinions expressed therein on the issues for determination in this appeal.

 

Accordingly, I hereby adopt those opinions as my own. The appeal fails and I hereby dismiss it with N500.00 costs to the respondent.

 

The main issue for determination in this appeal is whether the certificate of occupancy granted to the appellant confers title on the appellant when it was issued by the Military Governor of Oyo State in pursuance of a deemed grant under section 34 of the Land Use Act 1978. It should be clear from the provisions of that section that any person without title to a parcel of land in respect of which the certificate of occupancy was issued acquires no right or interest which he did not have before. Furthermore, the certificate of occupancy cannot estop the court from enquiring into the validity and existence of the title the person claimed to possess before the issue of the certificate.

 

 

Judgmeent delivered by

Agbaje. J.S.C

 

 

I have had the privilege of reading in draft the lead judgment of my learned brother Belgore, J.S.C, I entirely agree with him that this appeal lacks merit.

 

The plaintiff Joshua Ogunleye claims against the defendant Babatayo Oni N25,000 damages for trespass to land and an injunction against further trespass.

 

The land in dispute is a parcel of land situate along Ife Road Isale-Omi Area (Arikese) Osu in the Atakumosa Local Government Area of Oyo State.

 

The plaintiff by his claims as just stated puts his title to the land in dispute in issue. His claims postulate that he is the owner of the land in dispute or has had prior to the trespass complained of exclusive possession of it. See Kponuglo v. Kodadja 2 W.A.C.A.24.

 

The material averments in the plaintiff's statement of claim in support of his claims are as follows:-

 

(3)    The Plaintiff avers that on or about 16th day of January, 1978 he was granted a parcel of land at Arikese Street, along Ife/Ilesa Road, Osu by the Osu Community.

 

(4)    The Plaintiff avers that the grant was made under Native Law and Custom and the grant was evidenced by a document.

 

(5)    Plaintiff avers that the land granted him measured about 150 feet by 200 feet and faced Ife/Ilesa Road.

 

(6)    Plaintiff avers that the grant was made to him to build a petrol station.

 

(7)    Plaintiff avers that he immediately went into possession and started to exercise all acts of ownership without anyone disturbing his possession or ownership thereof.

 

(8)    Plaintiff avers that he caused the land granted him to be surveyed by A.B. Apatira, who prepared him a Survey Plan 2142, Plaintiff will rely on this Survey Plan at the hearing of the case.

 

(9)    Plaintiff avers that he later applied for a certificate of Occupancy and was granted one dated 27th day of June, 1983 and registered as No. 30/30/2514 of the Lands Registry in the office at Ibadan (Plaintiff pleads the certificate of Occupancy).

 

(11)  Plaintiff avers that he caused to be carried onto the land BLOCKS and lorry loads of GRAVEL towards constructing a petrol station for which purpose the land was granted him.

 

At the close of the case for both sides at the trial court but before addresses counsel for the plaintiff applied to amend his statement of claim in the following term:-

 

(a)    by adding the word "Osu" immediately after the words "Ifel Ilesa Road" in paragraph 5 of the plaintiff's statement of claim.

 

(b)   by adding new paragraph 5(a) before paragraph 6 of the plaintiff's statement of claim. "5(a) That the portion of land granted the plaintiff by the Osu community formed portion of land, which  ~'as formerly used as market and which market has gone into ruins" . . .

 

The application was heard on 15/11/84 and the learned trial Judge reserved his ruling on it till the time he would give his judgment in the case.

 

All the averments upon which the plaintiff's bases his claims are denied by the defendant in his statement of defence. Later on in this judgment I will say more about the statement of defence.

 

The learned trial Judge gave his ruling on the application to amend the plaintiff's statement of claim and his judgment on the case on 12/12/84 separately the ruling apparently before the judgment. The amendment sought was granted. The learned trial Judge entered judgment for the plaintiff holding as follows:

 

In this action, it is manifest that both by their pleadings and the evidence which they gave in court, the plaintiff and the defendant rely on different grants. Indeed both parties had claimed to be in possession of the land in dispute at all material times. In such circumstances, the law ascribes possession to the party with title or with a better title.

 

Having held that the plaintiff has proved a better grant than the defendant, . .

 

. . . I hereby enter judgment in favour of the plaintiff in the sum of N1,000,00 as general damages for trespass committed by the defendant on plaintiff's land situate and being along Ife road, Isale-Omi area (Arikese) Osu in Atakumosa Local Government.

 

On appeal to the Court of Appeal, Ibadan Division by the defendant that court coram Omololu, Ogundare and Sulu-Gambari, JJ.C.A., as per the lead judgment of Ogundare, J.C.A., in which the other Justices concurred, reversed the decision of the trial court held in doing so as follows:

 

Indeed, the Plaintiff and his witnesses including even the Loja (P.W. 1) are completely ignorant of the history of Osu and the settlement of the various Descendant Groups. On the unchallenged evidence for the defence of settlement and the grant to defendant's father the learned trial Judge ought to have found that grant proved and since the defendant traced his title to one whose title too has been established, he ought to have held that the defendant has a better title than the plaintiff whose title was not proved.

 

With respect to the learned trial Judge, he fell into serious errors in the passages of his judgment I have earlier in this judgment quoted. It is erroneous to find on the evidence that there was communal land at Osu. Not only was this not pleaded, it was not proved either. I do not know of any principle of native law and custom governing communal ownership which dispenses with the proof of the root of title of a grantor such as the Osu Community was to the plaintiff in this case. It is therefore erroneous for the learned Judge to have referred to the submission of learned counsel for the defendant that the plaintiff failed to trace the root of title of his grantor, as ridiculous and portraying lack of understanding of an undisclosed principle of native law and custom governing communal ownership. Neither the learned trial Judge, in his judgment, nor learned counsel for the parties, before us, touched on the effect of the certificate of statutory right of occupancy granted to the plaintiff by the Governor. In the circumstance I need not base my judgment on it either. Suffice it to say, however, that as, on my finding above, the plaintiff by the grant to him by the Osu Community acquired no title to the land in dispute he could not be deemed to be the holder of a right of occupancy to, in relation to the land in dispute, on the coming into force of the land Use Act. If any of the parties could he so deemed it would be the defendant who has established a better title to the land.

 

An Order dismissing the plaintiff's claims was thereafter entered in the lower court. The plaintiff in turn has now appealed from that judgment to this court.

 

The issues arising for determination in this appeal have been set down in the lead judgment. I need not set them down here in extenso.

 

As regards the issue whether the Court of Appeal was right in requiring the plaintiff not only to plead the root of title of Osu Community to the land in dispute but also to prove the same by evidence, I will begin by saying that the plea of the plaintiff in his statement of claim that the land in dispute belongs to Osu Community was denied by the defendant in his statement of defence who pleads as to the ownership of the land in dispute as follows:

 

(21) The defendant avers that the entire Osu Community has no land of its own at Osu which it can grant to any one at all.

 

(22) The entire Osu Community was made up of a conglomeration of Seven main distinct Descent groups and/or settlements which came to converge at separate locations and points within Osu township at different times and dates.

 

(23) The said Descent groups are traditionally classified as follows:

 

(i)    The descendants of Ogboni of Ilesa who settled at ARIKESEI AHERE where the land in dispute is situate.

 

(ii)    The Ogidigbasa/Aguja descendant group. These comprised people from Okesa Street, Ilesa and they either belonged to the Obala Chieftaincy or the Ejemo Chieftaincy of Okesa Street, Ilesa. The defendant's grandfather, Ogunloke-odo Ifaturoti, became the second Ejemo of Aguja, Osu, between 1941 and 1952 when he died.

 

(iii) There was the Afon/Ikobi descendants group who settled at Ikobi, Afon and Oke-Oja Street in Osu. They were the direct descendants of the Owa-obokun Adimula of Ijesa land.

 

(iv) There was the Imelejo descendants group who settled at Imelejo Street, Osu.

 

(v)   The Ibo descendants group who were partly members of the Loro Chieftaincy family of Ilesa. They settled at Ibo Street at Osu.

 

(vi) The Obanifon descendants group. They formed part of both the Odole/Arapate Chieftaincy groups at Ilesa and they settled at Osu.

 

(vii)  Finally, there were the Elemoso and Ajido descendants groups who settled at Elemuso Street, and Ajido Street respectively.

 

(24) The defendant aver that the ancestors of these descent groups had been living severally and jointly in their respective areas of settlements until recent years when the Owa Obokun Adimla of Ijesaland first appointed one of his sons as the Loja of the entire Osu Community for administrative purposes only. The present Chief Omolade Adeyokunnu was the second Loja of Osu. The Loja of Osu is not a landed gentry: he has no land anywhere at Osu or its environs.

 

(25) The defendant says that these separate and distinct descent groups became the lawful owners of their individual various areas of settlements within the township of Osu to the exclusion of any other descent group.

 

(26) The defendant further says that as each descent group started to expand in their own individual sectors of the town, they later began to inter-woven through grants and acquisition of land for building and farming purposes.

 

(27) The defendant's ancestors and family belong to the Ogidigbasa/Aguja descendants group who first settled at Ogidigbasa/Aguja at Osu.

 

(28) The land in dispute was originally owned by the Ahere/Arikese people of Osu. The defendant's father called Ezekiel Oni Aro Ifaturoti took a grant of the said land from the Ahere/Arikese people under Native Law and Custom in the year 1936.

 

(29) Odofin Elegbeleye was the head of the Ahere/Arikese people of Oke-Omi, Osu at the time the defendant's father acquired the land in dispute.

 

(30) The defendant avers that the grant made to his father by the Ahere/Arikese descent group was an absolute one and is not subject to any reversible principle of law.

 

It is true as observed by counsel for the plaintiff, Professor Jegede, that it was said in 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.

 

It is to be noted from the pleadings in this case that the claim of either of the parties to this case is rooted in community ownership of the land in dispute.

 

For the plaintiff it is contended that the land in dispute belongs to Osu Community. On the other hand the defendant denies this and asserts that it belongs to Ahere/Arikese Community of Osu. To that extent it appears clear to me that neither side is alleging any land tenure which is different from what was stated in Tijani V. The Secretaiy Southern Nigeria (supra). Either side claims to have got his grant of the land in dispute from the Community it alleges as its owner. Tijani V. Secretary Southern Nigeria (supra) recognises such a grant under the land tenure it stated.

 

I am satisfied that the pleas of both sides are in keeping with the decision in Tijani V. Southern Nigeria (supra) as to land tenure in West Africa.

 

The issue in this case is whether the land in dispute originally belonged to Osu Community as alleged by the plaintiff or to Ahere/Arikese Community of Osu as alleged by the defendant. It cannot be gainsaid that the burden is on the plaintiff to prove that it belonged to Osu Community. See sections 134 and 135 of the Evidence Act.

 

The only averment in the plaintiff's statement of claim that the land in dispute belonged to Osu Community is paragraph 5a thereof which for ease of reference I reproduce again here:-

 

5(a) That the portion of land granted the plaintiff by the Osu Community formed portion of land, which was formerly used as market and which market has gone into ruins

 

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.

 

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.

 

The Court of Appeal as per the lead judgment of Ogundare, J.C.A. said apropos of Exh.B the Certificate of Occupancy which the plaintiff got in respect of the land in dispute thus:-

 

Neither the learned trial Judge, in his judgment, nor learned counsel for the parties, before us, touched on the effect of the certificate of statutory right of occupancy granted to the plaintiff by the Governor. In the circumstance I need not base my judgment on it either. Suffice it to say, however, that as, on my finding above, the plaintiff by the grant to him by the Osu Community acquired no title to the land in dispute he could not be deemed to be the holder of a right of occupancy to, in relation to the land in dispute, on the coming into force of the Land Use Act.

 

If any of the parties could be so deemed it would be the defendant who has established a better title to the land.

 

Now the plaintiff has raised, with the leave of this court, the question of the legal effect of Exh. B. Counsel for the plaintiff has submitted in this regard as follows:-

 

It is submitted that the certificate of occupancy Exh. B put in evidence by the Appellant is a prima facie evidence of title which raises a presumption of title in his favour.

 

The consequence of which is that the burden of proving a better title to the land in dispute shifts to the respondent.

 

In this regard he drew our attention to the following passage in an article entitled Problems of Proof in Declaration of title to land published in Volumes 6 & 7 of the Journal of Private and Property Law by Yemi Osibajo

 

However a general statement that may be made about the certificate of occupancy is that it raises a presumption in favour of the holder; albeit a rebuttable presumption that the holder has a right of occupancy. The onus of disproving this right is on the person who asserts the contrary.

 

This statement by Mr. Yemi Osibajo can be said generally speaking to be correct. It can therefore be said that Exh. B 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.

 

Section 15 of the Land Use Act provides:-

 

(15) During the term of a statutory right of occupancy the holder

 

(a)    shall have the sole right to and absolute possession of all the improvements on the land;

 

(b)   may, subject to the prior consent of the Military Governor, transfer, assign or mortgage any improvements on the land which have been effected pursuant to the terms and conditions of the certificate of occupancy relating to the land."

 

The earlier statutory right of occupancy which the defendant holds in respect of the land in dispute and which has not been revoked is better than the later statutory right of occupancy in respect of the same land which the plaintiff could only have held as per Exh. B. So, in my judgment, the prima facie title of the plaintiff to the land in dispute because of Exh. B has been rebutted.

 

In this action as constituted with only the plaintiff and the defendant as the parties to it, the trial court could effectually and completely adjudicate upon and settle all the questions involved in the cause. In fact it did, albeit wrongly. So the question of the cause being defeated by reason of the misjoinder or non joinder of parties does not arise at all in this case. So I cannot find any basis for the issue raised in the appellant's brief of argument as to whether the plaintiff's action should have been struck out by the Court of Appeal for want of necessary parties to the proceedings.

 

For the above reasons and the fuller reasons given in the lead judgment of my learned brother Belgore, J.S.C. I too dismiss the appellant's appeal with costs as assessed in the lead judgment.

 

 

Judgment delivered by

Nnaemaka-Agu, J.S.C.

 

 

This appeal by the plaintiff brings into focus what is required to prove by a plaintiff who relies upon a grant for his proof of title to land. Incidentally, it exposes the weakness of a certificate of occupancy which has been granted where the grantee has no title to the land.

 

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 Rousing, 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 l936-l947 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 testimony of the plaintiff's star witness, Chief Omolade Adeyokunnu, the Loja of Osu and the Head of Osu Community who testified as P.W.2 is significant. He said:-

 

I did not know how people settled at Osu before the appointment of Loja. I was told there was market on the land in dispute for some time. I was told that at one time defendant's father as well as some other people had stalls on the land in dispute. . .1 have no land of my own at Osu. Anything belonging to the Community, since I am the head, I have the right to grant it. The defendant's stall had been ruined before I became the Loja.

 

Thus he admitted that for sometime the defendant's father had a structure on the land in dispute. He also admitted that he had no land of his own at Osu. Although he maintained that as the head of the Community he had the right to grant anything belonging to the Community, that custom was never pleaded anywhere in the Statement of Claim and so, on a proper direction, it was evidence that went to no issue: See Aniemeke Emegokwue v. James Okadigbo (1973) 4 S.C.113 at p.117. Further it appears to me that on a proper direction these two significant admissions by the plaintiff's star witness are evidence which supported the defendant's assertion that his father before him was in possession of the land in dispute and that the Loja of Osu who was the principal grantor to the plaintiff under Exh.A had no land to grant. However the learned trial judge held that in so far as the plaintiff not only called such a witness as P.W.2, the Loja, but also produced the document of grant, Exh.A, he had proved the grant whereas the defendant who did not call his father's grantor had failed to prove his own grant. He therefore concluded that the plaintiff had proved a better title and awarded him N1,000.00 damages for trespass.

 

On appeal to the Court of Appeal, Ibadan Division, that Court coram Omololu-Thomas, Ogundare and Sulu-Gambari, JJ.C.A. allowed the appeal and dismissed the plaintiff's claim. In the lead judgment of Ogundare, J.C.A. to which the other learned Justices concurred, he held:-

 

With respect to the learned trial judge, what he was required to resolve was not who had a better grant but who had a better title. This he did not resolve. In a situation such as we have in the case on hand, it is the duty of the plaintiff to establish that he has a better title than that of the defendant-see Amakor v. Obiefi4na (1974)1 All N.L.R. (Part 1)110. . .

 

It is the plaintiff's appeal from the said judgment of the Court of Appeal that has now come before this Court. Counsel on both sides filed their respective briefs and addressed us orally. The issues for determination in the appeal have been set out in the lead judgment of my learned brother Belgore, J.S.C. The plaintiff shall hereinafter be called the appellant and the defendant the respondent.

 

One significant off-shoot in this case is the apparent confusion by the learned trial judge as to the difference between a grant and a title. He assumed that proof of a grant necessarily amounted to proof of title. But in my respectful opinion it is not necessarily always so. No doubt, proof of a grant is one of the five ways of proving title. see Idundun & Ors. v. Okumagba (1976) 9-10 S.C.246: also Pialo v. Tenale (1976)12 S.C.31 at p.37. But it would be wrong to assume, as the learned trial Judge obviously did in this case, that all that a person who resorts to a grant as a method of proving his title to land needs to do is to produce the document of grant and rest his case. Rather, whereas, depending upon the issues that emerged on the pleadings, it may suffice where the title of the grantor has been admitted, a different situation arises in a case like this where an issue has been raised as to the title of the grantor. In such a case the origin of the grantor's title has to be averred on the pleading and proved by evidence. This is fatal to the appellant's case. 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 p.431 also Elias V. Omo-Bare (1982) 5 S.C.25 at pp.57-58. The learned trial Judge was therefore in error to have accepted the mere production of a Deed of Grant as being equivalent to the proof of title when the origin of the title of the grantor was neither admitted nor established. While it is true that a claim for trespass and injunction and conflicting claims as to which party owns the land which the appellant purchased in 1978 implies that the issue must be proved on who established a better title (see Kponuglo V. Kodaja 2 W.A.C.A.24), it also follows that the general onus of proving a better title is on the appellant. As he failed to prove the origin, nature and devolution of the title on his vendors, it follows that he was bound to fail in his claim.

 

It is only when, in such a case the plaintiff traces his title to a person or persons whose title is admitted or established that the onus shifts on the defendant to prove a better title. But assuming, but not agreeing that the onus had shifted on the respondent, it appears to me that if the learned trial Judge had taken a proper view of the pleading and evidence by and on behalf of the respondent strengthened by the admission by the appellant's star witness, the Loja of Osu, which I have quoted above, he would have probably found that the respondent and his predecessor-in-title had been in possession of the land in dispute at least before 1936, and that the appellant's vendors had no land to grant to him in 1978. Their case that they were there by reason of a grant is probably true, on a balance of probabilities.

 

But learned counsel for the appellant further submitted that his grant in 1978 has been further strengthened by the certificate of occupancy issued to him in 1983 by the Commissioner for Lands and Rousing, Oyo State. The certificate of occupancy per se is a prima facie evidence of title, he submitted. This line of submission makes it imperative that I must consider in some detail the meaning and implications of a certificate of occupancy issued by a Governor under the Land Use Act, 1978. Is it tantamount to a certificate of title? Or is it something different from all these?

 

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 tno 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-underlessee 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. For various titles to land are carved out on a plane of time. But all land title deeds are muniments or instruments of title. So they are at least prima facie evidence of title. 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.

 

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.

 

It is left for me to consider, albeit briefly the effect of the certificate of occupancy granted to the appellant in 1983. As I have shown, the respondent and his predecessor -in-title to the land in dispute were owners in possession of the land in dispute on the 29th of March 1978, when the Land Use Act came into effect. They were, under the Act, deemed to be holders of a right of occupancy over the land. See Ss.34(2) and 36(2) of the Act.

 

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.

 

For these reasons and the fuller reasons contained in the judgment of my learned brother, Belgore, J.S.C., I agree that the appeal fails. I also hereby dismiss it with ~500.00 costs against the appellant.

 

 

Judgment delivered by

Wali, J.S.C.:-

 

I have had the privilege of reading in advance a copy of the lead judgment of my learned brother, Belgore, J.S.C. I entirely agree with his reasoning and the conclusions arrived at.

 

From the pleadings filed and the evidence adduced, no reasonable tribunal would have come to the conclusion that Osu Community as distinct from the seven descent groups each of which has its own communal land upon which each first settled, to the exclusion of any other descent group, owns any communal land in Osu which it could grant to the appellant or any other person.

 

Paragraphs 3, 4 and Sa of the plaintiff/appellant's Statement of Claim read together do not reveal a plea of title to the ownership of the piece of land granted by the Osu Community to the plaintiff/appellant or to any other land at all. The decisions in Dabiri V. Gbajumo (1961)1 All N.L.R. 225 and Union Bank V. Adediran (1987)1 N.W.L.R. (Pt.47) 52 do not support the plaintiff/appellant's contention and are therefore not apposite.

 

The Court of Appeal rightly treated the case when it stated that the plaintiff/appellant had the burden to prove the Osu Community, through whom he derived his title to the disputed parcel of land by customary grant, in fact owned the land. The scanty evidence adduced by the plaintiff/appellant did not prove that. With the evidence adduced by both sides to the dispute particularly that of the defendant/respondent, which the learned trial Judge had failed to properly consider and evaluate, the Court of Appeal has a duty, as it did to consider and evaluate such evidence and make proper findings-see Christopher Okoro V. Eunice Uzeka (1958) 4 S.C.77; Fashanu v.Adekoya (1974)1 All N.L.R. (Pt.1) 35 & Abusomwan y v. Mercantile Bank (Nig.) Ltd. (1987) 3 N.W.L.R. (Pt.60) 196. The Court of Appeal is therefore in my view perfectly justified, after the proper assessment and evaluation of the evidence of the parties to conclude that (as per Ogundare, J.A.C.) -

 

. . . the defendant having shown a better title, he could not be liable in trespass at the instance of the plaintiff. . . The appeal succeeds and it is hereby allowed. The judgment of the High Court of Oyo State sitting at Ilesha and given on 13th December, 1984 together with order of costs made therein is hereby set aside. In its stead I order that plaintiff's claim be and is hereby dismissed.

 

If the learned trial Judge had done the proper exercise he would have seen that the Certificate of Occupancy granted to the plaintiff/appellant did not confer any title on him in respect of the piece of land granted therein as the original grantor Osu Community does not own the land much less to pass any title to him. The land in Osu is owned individually by different communities who first settled in the area. Each descent group communally owns the area it first occupied to the exclusion of the other. Osu Community is a conglomeration of these descent groups. It does not own any land to grant to the plaintiff/appellant - Nemo dare potest quod non habet. 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.

 

 

Counsel

 

Professor M.I. Jegede

With D. Kehinde

For the Appellant

Respondent in person