In The Supreme Court of Nigeria
the 5th day of October 1990
Before Their Lordships
Judgement of the Court
Olajide Olatawura. J.S.C.
On the 9th July, 1990 after hearing the submissions of learned counsel in support their respective briefs, I dismissed the appeal and I indicated I would given reasons today. I now give my reasons.
The appellant who was the plaintiff in the court of trial instituted the action against the defendant now the respondent in this court and claimed; follows:
plaintiffs' claim against the defendant is for (i) the sum of four thousand
The plaintiffs hold the statutory right of occupancy over the said land with Certificate of Occupancy No.311 granted on the 4th day of December, 1969. The defendant has trespassed on the land by dumping some building materials on the said land without the consent and permission of the plaintiffs and has caused the arrest of the plaintiffs' representative, the pastor, without any justification and threatens to continue to trespass.
the plaintiffs claim the said
Pleadings were filed by both parties. In a rather terse Statement of Claim the plaintiff averred as follows:
1. The Apostolic Church was granted a parcel of land with Certificate of Occupancy No.311 granted on the 4th day of December, 1969.
2. The defendant personally went onto the said land and caused her servants and/or agents to dump sand on the said land in March, 1979
3. The plaintiffs did not consent and/or permit the defendant to commit the said acts of trespass.
4. The Pastor who is the representative of the plaintiffs objected to the trespass and the defendant caused the arrest of the said pastor by the police in March, 1979 - 3rd March, 1979.
5. The defendant continues and threatens to continue the said acts of trespass.
the plaintiffs claim
The defendant filed an Amended Statement of Defence. In view of the issue raised by this appeal, which mainly hinges on the validity of the Certificate of Occupancy, I will reproduce verbatim the Amended Statement of Defence. It is as follows:
1.(a) The defendant denies paragraph l of the Statement of Claim and will prove at the trial of this suit that the "purported Certificate of Occupancy No.311 granted to the plaintiffs on 4th December, 1969 is invalid as the procedure adopted for issuing the purported certificate was illegal as it did not comply with the Kwara State Land Tenure Law. The defendant will rely on the application submitted to the Kwara State Ministry of Land and Housing by the plaintiffs for granting the purported Certificate of Occupancy and the Ministry's minutes on the application at the trial of this suit.
(b) The defendant will prove title to the portion of land where she put literites (sic) through the following processes:
(i) The defendant's father - late Nathaniel Qlakunle Rowland was given a parcel of land - of which the land in dispute formed a part - by late Alhaji Yakubu Dan Isiaku of Idi-Aghede Quarters, Ilorin. The defendant will rely on the Site Plan showing the description of the land of the defendant at the trial of this suit.
(ii) The defendant was given a portion of the land on which she put literites (sic) as part of her own inheritance of her father's landed property by the children of the defendant's father.
2. The defendant admits paragraph 2 of the statement of claim only to the extent that the defendant and her agents put some literites (sic) on part of the disputed land in March, 1979 but the defendant avers that the plaintiff was not in possession of the disputed land nor had they got the right to be in possession of the land in dispute at the time when the defendant entered thereon.
3. The defendant is not in a position to admit or deny paragraph 3 of the Statement of Claim and will put the plaintiff to its strict proof during the trial of this suit.
4. The defendant denies paragraph 4 of the Statement of Claim that the defendant caused the arrest of the Pastor while the defendant is also not in a position to admit or deny the allegation that the Pastor is a representative of the plaintiff and will put the plaintiffs to the strict proof of the allegation at the trial of this suit.
The defendant denies paragraphs of the Statement of Claim and will put the
plaintiff to the strict proof of the allegation whereof the defendant denies
being liable to the plaintiff in the sum of
Particulars of special defence:
6. The defendant will prove the following facts during the trial of this suit:
(a) The late father of the defendant - Mr. Nathaniel Olakunle Rowland was a devout Christian and was of the same Christian faith with the plaintiff's church who out of sheer generousity allowed the plaintiff to build a church on part disputed land in 1943.
(b) The defendant inherited the land on which she put literites (sic) as the portion of land given to her by all the children of the defendant's father.
(c) The defendant has been in possession of the land in dispute and she had allocated sheds to many occupants on the land - especially since the creation of States in 1967 when the defendant came to live in Ilorin permanently instead Kaduna where the defendant was living prior to the creation of States.
(d) The plaintiff, immediately after instituting this suit had built walls round the entire parcel of land including the defendant's portion of the land where she put literites (sic) in addition to where the defendant had allocated as sheds to occupants as well as some portions belonging to other children of the defendant's father.
(e) The defendant first knew of the purported Certificate of Occupancy granted to the plaintiffs when the defendant went to Area Court, Ilorin to sue the plaintiff and it was in that court the defendant was informed that there was a Certificate of Occupancy issued to the plaintiff by the Kwara State Government on part of the disputed land. The defendant had intended to sue the plaintiff in the High Court before this suit commenced.
(f) Neither the defendant nor children of late Alhaji Yakubu Dan Isiaka of Idi-Agbede was notified by anybody that the customary right of occupancy on the land had been revoked up till now.
(g) The entire land formerly granted to the defendant's father of which the defendant's portion forms a part is bounded in the South by a road from Amilegbe stretching to Sokoto road, in the East by Lafiagi road - near St. Barnabas' School Garden, in the West and North by many residential buildings.
7. The defendant prays the Honourable Court to dismiss the plaintiff's action as being vexatious, frivolous and an abuse of the court's process.
The plaintiff called one witness, a Minister of Religion by name Gabriel Oladele Olutola. He referred to the plaintiff as an organisation. I will quote him:
organisation has a piece of land at Ilorin. It is situate at Sabo Oke and held
under a Certificate of Occupancy No.311 of 4/12/ 69. Someone put building
materials (leterites (sic) - on the disputed land on 3/3/79.1 did not authorised
(sic) the putting of the laterite on the land in question. The laterite was
never used by anyone because of this suit but it appears it has been washed away
by running water. We are claiming
The Certificate of Occupancy was in the course of his evidence tendered and admitted as Exhibit A.
Under cross-examination this witness admitted that it was after the Commencement of the suit that the plaintiff erected a wall fence on the disputed land. He did not know whether the defendant's father by name Rowland gave his church a large piece of land since 1948. As to how Exhibit A was obtained he said the church applied to the Emir who directed the church to apply to the Ministry of Works. The application was made in 1949. Before the Certificate of Occupancy Exhibit A was issued "the land was surveyed." That was the case for the plaintiff.
The defendant gave evidence and called witnesses in support of the pleading. The church that sued her through the Registered Trustees of the Church was founded by her father. She traced the title to Alhaji Yakubu Dan Isiaka.
After a review of the evidence and due consideration of the submissions by the learned counsel, Salami, J. (as he then was) dismissed the claims in their entirety and made a consequential order i.e. the demolition of the wall fence erected by the appellant during the pendency of the action before the learned trial Judge.
The appellant was dissatisfied with the judgment of the High Court and appealed to the Kaduna Division of the Court of Appeal. The appeal to the Court of Appeal was dismissed, hence the appeal to this court.
Briefs were filed by the appellant and the respondent, the appellant filed a Reply Brief. In his oral submissions in support of the appellant's brief and the Reply Brief, Mr. Ijaodola, the learned Counsel for the appellant referred to paragraph 6(a) of the Amended Statement of Defence and the evidence of the respondent and submitted that the decision of the lower court should not be sustained in that the respondent conceded her father gave the appellant the land on which the church was built. Learned counsel further submitted that the court should not award what was not claimed and that the order of demolition made by the court of trial and confirmed by the Court of Appeal should not stand.
In his own reply the learned counsel for the respondent adopted and relied on his brief filed on 18th October, 1988. Learned counsel pointed out the wall fence erected by the appellant and ordered to be demolished by the lower courts, covered the entire land which includes the tenants land. He finally urged that the appeal be dismissed.
Although both parties have formulated various issues, it appears to me that what is in issue is the validity of Exhibit A i.e. the Certificate of Occupancy relied upon by the appellant. If the Certificate of Occupancy is not valid in law, and in view of the pleadings, the action must fail. I will set down the grounds of appeal, which without the particulars read as follows:
1. The learned Justices of the Court of Appeal erred and misdirected themselves in law in declaring the appellants' C. of O. as null and void when the respondent did not counter-claim and the Court of Appeal did not reject that finding of the trial Court.
2. The learned Justices of the Court of Appeal erred and misdirected themselves in law in upholding the trial court's order than (sic) the appellants' fence be pulled down on the ground that the order was consequential.
3. The learned Justices of the Court of Appeal erred and misdirected themselves in law in holding that the plaintiffs/appellants did not establish exclusive possession despite the fact that the plaintiff' appellant had a C. of O. over the land and had buildings on part of the land.
4. The learned Justices of the Court of Appeal erred and misdirected themselves in declaring the C. of 0. of the plaintiffs/appellants null and void when the defendant/respondent gave evidence that her father gave the Church an undefined portion of the land and that she was not reclaiming the undefined part of the land in dispute.
The issues raised by the appellant are as follows:
(i) What is a consequential order and can a court give a relief not sought by either party.
(ii) What is the effect of holding a Certificate of Occupancy issued by the Military Governor.
(iii) Was it right of (sic) the Court of Appeal to have affirmed the trial of High Court decision when the respondent pleaded and gave evidence that her late father gave undefined portion of land in dispute to the plaintiffs.
I will repeat the basis of the appellant's claim is based on the Certificate of Occupancy and by paragraph 1 of the Statement of Claim the averment leaves no one in doubt that apart from this, there was no other root of title. The paragraph reads:
1. The Apostolic Church was granted a parcel of land with Certificate of Occupancy No.311 granted on the 4th day of December, 1969.
The learned trial Judge appreciated the basis of the claim when he said:
The quintessence of the plaintiff's claim is that having been granted the right of occupancy to the land by virtue of the Certificate of Occupancy No.311 dated 4th December, 1969, Exhibit A it has acquired exclusive title to or ownership of the said parcel of land against the whole world with possible exception of the Governor. Consequently, the defendant's tipping of laterite on the said parcel of land without his consent is an infraction of his ownership.
I agree that the whole trend of argument and submissions made before the learned trial Judge was that Exhibit A was both a sword and a shield. That submission as will be seen shortly is fallacious. The Certificate of Occupancy relied upon by virtue of its age, is the one covered by the Land Tenure Law, Cap.50, Laws of Northern Nigeria (1963) applicable to Kwara State. Kwara State before its creation was an integral part of Northern Nigeria. The Certificate was the Certificate issued under section 10(1) Land Tenure law by the Commissioner and described as Certificate of Occupancy under section 10(2) of the Land Tenure Law.
If the issuance of a Certificate of Occupancy is not in accordance with the Land Tenure Law, certainly the certificate is defective and the holder has no basis for a valid claim. In other words to be valid there must not be in existence at the time the certificate was issued a customary owner who has not been divested of his/her title. In this appeal there was a specific finding by the trial Judge that the respondent was, at all times material to the case before him, the customary owner and was also in possession. The manner a customary owner can be divested of his holding is laid down under section 34(5)(6) of the Land Tenure Law. It is a pre-requisite condition before the grant of a Certificate of Occupancy I will quote the learned trial Judge who said on page 37 lines 9- 15 as follows:
I accept the evidence of D.W.1 Mrs. Emmanuela Olowoleni that the said property was transferred to her and her other sisters and brothers through inheritance and that she is not only the customary owner of the land but also in possession.
There has been no appeal against this specific finding. This was confirmed by the Court of Appeal: Coram Wali, Maidama and Ogundere, JJ.C.A., when in the lead judgment, Wali, J.C.A. (as he then was) said:
The right of an existing holder or occupier of a parcel of land is not automatically extinguished by the mere issuance of a Certificate of Occupancy to another person under colour of a person in occupation. It does not automatically extinguish the right of any other person having a customary right as the respondent in this case.
There are concurrent findings of fact which we have not been urged to set aside. It would have been a difficult task unless the findings are perverse. It is a misconception on the part of the learned counsel for the appellant when he said in his reply brief that the issue of concurrent finding did not arise. On the attitude of this court on concurrent findings of fact by the lower courts. See Henry Stephens Eng. Ltd. v.. Complete Home Ent. Ltd. (l987) 1 N.W.L.R. (Pt.47) 40; Balogun v. Labiran (1989) 3 N.W.L.R. (Pt.80) 66.
It is for this reason that I will refer to Part V - Revocation of Rights of Occupancy under the Land Tenure law where the conditions for revoking the right of occupancy are set out. Section 34(5)(6) provides:
(5) The revocation of a right of occupancy shall be signified under the hand of a public officer duly authorised in that behalf by the Commissioner and notice thereof shall he given to the holder and to any Mortgagee.
(6) The title of the holder of a right of occupancy shall be extinguished on receipt by him of a notice given under sub-section (5) or on such later date as may be stated in the notice.
The learned trial Judge having found as a fact that the respondent was in possession, it is necessary to prove due notice on the part of the appellant. There was the uncontradicted evidence of the respondent that she did not receive any notice. There was in addition the evidence of D.W.5 Samuel Omotosho a Principal Lands Officer in the Ministry of Works, Lands and Surveys that the Certificate of Occupancy relied upon by the appellant was issued in error in that as at the time it was issued the respondent was in p05session.
In his brief Mr. Ijaodola relied on sections 6(3) and 20(1) of the Land Tenure Law. They provide as follows:
6(3) Upon the grant of a right of occupancy under the provisions of sub-section (1) all existing rights to the use and occupation of the land which is the subject of the right of occupancy shall be extinguished.
20(1) During the term of the statutory right of occupancy the holder -
(a) shall have the sole right to and absolute possession of all the improvements on the land.
In my view section 20(1)(a) is not material to this case as it can only be invoked if section 6(3) has been complied with. Section 6(3) removes "existing rights." Those rights in my view are the rights of another person and not the rights that are to accrue after the grant of the Certificate of Occupancy. The way existing rights can be extinguished is provided for under section 34(5) of the Act (already reproduced above). Once it has been held that no notice of intention to dispossess the respondent of her possession was given, there cannot be a valid Certificate of Occupancy to the appellant. I agree with the conclusion reached by Wali, J.C.A. (as he then was) when the learned Justice said:
It follows therefore that the learned trial Judge was right when he concluded that in the absence of non-compliance with the provisions of the Land Tenure Law which is the applicable law, exhibit A is null and void and of no effect.
The Certificate of Occupancy recognised under the Act is a valid Certificate of Occupancy which will satisfy the provisions of the Law as regards validity. Until the possession in the respondent has been validly revoked, the appellant cannot rely on Exhibit A to disposses the respondent.
The other submission on this issue that "the Governor or the Minister or the Attorney-General" ought to have been joined as a party is misconceived as it overlooks the evidence of D.W.5 - the Principal Land Officer. The appellant has also invoked section 41(1) of the Law. The respondent has not challenged the right of the Governor or Minister in granting a statutory right of occupancy. The respondent was the defendant in respect of the action filed by the appellant. Her defence which was based on her possession is predicated on ignorance of a Certificate of Occupancy issued to the appellant when her possession has not been determined. She averred in paragraph 6(1) of the Amended Statement of Defence thus:
6(f) Neither the defendant nor children of late Alhaji Yakubu Dan Isiaka of Idi-Agbede was notified by anybody that the customary right of occupancy on the land had been revoked up till now.
This pleading satisfies the requirement of Order 10 rule 13 of the High Court (Civil Procedure) Rules of the High Court of Kwara State. It provides:
13. The defence must allege any fact not stated in the Statement of Claim on which the defendant relies in defence, for instance, fraud on the part of the plaintiff, or showing that the plaintiff's right to recover or to any relief capable of being granted on the petitions, has not yet accrued, or is released, or barred or otherwise gone.
It is the duty of counsel settling pleadings to ensure the facts they intend to rely upon at the trial are pleaded. Paragraph 6(f) of the Statement of Defence has put the plaintiff on notice of the defence that will be set up at the trial. It was at the stage the defence was served on the plaintiff that the plaintiff ought to have amended the Statement of Claim or to file a reply: Akubueze v. Nwakuche (1959)4 F.S.C. 262; (1959) S.C.N.L.R.616. This was ignored in this case. It is a belated attempt, and in fact quite irrelevant to the issue before the court to invoke section 41 of the Land Tenure Law. Pleadings are not for the benefit of the parties alone but they are to guide the court to adjudicate fairly and justly when the issue of relevance based on the facts pleaded is raised. A scant pleading is as good as none.
I now come to the consequential order of demolition. The learned counsel overlooked the fact that the respondent, no doubt due to her Christian background, did not deny the grant made by her father to the appellant i.e. the church. Her complaint is clearly set down in paragraph 6(d) of the Amended Statement of Defence thus:
The plaintiff immediately after instituting this suit had built walls round the entire parcel of land including the defendant's portion of land where she put literites (sic) in addition to where the defendant had allocated as sheds to occupants as well as some portions belonging to other children of the defendant's father.
No reply was filed by the plaintiff. In her evidence-in-chief the respondent said:
The parcel of land in which I tipped the laterite was my own share of the estate of our father. The parcel of land was divided amongst all my brothers and sisters including Mrs. Iyabode Dare. The whole parcel of land including my own inheritance have (sic) been fenced with concrete wall by the plaintiff. I have not been told by anyone that the land is no longer mine.
Under cross-examination by the appellant's counsel the witness said:
It is not true that the whole land fenced belongs to the Church
The case of Isamotu Otanioku v. Lawal Mastafa Alli (1977) 11-12 S.C. 9 at 13-14 is of no assistance in that the respondent's evidence that the whole of the land of late Mr. Rowland which includes the land claimed by the appellant was fenced by the appellant thereby laying claim to what was not granted to the Church by the respondent's father. To allow the wall fence to stand is to grant to the appellant an area more than it has claimed. The appellant knows the land granted to it and the respondents grouse is that it claimed more than was granted: a further annexation which called for strictures by the trial Judge.
The Supreme Court has attempted to define "Consequential Orders" in the case of Frederick Obayagbona & Anor v. D. Obazee & Anor. (1972) 5 S .C.247 at 254. Sowemimo, J.S.C. (as he then was) delivering the judgment of the court on consequential orders after the Judge had given judgment in favour of the plaintiff "as claimed" made consequential orders which detracted or derogated from the judgment itself said:
We think that by the very nature of the term "consequential" any "consequential orders" must be one giving effect to the judgment. In its ordinary dictionary meaning, the word "consequential" means "following as a result, or inference; following or resulting indirectly." See the Concise Oxford Dictionary 5th Edition, page 258. The word has never been regarded as a term of art
A consequential order therefore made subsequent to a judgment which detracts from the judgment or contains extraneous matters is not an order made within jurisdiction because at that stage, having determined the rights of the parties, by giving judgment for plaintiffs as claimed the Judge has become Functus officio except for any act permitted by law or Rules of Court.
This is not the position in this case as the evidence clearly supports the order made.
It is a misconception to submit that consequential order made by a court must of necessity be based on the reliefs claimed. The basis for an order made by the court must be looked for from the evidence before the court. It is trite law that a court cannot award more than is claimed. It is equally misconceived that an order cannot be made in favour of a defendant simply because he has not filed a counter-claim. An order made in favour of a defendant even where he has not counter-claimed must flow from the evidence and more so if the justice of the case demands. In this case, the defendant agreed that a defined parcel of land was granted to the plaintiff. After the plaintiff had issued its writ and before the case was heard, it erected a wall fence enclosing not only the area granted to it but also enclosing more than was granted to it. The Judge was right to have ordered the demolition of the wall fence. This order is a consequential order that flows from the evidence. It is not a separate head of claim expected to be found in a writ. It is covered by order 34 rule 1 of the Kwara State High Court Rules: Garba V. University of Maiduguri (1986)1 N.W.L.R. (Pt. 18) 550.
for the reasons stated above that the appeal was dismissed with costs assessed
Judgement delivered by
On the 9th day of July, 1990 I dismissed this appeal after hearing counsel's submissions and reading the briefs of argument together with the record of proceedings and judgment of the court below. I then reserved my Reasons for the judgment till today. I now proceed to give the reasons.
However, I have before now had the advantage of reading in advance the draft of the Reasons for Judgment just delivered by my learned brother, Olatawura, J.S.C. I agree with his opinions on all the issues for determination in the appeal and I adopt them as my own. It was for those reasons that I dismissed the appeal.
claim before the High Court was for
The pleadings filed by the parties raised issue of title. The appellants founded their claim and right to possession on Certificate of Occupancy No.311 granted to them on the 4th of December, 1965. The respondent claimed that title to the land in dispute was inherited from her father who also gave the land on which the church stands (excluding the land in dispute) to the Apostolic Church of which he was a staunch member.
The learned trial Judge examined the issues meticulously and entered judgment for the respondent dismissing the claim. The appellant's appeal against the decision was unsuccessful. This is a further appeal.
During the pendency of the proceedings before the High Court the appellant took the unauthorised step of erecting a fence round the land in dispute. When this was brought to the notice of the court, the court, in dismissing the claim, ordered the removal of the fence. This order was upheld by the Court of Appeal.
The dispute in this matter having been handed to the court for determination, the appellants cannot be allowed to take the law into their own hands. The Rule of law and the Rule of Force are mutually exclusive - Law rules by reason and morality. Force rules by violence and immorality. See The Military Governor of Lagos State & Anor. V. Chief Emeka Odumegwu Ojukwu & Anor. (1986) 1 N.W.L.R. (Pt.18) 621.
The church should not have departed from the law laid down for Christians by the Prince of Peace our Lord Jesus Christ "Love thy neighbour as thy self."
Judgement delivered by
Nnamani. J.S.C. (Deceased)
Honourable Justice Augustine Nnamani, J.S.C. (Deceased) indicated his concurrence with the unanimous judgment of the court. He died on Saturday, 22nd September, 1990 before the reasons for this judgment were given on Friday, 5th October, 1990.
Judgement delivered by
I summarily dismissed the appeal of the appellants on the 9th July, 1990, after reading the record of proceedings, the briefs of counsel on both sides, and after hearing counsel's oral submission. I indicated that I would give my reasons for so doing today.
After reading the judgment of my learned brother, Olatawura, J.S.C. in this appeal, I have considered it unnecessary to state my own reasons which agree in all respects with his own. I therefore adopt them as mine.
Judgement delivered by
This appeal was heard and summarily dismissed as being unmeritorious on the 9th of July, 1990. But I reserved the reasons for my judgment till today. I now give my reasons.
claim before the High Court was for the sum of
On the other hand the defendant filed and amended her statement of defence. She not only attacked the plaintiffs' Certificate of Occupancy as invalid but also claimed title to the land (hereinafter called the land in dispute). She averred that she inherited the land, part of which is in dispute, from her father, Nathaniel Olakunle Rowland, who was granted the same by one late Alhaji Yakubu Dan Isiaka of Idi-Agbede Quarters, Ilorin. The plaintiffs did not think it fit to amend their Statement of Claim, and pleaded no title to the land. Thus at the time the case went to trial, the plaintiffs were asserting their right to possess the land by virtue of the Certificate of Occupancy only, as against the defendant's assertion of title by inheritance.
After trial, the learned trial Judge found as follows:
(i) That the plaintiff/church was granted a Certificate of Occupancy in 1969 during the reign of the present Emir of Ilorin over land over which the defendant was a customary holder in possession and, so, was entitled to notice of revocation under section 34(5) and (6) of the Kwara State Land Tenure Law before the alleged grant; but that no such notice was given to her. So the Certificate of Occupancy was invalid.
(ii) The plaintiffs failed to prove a superior right to possess the land as against the defendant.
(iii) The fence which the plaintiffs erected around the land in dispute after they had instituted the suit and during the pendency thereof is not only an abuse of the process of the court but a flagrant disrespect to the court.
He therefore dismissed the plaintiffs' suit and ordered the fence wall to be pulled down.
On the plaintiffs' appeal to the Court of Appeal, the court, Coram: Wali, J.C.A. (as he then was), Maidama and Ogundere, JJ.C.A., dismissed the appeal. The court emphasized the facts that a Certificate of Occupancy is only a prima facie evidence of title or exclusive possession and that the exclusive rights provided for in section 20 of the Land Tenure Law in favour of a holder of a Certificate of Occupancy are available only to a person lawfully within the three categories set out in section 10(1)(a)(b) and (c). The plaintiffs did not show that they came within any of them. As the defendant's customary ownership was not revoked and the plaintiff failed to prove a better title, the learned trial Judge was right to have dismissed the action, they held.
The plaintiffs (hereinafter called the appellants) have appealed further to this court. Each party filed its own brief of argument and learned counsel on either side adopted his client's brief and addressed us orally. The defendant shall hereinafter be referred to as the respondent. In my view, the formulation of the issues for determination in the appeal by the learned counsel for the respondent is better, having regard to the grounds of appeal, than that by the appellants. They are as follows:
(1) Whether or not the Court of Appeal Holden at Kaduna on 3rd December, 1986 was right in affirming the decision of the trial court by declaring C. of 0. No.311 issued to the appellant on 4/ 12/69 by the Kwara State Government as null and void having regard to the pleadings of the parties and the evidence adduced in support.
(2) Whether or not the Court of Appeal was right to have confirmed the consequential order of demolition made by the trial court having regard to the pleadings of the parties, evidence adduced in support, coupled with the inequitable acts of the appellants during the pendency of the trial court and even during the pendency of the appellants' appealed before the Court of Appeal in Kaduna.
(3) Whether or not the mere issuance of Certificate of Occupancy Exhibit 1 - issued to the appellants on 4/12/69 by the Kwara State Government conferred exclusive possession and title to the appellants when up till now the customary title of the respondent has not been revoked in accordance with section 34(3), (4) & (5) of the Land Tenure Law as the said C. of 0. was admitted to have been issued in error even by the issuing Authority.
(4) Whether or not the parties to this appeal are ad Idem as to the identity of the land in question vis-a-vis the portion given to the appellants to build a church having regard to the surveyed plan attached to Exhibit 1 and the evidence of P.W.l - the respondent.
(5) What is the effect of two concurrent decisions of two lower courts when their decisions are not perverse, but rather they arc based on the pleadings of the parties, evidence adduced in support coupled with cogent, credible and legally admissible evidence.
Having had a preview of the draft Reasons for Judgment just delivered by my learned brother, Olatawura, J.S.C.,I only wish to add my own comments on some of the issues.
I wish to begin with issue number 3 and consider the merit, or otherwise of the Certificate of Occupancy. I may note that the appellants' case at the trial is as contained in the five short paragraphs of his Statement of Claim. A party's case is defined, circumscribed and limited by its pleading. This is why such a pleading demands so much care and skill to draft. For where a plaintiff's pleading is defective or bereft of essential averments, it could constitute a definite guarantee for his failure, as he cannot lead evidence on any fact which he did not aver in his pleading, unless, of course, the issue was raised in the opponent's pleading. Any evidence on a fact not pleaded goes to no issue and ought to be disregarded. See on this: Aniemeka Emegokwue v. James Okadigbo (1973) 4 S.C.113; Daniel Adenuga v. Lagos City Council (1950)13 W.A.C.A 125; Lawrence Onyekaonwu & Ors. v. Ekwubiri & Ors. (1966)1 All N.L.R.32. In the instant case, the appellant's case is one of trespass on the ground of possession which they assume that the Certificate of Occupancy Number 311 gave them. They did not trace their title beyond that. Although they could lead evidence on any averment in the Statement of Defence, all that the respondent could be said to have admitted in favour of the appellant is in paragraph 6(a) of their Amended Statement of Defence where she stated that:
. out of sheer generosity (the defendant) allowed the plaintiff to build a church on part of the disputed land in 1943. (Parenthesis supplied by me).
This relates to the area where the church was built and did not extend to the area outside the church where the laterite was deposited and which is in dispute in this case.
Thus putting the cases of the parties in their correct perspectives, having regard to the state of the pleadings, the appellants claimed possession of the land in dispute by reason of the Certificate of Occupancy, with no averment of any root of title to back it, whereas the respondent claimed title to the land by right of inheritance, which she duly proved.
I must express my surprise that the learned counsel for the appellants, Mr. Ijaodola, allowed the case to proceed to trial in the above state of the pleadings. Although he commenced his clients' case as a simple case of trespass and injunction, one would have thought that when his adversary pleaded his client's root of title, he should have amended the Statement of Claim to plead his clients' title. But he did not. There can be no gainsaying the fact that the game of advocacy in court is one which demands maximum vigilance throughout the progress of a case. A prudent and industrious counsel should be ever vigilant to any important development during the progress of the case he has been briefed to prosecute or defend which impels him to take, change, or amend a procedural step in order to achieve the desired result for his client. The result of the inadvertence or lack of vigilance of learned counsel for the appellants in this case was that the appellants' case of mere possessory right was quite an unequal match to the respondent's case of title. For the law is settled that when the issue is as to who has a better right to possess a particular piece of land, the law will ascribe possession to the person who proves a better title. In the case of Aromire v. Awoyemi (1972)1 All N.L.R. (Pt.1) 101 at p.112, this court stated:
The plaintiff claimed that they (i.e. defendants) were trespassers, but assuming that they were, indeed the plaintiff in order to evict them must show a better title and cannot succeed in doing so by canvassing a title which itself was demonstrated to be defective. (Parenthesis mine).
See also Godwin Egwuh v. Duro Ogunkehin S.C.529/66 of the 28th of February, 1969. In the instant case, as I have shown, there was no averment in the pleadings that the appellants derived title over the area in dispute from the respondent; the site of the church being outside the area. Respondent asserted not only title, but possession of the area. In that state of the fact, it must be conceded that on the claim for trespass and injunction, title is in issue (see Abotche Kponuglo v. Kodadja 2 W.A.C.A. 24; Okorie v. Udom (1960)5 F.S.C. 162;  SCNLR 326. As it is so, the appellants' bare claim to possession by reason of the Certificate of Occupancy is quite incapable of defeating the respondent's title. It appears to me that when the question is who has a better right to possess a piece of land - the person who claims a mere right to possess it as of right and not as a tenant of the other and the person who has proved title to it, the law will come in strongly in of the person who has proved title, that is the respondent.
Worse for the appellants, the Certificate of Occupancy which they are relying upon to support their right to possess the land has been sufficiently impugned. From the concurrent findings of the two courts below, it is clear that the certificate of occupancy was granted to them by the Ministry of Works, Lands and Survey over land which was held customarily by the respondent without any notice of revocation of her right of occupancy, as required by law. It is clear from the evidence of D.W.5, Mr. Omotosho, the Principal Land Officer of the same Ministry, that the Ministry could not validly issue a Certificate of Occupancy in such circumstances. I therefore agree with Wali, J.C.A. (as he then was) that a Certificate of Occupancy is only a prima facie evidence of title or exclusive possession and that the exclusive rights provided for in favour of a person in possession of such a certificate under section 20 of the Land Tenure law of Kwara State is available only to a person who is entitled and has been lawfully granted a Certificate of Occupancy. The right of occupancy of the respondent ought first to have been revoked. In this case, I only wish to repeat what I stated with respect to a purported grant under the Land Use Act. In the case of Joshua Ogunleye V. Babatayo Oni (1990)2 N.W.L.R. (Pt. 135)745, I stated:
This court re-affirmed this position in the case of Ozungwe v. Gbishe & Anor. (1985) 2 N.W.L.R. (Pt.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.
The same principle applies in cases relating to land held under the Land Tenure law.
I have not been persuaded that I should disturb any of the concurrent findings by the two courts below. They were clearly borne out by the evidence called at the trial and have not been shown to be perverse, or erroneous in any way. I should not interfere in such a case. See Njoku v. Eme (1973) 5 S.C.293; Seismograph Service V. Akporuovo (1974) 6 S.C. 119; Chinwendu v. Mbamali (1980) 3-4 S.C. 31 Besides, appellant did not prove exclusive possession of the area in dispute.
Finally, I shall deal with the consequential order made by the learned trial Judge which was confirmed by the learned Justices of the Court of Appeal. He ordered that a wall fence which the appellants erected without any order of court after instituting the suit, should be pulled down. Learned counsel on behalf of the appellants has submitted that in so far the respondent did not claim such a relief, it was made without jurisdiction. Learned counsel for the respondent has argued to the contrary.
Now the real reason for the order for demolition of the fence was given by the learned trial Judge in these words:
The fence was built by the church in circumstances which does not only smack of the abuse of court process but also constitutes a flagrant disrespect to the court. The reasonable inference one can draw from the conduct of the church is that it has used the court as a subterfuge to construct the fence which the defendant would normally not have permitted. I am both surprised and disturbed that the learned counsel for the plaintiff, Mr. Ijaodola a senior member of the Bar allowed his client to indulge in such a pass time. The court will be failing in its duty to the society if it permits such behaviour to go unpunished under the pretext of some legal technicalities. In the circumstances, the church should pull down the fence within a fortnight of this judgment and report back, failing which some of its principal members may be considered for punishment.
Thus it is clear that the learned trial Judge made the order not as an award to the respondents as such but in order to punish the appellants for what he considered an act of abuse and intentional disrespect in the proceedings before him. Therefore the question as to whether he thereby played "father christmas" to the respondent by awarding to her what she did not claim does not arise. The real question is whether on the above grounds the learned Judge was right to have made the order.
For the decision of this part of the appeal, I wish to begin by recalling some of the decisions and pronouncements of this court and, indeed, the Court of Appeal, as well as courts in other common law countries in the area of self-help vis-a-vis the rule of law. They all come to this: that once parties have turned their dispute over to the courts for determination, the right to resort to self-help ends. So, it is not permissible for one of the parties to take any step during the pendency of the suit which may have the effect of foisting upon the court a situation of complete helplessness, or which may give the impression that the court is being used as a mere subterfuge, to tie the hands of one party while the party helps himself extra-judicially. Both parties are expected to await the result of the litigation and the appropriate order of Court before acting further. In Chief Emeka Odumegwu Ojukwu v. Military Governor of Lagos State & Ors. (No.1) (1985) 2 N.W.L.R. (Pt.10) 806 at pp.821-827, in the Court of Appeal, I invoked the principle to order a mandatory injunction to restore the applicant to possession which was wrested from him, vi et armis, during the pendency of the litigation. Cases decided in other common law jurisdictions show that the principle is the same. See such decisions of English courts as - Daniel v. Ferguson (1891) 2 Ch.27, at p.30; Agbor v. Metropolitan Police Commissioner (1969)1 WLR 703; Von Joel v. Hornsey (1895) 2 Ch. 744. See also such decisions of American Courts as Clark v. Martin 49 Pa. 289, 298-299, Cook V. Boynton 135 Pa. 102, 197-944 and Edward Jones v. Securities & Exchange Commission 80 L.Ed. 298 U.S. 1015-1235. In The Military Governor of Lagos State & 2 Ors. v. Chief Odumegwu Ojukwu & Anor. (1986)1 N.W.L.R. (Pt.18) 621, the Court gave its stamp of approval to the principle, inter alia, that court is seised of the matter, no party has the right to take the matter into its own hands. For the Executive in a State to resort to self-help during the pendency of the suit would amount to executive lawlessness, their Lordships held. In the lead judgment of my learned brother, Eso, J.S.C.,to all the other eminent Justices concurred, he stated:
Another very important matter emanating from the act of the applicants. They have no right to take the matter into their own hands once the court was seised of it. The essence of the rule of law is that it should never operate under the rule of force or fear. To use force to effect an act and while under the marshall of that force, seek the court's equity, is an attempt to infuse timidity into court and operate a sabotage of the cherished rule of law. It must never be.
In his own contribution, my learned brother, Obaseki, J.S.C. said:
In the area where rule of law operates, the rule of self-help by force is abandoned.
Later he continued:
The action the Lagos State Government took can have no other interpretation than the show of the intention to pre-empt the decision of the court. The court expects the utmost respect of the law from the government itself which rules by the law.
The same principle applies in this case, mutatis mutandis, notwithstanding the fact that the offending party in this case is a church organization. They are subject to the rule of law, and are expected to obey the law. Once they submitted the dispute to the court, they ought to have done nothing which gave the impression that they were trying to pre-empt the decision of the court. They could no longer, pending the determination of the suit, resort to self-help by erecting the fence wall without an order of court. To have done so amounted to lawlessness. And an act of lawlessness is no less serious because it was perpetrated by an organization and not by the State.
The appellant further complains that the court could not have made the order suo motu, as there was no counter-claim before the court in which the relief was claimed. The truth is that the complaint of it was made to the learned trial Judge. In my opinion, this contention has missed an essential difference in this case, to wit: the learned trial Judge took the view that the act itself amounted to an act of intentional disrespect to the court and no attempt has been made to fault that conclusion. Significantly the learned Judge held the view that he could not grant a relief of ejectment, which was borne out by the evidence, for the simple reason that it was not claimed. This would have been, on the evidence, eminently supportable, particularly as the appellants did not claim through the respondent, their grantor. So, the conclusion on the facts tended to put them in the position of trespassers. So, he was well aware of the difference between granting to a party a relief it has not claimed and punishing the party for an act of intentional disrespect to the court in the proceedings before the court. It is my view that whereas the court would not grant an unclaimed relief, it can quite perfectly punish for an act of intentional disrespect in the proceedings before it, or as in this case, make a conditional order the breach of which will attract an appropriate punishment. I derive support for this conclusion from the words of Lord Diplock in Attorney-General v. Times Newspapers Limited (1974) A.C. 273 at p.309 where he said:
Once the dispute has been submitted to a court of law, they should be able to rely upon there being no usurpation by any other person of the function of that court to decide it according to law. Conduct which is calculated to prejudice any of these three requirements or to undermine the public confidence that they will be observed is contempt of court.
Applying the principle to this case, it appears to me that as the learned trial Judge came to the conclusion that the act of the appellants, as plaintiffs, erecting a fence wall after they had commenced proceedings and during the pendency thereof was contemptuous of the court, he was right to have made the order complained of, the breach of which would lead to punishment thereof.
For the above reasons and the fuller reasons contained in the reasons for judgment just delivered by my learned brother, Olatawura, J.S.C., which I had the opportunity of reading in draft, I dismissed the appeal. I have now given my reasons for doing so.