Alhaji Abdul-salami Teniola & Ors. V. Alhaji Mustapha Olohunkun (1999)

LAWGLOBAL HUB Lead Judgment Report

AYOOLA, J.S.C

To put the issues in this appeal in their proper perspective, the events that led to the appeal need to be briefly stated. The respondent, who was plaintiff in the High Court and is so referred to in this judgment, was at all material times a petrol dealer and the proprietor of a fuel station situate at Oke-Oya in Kwara State. The appellants, who were defendant in the High court and are so referred to in this judgment, were at all material times farmers resident at Oke-Oya. Sometimes in 1959, the plaintiff, is desirous of building a petrol station and believing that he had purchased a parcel of land for that purpose from the owners, applied for and obtained a certificate of customary land Tenure over the land from the Emir of Ilorin. Alhaji Sulu Gambari. Thereafter, he applied to the government of the then Northern Region of Nigeria for and obtained a grant of right of occupancy and was issued a certificate of occupancy dated March 4, 1962 in respect of the land. The right of occupancy granted him was for an indefinite term from fourteenth day of June, 1961. The certificate of occupancy is No. 102346. The plaintiff did not build the petrol station on the land covered by the certificate of occupancy because it was then occupied by Balfour Beauty & Company Ltd, under a temporary certificate of occupancy.

The plaintiff then bought another parcel of land on which he built a petrol station. That parcel of land is covered by a certificate of occupancy No. 13255 dated 24th August, 1967, which shows that he was entitled to a right of occupancy over the land for a term of 99 years from the thirteenth day of December, 1965.

The third acquisition of property in the neighbourhood by the plaintiff came about when, Costain (W.A.) Ltd, having left the land on which it had built some houses, the plaintiff purchased the houses left by that company on the land from the Government and obtained two certificates of occupancy Nos. 13642 and 573 dated 28th February, 1967 and 31st July, 1970 respectively.

Apparently, aggrieved by the plaintiff’s occupation of the land covered by the last two certificates of occupancy mentioned above, the 5th defendant took action against the plaintiff, first in the Upper Area Court, Ilorin and later in the Grade I Area Court, Oke-Oyi, respectively in 1965 and 1974, claiming, on each occasion, that the land occupied by the plaintiff was his family land. On each occasion, the court dismissed the 5th defendant’s case and advised him to seek whatever remedy he might wish to pursue against the Government in the High Court. In the latter of these two cases, the court was of the opinion that the present plaintiff (then defendant) “had a good title to the land in question and therefore the plaintiff’s claim failed:’

It would appear that rather than allow wise counsel to prevail in line with the opinion of the two courts, the defendant resorted to self-help and entered the land; thereby provoking the action that led to this appeal. The plaintiff’s claim in the High Court was for damages for trespass committed by the defendants on his parcel of land covered by certificates of occupancy Nos. 13642, 573, 13255 and 10346” and injunction.

At the trial, although the plaintiff made reference to the transactions of sale to him of three parcels of land, namely: one by one Towobola, the head of family of the 5th defendant’s family, another by ant: Buhari Magaji and the third by the Government of Northern Nigeria, it is evident that he relied for the right he claimed, on grants to him by the Government of rights of occupancy as witnessed by the certificates of occupancy issued to him. The defendants, on the other hand, contended that the certificates of occupancy (Nos. 10346, 13642 and 573), relied on by the plaintiff, were “irregular and unlawfully obtained as the defendants or their representatives never sold or transferred any land to the plaintiff.” It may well be noted that the defendants laid no claim to any interest in the land covered by certificate of occupancy No. 13255 on which the plaintiff had built his petrol station.

The learned trial Judge being of the view that the plaintiff’s case hinged on the three documents admitted in evidence as Exhibits 1, 2 and 3, proceeded to consider those exhibits and came to the conclusion that they were void. Exhibit 1 was a document titled “Land Agreement” whereby one Mr. Towobola declared that he had transferred land to the plaintiff on 4th November. 1959. Exhibit 2 was a certificate of customary land tenure issued by the Emir of llorin to the plaintiff in January, 1960 and which the plaintiff said was in respect of land mentioned in Exhibit 1. Exhibit 3 is the certificate of occupancy No. 10346 already referred to in this judgment. The trial Judge came to the conclusion that the three exhibits were void on the sole, and, I dare say doubtful, ground that the plaintiff when he was buying the land did not know that it was family land. However, from a careful reading of the judgment of the trial Judge, it is clear that he found that Towobola sold the land to the plaintiff, that he was head of the family which owned the land, and that the sale would have been valid had it been ratified by the principal members of the family. In the event, he held that since the transaction was void, the defendants could not have been trespassers because they were dealing with their family land and dismissed the plaintiff’s claim. What, in the opinion of the trial Judge, made the sale a nullity was that the plaintiff did say that he did not know that it was family land when he was buying the land. It may well be observed that there was no evidence that Towobola claimed to have been selling the land as his personal land. It is appropriate to interpose in this narration of the events, and I venture to think, that when family land is sold by the head of the family what is important and material is the capacity in which the vendor dealt with the land rather than the knowledge of the purchaser as to the status of the land as personal or family land. Where the head of family sells family land as such, but the purchaser did not know at the time that it was family land that should not make the sale void. The position is different where the vendor did intend and did claim to be selling the land as his personal land when he had no title to the land in his own right.

The plaintiff’s appeal to the Court of Appeal from the decision of the High Court of Kwara State was allowed. Having set aside the judgment of the High Court, the Court of Appeal substituted therefore judgment for the plaintiff, awarded him damages for trespass and ordered injunction as sought against the defendants. It is apt to note that the Court of Appeal did not share the opinion of the High Court that the transaction or sale alleged by the plaintiff, culminating in Exhibits 1 and 2, was a nullity. Ogundare, J.C.A. who delivered the leading judgment for the court below with which Uthman Mohammed, J.C.A., as he then was, and Okunola J.C.A. concurred, was of the view that:

“If one or both Exhibits 1 and 2 were admissible evidence of Yoruba estate contract, since there was evidence at the trial that Towobola was head of the family of ile Bale Ode Oke Oyi Oja, the sale would have been voidable as the hands of principal members of that family are not in it. In which case, that family would have been under obligation to bring an action to annul it, or having been sued by the plaintiff, the defendant’s family should have counter-claimed for its annulment, which was not the case here.”

It is evident that, in substance, Ogundere. J.C.A.dwelt more on the evidential value of Exhibits 1 and 2 and came to the conclusion that those two exhibits could not be evidence of sale of land under Yoruba customary law. However, the Court of Appeal held that the certificate of occupancy, Exhibit 3, was valid. That court also held that the certificates of occupancy, Exhibits 6, 9 and 10, relied on by the plaintiff were valid and did confer rights of occupancy on the plaintiff.

On this appeal from the decision of the Court of Appeal, the main complaint and, indeed, the substance of the defendants’ appeal is that the Court of Appeal should not have held that the certificates of occupancy relied on by the plaintiff were valid. The grounds of the invalidity of those certificates urged by counsel for the defendants, summarised; are:

(i) that government having acquired the land covered by Exhibits 9 and 10 for public purposes, the land ought to have been returned to the defendants’ family when it was no more needed for the public purposes for which it was acquired, and not sold to a private person;

(ii) that “the effect of the Land Use Act is now to recognise the customary land owners as the persons entitled to statutory right of occupancy and the certificates of occupancy issued to the respondent is (sic) therefore ineffective to pass title to the respondent, because, having regard to section 36(2) of the Land Use Act, Exhibits 3, 6 and 9 cannot be valid since there is evidence that the customary land owners (the appellants) were in possession before the passing of the Act and are deemed to have customary right of occupancy.