Major Muritala Gbadamosi (Rtd) & Ors. V. H.r.h. Oba Tijani Adetunji Akinloye & Ors (2013)

LAWGLOBAL HUB Lead Judgment Report

KUMAI BAYANG AKA’AHS, J.S.C.

The issue in this appeal is whether the respondents who had earlier sold a portion of land vide a registered conveyance to the appellants can turn round to claim ownership of the same portion simply because the appellants had stood by and allowed the respondents to challenge the Lagos State Government who had revoked all rights of occupancy in and over a vast area of land in Lekki Peninsula in the Eti-Osa Local Government Area of Lagos State.

The background facts leading to this appeal are as follows:

In 1977 the respondents’ family sold a portion of the Ojomu Chieftaincy, family land measuring 254.558 hectares to the appellants’ father, late Gbadamosi Bandele Eletu. The land is situate and known as Osapa Village in Eti-Osa Local Government Area of Lagos State. The transaction done through a Deed of Conveyance dated 23rd August, 1977 was duly registered as No.36 page 36 Volume 1648 at the Lands Registry, Lagos. By the Lagos State Government Notices Nos. 10 and 14 published in the Lagos State Official Gazette of February 19th and 26th, 1987 respectively, the Lagos State Government compulsorily acquired a vast area of land spanning several kilometres consisting of many villages and settlements. The acquired land included the appellants’ Osapa Village. The respondents brought an action in Suit No. ID/1883/89 (Alhaji Fatai Ajetunmobi & Ors. v. The Attorney-General of Lagos State) to challenge the compulsory acquisition. Judgment in the suit was delivered on the 18th day of October, 1991 in which the court granted the following reliefs in favour of the Ojomu Chieftaincy Family:

(a) A declaration that the Plaintiffs are the persons entitled to a customary right of occupancy to all that piece or parcel of land shown in the plan attached to the statement of claim herein.

(b) A declaration that the customary right of occupancy vested in the Plaintiffs in and over the land mentioned in the claim hereof has not been validly or effectively revoked by the Military Governor of Lagos State.

(c)An injunction restraining all officers and servants of the Lagos State Government from committing acts of trespass on the said land or unlawfully making use of the same except with the consent of the plaintiffs.

After the said judgment the respondents entered an agreement with the Lagos State Government wherein portions of Ojomu Chieftaincy family land were granted to the Government of Lagos State whilst the Governor revoked the respondents’ right of occupancy over other portions of the aforesaid family land and thereafter excised areas from such portions vesting the same in the respondents. Following this agreement, the Ojomu Chieftaincy Family became the holders of a right of occupancy in and over the entire portions of land excised from the Government acquisition. The respondents then claimed that the present appellants who were neither a parry in Suit No. ID/1883/89 nor a party to the agreement entered into between them (respondents) and the Lagos State Government claimed proprietary rights over portions of Ojomu Family Land and committed several acts of trespass on the said land and this led the respondents to institute action against the appellants in Suit No. LD/2642/95. The appellants counter – claimed and averred that the land which was sold to their father was exempted from the Notice of Revocation and by virtue of the excision as contained in Lagos State Official Gazette No. 24 Volume 27 dated 23rd June 1994, the title over the affected portion of land at Osapa Village if any reverted to them (defendants). The respondents as plaintiffs filed a reply to the counter – claim alleging that all interests in the land granted to the defendants by the Deed of Conveyance dated 23rd August, 1977 abated when the Governor of Lagos State revoked all rights of occupancy in and over the vast area of land in Lekki Peninsula in 1981 and that since the revocation was not challenged by the defendants, it remained valid against them.

The learned trial Judge entered judgment against the defendants on issues settled where documents were admitted by consent of the parties without giving oral evidence. The judgment was affirmed by the Court of Appeal Lagos Division (herein referred to as the court below). It is against this judgment that the appellants have further appealed to this Court in their Notice of Appeal dated 14th June, 2004 containing eight grounds of appeal. In the amended appellants’ brief filed on 18/12/2012 which was deemed filed by order of court made in chambers on 20th March 2013 the appellants formulated the following six issues for determination:-

1. Whether the Court of Appeal was right when it held that because the appellants did not institute a separate action to challenge the revocation of their title the appellants’ title is extinct (Ground 4)
2. Whether the learned Justices of the Court of Appeal were right when they resolved appellants’ issue 1 against the appellants without considering the appellants’ arguments on the issue (Grounds 1, 2 and 8)
3. Whether the learned Justices of the Court of Appeal were right when they held that the judgment in Suit No. ID/1883/89 and the settlement agreement between the respondents and the Lagos State Government had extinguished the appellants’ title in favour of the respondents (Ground 3)
4. Whether the Justices of the Court of Appeal were not in error when they held that the appellants cannot benefit from Suit No. ID/1883/89 (Ground 5)
5. Whether the Court of Appeal was right when it held that the High Court rightly granted to the respondents a relief not claimed (Ground 6)
6. Whether the Court of Appeal was right in affirming the award of N500,000.00 damages for trespass when there is (sic) no evidence of trespass before the High Court (Ground 7).

The respondents also filed an amended brief on 28th March, 2013. They replied seriatim to the issues postulated and argued by the appellants without formulating their own issues.

On issue 1 which is pivotal to this appeal, learned counsel for the appellants submitted that the Court of Appeal was in error to hold that the appellants title became extinct since the appellants did not institute an action to challenge the revocation of their title by the Government. He referred to Suit No. M/779/93 – Major Murtala Gbadamosi Eletu (Rtd.) v. A. G. Lagos State & Ors. to challenge the Government’s revocation of the title to the land which ended in a term of settlement and was made the judgment of the Court as contained on pages 116 – 118 of the Records. He therefore submitted that the Court of Appeal’s holding that the title of the appellants is extinct on the ground that they did not challenge the revocation is most perverse. Learned counsel for the respondents maintained that the Court of Appeal was right in affirming the judgment of the Lagos State Government revocation of 1981. He argued that a methodical look at Exhibit C3 shows that the suit the appellants filed to challenge the revocation was commenced in 1993, two years after the revocation had been declared null and void in Suit No. ID/1883/89 instituted by the respondents wherein the Court affirmed the right and interest of the respondents over the whole land. He maintained that the judgment of the Court in Suit No. ID/1883/89 stands and has not been upturned and submitted that title over the whole land resided in the respondents since there is no appeal against it and it is deemed accepted by the party against whom the decision was entered and is therefore binding. He placed reliance on Iyoho v. Effiong (2007) 11 NWLR (part 1044) 31 SC and Adeyemi – Bero v. Omotosho (2008) 15 NWLR (part 1111) 576. He said that what transpired in Exhibit C3 is tantamount to a review of the decision in Suit No. ID/1883/89 which divested the powers of the Lagos State Government with respect to the portions of land vested in the respondents. Relying on the principle of nemo dat quod non habet which was applied in Ilona v. Idakwo (2003) 11 NWLR (Part 830) 53 learned counsel submitted that the Lagos State Government had no power, right or interest to transfer or alienate or enter any form of arrangement on any portion of land already declared by the Court in Suit No. ID/1883/89 as belonging to the respondents to anyone, the appellants inclusive.

The appellants filed a reply brief in which it was submitted that the decision in Ilona v. Idakwo (supra) supports the appellants’ case and proceeded to argue that the respondents misunderstood the arguments of the appellants when they cited Adeyemi – Bero v. Omotosho and Iyoho v. Effiong supra which are irrelevant to this case.

The crux of the respondents case at the High Court is that the judgment in Suit No. ID/1883/89 extinguished the title of the appellants to the land. This is evident in paragraphs 4, 5, 6, 7. 8 and 9 of the plaintiffs’ pleadings in Suit No. LD/2642/95 wherein they averred as follows:-

“4. Sometime in 1981, the Governor of Lagos State revoked all rights of occupancy in and over a vast area of land in Lekki Peninsula which included the aforementioned Ojomu Family Land.