Oba Yekini Elegushi V. Sarata Oseni (2005) LLJR-SC

Oba Yekini Elegushi V. Sarata Oseni (2005)

LAWGLOBAL HUB Lead Judgment Report

ONU, J.S.C. 

The first and only plaintiff in this case, initially sued as representative of Elegushi Royal Family, the five defendants representing the Maiyegun Family. He (plaintiff) later obtained an order to join other members of his family herein they jointly claimed for:

“(a) Forfeiture of the properties held by the defendants under customary law as customary tenants of the plaintiff on the area marked blue on Plan No. BAASS/073/LAG/94.

(b) Possession of the said village forfeited from defendants shown as Maiyegun village and marked blue on Plan No. BAASS/073/LAG/174 drawn by a Licensed surveyor A. Akinyemi.

(c) Perpetual Injunction restraining the defendants by themselves, their privies, servants and agents from selling or alienating the portion of land shown on plan No. AASS/073/LAG/94 edged yellow on the said plan.

(d) Perpetual Injunction restraining the defendants by themselves, their servants and privies from further trespassing on the portion of land edged green and yellow except the area verged blue.”

The lower court, by an order entered on 15th November, 1993 struck out the original 1st, 3rd, 6th,9th, 10th, 11th and 12th defendants from the suit and renumbered or reconstituted the remaining defendants as the 1st to 5th defendants to defend the suit on behalf of themselves and Maiyegun Family.

The plaintiff thereafter filed an amended writ of summons and also a statement of claim.

The defendants, with the leave of court, filed their statement of defence dated 17th November, 1994 and the plaintiff filed a reply dated 9th January, 1995. The suit, upon a summons for directions, was then set down for trial on 23rd May 1995.

Five witnesses, including the original plaintiff himself, testified for the plaintiff. All the witnesses were cross examined by the defendants’ counsel. Five witnesses also testified for the defendants, including the 4th defendant and they were cross-examined by the plaintiff’s counsel.

In the course of the trial, the then sole plaintiff’s counsel applied to join the 2nd – 5th plaintiffs as co-plaintiffs, and upon the grant of the application, the plaintiffs filed a further amended writ of summons and amended statement of claim earlier referred to. At the close of the case, both the plaintiffs’ and defendants’ counsel filed written addresses at the trial and also addressed the court orally in support thereof.

At the conclusion of the plaintiffs’ address, the defendants’ counsel applied to file a reply on points of law to the written submissions filed by the plaintiffs’ counsel. The plaintiffs’ counsel raised a preliminary objection to the application, and in the trial court’s ruling contained in the final judgment, the defendants’ counsel’s application to file a reply was refused. The learned trial Judge delivered his judgment on 26th November, 1996 in favour of the plaintiffs. Dissatisfied with the said decision, the defendants appealed to the Court of Appeal, Lagos Division which in a unanimous decision allowed their appeal by setting aside the judgment of the trial court and dismissing the plaintiffs’ suit.

Aggrieved by the said decision of the Court of Appeal, the plaintiffs/appellants filed a Notice of appeal dated 4th December, 2000 containing eleven grounds in this Court.

From the eleven grounds of appeal the plaintiffs filed, they submitted four issues as arising for the determination of the Supreme Court, namely:

Issue 1

Whether the learned trial Judge must first settle the issue of title before proceeding to determine the issue of customary tenancy.

Issue 2

Whether the learned trial Judge should have made Lagos State Government a party to the suit.

Issue 3

Was the finding that exhibits “C” and “BB” admitted for certain purposes be used for another purpose when the Court of Appeal find (sic) that the using of the exhibits to tender the veracity of the witness is inept.

Issue 4

Was the Court of Appeal was (sic) right by finding that the learned trial Judge should have decided the issue to make a reply on a point of law under Order 35 Rule 7 (1) R. S. C. England when there is provision in our rules which has once been judicially considered by the Supreme Court. The defendants/respondents on the other hand have proffered three issues as arising from the grounds of appeal for determination, to wit:

(i) Whether the plaintiffs proved better title to Maiyegun Village, the land in dispute, to entitle them to forfeiture and possession of the village from the defendants, and to order of injunction for trespass.

(ii) Whether Exhibits C and BB were properly received in evidence.

(iii) Whether the Lagos State Government should have been joined to this suit on the question whether it properly served notice of acquisition and revocation of the land situate at Eti-Osa and Ibeju Lekki areas of Lagos State.

HISTORICAL BACKGROUND

This action was first instituted by the 1st plaintiff/appellant in March, 1993 against the background of defendants’ opposition to the 1st plaintiff/appellant’s attempt at selling parts of the land in dispute compositely known as Maiyegun Village, and situate in an area measuring 14.534 hectares in the Eti-Osa Local Government Area of Lagos State –

The land was originally owned and occupied by the defendants’ ancestor, Oseni Maiyegun, who had migrated from Abeokuta to settle on the land permanently since the year 1820. By the defendants’ reckoning, their ancestor and his descendants had settled on the land and inhabited the village from the year 1820, whereas the plaintiffs’ recollection of the defendants’ ancestor’s sojourn in the village goes back to the year 1779. The descendants of Oseni Maiyegun, it is further contended, had peaceably lived in and inhabited Maiyegun village without any disturbance or interference from the neighbouring village, Ikate, until the 1st plaintiff/appellant, a white cap Chief as of 1992, was made an Oba (a king) of Ikate land in February, 1993 when he was formally given a staff of office by the then Governor of Lagos State. Upon the 1st plaintiff/appellant becoming the Oba of Ikate land in 1993, it was further averred, Ikate land was christened as Ikate Kingdom. Sequel to this case, it was added, the 1st plaintiff/ appellant had in December, 1992 purportedly chosen and appointed one illiterate, Muili Maiyegun, a member of the defendants’ family, as the Bale (the community head) of Maiyegun village – an act which the defendants considered was against their family custom, which only permits defendants’ community to appoint their own Bale. The said Muili Maiyegun and his son, it was added, received some gift of a parcel of land from the 1st plaintiff which they were selling before he was called to give evidence for the plaintiffs as PW2.

It was further stated that no sooner was the 1st plaintiff/appellant formally installed as an Oba of Ikate land in February, 1993 than he instituted this action on behalf of his family, claiming inter alia:

(i) That his family are the overlords of the plaintiffs family

(ii) That his family is the owner of Maiyegun land.

(iii) That the ancestor as well as the descendants of Oseni Maiyegun are the customary tenants of his family.

(iv) That his family has the right to appoint Muili Maiyegun as the Bale of Maiyegun Village

(v) That Maiyegun Village is under his domain.

It is incontestable, it is further argued, that the defendant’s family have always been in exclusive possession of the land in dispute and have exercised long, continuous and maximum acts of possession and ownership over the land.

It was also pointed out that before the institution of this case, the land in dispute and indeed the whole land situate in Eti-Osa and Ibeju Lekki Local Government area of Lagos State following revocation of existing rights of occupancy over same existed; and that following the request or representation made to the Lagos State Government by the defendants’ family for the excision and release of their ancestral homeland, the area of land measuring 14.535 hectares, namely, the land in dispute, was excised and granted to the defendants’ family by the Lagos State Government. The plaintiffs had also through Elegushi Property and Investment Company Limited, applied to the Lagos State Government for grant of land, and they were granted a right of occupancy over a larger area of land measuring 500 hectares covered by a Certificate of Occupancy dated 19/9/90 registered as No.6 at page 60 in Volume 1990, that is, exhibit T.

Apart from the fact of excision and grant of the land in dispute to the defendants’ family by the Lagos State Government, the defendants’ root of title was shown to have originated from Oluge, the then Ojomu of Ajiran, who in 1820 made absolute grant of the land to defendants’ ancestor, Oseni Maiyegun. The plaintiffs failed to prove by evidence how they acquired or came to settle on the land in dispute.

Thus, the judgment of the Court of Appeal was that the plaintiffs did not show or prove superior title to entitle them to possession of Maiyegun Village from the defendants’ family. In the argument of this appeal the parties are herein re-characterized as plaintiffs and defendants respectively.

ARGUMENT

Since a close and careful study of the issues formulated by both parties to this appeal are similar and overlap, albeit that the plaintiffs’ are three and the defendants are four respectively, I take the view that those proffered by the plaintiffs should, for their succinctness, be adopted in the consideration of this appeal as follows:-

ISSUE 1

Whether the plaintiffs proved better or superior title to Maiyegun Village to the land in dispute to entitle them to forfeiture and possession of the village from the defendants and to the order of injunction for trespass. This singular issue is formulated in relation to Grounds 1,2, 3, 5, 6 and 8 of the grounds of appeal filed by the defendants/ appellants.

It was common ground that the defendants’ family is in exclusive possession of the land in dispute, and they have exercised long and continuous acts of possession and ownership over same from the year 1820. As a matter of fact, according to the 1st appellant’s evidence-in-chief the defendants’ family’s possession of the land in dispute dates further back to the year 1779.

As eventually became manifest, the defendants sufficiently joined issues with the plaintiffs in their pleadings by claiming right to possession and ownership of the land in dispute and supported the claim by the evidence they led at the trial. The effect of the state of the pleadings, particularly the plaintiffs’ claim for possession and injunction for trespass, is that the plaintiffs’ title to the land is in issue. And since the defendants’ exclusive possession of the land in dispute confers on them the right in law to remain in possession and to undisputed argument of the land against every other person except the one who can establish a better title, the burden is on plaintiffs to establish a superior or better title to Maiyegun Village before they can rightly dispossess the defendants inhabitants of the village.

In any event, it is submitted, that the plaintiffs’ case against the defendants herein postulates that they (plaintiffs) are the owners of the land in dispute and for that they had, prior to the act of trespass complained of, the right to exclusive possession of the land. The onus therefore, is on them (the plaintiffs), to prove better title and ownership to the land in order to succeed. Pertinently, there are five ways of establishing the ownership of land, viz:-

(a) By traditional evidence.

(b) By acts of ownership extending over a sufficient length of time which acts are numerous and positive enough to warrant the inference that they are true owners.

(c) By acts of long possession and enjoyment of the land in dispute

(d) By the production of documents of title which must be authenticated.

(e) By proof of possession of connected or adjacent land in circumstances rendering it probable that the owners of such connected or adjacent land would in addition be the owners of the land in dispute. See

1. Idundun v. Okumagba (1976) 9-10 SC 227; (Onu, J,S.C.) (1976) 1 NMLR 200
2. Omoregie v.ldugiemwanye (1985) 2 NWLR (Pt.5) 41 at 54-59.
3. Piaro v. Tenalo (1976) 12 SC 31 at 37 and
4. Achiakpa v. Nduka (2001) 14 NWLR (Pt.734) 623; (2001) FWLR (Pt. 71) 1804 SC.

On this legal principle alone, many authorities such as Ogunbiyi v. Adewunmi (1988) 5 NWLR (Pt.93) 215 SC at 221 para. B-C; Amobi v.Amobi (1996) 8 NWLR (Pt. 469) 638 SC and Tewogbade v. Obadina (1994) 4 NWLR (Pt. 338) 326 SC, were cited in support thereof.

In paragraph 32 plaintiffs’ Amended Reply to the Amended Statement of Defence dated 27th November, 1995, the plaintiffs pleaded their ownership of the land as follows:-

“In answer to paragraph 19, Elegushi Royal Family, did not flee from Iddo, the family occupied Ikate and their villages by virtue of being a child of Olofin, the landowners and also as Idejo Chief. The family has been on the land before 19th century … ”

The plaintiff’s traditional evidence of ownership as can be seen, was in direct conflict with the defendants’ evidence and this renders the traditional history or evidence of traditional history given by the plaintiffs unreliable. This is because proof of ownership of land by traditional history is usually based on hearsay evidence, that is, oral evidence often extending beyond human memory and time of the witnesses narrating the history, which narrations were handed down from generation to generation up to the present one.

Thus, the law is settled that where traditional evidence of the parties in a land matter is in conflict or inconclusive as in the case in hand, the Court should not go by the credibility of witnesses, but should examine the acts of ownership or possession done by either party in recent times in relation to the land in dispute See this Court’s decision in Idundun v. Okumagba (1976) 1 NMLR 200; (1976) 9-10 SC 227; Kenon v. Tekam (2001) FWLR (Pt. 70) 1660 SC; (2001) 14 NWLR (Pt.732) 12; Kyari v. Alkali (2001) FWLR (Pt.60) 1481 SC; (2001) 11 NWLR (Pt.724) 412, and Jules v. Ajani (2001) FWLR (Pt.45) 763 SC.

To establish traditional evidence of title by conclusive evidence, the plaintiff must plead and prove such facts as:-

(a) Who founded the land in dispute.

(b) How they founded the land, and

(c) The particulars of the intervening owners through whom they claim.

See the cases of Nkado v. Obiano (1997) 5 NWLR (Pt. 503) 31 SC; Ohiaeri v.Akabeze (1992) 2 NWLR (Pt. 221) 1; Anyanwu v. Mbara (1992) 5 NWLR (Pt. 242) 386; Piaro v. Tenalo (1976) 12 SC 31 and Mogaji v. Cadbury (supra).

The plaintiffs did not establish these facts at the trial. Hence, I accept the defendants’ submission that the plaintiffs failed to prove their ownership of the land in dispute by non-conflicting and conclusive traditional evidence to entitle them to possession of Maiyegun Village from the defendants.

The plaintiffs’ argument contained in paragraph 3.03 of their Brief to the effect that it is not necessary to establish their title in the circumstances of this case, cannot therefore stand. In answer to the said paragraph, I agree with the defendants that where the plaintiffs’ claim to the land in dispute is predicted on ownership, as in the instant case, the onus is on them (plaintiffs) to prove and establish their ownership. See the case of Adesanya v. Otuewu (1993) 1 NWLR (Pt. 270) 414 SC at 453 para. B.

In addition, the challenge of the plaintiffs’ claim of ownership of the land in dispute cannot amount to a misconduct or lead to forfeiture where the defendants are also claiming ownership and right to remain in possession; such challenge can only amount to a misconduct or lead to forfeiture if the plaintiffs succeeded in proving their root of title, that is, a superior or better title to the land in dispute. Be it noted that the plaintiffs cannot establish their root of title and ownership by merely pleading a consequential matter such as customary tenancy. In paragraph 32 of the plaintiffs’ amended reply to the amended statement of defence (see page 241 of the Record) the plaintiffs pleaded their root of title and traced it to one Odofin, but they failed to establish the root of title at the trial by showing in evidence:

(a) When and how the land in dispute was founded by Odofin.

(b) The particulars of intervening persons on whom title in respect of the land in dispute was devolved since the founding of the land.

By the same token, the plaintiffs cannot be seen to establish their root of title or ownership of the land in dispute by merely asserting that they are one or some of the landowners in Lagos as they tried to show throughout their evidence at the trial. See the case of Obioha v. Duru (1994) 8 NWLR (Pt. 365) 631 SC Where this Court held that where a party’s root of title is pleaded, that root has to be established first, and any consequential acts following therefrom can then properly qualify as acts of ownership.

The Court below was therefore right in holding that proof of the plaintiffs’ ownership and source of title is essential for proper and successful adjudication of their claim for possession of Maiyegu village. However, since the plaintiffs failed to make out a prima facie case against the defendants at the trial on their claim of ownership and title to the land in dispute, the defendants have no need to answer them on their defective defence, moreso when they (defendants) did not counterclaim against them. See the case of Mogaji V. Cadbury Nigeria Limited (1985) 2 NWLR (Pt. 7) 393 wherein this court held that where pleadings of the parties raise the issue of who the original owners of the lands were, the plaintiffs in this matter have a very heavy burden to discharge, and they can only succeed on the strength of their own case and not on the weakness of the defence. Since the plaintiffs failed to discharge this burden, the quo warranto of their claim (that is ownership) was not established and I so hold.

In the case of the defendants who had long been in exclusive possession of the land in dispute, however, there is sufficient proof of the ownership as well as their right to remain in possession by their:

(i)Proving their acts of long possession and enjoyment of the land from 1820 till date, which acts of long possession and enjoyment, afford them prima facie evidence of ownership under Section 46 of the Evidence Act.

(ii)Showing acts of ownership of the land, naming the land after their ancestor (Maiyegun), dwelling on the land, selling and dealing with it or parts thereof over the years .

(iii)In addition, there is the unrebutted presumption of ownership raised in favour of the defendants under Section 146 of the Evidence Act.

In their bare claim that they were land owners in Lagos sought to rely on Exhibits J1 and J2 – documents which are not documents of title but only form part of their evidence of traditional history which is in conflict with the defendants traditional history. In any case, the plaintiffs did not seek to prove their ownership by the production of the documents of title; they only relied on traditional history. Thus, the Court below was right, in my view, in holding that proof of the plaintiffs ownership and source of title is essential for proper and successful adjudication of their claim for the possession of Maiyegun Village.

Furthermore, since the plaintiffs failed to make out a prima facie case against the defendants at the trial on their claim of ownership and title to the land in dispute, the defendants have no need to answer them on their defective defence. Moreso, when the defendants did not counterclaim against them vide paragraph 3.10 of the Appellant’s Brief. See also Mogaji v. Cadbury (supra) wherein this Court held that where pleadings of the parties raise the issue of who the original owners of the land were, the plaintiffs in the matter have a very heavy burden to discharge and they can only succeed on the strength of their own case and not on the weakness of the defence.

Since the plaintiffs in this case failed to discharge this burden, their claim (of ownership) is not established. Compare the case of the defendants who had long been in exclusive possession of the land in dispute with sufficient proof of their ownership as well as their right to remain in possession by their:

(i) Proving their acts of long possession and enjoyment of the land from 1820 till date, which acts of long possession and enjoyment, afford them prima facie evidence of ownership under Section 46 of the Evidence Act. See Okechukwu v. Okafor (1961) 2 SCNLR 369; (1961) 1 All NLR 685 at 686 and Kasali v. Lawal (1986) 3 NWLR (Pt. 28) 305.

(ii) Showing acts of ownership of the land, naming the land after their ancestor (Maiyegun), dwelling on the land, selling and dealing with same over a long period of time.

(iii) In addition, there is the unrebutted presumption of ownership raised in favour of the defendants under Section 146 of the Evidence Act.

In their bare claim that they were land owners in Lagos sought to rely on Exhibits J1 and J12 – documents which are not documents of title but only form part of their evidence of traditional history which is in conflict with the defendants’ traditional history. In any case, much as the plaintiffs did not seek to prove their ownership by the production of documents of title, they relied on traditional history.

The plaintiffs’ contention in the paragraph 3.06 of their Brief that they are the owners of the land in dispute by reason of their being one of the landowners in Lagos, is to say the least, perverse. Thus, all the pieces of evidence given in support of the plaintiffs’ claim of ownership that they “own Eko” (Lagos) or that they “own Maiyegun village” by reason of being landowners in Lagos, are deficient or at most non sequitur.

Turning to the curious evidence of PW 2 which the trial court heavily relied upon in entering judgment for the plaintiffs, I agree with the defendants’ submission that the plaintiffs traditional evidence of ownership of the land in dispute cannot invest such evidence of traditional history with any special cloak of acceptability so as to render the test laid down in Kojo v. Bonsie (1957) 1WLR 1223 at 1226 inapplicable to the conflicting evidence of traditional history given by the parties. That a test of any conflicting traditional evidence of ownership of land was succinctly laid down in the case in Kojo v. Bonsie (supra) per Lord Denning in the following words :-

“Witnesses of the utmost veracity may speak honestly but erroneously as to what took place a hundred or more years ago. Where there is a conflict of traditional history one side or the other must be mistaken, yet both may be honest in their belief. In such a case demeanour is a little guide to the truth. The best way to test the traditional history by reference to the facts in recent years as established by evidence and by seeing which of two competing histories is more probable … ”

See also the case of Mogaji v. Cadbury (supra) at p 430. in any case, considering the background of this case, PW2 cannot be regarded as a witness of the utmost veracity so as to clothe his evidence with utmost truth. This is a witness who under cross examination admitted that he was an illiterate but who the 1st plaintiff purportedly and in an unprecedented manner, appointed as Bale over Maiyegun Village in December, 1992 following his elevation and appointment as an Oba (king) of Ikate land. From the status of a Chief, under cross-examination, PW2 admitted that upon his choice as Bale by the 1st plaintiff/appellant, he and his son received gifts of some plots of land from him which they were selling.

Issue 3

This issue asks whether exhibits C and BB were properly received in evidence. Exhibit C, in the first place, was the certified true copy of the proceedings in a previous suit in which the parties thereto (namely, Suit No. I/302/55) were Oba Onibeju (for himself and members of the Ibeju Family) v. Salimonu Oyebola, who are not per chance, the same parties in this suit.

In that case, one Lawani Maiyegun, a relation of the defendants, had testified that the land at Maiyegun Village belonged to the family of the plaintiffs in this case. And this particular record of proceedings in the said suit No. I/302/55 was tendered by the 1st plaintiffs at the trial.

Exhibit C was tendered for the purpose of admission as evidence at the trial and the defendants’ counsel objected to the admissibility of the said document as evidence. Under Section 34 (1) of the Evidence Act 1990, Cap. 112, Laws of the Federation, the provisos which are: “Provided –

(a) That the proceeding was between the same parties or their representatives in interest;

(b)That the adverse party in the first proceeding had the right and opportunity to cross-examine; and

(c) That the questions in issue were substantially the same in the first as in the second proceedings …. ”

The three provisos stipulated in Section 34 (1) of the Evidence Act (ibid) it was stressed, must co-exist before Exhibit ‘C’ can be properly admitted for the purposes of proving the truth of any facts stated therein.

And since it was not shown at the trial that the parties in the suit No. I/302/55 were the same as the parties in the present case, or that the real questions in issue in the previous suit were substantially the same as in the present one; and that the adverse party in the previous suit as well as in the present case had the opportunity to cross-examine Lawani Maiyegun whose evidence is contained in exhibit ‘C’ then exhibit ‘C’ is not relevant and cannot be properly received in evidence of the truth of what Lawani Maiyegun said in the previous suits, as contained in exhibit ‘C’

This law of evidence has been affirmed by this court in the case of Alade v.Aborishade (1960) 1 NSCC 111 at 155 para. 30-40; (1960) 1 SCNLR 398 in the words following:-

“….but that does not alter the legal position which this court has stated on numerous occasions which is that evidence given in a previous case can never be accepted as evidence by the court trying a later case except where Section 34 (1) of the Evidence ordinance applies. The evidence given in an earlier case by persons who also testify in a later case may be used for cross examination as to credit but it is of no higher value than that.”

See also Folarin v. Durojaiye (1988) 1 NWLR (Pt. 70) 351. It is pertinent therefore to point out that exhibit ‘C’ is of no value or relevance at all to this case since it was not even tendered and used for the purpose of cross-examination. Hence, I agree with the plaintiffs’ submission that as exhibit ‘C’ is not a fact in issue in this case nor is it admissible even under sections 93 and 109 of the Evidence Act contrary to the erroneous argument advanced by them (plaintiffs). By the combined effect of the provisions of Section 6 (b) and 34 (1) of the same Act, exhibit ‘C’ is not admissible either under Section 34 or Sections 93 and 209 of the Evidence Act for the same reasons highlighted in the proceedings under the issue in consideration.

I agree with defendants that Exhibit BB is also inadmissible in evidence. Exhibit BB, it must be emphasized, constituted the proceedings in Suit No. LD/1117/72 between City Property Dev. Ltd. v. Attorney-General & 3 Ors. who were not shown to be the same parties in the present case. To the further submission that for the same reasons highlighted in the proceeding paragraphs under the issue in consideration, exhibit BB is inadmissible in evidence, it was the plaintiffs’ submission that exhibit BB is not admissible in evidence irrespective of whether it was tendered under sections 34 (1), 93,109,111 or 112 of the Evidence Act. Nor can the exhibit be tendered in evidence to impeach the credit of DW4 through whom it was tendered, since DW 4 in that suit was not the same witness who gave the evidence contained in exhibit BB in suit No. LD/1117/72. The court below was therefore, in my view right, in regarding both exhibits C and BB inadmissible in evidence. The court below, in my view, was equally right in considering these exhibits not useful or admissible either as evidence of the truth of the facts they contain, or for the purpose of impeaching the credit of the witnesses through whom they were tendered.

Be it also noted that it is an elementary rule of evidence that before considering the admissibility of any evidence or document in support of a party’s case, it must be shown that the evidence sought to be led is relevant in law.

Relevance is therefore the main purpose for admissibility of any evidence or document under the law of evidence, whether it be in civil or criminal matters vide ACB Ltd. v. Alhaji Umoru Gwagwada (1994) 5 NWLR (Pt. 342) 25 SC at 44 paras A-D. I therefore agree with the plaintiff’s submission that exhibits C and BB have no evidential and probative value on account of their irrelevancy in law. Hence, they were in my view, not properly admissible in evidence in the circumstances of this case at the trial and I so hold.

ISSUE 2

The question this issue poses is whether the Lagos State Government should have been joined to this suit on the question of whether it properly served notice of acquisition and revocation of the land situate at Eti-Osa and Ibeju-Lekki areas of Lagos State. The defendants pleaded and the plaintiffs joined issues therewith, on acquisition and revocation of all rights of occupancy over the land situate at Eti-Osa and Ibeju-Lekki areas of Lagos State.

Evidence was also led by the defendants at the trial in proof of acquisition and revocation of the right of occupancy over the land area in dispute covering 823 square kilometres situate at Eti-Osa and Ibeju-Lekki including the land in dispute.

Exhibit Q, Lagos State Gazette, was tendered by the 4th defendant and admitted in evidence without any objection while Revocation Notice (exhibit P) was also tendered and received without any objection of the area excised from the acquisition. The plaintiffs, however, failed to prove their averments against the Lagos State Government and also failed to properly challenge the evidence of the defendant on requisition, revocation and excision at the trial. In his evidence at the trial the 1st plaintiff merely said

“If the land was Government acquired land, the reference should be to me and not them (the defendants). Although the defendants admitted the Maiyegun land was acquired by Government, I say that my ancestors had owned the land.”

It is further submitted that the unchallenged evidence of the defendants on the fact of acquisition and revocation of land in Eti-Osa and Ibeju-Lekki, which includes the land in dispute, must be accepted as proved, particularly when the plaintiff have acknowledged by conduct, the general acquisition by making representation to the Lagos State Government for grant of land after the acquisition and on the strength of which the Government granted over 500 hectares to Elegushi Property Investment Company Limited. It is also further submitted that the scanty evidence of the 1st plaintiff quoted in paragraph 6.4 earlier on is not a sufficient rebuttal of the defendants’ evidence in support of acquisition and revocation of right of occupancy over the land in Eti-Osa and Ibeju- Lekki.

Thus, it was in addition contended that the acquisition and subsequent excision of the land in dispute to the defendants were established by the defendants, as there was no evidence challenging the proven facts at the trial vide American Cyanamid v. Vitality Pharm. Ltd. (1991) 2 NWLR (Pt. 171) 15 at pages 28-30, wherein it was held that where the evidence of a witness has not been challenged, contradicted or shaken under cross-examination and his evidence is not inadmissible in law, and the evidence led is in line with the facts pleaded, the evidence must be accepted as the correct version of what that witness says.

Furthermore, the fact that the plaintiffs in their pleading challenged the acquisition and revocation of the right of occupancy over the land in dispute, would not change the position of law as enunciated in the American Cyanamid Case (supra) because averments in a pleading do not constitute evidence or proof of the facts averred in the pleading. See Awojugbagbe Light Industries Ltd. v. Chinukwe (1995) 4 NWLR (Pt. 390) 379 SC and Ajuwon v. Akanni (1993) 9 NWLR (Pt. 316) 182 SC.

Be that as it may, the issue raised in the plaintiffs’ pleadings as to whether the land in Eti-Osa and Ibeju-Lekki including the land in dispute has been properly acquired by the Lagos State Government and whether notice of acquisition and revocation was properly served on them by the government under the Public Lands Acquisition Law, cannot, in my view, be completely and properly adjudicated upon and determined by the trial court without joining the Lagos State Government to this suit.

On the state of the pleadings filed by the parties therefore, I am of the view that it is necessary to join the Lagos State Government on the issue raised by the plaintiffs on the validity or propriety of acquisition and service of notice of acquisition and revocation of grant. This is the very point being made by the court below, which point of law is affirmed by this Honourable Court in the case of Mobil Oil Nigeria Limited v. Nabsons Ltd. (1995) 7 NWLR (Pt.407) 254 at pages 262-263 SC.

Having already demonstrated that the plaintiffs failed to prove their ownership or title to the Land in dispute, it would amount to sufficient service of the notice of acquisition or revocation if service of the notice was effected on the defendants (the undisputed occupiers of the land in dispute). See Obikoya & Sons Ltd. v. Govemor of Lagos State (1987) 1 NWLR (Pt. 50) 385 at 397 para. C-H.

In the suit herein on appeal, the defendants did not challenge the propriety of service of notice of acquisition and revocation on themselves, being the people in occupation and who ought to be served. Be it noted also that the plaintiffs who in their pleading are challenging the validity of acquisition/revocation on the ground of non-service on them of notice of acquisition and revocation, have to show that they were the persons who ought to be properly served, which they failed to do, having failed to prove their ownership to the land in dispute. Thus, the plaintiffs cannot contend in this case the validity of public acquisition of the land in dispute, on the ground of non-service of notice of acquisition/revocation, moreso, when the land in dispute is not Ikate land, their homeland, of which they are in occupation.

In sum, I hold the view that the plaintiffs are not the rightful persons to be served with the notice of acquisition/revocation of the acquisition/revocation of the land in dispute and they have locus to challenge the validity of the acquisition by the Lagos State Government.

A person who is not the proven owner or occupier of land in respect of which notice of acquisition/revocation was issued has no locus standi in law to seek the nullification of the acquisition. See Titiloye v. Olupo (1991) 7 NWLR (Pt. 205) 519 SC and KokoroOwo v. Lagos State Govemment (2001) 11 NWLR (Pt.723) 237; (2001) FWLR (Pt. 61) 1709 SC. Thus, the land in dispute was rightly, in my view, excised by the Lagos State Government to the defendants/occupiers who have shown themselves to and do remain in possession of the land – their ancestral land, as against the plaintiffs’.

The plaintiffs claim that they were not served with notice of acquisition and excision of the land in dispute cannot therefore detract from the fact of acquisition and excision thereof.

In the result, the plaintiffs’/appellants’ claim to the land in dispute cannot stand in view of the acquisition of the land by the Lagos State Government and the subsequent excision and grant of same to the defendants/respondents by the Government of Lagos State. The appeal fails and is accordingly dismissed with costs assessed at N10,000.00 in favour of the defendants/respondents.

SC.50/2001