Sir Segun Keshinro & Anor V. Chief Akibu Alimiu Sanni & Ors (2004)
LawGlobal-Hub Lead Judgment Report
NONYEREM OKORONKWO, J.C.A.
By this appeal, the appellant challenges the judgment of the Ogun State High Court delivered on 3rd day of April, 2014 wherein that Court in Suit No. AB/197/2010 adjudged in favour of the respondent as follows:
1. It is declared that the claimants are entitled to the statutory Right of Occupancy to all that parcel of land verged red measuring 13.118 acres in Survey Plan No. LDC/OG/039/2002 dated 08/07/02 prepared by Tayo Oluwaniyi Registered Surveyor, only as against the 1st, 3rd and 5th Defendants, but not against the 4th Defendant.
2. N50,000.00 (Fifty Thousand Naira) is awarded as general damages against the 1st, 3rd and 5th Defendants in favour of the claimants.
3. An Order of perpetual Injunction is granted restraining the 1st, 3rd and 5th Defendants by themselves, their servants, agents, privies, or howsoever from further acts of trespass on the land in dispute.
4. The claim of the Claimants against the 4th Defendant is dismissed.
The Claimants being dissatisfied lodged this appeal by notice of appeal dated 3rd June 2014 and filed in the Court below on 4th June, 2014 amended by Notice of Appeal filed 13/4/15 deemed 30/11/17 by which the appellant raised the following seven grounds of appeal:
Amended Notice of Appeal:
Ground One
The learned trial Judge erred in law when he said:
It is declared that the claimants are entitled to the Statutory Right of Occupancy to all that parcel of land verged red measuring 13.118 acres in survey plan No. LDC/OG/039/2002 dated 07/08/02 prepared by Tayo Oluwaniyi Registered Surveyor. when survey plan No. LDC/OG/039/2002 dated 07/08/02 did not describe or show the exact land of the claimants nor the identity of the land described with particularity thereby occasioned miscarriage of Justice.
Ground Two
The learned trial Judge erred in law when he said: It is the duty of the 1st Defendant to prove to the Court that the land of two acres bought by him is part of the land granted absolutely by the claimants to Ashaolu especially as the claimants have said it is not so thereby occasioned a miscarriage of justice.
Ground Three
The learned trial Judge erred in law and came to a perverse decision when he held that:
The Defendants except the 4th traced their title to the claimants. Therefore, they have admitted and acknowledged the original title of the claimants to the land in dispute. While the general principle is that a claimant must in a claim for declaration of title rely on the strength of his own case and not on the weakness of the defence, there are exceptions to that rule. One of the exception is where the Defendant in his pleading has admitted that the claimants was the original owner of the land in dispute thereby occasioned miscarriage of justice.
Ground Four
The learned trial Judge erred in law and thereby came to wrong conclusion when he held that:
I must note here that although the 1st Defendant did not plead the defence of latches and acquiesce, his counsel urged it on his behlf. Latches and acquiescence is a special defence which the law require to be specifically pleaded by a Defendant intending to rely on it. Having not pleaded it, I hold that is not available to the 1st Defendant, and by extension, the 2nd and 3rd Defendants too.”
Ground Five
The learned trial Judge erred in law when he gave judgment for the claimants/respondents in their personal capacity in a matter commenced and fought in a representative capacity thereby occasioned miscarriage of justice.
Ground Six
The learned trial Judge erred in law and also came to a perverse decision when he held that:
The 1st Defendant also pleaded and testified to the effect that the land in dispute was later acquired by the Ogun State Government consequent upon which he decided to apply for ratification and issuance of a certificate of occupancy. The claimants in this case have stated that to the best of their knowledge the land was never acquired. The onus was therefore on the 1st Defendant to prove the acquisition, but he never did. Exhibit F tendered by him is only a letter of allocation and not evidence of acquisition. Therefore I find and hold that it has not been established in this case that the land in dispute falls under acquisition so as to extinguish any right that Claimant may have over it.”
Ground Seven
The lower Court misdirected itself in law and breached 1st appellants right to fair hearing by simply jettisoning the pleading and evidence of the 1st appellant and failure to a pronouncement on them.
Flowing from these seven Grounds, the appellants in their appellants brief filed 6/6/18 raised five issues for determination namely:
Issue One
Having regards to the weighty, cogent and fundamental evidence before the lower Court including the admission of the respondents that they had earlier alienated their land to one Lateef Ashaolu, whether the trial Court was not in grave error to have held that the 1st appellant did not prove his ownership of or title to the land in dispute and thereby became a trespasser on the land. (Grounds 1 and 3).
Issue Two
Having regards to the totality of the pleading of the 1st appellant before the trial Court, whether or not the 1st appellant specifically pleaded the defence of laches and acquiescence as required by law. (Ground 2)
Issue Three
Whether the 1st appellant did not discharge the onus placed on him by law to prove that the land in dispute was acquired by the Ogun State Government. (Ground 4)
Issue Four
Considering the misapprehension of the appellants case by the lower Court, whether same did not result in a very serious error, leading to the breach of the appellants right to fair hearing. (Ground 5)
Issue Five
Whether 2nd appellant is a juristic person in law to warrant or justify a judgment being made against it. (Ground 6)
Background Facts of Case
I have considered the pleadings and evidence led in the case but it seems to me that the trial Judge very tacitly captured the respective case of the parties. I shall therefore adopt the facts given by the trial Court in his synopsis. He says:
The facts of the case in brief are as follows:
The claimants, who belong to the Shofolarin family of Magboro Shofolarin, lay claim to the ownership of the subject land which is situate at Igbo Elere in Arepo town in Ogun State, by virtue of long possession from time immerorial. They claim that one of their tenants was one Ashaolu, whose son Lateef Ashaolu later approached them for an outright sale of the portion of the land earlier granted to his father as tenant, which request was granted by the claimants family. They allege that the Defendants without their consent have the land, while the 4th claimed to have purchased his portion from other vendors. The 5th Defendant is also said to have simply jumped on the land without the consent of the claimants.
The 1st Defendants defence is that he and his wife bought the land in dispute measuring two (2) acres in 2003 through one Odusanya from one Omojuwa Industries Nigeria Ltd, which had earlier bought the land from one Chief lateef Ashaolu, who in turn had earlier purchased same from the Shofolarin family. The 1st Defendant admits granting two plots out of the said land to the 3rd Defendant.
Following the acquisition of the land by the Ogun State Government in 2004, 1st Defendant said he applied for ratification of his title over the land and issuance of a certificate which is still being processed. 2nd Defendant is only a Clergy of the 3rd Defendant and is not occupying any separate plot.
The 4th Defendants defence is that it purchased over 50 hectares of swamp land including the land in dispute from nine (9) families in year 2007 and was duly put into possession, to the knowledge of the 1st claimant, but who did not say that his family had any interest whatsoever in the swamp land.
In fact the claimants actually sold another parcel of land, different from the one in dispute to the 4th Defendant. 4th Defendant insists that the claimants land is different from the land being occupied by it. It contends further that the swamp land occupied by it forms part of the vast expanse of land acquired by the Ogun State Government. The 5th Defendants case is that sometime in 1988 the claimants family sold 2 acres of land forming part of the land in dispute in this case to him and put him in physical possession.
Thus, apart from the 4th Defendant, all the other Defendants trace their title to the land in dispute to the claimants.
It must however be understood that the claimants referred to the synopsis of the trial Judge are the respondents in this appeal while the 1st Defendant Sir Segun Keshinro is the 1st appellant. 2nd Defendant Catholic Church of Transfiguration, Arepo is the 2nd appellant.
Notice of Preliminary Objection
By a Notice of Preliminary Objection filed 5/2/15, the respondents filed a notice of preliminary objection on the following grounds:
(i) There is no valid record of appeal upon which the appellants brief could be predicated.
(ii) Grounds 1 and 3 of the Notice of Appeal and the issues formulated therefrom are not borne out by the record of appeal or otherwise does not arise from the decision appealed against.
(iii) Ground 2 of the Notice of Appeal is incompetent as same relates to a non-juristic person.
In respect of Ground 1 of the Preliminary Objection, the respondent refers to the Court of Appeal Rules Order 8 Rule 1 providing for time for compilation and transmission of record of appeal within 60 days by the registrar of the lower Court and where that fails, the responsibility of the appellant to within 30 days to compile and transmit the record.
It may sometime happen that the time limited under the rules for the filing of a process or doing an act may sometimes lapse for some reasons. In such situation or exigency, the Court is endowed with power under Order 6 Rule 9 to extend such time as is provided and in such terms as the Court may deem fit to make.
By a motion filed by the appellant pursuant to Order 7 Rules 1 and 2 of the Court of Appeal Rules, appellants, after the first 60 days of the Registrar had expired applied for leave to compile and transmit record under the 30 day window of the appellant. The application was granted on 30/11/17 and the record deemed compiled and transmitted by appellant was deemed regular on that 30/11/17. It would appear the respondent objector was not prudent to check on the records before raising such issue. As it is, this ground of objection has no basis and fails.
The second ground of objection relate to Ground 1 and 2 of the Notice of Appeal. Without much ado, Grounds 1 and 2 were amply raised in the case of the Court below and sufficiently dealt with by the trial Court. Indeed the fulcrum of the appeal rested on the grant to Ashaolu by the respondent and the failure of the appellants to show that the portion they allegedly derived from Lateef Ashaolu formed part of the land of the respondent granted the appellant Ashaolu family. The whole case on appeal rested on it.
On Ground 2, the non-juristic personality of the 2nd appellant was never raised by the appellant at the trial stage. On the contrary, appellant, by this pleading as 1st Defendant in paragraph 7 thereof pleaded he granted land to 3rd Defendant i.e. 2nd appellant. Again this ground is baseless.
The Preliminary Objection is without merit and is dismissed.
Issue No. 1 of appellant raised the question thus:
Having regards to the weighty, cogent and fundamental evidence before the lower Court including the admission of the respondents that they had earlier alienated their land to one Lateef Ashaolu, whether the trial Court was not in grave error to have held that the 1st appellant did not prove his ownership of or title to the land in dispute and thereby became a trespasser on the land. (Grounds 1 and 2)
In this issue, appellant contend that by the pleading of the respondent, the respondent as claimant pleaded that the respondents family granted a part of the family land to one Ashaolu and later made an absolute grant of same by purchase to Lateef Ashaolu. 1st appellant and his wife as pleaded that they bought two acres from Omojuwa Industries Ltd through one Mr. M.A. Odusanya. Omojuwa Industries was said to have bought five (5) acres from Chief Lateef Ashaolu through whom possession came to Omojuwa Industries Nigeria Ltd and to the 1st appellant, can there be anything left in the respondents to sue upon and claim? Citing Owoo v. Edet (2012) All FWLR (pt. 642) 1791 at 1800.
The respondents brief did not seem to address the issue raised in issue number one of the appellant but instead raised a new, unrelated issue number one on burden of proof.
Notwithstanding, the trial Judge in his reasoning on the point said:
The 1st Defendant claims to have, through one Mr. M.A. Odusanya, purchased the land of two acres from one Omojuwa Industries ltd, which bought the land from Chief Lateef Ashaolu, who earlier bought it from the claimants family. He tendered in evidence, Exhibit D, the purchase receipt issued by Omojuwa Industries Ltd to and in the name of the said Mr. Odusanya. He neither tendered the receipt of purchase issued by Ashaolu to Omojuwa Industries Ltd nor the receipt issued by the claimants family to Ashaolu.
Although the claimants at paragraph 14 of their statement of claim admitted making an absolute grant of a portion of their land to Ashaolu, that in my view, did not discharge the 1st Defendant from the onus of showing that the land occupied by him, and out of which he gave two plots to the 3rd Defendant, is part of the land granted by the Claimants to Ashaolu. It was the duty of the 1st Defendant to prove to the Court that the land of two acres bought by him is part of the land granted absolutely by the claimants to Ashaolu especially as the claimants have said it is not so. Having failed to do so, I find and hold that the 1st Defendant failed to prove that the claimants, whose original title he admitted, have divested themselves of their interest in the land of two acres, in his favour. The defect in the claim or title of the 1st Defendant will naturally affect the 3rd Defendant who derived her title from the 1st Defendant.”
In other words, the appellant did not relate Exhibit D the purchase receipt issued to Omojuwa Industries Ltd to the land in dispute Exhibit A having admitted that appellants predecessors derived title from respondents. It was for them to show that title has been diverted from the claimant. See Oshomo v. Unosi (1965) 1 NMLR 321; Buraimoh v. Bamgbose (1989) 6 SCNJ 36. This is so particularly as the pleadings of the respondent pleaded that only a part of their family land was granted to Ashaolu which part became the subject of an absolute grant to Lateef Ashaolu. In another tone, the trial Judge is saying that the 1st appellant had to prove that the land of two acres bought by him is part of the land granted absolutely by the respondents to Ashaolu especially as the respondents have said it is not so. The appellants failed to do this.
On issue number two, the learned trial Judge was saying that although the 1st appellant did not plead Laches and Acquiescence as required by the law relating to pleadings it being a special defence which must be specifically pleaded, yet he (the trial Judge) proceeded to consider the law relating to the principles of laches and acquiescence as it applied to the case because appellants counsel had addressed the Court on it.
Laches is an equitable defence open only to those who have no title in law to the undisturbed possession over a considerable length of time and who have expended time and resources over time to the knowledge and inaction of the supported owner Okpaloka & Ors v. Ben Umeh & Ors (1976) 9 & 10 SC 269 at 295; Alhaja Kaiyaoja & 4 Ors v. Lasisi Egunla 12 SC 55 at 65; Sosan v.Ademuyiwa (1986) 3 NWLR (pt. 27) 241 at 255.
Appellant seem to be contending in this issue that there is ample pleading on the principle of laches and acquiescence relying on Jinadu v. Esurombi (2005) All FWLR (pt. 251) 349 at 373; Shaw v. Shaw (1954) 2 All ER 638 etc.
Appellants claim to have specifically the defence at paragraphs 5 and 7 of his defence thus:
(5) Further to paragraph 2, the 1st Defendant and his wife were let into immediate and vacant possession of the land wherein maximum acts of ownership by farming was carried out for years.
(7) The 1st Defendant states that he carried out construction work on the land by erecting a bungalow which he now resides and consequently assigned two plots of lands to the 3rd Defendant.
Concerning the above pleadings said to be laches and acquiescence the trial Judge noted this at pages 228-229 thus:
I must note here that although the 1st Defendant did not plead the defence of laches and acquiescence, his counsel urged it on his behalf. Laches and acquiescence is a special defence which the law requires to be specifically pleaded by a Defendant intending to rely on it.
Having not pleaded it, I hold that it is not available to the 1st Defendant, and by extension, the 2nd and 3rd Defendant too. MOSS V. KENROW (1992) 9 NWLR (PT. 264) 207; JIWUL V. DIMLONG (2003) 9 NWLR (PT. 824) 154.”
Specific pleadings means highlighting all the elements of the principle like long possession, expending resources, inaction on the part of the true owner implying acquiescence in that state of affairs affecting his right such as to raise a presumption in law that such possession indicates that his rights have a legal origin as in Awure v. Iledu (2008) 12 NWLR (pt. 1098) 249 at 287-288.
As the learned trial Judge pointed out, the pleadings were no specific pleadings on this point yet, that notwithstanding, the trial Judge considered the defence out of abundance of caution. This issue is not made out.
Issue Number Three
Whether the 1st appellant did not discharge the onus placed on him by law to prove that the land in dispute was acquired by the Ogun State Government. (Ground 4).
This issue raises a new fact in the case of the appellant. The appellant who by his pleading traces his title to Omojuwa Industries Ltd and from there to Ashaolu who was said to have purchased part of the respondents land (not necessarily the one in dispute) now seeks to rely on a third party i.e. the Ogun State Government which is not a party in this case and of whom no application was made to join in the suit. This seem to me to smack of jus tertii the right of a third party which is forbidden in an action for trespass Erhuomwan v. Elema (1994) 3 NWLR (pt. 178) 177 at 190.
Concerning this third party claim about acquisition by Ogun State Government and allocation to appellant, here is what the trial Judge said at page 229 of the record:-
The 1st Defendant also pleaded and testified to the fact that the land in dispute was later acquired by the Ogun State Government consequent upon which he decided to apply for ratification and issuance of a certificate of occupancy. The claimants in this case have stated that to the best of their knowledge the land was never acquired. The onus was therefore on the 1st Defendant to prove the acquisition, but he never did. Exhibit F tendered by him is only a letter of allocation and not evidence of acquisition. Therefore I find and hold that it has not been established in this case that the land in dispute falls under acquisition so as to extinguish any right that the claimants may have over it.”
It is not difficult to agree with the trial Judge on this point. No instrument of acquisition was brought by appellant at the trial that would show that the deemed right of occupancy of the respondents have been extinguished neither was any certificate of occupancy customary or statutory was produced. This issue also fails.
Issue Number Four
Considering the misapprehension of the appellants case by the lower Court, whether same did not result in a very serious error, leading to the breach of the appellants right to fair hearing. (Ground 5)
This charge or attack against the trial Judge is unfortunate. On the contrary, the lower Court, it appears to me, very dispassionately considered all the issues raised in the case and came to a decision on all point. I do not see how the issue of fair hearing arose at stage at any stage. The issue here is without merit.
Issue Number five
Whether 2nd appellant is a juristic person in law to warrant or justify a judgment being made against it. (Ground 6)
In arguing this issue, appellant counsel argued at paragraph 8.1 – 8.3 of the appellant brief thus:
In the Issue 4 of the Written Address formulated by the 1st appellant before the trial Court, it was contended that the 3rd defendant, now 2nd appellant herein, is not a juristic person. Instead of the learned trial Judge to consider same and strike out the name of the 2nd appellant from the suit, she refused and went ahead to deliver judgment against it. The name, Catholic Church of Transfiguration, Arepo is neither a natural person nor a creation of any law. Even a duly registered trustee under part C of the Company and Allied Matters Act can only be sued by its trustees and not otherwise.
In Fawehinmi v. NBA (No. 2) (2008) All FWLR (pt. 448), the Supreme Court held that an artificial person is a corporation aggregate or sole. It can be created by law, e.g. University of Ibadan Act, 1962, University of Lagos Act, 1968. It is submitted that the Catholic Church of Transfiguration Arepo is neither a creation of any statute nor was it registered under any law in Nigeria.
InAgbonmagbe Bank Ltdv. General Manager G.B. Olivant Ltd (1961) 1 All NLR (pt. 1) 116, it was held that the 1st Defendant therein, 1st Appellant before the Supreme Court, was not a juristic person and so could not be sued in that name and the name was accordingly struck out. This is what we expected the learned trial Judge to have done.”
If the appellants as 1st and 3rd Defendants were challenging the capacity in which the 3rd Defendant was sued as Catholic Church of Transfiguration, Arepo, the appellant would raise that challenge in the statement of defence filed for 1st Defendant. See pages 57-69 of the record. No such challenge was raised against 3rd Defendant neither was any preliminary Objection raised. Instead appellant acknowledged and appropriated 3rd Defendant in paragraph of his 1st Defendants statement of defence thus:
The 1st Defendant states that he carried out construction work on the land by erecting a bungalow which he now resides and consequently assigned two plots of land to the 3rd Defendant.”
So, by his own admission, appellant assigned land, a corporeal hereditament to 3rd Defendant and to turn around to say 3rd Defendant who is 2nd respondent in this appeal is not a juristic personality. It does not stand to reason.
Besides, is it because the word Ltd or Registered Trustees are not added to the name. It should be noted that some legal entities are registered or incorporated without the name limited or as incorporated charities.
Having not challenged the legal personality of 3rd defendant/2nd appellant and having dealt with 3rd Defendant/2nd appellant by transferring land to it, it is fruitless to now argue that that entity is non-juristic. This issue also fails.
On the whole, the entire five issues for determination raised from the seven grounds of appeal are all without merit. Accordingly, the appeal fails and is dismissed.
Other Citations: (2004)LCN/1596(CA)