Sunday Idakwo & Anor V. Emmanuel Ilona (1998)

LawGlobal-Hub Lead Judgment Report

KALGO, J.C.A. 

This case has some chequered history which needs to be explained in order to appreciate how the present position is arrived at. On the 19th of September 1989, the 1st appellant alone, filed a writ of summons as plaintiff against the 2nd appellant (his brother) and the respondent as defendants in the Idah High Court of Benue State praying the Court to order:-

(a) the 1st defendant to handover to him all the properties, monies and documents connected with the estate of their late father Joseph Idakwo Ejiga as administrator or the estate:

(b) the respondent to vacate the plot of land and the Total Petrol Filling Station situate in Sabon Gari opposite St Boniface Primary School Idah forming part of the estate of his late father and that any evidence or ownership of the said land produced by the respondent be declared null and void.

On the 20th of November, 1989, with the leave of the trial court, one Ukwenya Ochijenu Uteno was joined as a 3rd defendant to the action. Also on the 30th of May, 1991, with the leave of the trial court the name of the 2nd appellant was struck out as 1st defendant and added as 2nd plaintiff. This means that by 30th May 1991, the parties to the action are as follows:-

1. Sunday Idakwo -1st plaintiff
2. John Idakwo – 2nd plaintiff

AND

1. Emmanuel Ilona – 1st Defendant
2. Ukwenya Ochijenu Uteno – 2nd Defendant

Pleadings were then filed and exchanged accordingly. The 2nd defendant in his pleadings, raised a counter-claim praying the trial court to declare null and void the Right of Occupancy granted to the plaintiffs’ father in respect of the land on grounds or fraud and the whole claim on the land as res-judicata.

On the 29th of April, 1994, after all evidence in the case was taken and the learned counsel in the case were to address the court, the learned counsel for the plaintiffs/appellant (hereinafter referred to as appellants) announced in open court that the appellants and the 2nd defendant had settled their dispute out of court and that the memorandum of settlement setting out the terms of settlement which was accordingly signed by the parties and witnessed by a Legal Practitioner was filed in court. He then asked the trial court to adopt the memorandum accordingly. But the learned trial Judge did not react to the memorandum of settlement there and then. What he did was to order the learned counsel to file their written addresses and he later adjourned the case for judgment.

With due respect to the learned trial Judge, I think it was not proper for him to ignore the fact of the settlement of the case by the parties even in the circumstances of this case where only some of the parties settled their dispute. The court has a duty in my view to encourage settlement of civil cases before it in an effort to decongest the court and cut down on costs to parties. In my opinion, where parties to a civil matter agree to settle their controversies or disputes during or before actual trial or even after the trial before judgment as in this case, and they file a memorandum or settlement setting out the terms of settlement properly executed by them, such settlement shall be acted upon immediately by the court in giving judgment according to the terms of settlement, except where there is disagreement on the terms. In this case the learned trial Judge was informed of the settlement on the 24th of April 1994 when the memoradum was filed and he did not react to the memoradum until he came to write his judgment in the case on the 24th October 1994 – a period of six months interval. This attitude is undesirable and should be discouraged.

On the 24th of October, 1994, the learned trial Judge Ochimana, J. delivered his judgment which was in two parts. The first part was in respect of the settlement between the appellants and the 2nd defendant Mr. Uteno and the second part was between the appellants and the 1st defendant (hereinafter referred to as the respondent). By the first part of the judgment, the learned trial Judge ordered that:-

(P. 136 of record)

“The portion of land measuring 100 feet by 100 feet in which stood the uncompleted building opposite St. Boniface Primary School, Sabon Gad, Idah shall now vest in the plaintiffs while the remaining portion of land extending to the fence of the Total Pilling Station is declared for the 2nd defendant.”

There is no appeal against this order.

What remained then was the dispute on the ownership or title to the remaining land on which the Total Filling Station stands which was contested between the appellants and the respondent. In this respect, the learned trial Judge after hearing the whole evidence and the learned counsel thereon, and examining all the exhibits admitted at the trial came to the following conclusion:

“I am of the view that the plaintiffs have failed to prove their case against the 1st defendant on the preponderance of evidence to entitle them to judgment. Their action therefore lacked merit and it is accordingly dismissed.”?

The appellants were dissatisfied with this order and appealed to this court. In this Court, parties filed written briefs and exchanged them between themselves. In their respective briefs each of the parties formulated 4 issues for determination by this court in respect or the appeal. The issues are very similar but for clarity I adopt the issues formulated by the respondent. The respondents raised these issues:

“1. Whether the appellant’s late father had legal title to the disputed area.

2. Whether the appellants who are the administrators of their late father’s estate were guilty of laches and acquiescence.
3. Whether the Right of Occupancy or and the Certificate of Occupancy issued to the 1st defendant in respect of the disputed land is valid in law.
4. Whether Exhibit 3 actually revoked deceased Joseph Ejiga’s Right of Occupancy”.

And the appellants set out his issues thus:

“1. Whether the appellants proved their case and thus entitled to judgment of the lower court or in the alternative whether the lower court was right when it dismissed the plaintiffs claim.

2. Whether the appellants who are the administrators of their late father’s estate were guilty of laches and acquiescence.
3. Whether Exhibit 3 properly revoked Joseph Ejiga’s Right of Occupancy.”

At the hearing of the appeal in this court, the learned counsel for the appellants adopted his brief of argument filed on 18th of March, 1996 and urged the court to allow the appeal.

The learned counsel for the respondent. Chief Ajala SAN also adopted his brief of argument filed on 12th August 1996. Learned SAN went on to submit that the original Right of Occupancy granted to the appellant’s father in 1964 (Exhibit 6) was revoked by the letter, Exhibit 3, and that Exhibit 8 which intended to validate Exhibit 6, has no probative value. He further submitted that the learned trial Judge was correct to rely on the evidence of P.W. 1 and D.W.1 to the effect that the land in dispute was vacant before the grant was made to the respondent in 1984. He cited the case of Agbonifo V. Aiwereoba and 3 Ors (1988) 1 NWLR (Pt.70) 325 at 342. While conceding on the authority of Saude v. Abdullahi (1989) 4 NWLR (Pt. 116) 387 that an original grant must have been revoked before another grant is made on the same land, learned SAN forcefully submitted that on the totality of the evidence at the trial, the appellants were guilty of laches and acquiescence for their failure to challenge the respondent from developing the land in dispute from 1977 to 1989. He then withdrew his cross-appeal and urged the court to dismiss the main appeal and affirm the decision of the trial court.

The main issue in dispute in this appeal is whether the land upon which the Total Filling Station situate in Sabon Gad opposite St. Boniface Primary School Idah, properly belongs to the appellants’ father, Joseph Idakwo Ejiga or the respondent Emmanuel Ilona. In both cases a grant or the right of occupancy in respect of the same land was made by a different Government at different times, late Ejiga’s grant being earlier in time. But in respect of the respondent a further grant of a Certificate of Occupancy was also made to him, by the government.

It has been well settled by the Supreme Court that title to land in Nigeria can be proved and established in any of the following five ways:-

1. by traditional evidence:
2. by production of documents of title which are duly authenticated;
3. by acts of selling, leasing, renting out all or part of the land, or fanning on it or on a portion of it;
4. by acts of long possession and enjoyment of the land: and
5. by proof of possession of connected or adjacent land in circumstances rendering it probable that the owner of such connected or adjacent land would, in addition, be the owner of the land in dispute.

See the case of Idundun v. Okumagba (1976) 9/10 S.C. 227. In this case, the parties are relying very heavily on their documents of title as call he gleaned from the pleadings. From the evidence at the trial the appellants as plaintiffs relied on the document granted or written to their late father on the land by the government or its agents. These include the Right of Occupancy No. 13457 (Exhibit 6) and the letter written to him by the Permanent Secretary Ministry of Works and Survey Ilorin (Exhibit 8). The respondent on the other hand, relied in his defence to the action, on the Right of Occupancy granted to him (Exhibit D) and the Certificate of Occupancy also granted to him (Exhibit D1), by the Benue State Government. I shall now proceed to examine the issues for determination which I earlier adopted for the purpose of this appeal.

I am taking issues 3 and 4 together first. The learned trial Judge in his judgment found correctly in my view that the appellants’ late father was issued with a valid right of occupancy in respect of the land in dispute. He however later also found that because the appellants’ father failed to lake steps to obtain a Certificate of Occupancy over the same land, he had no legal right to the land in dispute. This finding was based on the evidence of P.W.1 and D.W.1 both workers in the government land office.

Exhibit 3 was a letter written and signed by one J.I.S. Iregu an Assistant Estate Officer in the Lands Office in Lokoja. It was dated 26th June, 1970. The first paragraph of Exhibit 3 speaks of reference being made to a land dispute between Mr. Ukwenya Uteno and J.I. Ejiga, the appellants’ late father. According to the evidence at the trial. Exhibits was immediately followed by Exhibit 8, which was a letter written and signed by the Permanent Secretary. Ministry of Works and Survey. There is no doubt that Exhibits 3 and 8 were al cross purposes and contradicted each other even though it is clear that they were talking about the same piece of land. But what is glaringly obvious is that both exhibits do not appear to be relevant to this appeal because Mr. Uteno is not any more a party to the land in dispute as his dispute with the appellant had been settled out of court. And although reference was made to the Right of Occupancy granted to the appellants’ father in both exhibits, they do not either separately or together affect the validity of the Right of Occupancy (Exhibit 6). I therefore do not agree with the learned trial Judge in his judgment (P. 142 of the record) that Exhibit 3 properly revoked the late J.I. Ejiga’s Right of Occupancy. Consequently my answer to issue 4 is that Exhibit 3 did not revoke or in fact affect the appellants’ father’s Right of Occupancy (Exhibit 6).

There is evidence, accepted by the learned trial Judge that the respondent was granted Right of Occupancy (Exhibit D) and later a Certificate of Occupancy (Exhibit D1) on the 24th September, 1984 and 1st September, 1986 respectively by the Benue State Governor, over the land in dispute. These documents were tendered and admitted in evidence without any objection. They also appear to be duly and properly executed by the Military Governor at the material time. There was no evidence to suggest that they were forged or forgeries. They bore the same numbers – viz BN 9366. The evidence of P.W.1 and D.W.1, have also confirmed that the area covered by Exhibits D and D1 is the same land covered by the area now in dispute and earlier granted to the appellant’s father. They also confirmed in their testimony that at the time Exhibits D and D1 were granted, the land in dispute was vacant as disclosed by the record in the land office at Makurdi. This evidence was however challenged by the appellants and to a certain extent supported by the testimony of the respondent himself. I shall deal with this in more detail later in this judgment. I can however say here that I believe that Exhibits D and D1 are genuine documents.

I shall now deal with issue number one. This is essentially an action for declaration of title to land in dispute. It has generally been accepted and settled that in an action for declaration of title to land, the plaintiff must succeed on the strength of his own case and not on the weakness of the defendant’s case. See: Kodilinye v. Mbanefo Odu 2 WACA 336: Coker v. Ayoade (1966) NMLR 81; Okolo v. Uzoka (1978) 4 SC 77. It is also the duty of the plaintiff in such all action to prove with reasonable certainty the land being claimed and to which a declaration should be made. See: Odesanya v. Ewedenu (1962) 2 SCNLR 23, (1962) 1 All NLR 320: Etim v. Oyo (1978) 6-7 SC 91: Epi v. Aigbedion (1972) 10 SC 53. From the evidence, and the pleadings of the parties, it is very clear that the land in dispute is the one housing the Total Filling Station and although it has not been demarcated as such, the parties mutually understand what they were talking about. It is my view therefore that the land in dispute is identifiable and known to both parties.

There is also no doubt in my mind that the appellants are claiming the land in dispute based on the Right of Occupancy (Exhibit 6) granted to their laic father in law. They are therefore relying heavily on the Right of Occupancy in proof or the title to the land of their late father. For his defence the respondent is also relying on his right of occupancy and Certificate of Occupancy granted to him by Benue State Governor in 1994 and 1986 respectively. It is therefore abundantly clear that while the Exhibit 6 was granted under the Land Tenure Law of Northern Nigeria (Cap. 59 of Laws of Northern Nigeria, 1963) which covered Benue State then, Exhibits D and D1 were granted under the Land Use Act (Cap. 202 of Laws of Federation, 1990, which forms part of the 11)79 Constitution (as amended) and applies throughout the Federal Republic of Nigeria. In order to determine the efficacy of Exhibit 6 and effect upon it of the grant of Exhibits D and D1, over the same piece of land, the provisions of the land the Act must be examined carefully.

There is no doubt that the appellant’s late father was given the grant of Exhibit 6 for the purpose of “Petrol Filling Station”. This was clear on the face of Exhibit 6. There is also sufficient evidence on record that a Total Filling Station was built on the land in question and learned to Total Oil Products (Nig.) Ltd by the appellant’s late father. In his evidence the respondent on P. 96 of the record, had this to say:

“I know the land in dispute. It is a triangular piece of land at the apex of Ameh Obonix and Ahmadu Bello Way in Idah Sahon Gari. There is operating Petrol Filling Station in the said land. There is a signboard bearing “Total” on the land. It was sometime in 1977 my major oil partners “Total” invited me to market their product. I made a marketing agreement with them. One aspect that we discussed which we highlighted before scaling the agreement was about land. This is because TOTAL had invested in a Filling Station there before. They had two underground tanks, two pumps and a sales room in the land in question. It was built on the understanding that one Idakwo Ejiga had title over this very piece of land where the investment was made.”

The 1st appellant in his testimony on p. 46 of the record also said:-

“The area granted to my father includes the area in which the Total Filling Station is built. The Total Oil Company, Onitsha branch built the Filling Station. The structure belonged to the company and they rented the land from my father.”

From these pieces of evidence there is no dispute that before the death of the appellant’s father in 1976, a Total Filling Station had already been built on the land in dispute in accordance with the purpose for which the land was originally granted. This clearly means that the land in dispute was developed before 1977 and cannot therefore be described as vacant or undeveloped.

According to the provisions of Section 1 of the Land Use Act (hereinafter referred to as the Act) all and comprised in the territory of each State in the Federation is vested in the Governor of that State and shall be held in trust and administered for the use and common benefit of all Nigerians in accordance with the provisions of the Act. The Act drew a distinction between land in urban areas of the State and land in other parts of the same state. Section 2(1) of the Act provides:

“(1) As from the commencement of this Act:-

(a) all land in urban areas shall be under the control and management of the Governor of each State; and

(b) all other land shall, subject to this Act, be under the control and management of the local Government within the area of jurisdiction of which the land is situated.”

Section 5(1)(a) of the Act also provides that:-

“It shall be lawful for the Governor in respect of land, whether or not in an urban area-

(a) to grant statutory right of occupancy to any person for all purposes.”(italics mine). Paragraphs (b)- (h) of the subsection are not relevant here,

It appears very clearly that by the above provisions, the land in any State whether in urban or rural area, is under the control of the Governor of that State who is also empowered to issue statutory rights of occupancy in respect of the land. This is why Exhibits D and D1 were granted by the Administrator of Benue State in respect of the land in dispute situate in Idah.Also by the provisions of Sections 6(1)(a) and 10(1) of the Land Tenure Law which applied to Benue State, it shall be lawful for the Minister of Lands of the former Northern Nigeria to grant rights of occupancy and Certificate of Occupancy respectively in respect of land in Northern Nigeria. It was in pursuance of S. 6(1)(a) of the said Land Tenure Law that the appellants’ father was granted the right of occupancy (Exhibit 6) but he did not get Certificate of Occupancy pursuant to S. 10(1) of the said Law before the promulgation of the Act and to the present moment.

What then is the position of his right of occupancy and holding of the land concerned? This is dealt with by the transitional and other related provisions or the Act in Sections 34-38.

Section 34(1) of the Act reads:

34(1) The following provisions of this section shall have effect in respect of land in an urban area vested in any person immediately before the commencement of this Act.” (Italic mine).

This means that the provisions of S. 34 of the Act shall only apply in respect of land in urban area and the land must be vested in a person before the commencement of the Act. In this case, there is evidence that the appellants’ father was granted the right of occupancy (Exhibit 6) over the land in Idah since 1064 and was not revoked before 1978 when the Act commenced operation. Exhibit D was granted to the respondent on 24th September 1984. Therefore before the commencement of the Act, the land in dispute was vested in the appellants’ father.

The next question to be answered before S. 34 ibid applies is whether the land is in an urban mea. S. 3 of the Acts says:

“3. Subject to such general conditions as may be specified in that behalf by the National Council of States, the Governor may for the purpose of the Act by order published in the State Gazette designate the parts or the mea of the territory of the State constituting land in an urban area.” (italics mine).

In exercise of the power conferred by this section of the Act, the Military Administrator of Benue State issued the Land Use Designation of Urban Area Order, 1978, which was published in the Benue State Gazette as Benue State Legal Notice. No.6 of 1978. That legal Notice reads:-

“B.S.L.N. 6 of 1978.

THE LAND USE DECREE 1978 (NO.6 OF 1978)

THE LAND USE DESIGNATION OF URBAN AREA ORDER, 1978.

Date of Commencement: 24th November, 1978”

In exercise of the power conferred by section 3 of the Land Use Decree and of all other powers enabling in that behalf the Military Administrator of Benue State of Nigeria hereby makes the following order:-

Title and commencement: 1. This order may he cited as the Land Use Designation of Urban Area Order, 1978, and shall he deemed to have come into operation on the 24th day of November, 1978

Designation of Urban Area: 2. All the areas specified in the schedule to this order are hereby designated as urban areas for the purpose of Land Use Decree, 1978

SCHEDULE

Designated Urban Areas

Adikpo, Aliade, Ankpa, Ayangba

Dekina, Egume, Gboko, Idah

Katsina-Ala, Makurdi, Oguma, Oju

Okpoga, Otukpo, Ugbokolo, Vandeikya

Zaki Biam

Made at Makurdi this 24th day of November, 1978

GROUP CAPTAIN BAYO LAWAL

Military Administrator

Benue State of Nigeria.

From the above legal notice, it is clear that Idah where the land in dispute is situated has been designated as an urban area by the then Military Administrator of Benue State.

The Benue State legal notice No. 6 of 1978, was published in the Benue State Gazette and has been in operation since then – about 20 years ago. It is true that neither the parties in this case nor the learned trial Judge referred to it in the course of trial or judgment. Can this court now at this stage look at it in this case? I venture to answer this in the affirmative. In the first place it was not necessary to plead the notice itself as a statute and more importantly this court is hound to take judicial notice of the legal notice having been published in the State Gazette as such. The legal notice is not being applied to new facts or situations in the case. The fact that Exhibit 6 was granted to the appellants’ father in 1964 has been accepted by the parties and the trial court. This court can therefore refer to it in this appeal. I am reinforced in this view by the case or Finnih v. Imade (1992) 1 NWLR (Pt.219) 511 at 537 and 542,

In the Imade case (supra) the point was raised in the Supreme Court whether the Court of Appeal on its own motion can raise and apply the provisions of the Boundary Dispute (Determination) Notice No. MSLN, 72 of 1074 (later re-enacted as Edict No.6 of 1977) without calling on counsel of both parties to address the court on it. The Supreme Court held that the Court of Appeal is entitled to take judicial notice of the legislation and was infact bound to apply it in deciding the case. On, P. 542 of the report, the Supreme Court per Nnaemeka-Agu, J.S.C. said:-

“In the instant case, by the time the Court of Appeal was deciding this appeal in April, 1987, the Edict No. 6 of 1977 had been operative in Bendel State for about ten years. The Court of Appeal was entitled, indeed bound under section 73(1)(a) of the Evidence Act, to have taken judicial notice of it and used it to resolve the issue which had been duly raised by the parties as to the confusion caused” in the various documents before them”

The learned Justices of the Court of Appeal would have been acting unconstitutionally by not doing justice according to law if they had failed to take the Edict into account. A court of law cannot refuse or fail or neglect to take judicial notice of legislation relevant to an issue in controversy before it.”

(Italics mine)

Therefore by virtue of Benue State Legal Notice No.6 of 1978 above, I hold that the land in dispute which in 1978 vested in the appellants’ father by virtue of Exhibit 6, was in Idah, an urban area. I have already found earlier in this judgment that the said land was infact developed and not vacant. S. 34(2) of the Act provides:-

“(2). Where the land is developed the land shall continue to be held by the person in whom it was vested immediately before the commencement of this Act as if the holder of the land was the holder of a statutory right of occupancy issued by the Governor under this Act.” (Italics mine)

By this provision, it means that the appellants’ father, as from 1978 is deemed to he holder of a statutory right of occupancy granted under the Act in respect of the land in dispute. Therefore Exhibit D1 granted to the respondent in 1986, is not superior in any way to the status and holding or the appellants’ father in relation to the land in dispute, unless of course it can he shown that Exhibit 6 was revoked by the Governor which he has power to do under the Act. See: Saude v. Abdullahi (1989) 4 NWLR (Pt. 116) 387. This is because by 1978, the appellants’ father, by virtue of the provisions of S. 9(c) of the Act, was also entitled to a Certificate of Occupancy in his own light. There is no evidence to show that Exhibit 6 was revoked by the Military Administrator before Exhibits D and D1 were issued.

According to the evidence of P.W.1 and D.W.1 it was because the land in dispute was found in the record of the land office to be vacant, it was granted to the respondent. But surely the land in dispute was not vacant in 1984 or 1986 when Exhibits D and D1 were granted. The appellants’ rather was deemed to be holder of a statutory right of occupancy of the land at that time and no grant of the same land to anybody would have been properly made without first revoking his right on the land. I have no doubt that if this fact was brought to the attention of the Military Administrator at the material time Exhibits D and D1 were issued, he might decide otherwise.

In my respectful view, since the statutory right of occupancy of the appellants’ father was not revoked by the Military Administrator before granting Exhibits and D1 to the respondent, the appellants’ father being first in time had a better title. Furthermore, it its also my view that Exhibits D and D1 should not have been issued at all in respect of the same land in dispute as such grant is not supported by any provisions of the Act. Accordingly and in accordance with the provisions of Section 26 of the Act, and the decisions in Imade case (supra) and Musa v. Osawe (1991) 8NWLR (Pt. 208) 238, I hereby declare Exhibits D and D1 null and void and of no effect. I therefore find that the appellants have proved their case and were entitled to the judgment of the trial court.

I do not in view of my findings above, think that it is necessary to consider issue (2). I only wish to observe that both laches and acquiescence being equitable defences were not pleaded by any of the parties at the trial. See: Ibenwelu v. Lawal (1971) 1 All NLR 23 at p. 26 and although the learned trial Judge dealt with them at length in his judgment, it is my considered view that it is not relevant or applicable in this appeal.

From all what I have said above, I find that this appeal succeeds and it is allowed. The judgment and decision of the learned trial Judge Ochimana J. delivered on 24th October 1994 is hereby set aside. The appellants’ late father is vested with the title to the land covered by the Total Filling Station at Sabon Gari, Idah. I award the cost of this appeal which I assess at N2000.00 favour of the appellants.

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Other Citations: (1998)LCN/0374(CA)