In the Supreme Court of Nigeria Holden at Abuja On Friday, the 19th day of February, 2021

Before Stephen Dalyop Pam, J.
Nwali Sylvester Ngwuta
John Inyang Okoro
Uwani Musa Abba Aji
Ibrahim Mohammed Musa Saulawa
Adamu Jauro

Justices, Supreme Court
SC.175/2011

Between

Mr Alake Osarobo Ibude … … … Appellant

And

1. Mr Ghassan Saidi
2. Saidi Hotel Limited, Benin City … … … Respondents

(Lead Judgement delivered by Honourable Uwani Musa Abba Aji, JSC)

Facts

The Appellant’s late father was granted the piece of land in dispute, by Oba Akenzua II of Benin as the sole trustee of all communal lands in Benin. The Appellant, as the eldest son of his father, inherited the land after the father’s death. The 1st Respondent approached the Appellant and offered to buy the land, but negotiation failed as the Appellant found the Respondents’ offer unacceptable. The Respondents subsequently applied for, and were granted a Temporary Occupation Licence over the piece of land by the Edo State Government. Thereafter, the Respondents broke into the land, bulldozed all plants on the land and destroyed the economic trees thereon.

Consequent upon the foregoing, the Appellant brought an action against the Respondents at the High Court of Edo State, seeking declaration of title to the property, as well as a claim for trespass, injunctive reliefs, and damages against the Respondents. Judgement was delivered in favour of the Appellant. The Respondents successfully challenged the decision at the Court of Appeal. The Appellant, who was dissatisfied with the outcome of the appeal, filed an appeal to the Supreme Court.

Issue for Determination

The following sole issue was formulated and determined by the Apex Court, in the Appeal:

Whether the learned Justices of the Court of Appeal were right to dismiss the claim of the Appellant, by setting aside the judgement of the trial court?

Arguments

Counsel for the Appellant submitted that what is critical to the land in dispute is the issue of title, and by producing the Registered Deed of Conveyance between Oba Akenzua II and the Appellant’s father (“Exhibit A”); the Appellant had proved a better title over the Respondent’s Temporary Occupation Licence (“Exhibit F”) which had expired about seven years before the suit was instituted. Relying on the decision in ATITI GOLD v OSARENREN (1990) 1 ANLR at 134 and ROMANIE v ROMANIE (1992) 4 NWLR (Pt. 238) at 652, the Appellant argued that Exhibit F neither confers right to possession, nor can it question the derivative title of the Appellant.

Counsel argued further that the Appellant’s father had been in possession until his death, which was a clear act of possession, while the act of the Respondents in moving into the land to bulldoze and destroy the economic trees was a trespass. Thus, a claim for trespass is rooted in exclusive possession of the land in dispute – CHUKWUEKE & ANOR v OKORONKWO & ORS (1991) 1 SCC at 34. He posited that the proof of failed negotiation between the Appellant and the Respondents to buy the land in dispute, is an acknowledgment of the Appellant’s ownership of the land by the Respondents, and if the Appellant cannot succeed on the strength of his own case, an exception applies that the case of the Respondents supports the Appellant’s case as decided in AKINOLA & ORS v OLUWO & ORS (1962) 1 ANLR at 227. The Appellant urged the court to resolve this issue in his favour, and allow the Appeal.

Responding to the submissions above, counsel for the Respondents contended that the issue before the court was whether the Appellant proved that he acquired the land under Benin customary law of inheritance, and that the Appellant failed to prove the title of his predecessor as held in FINIH v IMADE (1992) 9 LRCN 117 and OKEYA v AGUEBOR (1970) 1 ANLR 1 at 10. Further relying on the decision in ARASE v ARASE (1981) 5 SC 33 at 55, the Respondent argued that, the Appellant did not lead evidence on the preliminary procedure culminating in the approval of the Oba of Benin.

Counsel for the Respondent also argued on the issue of trespass and damages, that where two people claim possession to the same piece of land, the person with the better title is said to be in possession, and relied on the case of OGUNBIYI v ADEWUNMI (1985) 5 NWLR (Pt. 93) 215. Further relying on the decision in OKOLO v UZOKA (1979) SC at 87, the Respondents argued that having obtained the Temporary Occupation Licence and being in occupation of the land, the Respondents have proved better title than the Appellant, as trespass is actionable by the person in possession.

Counsel for the Respondents submitted that the inquiry to buy the land from the Appellant, did not in any way support the case of the Appellant. In all, he He urged the court to resolve the issue in favour of the Respondents, and to dismiss the appeal.

Court’s Judgement and Rationale

Deciding the sole issue, the Supreme Court held that although the Respondents strenuously and painstakingly defended the claim of the Appellant both by their pleadings and evidence, they nonetheless, did not claim title to the land in dispute whatsoever. What this portends is that, the issue of declaration of title to the piece of land in dispute is not contested at all by the Respondents in the pleadings, throughout the trial and even on appeal. Likewise, issue was not joined on title to the land in dispute; hence, evidence cannot be led thereon – the court relied on AJA & ANOR v OKORO & ORS (1991) LPELR-276(SC). Their Lordships held that instead of Pleading documents of title, the Respondents beat about the bush to plead: (i) Survey Plan No. MSC/ED2000/146 dated 27th June, 2000; (ii) Deed of Lease dated 23rd day of July, 1974 and registered at Page 4 in Volume 249 of the Lands Registry in the office at Benin City; and (iii) Temporary Occupation Licence dated 19th day of March, 1993, which in truth had expired seven years before the institution of the suit. On the other hand, the Appellant pleaded and relied upon a registered Deed of Conveyance between Oba Akenzua II of Benin and his father.

The Supreme Court restated the various methods by which ownership or title to land may be established, thus: (a) by traditional evidence; (b) by production of documents of title, that are duly authenticated; (c) by acts of selling, leasing, renting out all or part of the land, or farming on it, or on a portion of it; (d) by acts of long possession and enjoyment of the land; and (e) 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. The court, relying on AJIBOYE v ISHOLA (2006) LPELR-301 (SC), noted that the five methods stated deal with the means by which title to land can be proved in the court of law, and the said methods have nothing to do with the mode of acquisition of title to land which may be by: (a) first settlement on the land and deforestation of the virgin land; (b) conquest during tribal wars; (c) gift; (d) grant- customary (e) sale; (f) inheritance, etc. The court held further that it is not the law that once a Claimant produces what he claims to be an instrument of grant, he is automatically entitled to a declaration that the property which such an instrument purports to grant, is his own. Rather, production and reliance upon such an instrument inevitably carries with it the need for the court to enquire into some or all of a number of questions, including- (i) whether the document is genuine and valid; (ii) whether it has been duly executed, stamped and registered; (iii) whether the grantor had the capacity and authority to make the grant; (iv) whether the grantor had in fact what he purported to grant and (iv) whether it had the effect claimed by the holder of the instrument. The Court referred to KYARI v ALKALI & ORS (2001) LPELR- 1728 (SC).

On the issue of the need for the Appellant to further prove that he inherited the land from his father according to the native law and custom of Benin, their Lordships held that he who asserts must prove. The Appellant has alleged that he is the eldest son of his late father by virtue of which he inherited the land in dispute, and since this is not an intra-family dispute over the disputed land but between adverse and strange parties, the principle will not apply and the argument of the Respondents is stretched too far.

Regarding the issue of acknowledgment of ownership of the land by the Respondents, the Supreme Court referred to its earlier decision in EWO & ORS v ANI & ORS (2004) LPELR-1182 (SC) per Uwaifo, JSC where it was held that “… a party who acknowledges the title of his opponent to a parcel of land, must prove how that opponent has been divested of title wholly or partially of the ownership of the land, to the satisfaction of the court”. The court dispelled the idea/presumption that the act of the Respondent negotiating the sale/purchase of the land with the Appellant, is not an acknowledgment of ownership by the Respondent. The Supreme Court held that the Respondents knew that the case against them was for declaration of title to land in dispute; yet, they did not raise a counterclaim. Relying on the decision in AKULAKU & ORS v YONGO (2002) LPELR-392(SC), Their Lordships reiterated the settled position of law that, in a claim for declaration for title, even if the Plaintiff fails, title is not automatically conferred on the Defendant without a counter-claim.

The court concluded that the Appellant has proved a better and incontestable title to the land in dispute than the Respondents, who have no claim at all to the land in dispute.

Appeal Allowed.

Representation
Stella Ojeme with Anthonia Ojeme for the Appellant.

Ogaga Ovrawah for the Respondents.

Reported by Optimum Publishers Limited, Publishers of the Nigerian Monthly Law Reports (NMLR)(An Affiliate of Babalakin & Co.)

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