Vol 9 No.30 (MEFO V. SAVIOUR CHRIST APOSTOLIC CHURCH & 2 ORS.

IN THE HIGH COURT OF LAGOS STATE
IN THE IKEJA JUDICIAL DIVISION
HOLDEN AT IKEJA
ON FRIDAY THE 4TH DAY OF MAY, 2007
BEFORE HIS LORDSHIP THE HON.
JUSTICE A.A ALABI ——————CHIEF JUDGE

SUIT NO: LD/4052/92

BETWEEN:-
J.O MEFO . CLAIMANTS
AND
1. REGISTERED TRUSTEES OF }
SAVIOUR CHRIST APOSTOLIC }
CHURCH } DEFENDANTS
2. PASTOR E.OADEDEJI }
3. GOVERNOR OF LAGOS STATE }

JUDGMENT
The Claimant commenced this suit by way of writ of summons dated 23rd December, 1992. The writ of summons was accompanied by a statement of claim of the same date. The defendants were eventually duly served with the originating processes. The first and second defendants filed their joint statement of defence. The Claimant amended his statement of claim several times over until the further amended statement of claim dated 30th May, 1997.
In the further amended statement of claim aforesaid, the Plaintiff claims against the 1st and 2nd defendants jointly and severally as follows:-
1. A declaration that the certificate of occupancy no:78/78/1786, registered as no: 78 page 78 in volume 1980a dated 21st February, 1986, and 64/64/1990k registered as no. 64 at page 64 in volume 1990k both registered at the lands registry office in Ikeja are null, void and of no effect because they were both obtained by fraudulent misrepresentation and non-disclosure of material facts.
2. A declaration of title, that the Plaintiff is the person entitled to a grant of statutory right of occupancy to that piece and/or parcel of land measuring 921.446 square meters, inclusive of the released portion of land to the Plaintiff on the 25th August, 1988, both situated, lying and being behind no. 24 Bank Olemoh Street, Surulere, Lagos State, which land is more particularly described and edged red on plan no: LAT 8366/LA/84 of 8th August, 1994.
3. #183,160.00 (one hundred and eighty-three thousand, one hundred and sixty naira) being special damages for trespass on and demolition of property situate, lying and being at no. 24, Bank Olemoh Street, Surulere, Lagos State, on the 28th, 29th and 30th of August, 1992, and which trespass still continues.
4. #1,000,000.00 (One Million Naira damages) being general damages for trespass.
5. #500,000 (Five Hundred thousand naira only) being Solicitors fees incurred in the prosecution of this suit.
6. Perpetual Injunction restraining the Defendants, their agents and/or servants from committing further acts of trespass on the land in dispute or in any way disturbing the Plaintiffs possession of the said land.
Particulars of special damages were given in details.
After the preliminaries, the matter proceeded to hearing.
At the hearing, two witnesses testified for the Claimant and two witnesses also testified for the first and second defendants.
The first witness for the Claimant was the Claimant himself- Jefa Olu Mefo. He told the court that he shares the same boundary with the first and second defendants. According to him, in 1969, he lived at Apongbon where the Federal Government displaced them and moved them to Surulere Scheme. Those of them in that category were advised to apply with two passport photographs which he did. A letter from the Public Health Department to him was admitted as exhibit A, while his letter to the Public Health Department was admitted as exhibit B. He was allocated a plot in a swampy area. He developed the land in 1977. The land is behind no.24B Bank Olemoh Street Surulere. By 1978, the Defendants developed their site but they never encroached on claimant's land. The claimant had a cordial relationship with the 1st and 2nd defendants so much that the Plaintiff and his wife were worshipping with the defendants. He procured a permit from the Surulere Local Government. A receipt issued to him by the LSDPC was admitted in evidence as exhibit C. it was for allocation of residential plot.
There was so much pressure from the Surulere Local Government and he was advised to take an action against them. He invited the defendants to join him in the action. They joined as 2nd Plaintiff. Certified true copies of the court processes before Oluwa J. were admitted in evidence as exhibit D-D11. The case was eventually withdrawn.
The Surulere Local Government came to demolish the church. He the Plaintiff complained to the LSDPC and the Governor's office. The letter by way of reply from LSDPC, was admitted as exhibit G, while the reply from the Governor's office was admitted as exhibit H.
The case he earlier withdrew was refilled. He was granted an interlocutory injunction restraining the local government from demolishing their properties. Thereafter, many notices were served on their properties. Himself, the Claimant and the defendant wrote a joint petition to the Government Then there was a letter of allocation to the defendant. He protested. Secretary to LUAC intervened. The defendant then did an instrument of release to the claimant. It was admitted as exhibit M, which he the claimant rejected. The Surulere Local Government demolished part of the claimants' property. The defendant he said demolished his three bedroom apartment. He claimed as per his amended statement of claim. Under cross-examination, the claimant claimed that exhibit D3 is the letter allowing him to stay on the land.
The second witness for the claimant was one Ademola Ashipa. He is a surveyor by profession. He carried out a survey job for the claimant and the defendant at the instance of the claimant. He made survey plans no. LAT/1856A/LA/81, which plan was admitted as exhibit 0. He also prepared survey plan no. CAT/I 856B/LA/81 for the claimant. The plan was admitted as exhibit P.
When the survey was being prepared the two parties were present. The defendant did not raise any objection. The witness told the court that the defendant's survey plan contains a make-shift church while claimant's survey plan has a temporary structure for his carpentry shed. Both land were distinct and separate.
Then in 1988, the defendant went to the same surveyor and showed the surveyor an allocation paper showing that both lands are to be allocated to the church. The surveyor then prepared another survey plan for the defendant. The third survey plan was admitted in evidence as exhibit q, which is a combination of the two earlier survey plans. The witness was neither cross- examined nor re-examined. That was the case for the claimant.
The first witness for the defendant was one Ezekiel Oladosu Adedeji, a minister of the Lord. He told the court that the claimant met him on the land.
It is not the same land. The claimant has his own land while the defendants also have their own land.
The witness said the Surulere Local Government wanted to demolish their land.. The Plaintiff went to secure that his property be not demolished. The then Governor of Lagos State Alhaji Lateef Jakande visited the Land and told them that he was going to give the land to the church because it was going to be used as a place of worship. The land was given to the church. Pursuant to the directive of the then Governor, he surveyed the two parcels for the church.
He said they have two certificates of occupancy. One during Governor Mudashiru in the name of the church, then Christ the Saviour. The defendants he said, have since changed their name. He said they gave part of the land to the Plaintiff. He denied that it was the defendant who demolished the Plaintiffs property. It was the Surulere Local Government that demolished the whole of the Plaintiffs property. He denied liability for all the claims of the claimant.
Under cross-examination, the witness admitted that before Governor Jakande came to visit the land. The claimant had a part of the land and the defendant also had a part of the land. He admitted that the claimant and the defendant both acted together when Surulere Local Government wanted to demolish their property. He agreed that both of them, i.e the Plaintiff and defendant were using their separate portions without the consent of Government. There was no dispute between them. He agreed that he did not inform the claimant before he surveyed the land.
The second witness for the defendant was one Abayomi Stephen Akintoye- a clergy man. He joined the church in 1975. In 1992, He was appointed the general secretary of the church. He was ordained as an evangelist in 1996 and a pastor in 1999. He identified exhibit Ml as a document given to the claimant by the defendant. Although he did not sign the document, he was present when the document was executed. Certified true copy of the certificate of occupancy of the church dated 21st February 1986 and registered as no.78 at 78 at page 78 1983a, was admitted through the witness as exhibit U. Copy of deed of surrender of statutory right of occupancy made in the earlier name of the church was admitted through the witness as exhibit V.
Under cross-examination, the witness admitted that the Plaintiff and the first defendant were occupying different portions. The witness admitted that exhibit M, was duly issued by the defendant church. Although he was aware of the meeting between Dr. Alaba of the LUAC, the church and the Plaintiff, he was not aware of the allegation by the Plaintiff that the church included the Plaintiffs land with the land of the church. That was the case for the defendants.
The matter then proceeded to address. Learned Counsel for the defendants, filed an undated defendants brief of argument on 22nd January 2001, and learned counsel for the claimant filed Plaintiffs written address dated 17th April, 2001.
In the defendant's brief of argument aforesaid, learned counsel stated the claims of the Plaintiffs and stated the case of the defendants from the point of view of the defendants. He reviewed the cases of the claimant and that of the defendant. Learned counsel stated some facts which includes that:
(1) Both lands in dispute and occupied by both plaintiff and the first defendant are properties of Lagos State Government either directly or through one of its agents.
(2) The two lands are distinct and independent of each other but had common boundary.
(3) Both lands had separate survey plans prior to the visit of Governor Jakande.
(4) Both lands were offered to the first defendant through letter of allocation- exhibit W.
(5) The Plaintiffs land was demolished by the Surulere Local Government.
Learned counsel then formulated the issues for determination as follows:-
(1) Whether the Certificate of Occupancy nos. 78/78/1986A and 64/64/1990K- Exhibit T&U were obtained by misrepresentation of facts and/or by fraud.
(2) The Plaintiff had made a case backed by credible evidence to support his claim for declaration of his statutory Right of Occupancy of the piece or parcel of land as described in exhibit 0.
(3) The Plaintiff is entitled to #183,160.00 or to any amount as special damages for alleged trespass committed by the 1st and 2nd defendants on the plaintiffs supposed piece or parcel of land as described in exhibit 0.
(4) The plaintiff is entitled to grant of injunction against the defendants.
(5) The 2nd defendants is personally and/or jointly liable to the plaintiff in respect of damages suffered by the plaintiff on the land covered by exhibit 0.
Learned counsel submitted that neither the certificate of occupancy registered as no. 78/78/1980 nor the one registered as 64/64/1990k was obtained by fraudulent misrepresentation and non-disclosure of material facts. He argued that the name of the Governor of Lagos State having been abandoned, the claim for declaration of title cannot succeed. He argued further that particulars of fraud were not pleaded relying on section 138(1) & (2) of the Evidence Act 1994, and citing the case of lkoku vs. Oli (1962) I NWLR, 194 and Akpunonu v. Breakart Overseas (2003) NSCQR 184 at 191.
He cited the case of Idundun vs. Okumagba (1976) 9-10 SC, 227 and reviewed the five ways of proving title to land. Counsel argued that there exists proof that the Plaintiff never suffered any damages other than special damages and trespass. He contended that the Plaintiffs claim for injunction must also fail. He finally submitted that the plaintiffs case is frivolous, speculative and lacks merit.
In the plaintiffs written address, learned counsel did an introduction enumerating the state of the pleadings. He followed up with what he describe a summary of facts before the court under which he reviewed the evidence on both sides.
Learned counsel then formulated the issues for determination as follows:-
(i) whether it was proper to grant a certificate of occupancy to the first defendant on the plaintiffs land bearing in mind that the first defendant had no prior title thereto.
(ii) Whether the plaintiff is entitled to damages against the first and second defendants for trespass and destruction of the Plaintiffs properties.
He cited the case of Kaigama vs. Nnamani (1997) 3 NWLR, Part 495, page 549, to the effect that a certificate of occupancy is prima facie evidence of title. Learned counsel argued that as far as no. 24 Bank Olemoh Street Surulere, the first and second defendants are trespassers. He contended that if it is proved that another person had a better title to a land before the issuance of a certificate of occupancy. The court can revoke such certificate of occupancy relying on the case of Osazuwa vs. Ojo (1999) 13 NWLR, Part 634, Page 286.
Learned counsel submitted that by virtue of suit no. LD/1178/80 in which the second defendant participated, the 1st and 2nd defendants are estopped from challenging the title of the plaintiff to no. 24 Bank Olemoh Street Surulere Lagos. The same principle applies to exhibit M he argued.
On the issue of special damages, learned counsel argued that such damages must not only be pleaded- specifically, it must be proved strictly. He cited the case of Ebe vs. Nnamani (1997) 7 NWLR, Part 513, Page 479 and submitted that the Plaintiff has pleaded damages expressly and proved same strictly.
On the issue of general damages, learned counsel contended that cost must follow event and a successful party is entitled to cost. He urged the court to believe the testimony of the plaintiffs witness.
The facts as established in this case is very straight forward. The claimant was one of the persons displaced at Apongbon when Apongbon Street was acquired by the Federal Government for the construction of Eko bridge. The claimant was one of those meant to have been resettled in the Surulere housing scheme but he was not lucky enough to have been resettled. All persons falling within that category were advised to apply for allocation of land.(exhibit PI is to that effect)
The claimant applied formally by his letter dated 10th August 1071 (exhibit P.2). Somehow the claimant moved on to a land located along Alapafuya Street Surulere. When the claimant was threatened with demolition on the land by the local Government Authority. The Lagos State Development and Property Corporation by their letter dated 16th September, 1980, permitted and allowed the Claimant to remain on the land until a permanent allocation is made to him. The claimant got an order of injunction against the local Government chairman restraining the local Government Council from demolishing the claimant's structure on the land.(exhibit D.6 is the order duly signed by Oluwa J. as he then was)
When the claimant and his neighbour, the defendants, continued to be threatened with demolition by the local Government Council Authority, the claimants and the defendants jointly signed a petition to the then Governor of Lagos State. Exhibit K is that petition.
Essentially, it is very obvious and clear to me that the claimant acquired an interest in the portion of land he held and was in physical possession of that portion of land. It is also important to state that the Government of Lagos State recognized the occupation of their respective holding. Both the claimant and the defendants had survey plans of the land held by each of them. The survey drawings were admitted in evidence as exhibits P and Q. The survey plan held by the plaintiff was plan no. LAT.1856A/LA/81, while survey plan held by the defendants was plan no. LAT.1856B/LA/81, dated 19th Oct. 1981.
In the process of resolving the dispute, the then Governor of Lagos State, Alhaji L.K Jakande, visited the land. During the visit, the Governor directed that the entire land held by both the Claimant and the defendant be allocated to the defendants only. Thus forfeiting the interest of the claimant in the land held by him. Apparently in recognition of the Claimant's interest in part of the land, the defendants purportedly claimed to have allowed the claimant the use of part of the land. A purported instrument of grant duly signed stamped by the defendant was admitted in evidence as exhibit M.
A certificate of occupancy was eventually issued in favour of the defendant church covering the two plots held separately by the Plaintiff and the defendant. The certificate of occupancy first issued was amended when the defendants changed the name of their church. It was substituted by certificate of occupancy dated 7th February 1986 and registered as no. 78 in volume no. 1986A of the Register of Deeds kept at the Lagos State Land Registry Lagos.
In the light of the above, it is not difficult for me to conclude that the claimants and the defendants were tenants of the Lagos State Government. It is necessary at this stage to take another look at the claims of the Plaintiff, which states as follows:-
1. A declaration that Certificate of Occupancy Nos.78/78/196A, registered as No.78 at Page 78 in Volume 1986, dated 21st February, 1986 and 64/64/990K, registered as No.64 at Page 64 in Volume 1990K both registered at the Lands Registry Office in Ikeja are null and void and of o effect because they were both obtained by the defendants by fraudulent misrepresentation.
2. A declaration that the plaintiff is the person entitled to a grant of Statutory Right of Occupancy to the piece or parcel of land measuring 921.446 square metres, situate, lying and being behind no.24, Bank Olemoh Street, Surulere Lagos State which land is more particularly described and edged RED Plan no.
LAT8366/LA/84 of 8th August, 1984.
3. #183,160.00 being special damages for trespass committed by the defendants on the said piece or parcel of land situate, lying and being at no.24, Bank Olemoh Street, Surulere, on 28th, 29th and 30th of August, 1992 and which trespass still continues.
4. The perpetual injunction restraining the defendants, their agents and/or servants from committing further acts of trespass on the land in dispute or in any way disturbing the plaintiffs possession of the said land.
Essentially, the claims as stated above, as against the 1st and 2nd defendants arc claims for declaration of title, but the plaintiffs claims as against the 3rd and 4th defendants are claims for relief against forfeiture.
It is my judgment that the claimant has acquired sufficient interest in the land to entitle him to be described as a tenant of the Lagos State Government. Exhibit C is evidence of payment for application form issued by the Lagos State Development and Property Corporation. Exhibit D3 and D4 (F, H and H1), are evidence of acknowledgement of the presence of the claimant on the land by the Lagos State Government.
The point must be made very clearly that in an action by the lessor for forfeiture of a lease, the lessee must claim for relief against forfeiture if he wants the court to grant him such a relief.
Relief against forfeiture of a lease is a statutory right which must be specifically pleaded under Order 18, Rule 18 of the High Court of Lagos State (Civil Procedure) Rules, 1972.
Relief against forfeiture is founded on equity. The position of the law is very clear that before a defendant can be granted relief against forfeiture, he must specifically ask for it and this he must do not only in the pleadings but by the procedure stated in Atkins Court from, 2nd edition Volume 24 at page 30 which the Supreme Court adopted in the case of Taiwo v. Akinwunmi (1975) 4 SC. 143. The three ways of asking for the relief as clearly stated in Taiwo v. Akinwunmi arc by a writ or originating summons or by a counter claim. See the case of Seaview Inv. Ltd. vs. Munis (1991)6 NWLR Part 195, Page 67.
The plaintiffs 2nd leg of claim against the 3rd and 4th defendants for declaration that the plaintiff is the person entitled to a grant of statutory right of occupancy to the piece and parcel of land measuring 921.446 square metres, situate, lying and being behind no.24 Bank Olemoh Street Surulere Lagos State which land is more particularly described and edged Red in plan no. LAT/8366/LA/84 of 8th August 1984 is a claim praying the court to order the third and fourth defendants from forfeiting the land held by him.
Where a tenant, whether he is a customary tenant or not, commits an act which could incur a forfeiture of the tenancy and a claim for such forfeiture is brought against him in the High Court, the proper procedure is not by just asking for relief in the pleadings. A claim for relief from forfeiture for non-payment of rent may be made in a number of ways, namely: if the landlord has not begun any proceedings, the tenant or sub tenant may initiate a claim for relief by writ or originating summons. Alternatively, the tenant may counter claim for relief in the lessor's action or simply apply by summons in the action. If the application is made after judgment, it is usually by summons. See the case of Taiwo v. Akinmunmi (1975) 1 All NLR (Pt. l) 202 at 220.
In a claim for relief against forfeiture, by proceeding either by way of an originating summons or a counter claim where pleadings could be ordered, the tenant will be able to set out in detail the facts upon which he relies such as the circumstances leading to the breach. The landlord or overlord will be able in his own defence to the originating summons or counter claim, to reply to all the facts on which the tenant is relying. Issues as to whether to grant the relief or not will then be joined and neither party would be taken by surprise. The court will then hear evidence from both sides on their pleadings and will thus be in a better position to consider all the circumstances and probabilities and come to a conclusion one way or the other.
Relief against forfeiture is an equitable remedy which by virtue of section 19 of the High Court Law of former Eastern Nigeria 1963, ranks in superiority over rules of common law and its enforcement is at the judicial discretion of the trial court to be exercised judicially and judiciously.
By section 14(2) of the Conveyancing and Law of Property Act, 1881, where a lessor is proceeding by action or otherwise to enforce a right of re-entry or forfeiture, the lessee may, in the lessor's action, if any or in any action brought by himself, apply to the court for relief and the court may grant or refuse the relief, as the court having regard to the proceedings and conduct of the parties think fit, and in case of relief may grant it on such terms, if any as to costs, expenses, damages, compensation, penalty or otherwise including the granting of an injunction to restrain any likely breach in the future as the court in the circumstances of each case thinks fit.
In considering whether to grant or refuse relief against forfeiture, the paramount consideration of the trial court is to base it on the sanctity of contract made by the parties.
By virtue of the Conveyancing and Law of Real Property Act of 1881-1892 of England which is applicable to Lagos State and other parts of Nigeria except the former Western Region of Nigeria, no relief can be granted for a breach of Covenant against assignment under-letting or parting with the possession of a demised premises without the consent of the lessor first obtained. See the case of Ishola-Williams v. Hammond Projects Ltd,(1988) 1 NWLR (Pt.71) 48. Sec also Scaview Investment Ltd. v. Munis (1991) 6 NWLR(Pt.l95)67.
In Lagos State, the Conveyancing and Law of Property Act 1881-1982, governs lessor and lessee relationship and under that law, relief against forfeiture of a lease can only be granted when there has been a breach for non-payment of rent but there is no provision under that law for relief against forfeiture in respect of other breaches of covenant in a lease.
In the circumstances of this case, it was not available to the then Governor of Lagos State to unilaterally forfeit the interest of the claimant in the land by mere and ordinary verbal directive. The law requires that a forfeiture proceeding ought to have been taken out against the claimant in a court of competent jurisdiction.
A right of re-entry or forfeiture under any proviso or stipulation in a lease, shall not be enforceable by action or otherwise unless and until the lessor serves on the lessee a notice specifying the particular breach complained of and if the breach is capable of remedy, requiring the lessee to remedy the breach and in any case, requiring the lessee to make compensation in money for the breach and the lessee fails, within a reasonable time thereafter, to remedy the breach, if it is capable of remedy, and to make reasonable compensation in money, to the satisfaction of the lessor, for the breach.
The object of notice of breach as envisaged by section 14(1) of the Conveyancing Act, 1881 is to give the person whose interest it is sought to forfeit the opportunity of considering his position before an action is brought against him. Consequently, the particulars of a breach of a covenant to develop must be given in a notice of breach before the notice can be held to be valid.
In the circumstances of this case, with the provisions of section 14(1) of the Conveyancing and Law of Property Act 1881 (which is applicable in Lagos State) not having been complied with, with a proper action for forfeiture not having been taken out against the Claimant and without any breach of covenant having been established against the claimant, it was wrongful of the Governor to have forfeited the interest of the claimant in the land held by him, by a mere oral verbal directive is irregular. Such oral or verbal directive is null and void and of no effect.
As indicated earlier on in this judgment, a certificate of occupancy was issued in favour of the defendants to cover the land earlier held by both the claimants and the defendants. What that means in effect is that the defendants had no title to the land held by the claimant when the certificate of occupancy was issued. The position of the law on that issue is very clear.
By virtue of section 34 of the Land Use Act, 1978, any person without title to a parcel of land in respect of which certificate of Occupancy was issued acquires no right or interest which he did not have before. Furthermore, the certificate cannot estop the court from enquiring into the validity and existence of the title the person claimed to possess before the issue of the certificate. In the instant case, at the time the right of occupancy over the disputed land was granted to the defendant, the right of the claimant was still extant and subsisting. Therefore, the defendants acquired no title to the said land. See the case of Ogunleye v. Oni (1990) 2 NWLR (Pt.135) 745.
The Certificate of Occupancy was valid only in respect of the piece of land earlier held by the defendants. The Certificate of Occupancy is invalid and improper in respect of that piece of land earlier held by the claimant.
In the result, the claimant's action succeeds and accordingly;
(1) It is hereby declared that the Certificate of Occupancy dated 7th day of February 1986 and registered as no. 78 at page 78 in volume 1986A of the Register of Deeds kept at the Lagos State Lands Registry, Lagos Nigeria, is effective to the extent that it covers the land in the survey plan no. LAT1856B/LA/81 exhibit P, dated 19/10/81, which land was formally held by the claimant before the issuance of the Certificate of Occupancy.
(2) It is further declared that the claimant is the person entitled to a grant of statutory Right of Occupancy to the piece and parcel of land measuring 921.446 square meters situate, lying and being behind no.24 Bank Olemoh Street Surulere, Lagos State which land is more particularly described and delineated and edged Red in the Survey plan no. LAT1856B/LA/81 dated 19th October 1981 - exhibit P.
I find myself unable to award damages for trespass against the 1st and 2nd defendants because the said defendants entered upon the land on the Authority of the third and fourth defendants. That leg of relief is hereby dismissed. Pursuant to the success of the claimant in this action, an order of perpetual injunction is hereby made restraining the defendants, their agents and /or servants from going on to the land of the claimant as demarcated in the survey plan admitted as exhibit P or in any way disturbing the Plaintiffs possession of the said land.
Costs assessed at N15,000.00 is awarded in favour of the claimant against the defendants jointly and severally.

HON. JUSTICE A.ADE ALABI
CHIEF JUDGE