10th MARCH 08 CONTD FROM LAST WEEK

CASE LAW
CONTINUED FROM LAST WEEK…
according to learned counsel, the evidence of sale given by the 2nd defendant and his witness contradicted themselves in material particulars. While the 2nd defendant claimed to have purchased his land from Oba Hassan Sekumade the witness i.e. the 2nd P.W. claimed that it was one Lasisi Jimbo who sold the land to the 2nd defendant. The 2nd defendant did not tender any document evidencing the sale of the land to him by whoever contrary to the requirement under the law that all transaction relating to land must be evidenced in writing.
Learned counsel submitted further that the certificate of occupancy relied upon by the 2nd defendant is not a conclusive evidence of any right or interest in the land as it is at best prima facie interest and it may be challenged and rendered invalid in appropriate cases. Learned counsel for this proposition relied on the case of Lebabedi vs. Lagos Metal Industries Limited (1973) NSCC page 1 at page 6. The claimant having shown a better title than the 2nd defendant, the grant of the Certificate of Occupancy to the 2nd defendant should be set aside and discountenanced. Learned counsel cited the case of Ogunleye vs. Oni (1990) 2
NWLR (Pt. 135) page 745.
On the claim for trespass learned counsel submitted that the 2nd defendant had by himself confirmed his trespass by giving evidence of his having erected a fence on the land and made a building foundation on the same. Also, according to learned counsel, the evidence of the surveyor, the 2nd P.W. was not challenged and it was to the effect that the 2nd defendant encroached on the land claimed by the claimant.
Learned counsel finally submitted that apart from the hearsay evidence given by the 2nd D.W. concerning how he got to know about the sale of land to the 2nd defendant, all the other evidence proceeding from him consisted of facts that were not pleaded and should be rejected by the court. Likewise should the evidence of the second defendant concerning the sale of land to him in 1995, that he did not meet any structure on the land and that the Oba processed the Certificate of Occupancy for him be treated as they were not pleaded. Learned counsel urged the court to uphold the claims of the Claimant.
From the pleadings and evidence of the parties, it does appear that a parcel of land was leased to the claimant measuring approximately 2217.26 square yards which has been interpreted on exhibit P4 as 1853.851 square metres by the Sekumade Family as evidenced by exhibit PI.
The unchallenged evidence of the 2nd P.W. is that the parcel of land which the 2nd defendant claimed was sold to him measuring approximately 1093.970 square metres was a part of the 1853.851 square metres leased to the claimant by the Sekumade family. This is shown plainly on exhibit P4 tendered by the 2nd P. W.
The land in dispute in this case therefore is not the entire land leased to the claimant measuring 1853.851 square metres but the 1093.970 claimed by the 2nd defendant to have been sold to him.
Now the general law regarding proof is that he who asserts must prove. – See Sections 135 and 136 of the Evidence Act and the case of - Nnabuife vs. Nwigwe (2001) 9NWLR (Pt. 719 page 710.
Also, in an action for declaratory relief which is granted at the discretion of the court (See Elendu vs. Ekwoaba (1998) 12. NWLR (Pt. 578) page 320 and Guda vs. Kita (1999) 12 NWLR (Pt. 593) page 82) and which discretion must be exercised judicially and judiciously, the burden of proving entitlement to a declaratory relief sought is at all times on the claimant seeking the reliefs. The plaintiff generally cannot found his case on the failure on the part of the defendant. - See Eke vs. Okwaranyia (2001) 12 NWLR (Pt. 726) page 18; UBN Ltd. & Anor. Vs. Jimba & Anor (2001) 12 NWLR (Pt. 727) page 505.

In Makanjuola vs. Ajilore (2001) 12 NWLR (Pt. 727) page 416 at page 437 the Court of Appeal, Ibadan Division stated the Law, per Onnoghen J. C. A. as follows:-

"Furthermore, the law is settled that a declaratory relief as in the present case is a discretionary remedy "which is not granted as a matter of course and the court must be satisfied before granting it that the plaintiff or claimant has a very strong and cogent case both from his statement of claim and from the evidence in support thereof. The plaintiffs must satisfy the court that under all the circumstances of the case, he is fully entitled to the discretionary reliefs in his favour when all facts are taken into consideration"

The Claimant in this case seeks a declaration that he is entitled to the Certificate of Occupancy in respect of the land in dispute. He therefore has the burden of proving such entitlement. It is commonly agreed between the parties that the Sekumade family are the owners of the land in dispute. The representatives of the family, to wit Chief Tanimowo Rufai Bamimosu, Kafaru Faniyi, Chief Sule Jimbo and Mustapha Kasali signed the deed of lease exhibit PI leasing the land in dispute to the Claimant. The D.W. 2 confirmed that the named persons were the accredited representatives of the family.
Clearly therefore, it was the Sekumade family the owners of the land who leased it to the Claimant. The evidence of the 1st D.W. also corroborated this fact. It is also the evidence of the 1st D.W. that the land leased to the claimant was never taken from him by the family.

The upshot is that the Sekumade family had already leased the land to the claimant in 1995. Their interest in the land had been extinguished save as provided for in the terms of the lease. There was therefore no title residing in the family which could be passed on to any other person during the subsistence of the lease - Nemo dat quod non habet - See Mohammed vs. Klargester (Nig.) Ltd. (2002) 14 NWLR (Pt. 797) page 335. Ojengbede vs. Esan (2001) 18 NWLR (Pt. 746) page 771.
The case of the second defendant is that the Oba of lpakodo, the original first defendant sold the land in dispute to him and he proceeded to obtain a Certificate of Occupancy which he tendered and which was admitted as Exhibit Dl. He however did not tender any document in evidence of the sale to him by the said original first defendant. When asked under cross examination about any such document, he said that he was given purchase receipt by the said Oba and representatives of the family when he bought the land in 1995 but he returned the receipt to the original first defendant when the latter was helping process his certificate of occupancy. The receipt it must be noted was said to have been issued in 1995. He was asked whether the receipt was backdated to 1977. He said he did not know about that but all he knew was that he bought his land in 1995.
Now it does not appear likely that if the transaction, that is the sale of the land by the said original 1st defendant actually took place, the 2nd defendant would have no evidence in writing at all, handing over everything to the deceased original first defendant. I am therefore not inclined to believe him. It was on the basis of the sale to the 2nd defendant of the land in 1995 that he claimed that the Certificate of Occupancy was issued to him. The Certificate of Occupancy is however clear on the fact that it was issued pursuant to a purchase receipt dated the 29th day of August, 1977 - a clear 18 years before the 2nd defendant claimed to have purchased his land. Clearly, the Certificate of Occupancy exhibit Dl was not issued upon the 1995 transaction. The 2nd defendant would therefore not appear capable to founding a claim to the land on it. There is therefore no evidence at all in writing of the sale of the land to the 2nd defendant. - See Section 4 of the Statute of Frauds, 1677 making such a sale void prepared.

From my findings above, it appears fairly clear that the alleged vendors of the 2nd defendant had no title to pass to him. Also, there is no evidence proceeding from the 2nd defendant showing that he had any title at all upon which the grant of the Certificate of Occupancy could have been founded. Where this is the case, the Certificate of Occupancy should be held void. - See Jegede vs. Citicon Nigeria Limited (2001) 4 NWLR (Pt. 702) page 112. - See also Kyari vs. Alkali (2001) 5 S. C. Pt. II page 192, at page 216 -where Iguh J. S. C. held as follows:-

"I repeat that the mere issuance of Occupancy, Exhibits A & B does not and cannot confer title in respect of the land in dispute on the 1st respondent where no such title either existed or was available to be transferred to anyone.
It is my view that Exhibits A & B were both issued at a time the customary title of the appellant and members of his family over the piece of land in dispute was subsisting and vesting properly in them and had not been revoked. Both Certificate of Occupancy were rooted on no foundation whatsoever and they are in my view, totally ineffective and void ab initio."

The Certificate of Occupancy having been issued at a time when title to the property was subsisting in the Claimant must be held void ab initio. I so hold.
The second defendant sought to make heavy capital out of his being a purchaser for value without notice. I do not see how this claim can avail the 2nd defendant.
This is because the rule is "Caveat emptor" - the purchaser must take the pains to investigate the title of his vendor and also ascertain whether or not the land is encumbered. A purchaser who does not take necessary precautions cannot be excused for his ignorance - See Muhammed vs. Klargester Nigeria Limited (Supra). If the 2nd defendant had taken necessary precautions he would have become aware of the interest of the Claimant and that perhaps might have saved him the present trouble.
On the claim for trespass, learned counsel for the 2nd defendant as seen above submitted in effect that the claimant cannot sustain that claim against the 2nd defendant, the claim being an afterthought on the part of the claimant.
I have held above that the claimant has proved his title to the land in dispute.
The defendant who also claimed to be in possession and to be so entitled has not shown any title to the property. The law is that where there are conflicting claims to possession, the law ascribes possession to the party with a better title - Biariko vs. Ede Ogwuile (2001) 12 NWLR (Pt. 726) page 235. Bassil vs. Fajebe (2001) 11 NWLR (Pt. 725) page 592.
The title being vested in the claimant, any dealing with the land inconsistent with that title is called trespass which is an offence against possession. - See Omoni vs. Biriyah (1976) 6 S. C. page 43. Aderibigbe vs. Oki (1971) All NLR page 116.

As pointed out by learned counsel for the claimant in his written submissions, and as is evident from the foregoing, at the time 2nd defendant claimed to have bought the land, erected a fence and commenced building activities on the land, the lease to the claimant was still subsisting. In other words, the 2nd defendant has by his own admission dealt with the land in a manner inconsistent with the interest of the title holder. He has ipso facto admitted trespass.
Now, the case of the Claimant is that the original first defendant together with the 2nd defendant trespassed on the land in dispute. The original first defendant is now deceased. The present 1st defendant was apparently sued in a representative capacity for and on behalf of the Sekumade Family. The evidence before the court is that the family did not collude or connive with the late 1st defendant to commit the trespass. The 1st defendant was apparently sued personally. An action in trespass is an action in personam and does not survive the party. As soon as the original first defendant died, the action against him died with him. His name ought to be struck out simpliciter. The present 1st defendant apparently had nothing to do with the trespass. The Claimant ought not to substitute him. The claimant obviously has no cause of action against him. There is no right in the plaintiff or claimant to join a person against whom he has no cause of action. - See Ajayi vs. Jolayemi (2001) 5 S. C. (Pt. II) page 31. Aromire vs. Awoyemi (1972) 1 AII NLR (Pt. 1) page 101
In my view the 1st defendant was improperly joined to this suit and same should be struck out against him. A party who is improperly joined may be struck out at any stage in the proceedings. This is a case of misjoinder. The 1st defendant was not a necessary party to this suit. True, he is a vital witness in this suit. That however makes him only a necessary witness, not a necessary party. - See C.M.I. Trading Services Ltd. vs. Yuriy (1998) 11 NWLR (Pt. 573) page 284.
I have held above that trespass has been proved against the 2nd defendant. One million Naira (N1m) damages have been claimed against him. General damages are awarded at the discretion of the court. - See N. B. Plc vs. Ezeigo (2001) 12 NWLR (Pt. 726) page 11.
It is also the law that the award of general damages in trespass is nominal unless a case of exemplary damages was pleaded and proved. - See Bamgbegbin vs. Oriere (2001) 5 NWLR (Pt. 707) page 628.
Since the claimant did not plead or prove any special damage nor is there any reason to award exemplary damages, the damages the claimant may be entitled to in this case can only be nominal.
In the final result of this suit therefore I hold that the claimant succeeds in his claim against the 2nd defendant and I consequently order as follows:-

1. It is hereby declared that the claimant is entitled to the statutory right of occupancy in respect of the piece or parcel of land measuring approximately 2217.26 square yards situate lying and being at Araromi, Ipakodo, Ikorodu, Lagos State now known as Abraham Obafemi Oke Street, Ipakodo, Ikorodu, Lagos State and which piece or parcel of land is shown and delineated in survey plan no JF 334 dated 15th October, 1973 and attached to the indenture of lease dated 1st day of December, 1975 and registered as No. 28 at page 28 in Volume 1533 of the Land Registry Office in Lagos;

2. N20,000 damages are awarded against the 2nd defendant in favour of the claimant;

3. An order of perpetual injunction is hereby made restraining the 2nd defendant by himself, his agents, servants and/or privies from committing further acts of trespass or dealing in any form whatsoever in the said piece or parcel of land;

4. The suit is struck out against the 1st defendant and I award costs in the sum of N10,000.00 in his favour against the claimant;

5. Cost of this action assessed at N10,000.00 is awarded against the 2nd defendant in favour of the Claimant.