In the News:
IN THE COURT OF APPEAL
HOLDEN AT LAGOS
ON WEDNESDAY THE 3 RD DAY OF NOVEMBER 1997
BETWEEN THEIR LORDSHIPS
DAHIRU MUSTAPHER JUSTICE COURT OF APPEAL
EMMNUEL OLAYINKA AYOOLA JUSTICE COURT OF APPEAL
IGNATIUS CHUKWUDI PATS ACHOLONU JUSTICE COURT OF APPEAL
OLUKAYODE AKINSANYA … … … … PLAINTIFF/APPELLANT
1. LAWRENCE MIMAIYE AJERI )
2. EBENEZER OGUNGBAMILA )
3. MESSACK OYINBO )
4. RAPHAEL OMOWUNMI EDAWOLE )
5. MRS. SABIATU OLATUNJI )
… … DEFENDANTS/RESPONDENTS
(Delivered by I.C. PATS ACHOLONU, JCA)
This is a case in which the parties understanding of the factual situation in respect of a disputed property is related as to how each one came into the land in the first place. In this connection, I shall set down the facts in accordance with the way they respectively describe same in their pleadings. From the appellant’s point of view, the land originally belonged to Oloto Chieftaincy Family of Lagos who later sold same to Atunrase. Atunrase tenanted some parts of the land lying at seashore to diggers of sand. In 1974, Atunrase divided the land into plots and sold them out. By a deed of conveyance made on 24/2/75 and registered as No. 94 at p.94 in volume 1604 of the Lands Registry, Lagos the Land in dispute became vested in the plaintiff in fee simple absolute in possession. In 1981, he saw the defendants on the land and they claimed they purchased from Atunrase who of course denied it. Thereupon, the plaintiff/appellant instituted an action and claimed as in the writ of summons.
The respondents on the other hand said the members of the association of Ifesowapo Association reclaimed the land from the sea and on their instruction, a surveyor charted the position of the land in dispute to show the limits of Ports of Lagos on sheet No. 279SW of Lagos and sheet 279SE of Lagos. The plan is plan No. HU/LA 31188. They stated they have been in occupation since 1967, when they were put in possession by Amusa Giwa who they claimed transferred the land to Atunrase from whom they arranged to purchase the land. However, in January 1984, they were informed that the land falls within 75metres of the Lagos seashore lines.
On further enquiries, they were told that the land they desired to acquire belongs to Nigeria Ports Authority. The respondents duly applied for a temporary occupation licence from NPA. who duly granted it. They claimed that the deed of conveyance whereto the appellant relied was ineffective as it purported to pass a property of Nigeria Ports Authority. In his judgement the learned trial Judge held thus:
“ By the combined evidence of DW2 the Chief Estate Officer of the Nigeria Ports Authority and DW1 a Licensed Surveyor which I believe, it has been clearly proved that the land in dispute falls within the land that vests in the Ports Authority by virtue of Ports Act 1975. The Nigeria Port Authority is an arm of the government. J. B. Atunrase ceased to be the title owner of the land which was conveyed to him in 1965 at the time it became vested in the Nigerian Ports Authority. The learned counsel posed the question as to whether the Nigerian Ports Authority could still continue to have the land vested in it having regard to the provision of Section 1 of the Land Use Act 1978. It is quite true that the Land Use Act vests all land in Lagos State in the Military Governor of the State but the Act also provides that the Governor can grant certificate of occupancy in respect of the land. By virtue of Section 34 of the Act those who acquired land before 1978 will be deemed holders of certificate of occupancy in respect of the land vested in it by the Ports Act before 1978. Another point raised by the learned counsel is that the defendants could not rely on the title of a third party, the Nigerian Ports Authority, in a claim of trespass and injunction. I have already found and so held that the defendant have been in possession of the land in dispute before it was conveyed to the plaintiff by J.B. Atunrase”
Being dissatisfied with the judgement of the court below, the plaintiff appealed to this court and filed 6 grounds of appeal from which he framed 3 issues for determination which are:
“(1) Has the plaintiff on the strength of the evidence led before the trial court proved a better title and right to possession as against the defendants and or Ifesowapo Sand Sellers Association in respect of land in dispute?
(2) If the answer to (1) supra is in the affirmative, can the Nigerian ports Authority validly make a Temporary Occupation Licence of the acquired land meant solely for public purpose, acquired from the plaintiff without payment of compensation to Ifesowapo Sand Sellers Association, a non-registered Association with no legal right to hold any interest in land and or to defendants?
(3) Did the trial court judiciously exercise its inherent judicial discretion by granting the amendment without any opportunity to plaintiff to rebut same?”
The respondents framed 3 issues from the grounds of appeal and they are as follows:
“(1) who is the real owner of the land in dispute, is it the appellant or N.P.A. plc?
(2) Whether the learned trial judge was right in holding that the respondents were first in possession of the land in dispute before the appellant.
(3) Whether the learned Judge was right in dismissing the appellant’s claim.”
From these issues I am of the view that there emerges three issues to be canvassed namely:
(1). whether the court ought to have allowed the amendment that was made at the instance of the defendant who necessitated the recalling of D.W.1.
(2) Whether the learned trial judge was right in holding that the respondents were first to be in possession of the land in dispute before the appellant.
(3) Whether the N.P.A. which granted the respondent temporary occupation licence is the real owner of the land.
This action commenced in 1984 many years after the Ports (Declaration of Ports Limits) Order of 1975 was made pursuant to Ports Act Cap. 155 of 1958 but now Cap. 361 of 1990 Laws of the Federation. The determinants of the case will very much revolve around effect of the Ports Act or any subsidiary legislation on any one who claims same form of ownership or possession no matter how loosely it is perceived. I have however first to deal with the issue of amendment.
The appellant has taken in question issue No. 3 relating to an amendment granted to the defendant/respondent when the plaintiff had closed his case and both D.W. 3 and D.W.2 had testified. This he claimed violated the principle of “audi altrem parten” and he argued that it ought not to have been allowed.
The defendant/respondent had proposed to introduce a plan describing the limits of the land in dispute relative to Ports of Lagos on sheet No. 279 SW of Nigeria sheet No. 279 SE Nigeria. The plan already made is plan No. HU/LA 3518B. The motion to introduce this document was supported by an affidavit. The amendment for the admission of the plan must be weighed against the background of the nature of the case of the respondents who rely more or less entirely on the land vesting in N.P.A. who they claim is the legal owner of the land within 100 metres foreshore in Lagos. In their pleading they stated thus:
“In 1983 the 1 st defendant applied to Lagos State Government for approval of a building plan of a building on the land in dispute.
On the 25 th day of January, 1984 a letter was sent to the 1 st defendant stating that his Land falls within 75 metres of the foreshore lines.
As a result of the contents of the above letter, the defendants were compelled to make enquiry from the Nigerian Ports Authority. They we were told that the reclaimed land belongs to Nigerian Ports Authority.
There and then the defendants applied for a temporary occupation licence and the Nigerian Ports Authority granted the defendants Temporary Occupation Licence on the land in dispute by a letter dated the 1 st of July 1985 and by another letter dated February 13, 1986.”
It seems to me that the admission of the plan is very relevant to resolving the issue under dispute for as I pointed out earlier, the unravelling of the dispute centres a lot on N.P.A.’s acclaimed ownership of the foreshore.
The object of all amendment in a process is to make the document very clear and I dare say glare so that all the subtle points and hidden traps will be exposed to light and the court and parties will then find their ways through the forest of the verbiage of the pleading to enable justice that is in accord with reason and law and common sense to be done. It is therefore evident that issues when first settled by the Court are not immutable laws, but can be varied or changed as circumstances will dictate. If, of course, the proposed amendments are useless and irrelevant, then of course, the plaintiff would have suffered nothing as they would not create any manifest dent in his case beyond that mere possible nuisance value which the Court would take care of adequately. Although in the instant case no substitute is being made, but it cannot be denied that a large scale and all embracing amendment are envisaged.
This now brings me to the nature of construction to be put in statutes and subsidiary legislations. Hitherto because of the inveterate conservatism and fear of venturing into new areas in interpretation of statutes, our judges have been strict and highly technical. But there has been aberration made in this otherwise heavy handed manner of approach. See the case of Nothman V.Barnet Council (1971) A.C. 850 at 851.
There Lord Denning while dwelling on the nature of construction that the Courts ought reasonably to adopt in light of new situations and dynamic nature of the society stated unequivocally that Courts should not out of timidity shy away from at all times in endeavouring to give liberal interpretations to statutes and rules made under enacting laws. In Cropper v. Smith (1884) 26 Ch.D 710 at 711, Bowen L.J. said as follows, in respect of rules of amendment:
“ It is a well established principle that the object of the court is to decide the rights of the parties, and not punish them for mistakes they make in the conduct of the cases by deciding otherwise than in accordance with their rights ………. I know of no kind of error or mistake which if not fraudulent or intended to over reach, the court ought not to correct, if it can be done without injustice to the other party. Courts do not exist for the sake of discipline, but for the sake of deciding matters in controversy and I do not regard such amendments a matter of favour or grace...”
“It seems to me that as soon as it appears that the way in which a party has framed his case will not lead to a decision of the real matter in controversy, it is as much a matter of right on his part to have it corrected if it can be done without injustice, as anything else in the case is a matter of right”.
Equally in Clarapede v. Commercial Union Association 32 W.R. 263 Brett M.R. said:
“However negligent or careless may have been the first omission and however late the proposed amendment, the amendment should be allowed if it can be made without injustice to the other side. There is no injustice if the other side can be compensated by costs.”
The awesome large map Ex. Q defining and describing the lower part of Lagos S.E. and Ijebu SW showed the area delineated in blue that depicts the limits of Port of Lagos. The document is necessary to show whether or not the area of land in dispute falls within the Lagos Ports area. In my view, the court below rightly admitted the document as it is relevant and necessary for the determination of the cases.
The next issue was whether the learned trial Judge was right in holding that the respondents were first to be in possession of the land in dispute before the appellant. In his evidence in chief, the appellant narrated the history of his title in this manner:
“Pa J.B. Atunrase sold the land to me in February 1975. There is a deed of conveyance given to me in respect of land. The original Deed is with my Bank ………. I employed someone to look after the land for me”
In other words, we have to infer that he was in control of the land – a statement importing a clear act of possession. The term ‘possession’ has a variety of meanings and dissociated from the contexts of writing and unexplained by surrounding circumstances, it is susceptible to different meanings and may mean several things or combination of them. At page 233 of Vol. 72 of Corpus Juris Secondum, the learned authors wrote as follows:
“Possession expresses the close relation of fact which can exist between a corporal thing and the person who possesses it, implying an actual physical contact. In its full significance, possession connotes dominion or supremacy of authority. It implies a right and a fact. The right to enjoy annexed to the right or property and the fact of the real detention of a thing which would be in the hands of a master or of another for him. It also implies a right to deal with property at pleasure and to exclude other persons from meddling with it. It involves power of control and content to control and all the definition contained in recognised law dictionaries indicate that the element of custody and control is involved in the term ‘possession’.
The word ’possession’ is derived from the Latin word ‘possessio’ which, used in Civil Law contexts as understood in t he Roman Law, means that condition of fact under which one can exercise his power over a corporal thing at his pleasure to the exclusion of others. In the American case of Tripp v. US Fire Insurance of New York 44 P. 2 nd 236 at 238, the court held as follows:
“What constitutes possession depends upon the subject matter of the legal system involved but in general all legal systems recognise as having possession, he who has actual physical control of a thing and holds it for himself, the Roman and Civil Law distinguishing these elements as Corpus of possession (detention or naturalis possessio) and the animus possedendi calling the two together simply possession or civilis possessio. English law does not expressly recognise this distinction but distinguishes custody where one does not exercise the physical control for his own purposes from possession.”
The 3 rd defence witness, a member of the Fisherman Association collectively sued as defendants narrated to the court when and how they came into the land in dispute:
“I know the land in dispute, I live on it. There are five small houses on the land now. Elifus Ogbere has been on the land since 1962. It was all water at that time. We used to fish on the land. Elifus Ogbere built wood house on the land then. We were housing on raft. Some of us joined to live on the land. We were paying rent to one Amusa Giwa. In 1966, Atunrase J.B. claimed that the Land belonged to him and that we should be paying rent to him. We obtained receipts for rent paid to Atunrase.
Elifus Ogbere was our leader so we people occupying the land used to pay rent through him. We started to Sandfill the land as from 1970”.
My understanding of this event is that they were tenants to someone, that they reclaimed the land that Atunrase later came and claimed the land to be his and they started paying him rent and commenced hereafter to explore the possibility of buying the place. Importantly, it is their testimony that they entered the land for the first time in 1962. The court below believed the evidence proffered by the respondents that they reclaimed the land first in 1962, when it was swampy.
It is important to note that they reclaimed all the area now being disputed. In other words, at the time of the purchase of the land by the appellant in 1975, the land had already been reclaimed and it was in a condition juicy enough to attract a willing buyer. In this case, the possession claimed by the respondents shall be viewed against the background of having the permission or consent of the previous landlords namely Giwas and thereafter Atunrase as the case may be. The respondents paid rent to the various landlords from 1962 – 1981 and exercised physical control. They could as at that time maintain in action trespass being in possession even if adverse.
See Aromire v. Awoyemi (1972) ALL NLR 100, Fagbemi Akano v. Moses Okunade (1978) 3 S.C. 129 at 137 – 139. In Wuta-Ofei v. Danguah (1961) 1 WLR 1238 at 1243, the Privy Council held as follows:
“Their lordships do not consider that in order to establish possession, it is necessary for a claimant to take some positive step in relation to the land such as enclosing the land or cultivation. The type of conduct which indicates possession must vary with the type of land. In the case of vacant and unenclosed land which is not being cultivated, there is little which can be done on the land to indicate possession. Moreover, the possession which the respondents seek to maintain is against the appellant who never had any title to the land. In these circumstances the slightest amount of possession would be sufficient.”
In the case under consideration, the court below was convinced from the facts elicited from the evidence that the respondent were there first in possession. It is no business of this Court to attempt to give its own finding on the fact of history of the entry which the learned trial Judge made having seen and heard the parties. The appellate court will tamper with the finding of the court below when it is manifestly otiose and flies against the evidence offered. See Oladele v. The State (1991) 1 NWLR 719, Ogbode v. The State (1987) 2 NWLR 20. It must be stressed that the appraisal and evaluation of evidence in the court below is the primary duty of that and this court can only interfere when there has not been proper use made of the opportunity. See Fashanu v. Adekoya (1976) 6 S.C. P. 83. I agree with the learned trial Judge that the respondents who exhibited rent receipts were first in time.
The last question was whether the land in dispute belongs to NPA. The survey plan of the appellant shows that land in disputes is a bit up in the foreshore. Exhibits P and Q showed the location of the land in dispute in relation to the land said to fall within the foreshore belonging to N.P.A.
The evidence of the Chief Estate Officer DW2 reads thus:
“The land is a water front, the foreshore of Lagos Lagoon and swampy in terrain. The land is vested in Nigerian Ports Authority by virtue of the provisions of the Ports Declaration of Ports Land Order 1975 made under section 6 of the Ports Act Cap. 155 of the Laws of the Federation. Nobody has right to sell it. The defendants have the licences of land in dispute. The Ports Authority Land starts from High-water mark and extends 100 metres or about 300 feet to the hinterland. I have visited the land in dispute. It is about 30 feet away from the High-water mark”.
DW1 testified that he made Exh. J which is a composite plan he made for the defendants and that the land in dispute is 100 feet from the Lagoon. Now the land in dispute verged green is deftly reflected in Exh. J which geographically and vividly shows its geographical location and it falls within scope or limit of the foreshore.
The argument of the appellant is that the land in dispute does not fall within the area described in Regulation 2 of Ports (Declaration of Ports Limits) Order and in respect of Lagos Ports the description of the limits of the Ports of Lagos. The appellant argued that he was in possession from the time of purchase. Although it is not in doubt that the appellant acquired a title of one kind in 1975, the point must be made that on the date of vesting order as described, whatever title the appellant had, became automatically extinguished even if they had prior to that acquired fee simple to the estate under consideration. The land ownership automatically switched hands and from thenceforth the appellants had nothing left. The basis of the respondents’ case is that they were not trespassers having obtained a licence from the legal-owners, the N.P.A. they had nothing more to do with Atunrase not to mention the appellant. Obviously being licensee from the right source they cannot be liable in trespass and injunction as N.P.A is their Landlord and not Atunrase. The licence it would seem to me possesses the character of a lease in which case the respondents have the backing of the owner, the N.P.A.
The appellant further argued that if the acquisition is for public purpose, NPA has no right to grant occupational licence to the respondents.
Unfortunately, NPA is not a party to the case. Besides, the vesting order must be distinguished from Public Lands Acquisition Law or Act. This is an issue he could take with the Nigeria Ports Authority if it is still possible to do so but that argument fanciful as it may appear, betrays its own weakness in that the action being sought is on the basis of ownership and possession. NPA is not a party as there is no question of compensation being canvassed.
In the final result, I see no reason for upsetting the Judgement of the court below as the appeal lacks merit. The Judgement of the court below stands and the appeal is dismissed with costs which I assess at N 2,500.00.
(I.C. PATS ACHOLONU)
JUSTICE, COURT OF APPEAL
Olu Adenowo Esq. for the appellant
Chief G.O. Sotayo-Aro for the respondents.
DAHIRU MUSDAPHER, JCA
I have had the preview of the leading judgement of my Lord Acholonu J.C.A just delivered. His lordship has lucidly dealt with all the issues canvassed in this appeal. I agree with the reasonings and the conclusion arrived thereafter.
It is clear from the pleadings and the evidence, the Respondents have a better right to be on the land than the Appellant. The Ports Act and Ports (Declaration of Ports Limits) 1965 and the Declaration of Ports Limits Order 1975 have extinguished any vesting rights the appellant might have in the land in dispute. I accordingly dismiss the appeal and affirm the decision of the Court below. I abide by the consequential order as to costs as proposed in the aforesaid leading judgement.
Justice, Court of Appeal.
EMMANUEL OLAYINKA AYOOLA, JCA.
I have had the privilege of reading in draft, the judgement delivered by my learned brother, Pats-Acholonu, J.C.A., I agree with him that this appeal should be dismissed and with the reasoning by which he came to that conclusion. The trial judge having found that the land in dispute vested in the Ports Authority by virtue of the Ports Act 1975, could only come to the conclusion, as he did, that the defendants being on the land by the authority of the Ports Authority could not have been trespassers. The crux of the argument by counsel on behalf of the appellant is that there was nothing to show that the land in dispute fell into any area declared to be a Port by virtue of the Ports Act and Order made hereunder.
For my part, I find a little troublesome that part of Para. 2 of the Port (Declaration of Port Limits) Order L.N. 121 of 1975 which stated that: “All ocean beaches within 100 metres of this high water level shall be deemed to be within the limits of the ports.”
The question is whether all beaches so described without reference to the delimitation of a declared port shall be deemed to be within the limits of the ports. That seemed to have been the assumption underlying the respondent’s 2 nd witness testimony at the trial and accepted by the trial judge. The question of construction of Para. 2 had not been argued before us on this appeal. If the construction assumed by the respondent’s witness is relied on there was no doubt that there was sufficient evidence to support the trial judge’s findings. It is on an assumption shared, apparently, by all parties to this appeal that was a correct construction that I would uphold the trial judge’s finding and dismiss the appeal, while I reserve my opinion on that part of Para. 2 of the Order earlier mentioned. I too would dismiss the appeal. I abide by the order as to costs made by my learned brother, Pats Acholonu, JCA.
JUSTICE, COURT OF APPEAL.