Registered Trustees of the Apostolic Church v Mrs. Emmanuel I. Olowoleni (SC 180/1988) [1990] NGSC 12 (4 October 1990)

Registered Trustees of the Apostolic Church v Mrs. Emmanuel I. Olowoleni (SC 180/1988) [1990] NGSC 12 (4 October 1990)

In The Supreme Court of Nigeria

On Friday, the 5th day of October 1990

SC 180/1988

Between

The Registered Trustees of the Apostolic Church     ......   Appellant

And

Mrs. Emmanuel I. Olowoleni      .......     Respondent

Judgement of the Court

Delivered by

Olajide Olatawura. J.S.C.

On the 9th July, 1990 after hearing the submissions of learned counsel in support their respective briefs, I dismissed the appeal and I indicated I would given reasons today. I now give my reasons.

The appellant who was the plaintiff in the court of trial instituted the action against the defendant now the respondent in this court and claimed; follows:

The plaintiffs' claim against the defendant is for (i) the sum of four thousand Naira (N4,000) being general damages for defendant's trespass on the plaintiffs' church land (ii) a perpetual in-junction prohibiting the defendant, her servants and/or agents from committing further acts of trespass on the said land.

 

The plaintiffs hold the statutory right of occupancy over the said land with Certificate of Occupancy No.311 granted on the 4th day of December, 1969. The defendant has trespassed on the land by dumping some building materials on the said land without the consent and permission of the plaintiffs and has caused the arrest of the plaintiffs' representative, the pastor, without any justification and threatens to continue to trespass.

 

And the plaintiffs claim the said N4,000 and perpetual injunction.

 

Pleadings were filed by both parties. In a rather terse Statement of Claim the plaintiff averred as follows:

 

1.      The Apostolic Church was granted a parcel of land with Certificate of Occupancy No.311 granted on the 4th day of December, 1969.

 

2.     The defendant personally went onto the said land and caused her servants and/or agents to dump sand on the said land in March, 1979

 

3.    The plaintiffs did not consent and/or permit the defendant to commit the said acts of trespass.

 

4.     The Pastor who is the representative of the plaintiffs objected to the trespass and the defendant caused the arrest of the said pastor by the police in March, 1979 - 3rd March, 1979.

 

5.     The defendant continues and threatens to continue the said acts of trespass.

 

Wherefore the plaintiffs claim N4,000 as general damages for the committed trespass and prays for a perpetual injunction prohibiting the defendant, her servants and/or agents from committing further acts of trespass on the said land.

 

The defendant filed an Amended Statement of Defence. In view of the issue raised by this appeal, which mainly hinges on the validity of the Certificate of Occupancy, I will reproduce verbatim the Amended Statement of Defence. It is as follows:

 

1.(a)  The defendant denies paragraph l of the Statement of Claim and will prove at the trial of this suit that the "purported Certificate of Occupancy No.311 granted to the plaintiffs on 4th December, 1969 is invalid as the procedure adopted for issuing the purported certificate was illegal as it did not comply with the Kwara State Land Tenure Law. The defendant will rely on the application submitted to the Kwara State Ministry of Land and Housing by the plaintiffs for granting the purported Certificate of Occupancy and the Ministry's minutes on the application at the trial of this suit.

 

(b)  The defendant will prove title to the portion of land where she put literites (sic) through the following processes:

 

(i)    The defendant's father - late Nathaniel Qlakunle Rowland was given a parcel of land - of which the land in dispute formed a part - by late Alhaji Yakubu Dan Isiaku of Idi-Aghede Quarters, Ilorin. The defendant will rely on the Site Plan showing the description of the land of the defendant at the trial of this suit.

 

(ii)    The defendant was given a portion of the land on which she put literites (sic) as part of her own inheritance of her father's landed property by the children of the defendant's father.

 

2.      The defendant admits paragraph 2 of the statement of claim only to the extent that the defendant and her agents put some literites (sic) on part of the disputed land in March, 1979 but the defendant avers that the plaintiff was not in possession of the disputed land nor had they got the right to be in possession of the land in dispute at the time when the defendant entered thereon.

 

3.     The defendant is not in a position to admit or deny paragraph 3 of the Statement of Claim and will put the plaintiff to its strict proof during the trial of this suit.

 

4.      The defendant denies paragraph 4 of the Statement of Claim that the defendant caused the arrest of the Pastor while the defendant is also not in a position to admit or deny the allegation that the Pastor is a representative of the plaintiff and will put the plaintiffs to the strict proof of the allegation at the trial of this suit.

 

5.     The defendant denies paragraphs of the Statement of Claim and will put the plaintiff to the strict proof of the allegation whereof the defendant denies being liable to the plaintiff in the sum of N4,000 or in any sum whatsoever.

 

Particulars of special defence:

 

6.     The defendant will prove the following facts during the trial of this suit:

 

(a)    The late father of the defendant - Mr. Nathaniel Olakunle Rowland was a devout Christian and was of the same Christian faith with the plaintiff's church who out of sheer generousity allowed the plaintiff to build a church on part disputed land in 1943.

 

(b)    The defendant inherited the land on which she put literites (sic) as the portion of land given to her by all the children of the defendant's father.

 

(c)    The defendant has been in possession of the land in dispute and she had allocated sheds to many occupants on the land - especially since the creation of States in 1967 when the defendant came to live in Ilorin permanently instead Kaduna where the defendant was living prior to the creation of States.

 

(d)    The plaintiff, immediately after instituting this suit had built walls round the entire parcel of land including the defendant's portion of the land where she put literites (sic) in addition to where the defendant had allocated as sheds to occupants as well as some portions belonging to other children of the defendant's father.

 

(e)    The defendant first knew of the purported Certificate of Occupancy granted to the plaintiffs when the defendant went to Area Court, Ilorin to sue the plaintiff and it was in that court the defendant was informed that there was a Certificate of Occupancy issued to the plaintiff by the Kwara State Government on part of the disputed land. The defendant had intended to sue the plaintiff in the High Court before this suit commenced.

 

(f)    Neither the defendant nor children of late Alhaji Yakubu Dan Isiaka of Idi-Agbede was notified by anybody that the customary right of occupancy on the land had been revoked up till now.

 

(g)    The entire land formerly granted to the defendant's father of which the defendant's portion forms a part is bounded in the South by a road from Amilegbe stretching to Sokoto road, in the East by Lafiagi road - near St. Barnabas' School Garden, in the West and North by many residential buildings.

 

7.      The defendant prays the Honourable Court to dismiss the plaintiff's action as being vexatious, frivolous and an abuse of the court's process.

 

The plaintiff called one witness, a Minister of Religion by name Gabriel Oladele Olutola. He referred to the plaintiff as an organisation. I will quote him:

 

My organisation has a piece of land at Ilorin. It is situate at Sabo Oke and held under a Certificate of Occupancy No.311 of 4/12/ 69. Someone put building materials (leterites (sic) - on the disputed land on 3/3/79.1 did not authorised (sic) the putting of the laterite on the land in question. The laterite was never used by anyone because of this suit but it appears it has been washed away by running water. We are claiming N4,000 for trespass and an injunction against them. I mean by them Olowoleni and her agents.

 

The Certificate of Occupancy was in the course of his evidence tendered and admitted as Exhibit A.

 

Under cross-examination this witness admitted that it was after the Commencement of the suit that the plaintiff erected a wall fence on the disputed land. He did not know whether the defendant's father by name Rowland gave his church a large piece of land since 1948. As to how Exhibit A was obtained he said the church applied to the Emir who directed the church to apply to the Ministry of Works. The application was made in 1949. Before the Certificate of Occupancy Exhibit A was issued "the land was surveyed." That was the case for the plaintiff.

 

The defendant gave evidence and called witnesses in support of the pleading. The church that sued her through the Registered Trustees of the Church was founded by her father. She traced the title to Alhaji Yakubu Dan Isiaka.

 

After a review of the evidence and due consideration of the submissions by the learned counsel, Salami, J. (as he then was) dismissed the claims in their entirety and made a consequential order i.e. the demolition of the wall fence erected by the appellant during the pendency of the action before the learned trial Judge.

The appellant was dissatisfied with the judgment of the High Court and appealed to the Kaduna Division of the Court of Appeal. The appeal to the Court of Appeal was dismissed, hence the appeal to this court.

 

Briefs were filed by the appellant and the respondent, the appellant filed a Reply Brief. In his oral submissions in support of the appellant's brief and the Reply Brief, Mr. Ijaodola, the learned Counsel for the appellant referred to paragraph 6(a) of the Amended Statement of Defence and the evidence of the respondent and submitted that the decision of the lower court should not be sustained in that the respondent conceded her father gave the appellant the land on which the church was built. Learned counsel further submitted that the court should not award what was not claimed and that the order of demolition made by the court of trial and confirmed by the Court of Appeal should not stand.

 

In his own reply the learned counsel for the respondent adopted and relied on his brief filed on 18th October, 1988. Learned counsel pointed out the wall fence erected by the appellant and ordered to be demolished by the lower courts, covered the entire land which includes the tenants land. He finally urged that the appeal be dismissed.

 

Although both parties have formulated various issues, it appears to me that what is in issue is the validity of Exhibit A i.e. the Certificate of Occupancy relied upon by the appellant. If the Certificate of Occupancy is not valid in law, and in view of the pleadings, the action must fail. I will set down the grounds of appeal, which without the particulars read as follows:

 

1.      The learned Justices of the Court of Appeal erred and misdirected themselves in law in declaring the appellants' C. of O. as null and void when the respondent did not counter-claim and the Court of Appeal did not reject that finding of the trial Court.

 

2.      The learned Justices of the Court of Appeal erred and misdirected themselves in law in upholding the trial court's order than (sic) the appellants' fence be pulled down on the ground that the order was consequential.

 

3.      The learned Justices of the Court of Appeal erred and misdirected themselves in law in holding that the plaintiffs/appellants did not establish exclusive possession despite the fact that the plaintiff' appellant had a C. of O. over the land and had buildings on part of the land.

 

4.      The learned Justices of the Court of Appeal erred and misdirected themselves in declaring the C. of 0. of the plaintiffs/appellants null and void when the defendant/respondent gave evidence that her father gave the Church an undefined portion of the land and that she was not reclaiming the undefined part of the land in dispute.

 

The issues raised by the appellant are as follows:

 

(i)    What is a consequential order and can a court give a relief not sought by either party.

 

(ii)   What is the effect of holding a Certificate of Occupancy issued by the Military Governor.

 

(iii)   Was it right of (sic) the Court of Appeal to have affirmed the trial of High Court decision when the respondent pleaded and gave evidence that her late father gave undefined portion of land in dispute to the plaintiffs.

 

I will repeat the basis of the appellant's claim is based on the Certificate of Occupancy and by paragraph 1 of the Statement of Claim the averment leaves no one in doubt that apart from this, there was no other root of title. The paragraph reads:

 

1.      The Apostolic Church was granted a parcel of land with Certificate of Occupancy No.311 granted on the 4th day of December, 1969.

 

The learned trial Judge appreciated the basis of the claim when he said:

 

The quintessence of the plaintiff's claim is that having been granted the right of occupancy to the land by virtue of the Certificate of Occupancy No.311 dated 4th December, 1969, Exhibit A it has acquired exclusive title to or ownership of the said parcel of land against the whole world with possible exception of the Governor. Consequently, the defendant's tipping of laterite on the said parcel of land without his consent is an infraction of his ownership.

 

I agree that the whole trend of argument and submissions made before the learned trial Judge was that Exhibit A was both a sword and a shield. That submission as will be seen shortly is fallacious. The Certificate of Occupancy relied upon by virtue of its age, is the one covered by the Land Tenure Law, Cap.50, Laws of Northern Nigeria (1963) applicable to Kwara State. Kwara State before its creation was an integral part of Northern Nigeria. The Certificate was the Certificate issued under section 10(1) Land Tenure law by the Commissioner and described as Certificate of Occupancy under section 10(2) of the Land Tenure Law.

 

If the issuance of a Certificate of Occupancy is not in accordance with the Land Tenure Law, certainly the certificate is defective and the holder has no basis for a valid claim. In other words to be valid there must not be in existence at the time the certificate was issued a customary owner who has not been divested of his/her title. In this appeal there was a specific finding by the trial Judge that the respondent was, at all times material to the case before him, the customary owner and was also in possession. The manner a customary owner can be divested of his holding is laid down under section 34(5)(6) of the Land Tenure Law. It is a pre-requisite condition before the grant of a Certificate of Occupancy I will quote the learned trial Judge who said on page 37 lines 9- 15 as follows:

 

I accept the evidence of D.W.1 Mrs. Emmanuela Olowoleni that the said property was transferred to her and her other sisters and brothers through inheritance and that she is not only the customary owner of the land but also in possession.

 

There has been no appeal against this specific finding. This was confirmed by the Court of Appeal: Coram Wali, Maidama and Ogundere, JJ.C.A., when in the lead judgment, Wali, J.C.A. (as he then was) said:

 

The right of an existing holder or occupier of a parcel of land is not automatically extinguished by the mere issuance of a Certificate of Occupancy to another person under colour of a person in occupation. It does not automatically extinguish the right of any other person having a customary right as the respondent in this case.

 

There are concurrent findings of fact which we have not been urged to set aside. It would have been a difficult task unless the findings are perverse. It is a misconception on the part of the learned counsel for the appellant when he said in his reply brief that the issue of concurrent finding did not arise. On the attitude of this court on concurrent findings of fact by the lower courts. See Henry Stephens Eng. Ltd. v.. Complete Home Ent. Ltd. (l987) 1 N.W.L.R. (Pt.47) 40; Balogun v. Labiran (1989) 3 N.W.L.R. (Pt.80) 66.

 

It is for this reason that I will refer to Part V - Revocation of Rights of Occupancy under the Land Tenure law where the conditions for revoking the right of occupancy are set out. Section 34(5)(6) provides:

 

(5)    The revocation of a right of occupancy shall be signified under the hand of a public officer duly authorised in that behalf by the Commissioner and notice thereof shall he given to the holder and to any Mortgagee.

 

(6)    The title of the holder of a right of occupancy shall be extinguished on receipt by him of a notice given under sub-section (5) or on such later date as may be stated in the notice.

 

The learned trial Judge having found as a fact that the respondent was in possession, it is necessary to prove due notice on the part of the appellant. There was the uncontradicted evidence of the respondent that she did not receive any notice. There was in addition the evidence of D.W.5 Samuel Omotosho a Principal Lands Officer in the Ministry of Works, Lands and Surveys that the Certificate of Occupancy relied upon by the appellant was issued in error in that as at the time it was issued the respondent was in p05session.

In his brief Mr. Ijaodola relied on sections 6(3) and 20(1) of the Land Tenure Law. They provide as follows:

 

6(3)    Upon the grant of a right of occupancy under the provisions of sub-section (1) all existing rights to the use and occupation of the land which is the subject of the right of occupancy shall be extinguished.

 

20(1)    During the term of the statutory right of occupancy the holder -

 

(a)    shall have the sole right to and absolute possession of all the improvements on the land.

 

In my view section 20(1)(a) is not material to this case as it can only be invoked if section 6(3) has been complied with. Section 6(3) removes "existing rights." Those rights in my view are the rights of another person and not the rights that are to accrue after the grant of the Certificate of Occupancy. The way existing rights can be extinguished is provided for under section 34(5) of the Act (already reproduced above). Once it has been held that no notice of intention to dispossess the respondent of her possession was given, there cannot be a valid Certificate of Occupancy to the appellant. I agree with the conclusion reached by Wali, J.C.A. (as he then was) when the learned Justice said:

 

It follows therefore that the learned trial Judge was right when he concluded that in the absence of non-compliance with the provisions of the Land Tenure Law which is the applicable law, exhibit A is null and void and of no effect.

 

The Certificate of Occupancy recognised under the Act is a valid Certificate of Occupancy which will satisfy the provisions of the Law as regards validity. Until the possession in the respondent has been validly revoked, the appellant cannot rely on Exhibit A to disposses the respondent.

 

The other submission on this issue that "the Governor or the Minister or the Attorney-General" ought to have been joined as a party is misconceived as it overlooks the evidence of D.W.5 - the Principal Land Officer. The appellant has also invoked section 41(1) of the Law. The respondent has not challenged the right of the Governor or Minister in granting a statutory right of occupancy. The respondent was the defendant in respect of the action filed by the appellant. Her defence which was based on her possession is predicated on ignorance of a Certificate of Occupancy issued to the appellant when her possession has not been determined. She averred in paragraph 6(1) of the Amended Statement of Defence thus:

 

6(f)   Neither the defendant nor children of late Alhaji Yakubu Dan Isiaka of Idi-Agbede was notified by anybody that the customary right of occupancy on the land had been revoked up till now.

 

This pleading satisfies the requirement of Order 10 rule 13 of the High Court (Civil Procedure) Rules of the High Court of Kwara State. It provides:

 

13.    The defence must allege any fact not stated in the Statement of Claim on which the defendant relies in defence, for instance, fraud on the part of the plaintiff, or showing that the plaintiff's right to recover or to any relief capable of being granted on the petitions, has not yet accrued, or is released, or barred or otherwise gone.

 

It is the duty of counsel settling pleadings to ensure the facts they intend to rely upon at the trial are pleaded. Paragraph 6(f) of the Statement of Defence has put the plaintiff on notice of the defence that will be set up at the trial. It was at the stage the defence was served on the plaintiff that the plaintiff ought to have amended the Statement of Claim or to file a reply: Akubueze v. Nwakuche (1959)4 F.S.C. 262; (1959) S.C.N.L.R.616. This was ignored in this case. It is a belated attempt, and in fact quite irrelevant to the issue before the court to invoke section 41 of the Land Tenure Law. Pleadings are not for the benefit of the parties alone but they are to guide the court to adjudicate fairly and justly when the issue of relevance based on the facts pleaded is raised. A scant pleading is as good as none.

 

I now come to the consequential order of demolition. The learned counsel overlooked the fact that the respondent, no doubt due to her Christian background, did not deny the grant made by her father to the appellant i.e. the church. Her complaint is clearly set down in paragraph 6(d) of the Amended Statement of Defence thus:

 

The plaintiff immediately after instituting this suit had built walls round the entire parcel of land including the defendant's portion of land where she put literites (sic) in addition to where the defendant had allocated as sheds to occupants as well as some portions belonging to other children of the defendant's father.

 

No reply was filed by the plaintiff. In her evidence-in-chief the respondent said:

 

The parcel of land in which I tipped the laterite was my own share of the estate of our father. The parcel of land was divided amongst all my brothers and sisters including Mrs. lyabode Dare. The whole parcel of land including my own inheritance have (sic) been fenced with concrete wall by the plaintiff. I have not been told by anyone that the land is no longer mine.

 

Under cross-examination by the appellant's counsel the witness said:

 

It is not true that the whole land fenced belongs to the Church

 

The case of Isamotu Otanioku v. Lawal Mastafa Alli (1977) 11-12 S.C. 9 at 13-14 is of no assistance in that the respondent's evidence that the whole of the land of late Mr. Rowland which includes the land claimed by the appellant was fenced by the appellant thereby laying claim to what was not granted to the Church by the respondent's father. To allow the wall fence to stand is to grant to the appellant an area more than it has claimed. The appellant knows the land granted to it and the respondents grouse is that it claimed more than was granted: a further annexation which called for strictures by the trial Judge.

 

The Supreme Court has attempted to define "Consequential Orders" in the case of Frederick Obayagbona & Anor v. D. Obazee & Anor. (1972) 5 S .C.247 at 254. Sowemimo, J.S.C. (as he then was) delivering the judgment of the court on consequential orders after the Judge had given judgment in favour of the plaintiff "as claimed" made consequential orders which detracted or derogated from the judgment itself said:

 

We think that by the very nature of the term "consequential" any "consequential orders" must be one giving effect to the judgment. In its ordinary dictionary meaning, the word "consequential" means "following as a result, or inference; following or resulting indirectly." See the Concise Oxford Dictionary 5th Edition, page 258. The word has never been regarded as a term of art……

 

A consequential order therefore made subsequent to a judgment which detracts from the judgment or contains extraneous matters is not an order made within jurisdiction because at that stage, having determined the rights of the parties, by giving judgment for plaintiffs as claimed the Judge has become Functus officio except for any act permitted by law or Rules of Court.

 

This is not the position in this case as the evidence clearly supports the order made.

 

It is a misconception to submit that consequential order made by a court must of necessity be based on the reliefs claimed. The basis for an order made by the court must be looked for from the evidence before the court. It is trite law that a court cannot award more than is claimed. It is equally misconceived that an order cannot be made in favour of a defendant simply because he has not filed a counter-claim. An order made in favour of a defendant even where he has not counter-claimed must flow from the evidence and more so if the justice of the case demands. In this case, the defendant agreed that a defined parcel of land was granted to the plaintiff. After the plaintiff had issued its writ and before the case was heard, it erected a wall fence enclosing not only the area granted to it but also enclosing more than was granted to it. The Judge was right to have ordered the demolition of the wall fence. This order is a consequential order that flows from the evidence. It is not a separate head of claim expected to be found in a writ. It is covered by order 34 rule 1 of the Kwara State High Court Rules: Garba V. University of Maiduguri (1986)1 N.W.L.R. (Pt. 18) 550.

 

It is for the reasons stated above that the appeal was dismissed with costs assessed at N 500.00 in favour of the respondent.

 

 

Judgement delivered by

Obaseki. J.S.C.

 

On the 9th day of July, 1990 I dismissed this appeal after hearing counsel's submissions and reading the briefs of argument together with the record of proceedings and judgment of the court below. I then reserved my Reasons for the judgment till today. I now proceed to give the reasons.

 

However, I have before now had the advantage of reading in advance the draft of the Reasons for Judgment just delivered by my learned brother, Olatawura, J.S.C. I agree with his opinions on all the issues for determination in the appeal and I adopt them as my own. It was for those reasons that I dismissed the appeal.

 

The claim before the High Court was for N 4,000.00 for trespass to plaintiffs church land. The act of trespass was that the respondent entered the land and dumped laterite there on the 3rd of March, 1979. The plaintiff also claimed an order of perpetual injunction.

 

The pleadings filed by the parties raised issue of title. The appellants founded their claim and right to possession on Certificate of Occupancy No.311 granted to them on the 4th of December, 1965. The respondent claimed that title to the land in dispute was inherited from her father who also gave the land on which the church stands (excluding the land in dispute) to the Apostolic Church of which he was a staunch member.

 

The learned trial Judge examined the issues meticulously and entered judgment for the respondent dismissing the claim. The appellant's appe

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