WEMA BANK PLC V. MRS. ABIOLA ADESINA (NEE OKUNUBI)

WEMA BANK PLC V. MRS. ABIOLA ADESINA (NEEOKUNUBI) & ANOR.CITATION: (2006) LPELR-11709(CA)In The Court of Appeal(Lagos Judicial Division)On Thursday, the 13th day of July, 2006Suit No: CA/L/177/00Before Their LordshipsCLARA BATA OGUNBIYIRAPHAEL CHIKWE AGBOPAUL ADAMU GALINJEJustice, Court of AppealJustice, Court of AppealJustice, Court of AppealBetweenWEMA BANK PLCAppellantAnd1. MRS. ABIOLAADESINA ( NEEOKUNUBI)2. CHIEF ISAAC F.AKINTADE(Executors/Trustees ofthe Estate NiyiOkunubi whose names1Respondents

substitute the Name ofNiyi Okunubi pursuantto the Order of thisHonourable Courtmade On 25thFebruary 2004)2RATIO DECIDENDI1 LAND LAW - COMPULSORY ACQUISITIONOF LAND: Whether the mere issuance ofacquisition notice passes title to thegovernment ."In the case of Atunrase & ors v FederalCommissioner for Works and Housing (1975)1 All NLR (pt.1) 331, the main issue ofconsideration was whether the mere issuing ofacquisition notice had passed titled to thegovernment. The case is on all fours with theone under consideration and their lordships ofthe apex court for instance amongst othershas this to say at page 331. "that until theGovernment has obtained a land certificate inrespect of the land purported to have beenacquired by it, no title passes to the FederalGovernment by mere issuing of theacquisition notice; That the lower court'sjudgment cannot stand because the learnedtrial judge's finding of fraud was made withoutfraud having been pleaded by the parties."Per

OGUNBIYI, J.C.A.(Pp. 24-25, paras. E-A) -read in context32 WILLS AND PROBATE - CONFERMENT OFTITLE ON A BENEFICIARY: Conditionsnecessary for the conferment of title toproperty on the beneficiary of a will"On the issue of the want of probate, itsimportance is underscored by the fact that toconfer title to property on the beneficiary of aWill, (i) the testator must have died and (ii)the Will must have been admitted to probate.It is on admission to probate that a will ceasesto be ambulatory. See Igbiodu vs Igbiodu 1NWLR (pt585) 27 at 37. It is only when a Willhas been proved that the court can takecognizance of its content and act thereon. SeeEmeeheta vs Ogueri (1997) 8 NWLR (pt.516)323."Per AGBO, J.C.A.(Pp. 19-20, paras. F-A)- read in context3 COURT - DUTY OF COURT: What a courtshould do in determining which party hasbetter title to land"It is also trite law that where two parties arein dispute over a title to a piece of land, theduty on the court in the determination of theparty with better title is to examine theevidence. This is as laid down in Adegbo vWilliams (1998) 2 NWLR (pt 536) 120 at

128."Per OGUNBIYI, J.C.A.(P. 25, paras. B-C)- read in context44 WILLS AND PROBATE - ESTABLISHINGTHAT A WILL HAS BEEN PROVED: Usualway of establishing that a will has beenproved"The usual way to establish in court that aWill has been proved is to produce in court acopy of the will certified under the seal of thecourt - See Emeeheta vs Ogueri supra, Lijaduvs Franklin (1965) ALL NLR 114" Per AGBO,J.C.A.(P. 20, paras. B-C) - read in context5 APPEAL - FRESH ISSUE: Whether a freshissue can be raised on appeal without leave ofcourt"Both parties agree that notice No. 347 issuedin 1951 in which the Government gave noticeof acquisition of the land in dispute. It is alsonot in dispute that the Central Lagos Land(Acquisition) Law was made in April 1975.However, as argued by the respondent, theCentral Lagos Land (Acquisition) Law and itseffect on the suit was not canvassed at thecourt below. It is a new issue, which cannot beraised in this court without the leave of court.The prior leave of this court not having beensought or obtained, issue No.2 as formulatedis incompetent and cannot be sustained See

Uko vs Ekpenyong (2006) 5 N LR (pt 972) 70,Jiddun vs. Abuna (2000) 14 NWLR (pt 686209. Even if I should hold that prior leave isunnecessary to import the provisions of theCentral Lagos Land (Acquisition) Law, the saidlaw was specifically made in relation to landacquired in Central Lagos. That being so, thelaw constitutes a special defence which mustbe specifically pleaded and proved. Not havingbeen pleaded in the Statement of Defence norproved in the court below, it cannot be raisedin this court. - See Kano vs Oyalekin (1993) 3NWLR Pt.282) 399. Issue No.2 is herebystruck out."Per AGBO, J.C.A.(P. 21, paras.B-G) - read in context6 APPEAL - GROUND OF APPEAL: Whetherthe particulars in a ground of appeal can beused to expand the scope of the ground ofappeal"A critical look at the particulars of thisground of appeal discloses that the particularsin themselves do not constitute themisdirection alleged. They are rather used toexpand the ambit and scope of the ground ofappeal. This the appellant cannot do. - SeeBriggs vs C.L.O.R.S.N. & ORS (2005) 12 NW R(pt 938) 59. Appellant's counsel had concededthat paragraphs (a) and (f) of the particularsought not to be there and asked the court tostrike out those paragraphs. I find not only5

paragraphs (a) and (f) but all the paragraphsof the particulars as unnecessary expansion ofthe scope of ground 2 of the grounds ofappeal. The said particulars are hereby struckout. All arguments founded on thoseparticulars go to no issue."Per AGBO,J.C.A.(Pp. 17-18, paras. G-C) - read in context7 LAND LAW - NOTICE OF ACQUISITION:Whether notice of acquisition and payment ofcompensation can on their own without moredivest a party of his title to land"The appellant had argued that the learnedtrial judge had misdirected herself on the factsin accepting that by exhibit "B" which is thewill of the respondent's late father therespondent inherited the land in dispute. Thisargument is founded on two grounds (a) theproperty the subject matter of the dispute wasacquired by the government in 1951 whileexhibit "B" the will was made in 1952; (b) Thewill exhibit "B" was not proved by admissionto probate. The appellant had argued at thecourt below that the respondent had admittedthat the government had in 1951 acquired theland in dispute and paid compensation for it.That being the case, all the interests of thelate respondent's father in the land becameextinguished and the late respondent's fatherhad nothing to devise to him in 1952. Thecourt below however stated that the notice of6

acquisition and payment of compensation donot on their own without more divest therespondent's father of title to the land indispute. She held that to divest therespondent's father of his title, thegovernment must in addition to the notice ofacquisition and payment of compensationobtain a Land Certificate in respect of theacquired land. She held that the government,having not obtained a Land Certificate inrespect of the land in dispute, the title neverleft the respondent's father. She is right. TheSupreme Court in Atunrase & Ors vs. FederalCommissioner for Works and Housing (1975)1 ALL NLR (pt.1) 331 after construing Ss 25and 26 of the Public Lands Acquisition Actcame to the same conclusion." Per AGBO,J.C.A.(Pp. 18-19, paras. E-E) - read in context8 COURT - RAISING ISSUE SUO MOTU:Whether a court who determines the effect inlaw of a given state of facts before her can besaid to be raising issues suo motu"Issue No.3 is whether the learned trial judgewas right to have raised the issue of validityor otherwise of the acquisition of the land indispute suo motu in her judgment andresolving same against the appellant withouthearing the parties thereon and when noissue was joined by the parties on same intheir pleadings before her. The appellant7

argued that issues were not joined on whetheror not there was an acquisition of the land indispute nor on the payment of compensationfor the acquired land. Counsel argued thatissues not having been joined, there wasnothing in that regard for the court below toadjudicate upon. Counsel is correct that bothparties were agreed that there was anacquisition in 1951 vide the acquisition noticeand that government paid compensation forthe acquired land. However, it is the judgewho determines the effect in law of a givenstate of facts. In the instant case the judge didnot question the validity of the contentiousacquisition. The only issue she determinedwas whether in law title had passed to theacquiring authority. That determination she isentitled to make from the set of facts placedbefore her by the litigants, and thatdetermination she made in the instant case -See Arabami vs Advance Beverages Ltd(2005) 19 NWLR (Pt.959) 1, Nwadiaro vsShell Dev. Co. Ltd (1990) 5 NWLR (pt 150)322." Per AGBO, J.C.A.(P. 22, paras. A-G) -read in context9 LAND LAW - TRESPASS TO LAND: Whattrespass entails and what a party who intendsto maintain an action in trespass must posess"Trespass is the unlawful entry upon land ordirect or immediate interference with its8

possession and to maintain an action intrespass to land, the plaintiff must have apresent possessory title, actual or constructive- See Egharevba vs Oruongha (2001) 11NWLR (Pt 724) 318, Badiru vs Ozoh (1986) 4NWLR (pt38) 728. A person may not be inactual possession of a thing. But if he haslegal authority over the thing and manifestsan intention to exercise dominion and controlover the thing either personally or by anagent he is in constructive possession of it -See Egharevba vs. Oruongba supra." PerAGBO, J.C.A.(P. 23, paras. C-F) - read incontext9RAPHAEL CHIKWE AGBO, J.C.A. (Deliveringthe Leading Judgment): At the Lagos State HighCourt at its Lagos Judicial Division the respondentin this appeal had as plaintiff in suit No. LD/4477/94 claimed of the defendant now appellant inhis statement of claim as follows:-"WHEREOF the Plaintiff claims against theDefendant:-1. A declaration that by inheritance through hisfather's WILL, the Plaintiff is the owner of the landat No. 24, Akanni Street, Lagos, comprised in TitleNo. LO 0054 registered pursuant to theRegistration of Title Law Cap. 124, Laws of LagosState and being Plot 17 of the Lagos Central

Planning Scheme Sub-area 5.2. Damages for trespass.3. An Injunction restraining the Defendant and itsofficers, agents or servants from trespassing orcontinuing to commit acts of trespass on the saidland."Pleadings were filed and exchanged and the casewent to trial. Evidence was led by both sides andthereafter parties through Counsel addressed thecourt. In a considered judgment the court belowheld as follows:-"On the whole, the plaintiff's claim succeeds in itsentirety and I hereby make the following orders:(1) This court hereby makes a declaration that byinheritance through his father's Will, the plaintiff isthe owner of the land at No. 24 Akanni Street,Lagos Comprised in title No 0058 registeredpursuant to the Registration of Titles Law Cap. 124Laws of Lagos State and being plot 17 of the LagosCentral Planning Scheme(2) N900.00 as damages for trespass(3) The defendant is hereby restrained bythemselves, any of its officers, agents or servantsfrom trespassing or continuing to commit acts oftrespass on the said land.Costs of the action is N25,000.00 in favour of theplaintiff'.Not being satisfied with this judgment, theappellant filed this appeal and in its furtherAmended notice of Appeal dated 6th October 2000and filed the same day set out its grounds of appealas follows-10

GROUNDS OF APPEAL"1. The learned trial Judge erred in law when sheheld that"Title to the land in dispute was never in theacquiring authority hence no title could bere-conveyed to the Plaintiff since he is entitled tosame by virtue of his father's Will" () when:(a) The validity of the Plaintiff/Respondent'sfather's Will is subject to same being duly provedand properly admitted to Probate before it canconfer any legal right on the Plaintiff/Respondent.(b) There was no evidence before the learned trialjudge that the plaintiff/respondent's father's Willwas ever so proved and/or admitted to Probate.(c) No opportunity was given for any interestedperson to enter a caveat.(d) The grant of probate not being automatic, it isnecessary to give legal effect to the intention of theTestator as contained in Exhibit B in order to bevalid.(e) Dealing by anyone with anybody whose interestis subject of a Will which has not been proved andtherefore not admitted to probate will not in lawvalidate such transaction.(f) There was no evidence of any Deed of Assent inrespect of the property in dispute to thePlaintiff/Respondent by the Executors, which in anycase, the Executors would have been incompetentto execute without the Will having been proved andadmitted to Probate.(g) The Respondent therefore had no legal right to11

ground a cause of action against the Appellant inrespect of the property, 24 Akanni Street, Lagosand the requisite locus to maintain same.(h) The purport of the Central Lagos Land(Acquisition) Law Cap. 22, Laws of Lagos Statemade on the 21st April 1975 absolutely vesting theproperties in Central Lagos including that of thePlaintiff without any further assurance seemed tohave been overlooked by the learned trial judge inarriving at her decision that the property was nevervested in the acquiring authority.(2) The learned trial Judge misdirected herself onthe facts when she held that:"The evidence in this case which I accept is that thePlaintiff inherited the land in dispute by virtue ofExhibit B and as such he is the owner to whom theLagos State Government could return the land. Indeed and in fact the Lagos State Governmentacknowledged the Plaintiff as such as individual andpublicly made this known in the Lagos HorizonNewspaper Exhibit "D by dealing with him inrespect of 24 Akanni Street, Lagos. There is noevidence before me that anybody else applied to beconsidered as the original owner in respect of theland in dispute."(3) The learned trial Judge erred in law actedwithout jurisdiction when she held that:"The onus of prove that the Plaintiffs father hadbeen diverted of ownership in 1951 restedthroughout the case on the Defendant....Theissuing of public notice of acquisition does notimmediately vest the little to land compulsorily12

acquired in the acquiring authority. Until aCertificate of Title is issued, title to the landcompulsorily acquired still vests in the originalowners. In the case of Laguro vs. Tuku (1985 4WLR pt. 33 at pages 99-100 the Court of Appeal inprevious cases on the issue of publication ofacquisition notice has this to say: -.......... .i think although the witness on both sidesspoke of "acquisition" by the government, there isno evidence as rightly submitted by Chief Williamsthat the government has obtained any Certificate ofTitle to the land and on authorities of Atunrase &Ors vs Federal Commissioner for Works & Housing(supra): City Property Development Ltd. vs.Attorney-General Lagos State (supra) and LionBuildings Ltd vs Shodipe (supra) until this has beendone, title to the land remains vested in theRespondent in this case. The Supreme Court put itsuccinctly in Atunrase & Ors vs FederalCommissioner for Works & Housing (supra). Aboveit is stated thus: -"We think we ought to make it clear that, in theabsence of any particular statutory provision to thecontrary, the issuing of the public notice ofacquisition, does not immediately vest the title tothe land in the Government, but that the latter ayacquire it only after satisfying the provisions ofPublic Lands Acquisition Act requiring that a LandCertificate should be obtained as proof of title".In this case, the Defendant did not produce beforethe court any Certificate of Title to the land indispute or to any portion of land part of which is13

the land in dispute. I therefore reject the defenceof vesting of the land in the predecessor of theDefendant as canvassed by counsel and hold thatup till the time when the father of the plaintiffmade the Will (Exhibit B) in 1952 the property indispute vested in him and he was perfectly entitledto transfer same to his son, the Plaintiff(4) The learned trial Judge erred in law and on thefacts when she held that:"I hold that a case of trespass has been made outagainst the Defendant who as I have said earlierhad no right to ownership or possession of the landin dispute".The Learned trial judge erred in law in awarding tothe Respondent excessive damages of N900,000.00and cost when"(a) The Respondent did not prove at trial any act ofexclusive possession of the land in dispute atanytime nor any right to such possession.(6). The judgment is against the weight of evidencebefore the court. "From these grounds of appeal the appellant distilledthe following issues for determination."1. Whether upon the evidence before the courtand as required by law, the respondent has provedthat he was entitled to a declaration of title byinheritance through his father's Will (Exhibit B) ofthe property in dispute and had the requisite locusto institute and maintain the suit;2. Whether Notice No. 347 of 1951 published in theOfficial Gazette No. 13 Volume 38 of 15th March1951 of the Federal Government of Nigeria and the14

Central Lagos Land (Acquisition) Law Cap 22 madeon the 21st April 1975 did validly vest the propertyin Central Lagos including that claimed by theRespondent in the acquiring authority, contrary tothe decision of the learned trial judge, as to havedivested the respondent and his predecessorin-titleof any further interest thereon, from thedate of acquisition.3. Whether the learned trial judge was right tohave raised the issue of validity or otherwise of theacquisition of the land in dispute suo motu in herjudgment and resolving same against the appellant,without hearing the parties thereon and when noissue was joined by the parties on same in theirpleadings before her.4. Whether upon the evidence before the learnedtrial judge, the respondent made out a case oftrespass against the appellant as to entitle him toan award of the excessive damage of N900,000.00and for Order of Injunction."The respondent adopted the issues fordetermination as set out by the appellant upon thedeath of the respondent in this appeal, this courton 25th February 2004 substituted the originalrespondent with Abiola Adesina (nee Okunubi) andChief Isaac F. Akintade both of who areExecutors/Trustees of the estate of Niyi Okunubi.In oral argument the appellant tied issue 1 toground 2, issue 2 to ground 1, Issue 3 to ground 3and issue 4 to ground 4. The appellant not havingformulated issues from grounds 5 and 6, the saidgrounds of appeal having been abandoned are15

hereby struck out.Issue No. 1 is whether upon the evidence beforethe trial court and as required by law, therespondent has proved that he was entitled to adeclaration of title by inheritance through hisfather's will (exhibit B) of the property in disputeand had the requisite locus to institute andmaintain the suit. It is to be noted that this issuewas formulated from ground 2 of the grounds ofappeal. This ground is reproduced hereunder(2) The learned trial Judge misdirected herself onthe facts when she held that:"The evidence in this case which I accept is that thePlaintiff inherited the land in dispute by virtue ofExhibit B and as such he is the owner to whom theLagos State Government could return the land.Indeed and in fact the Lagos State Governmentacknowledged the Plaintiff as such as individual andpublicly made this known in the Lagos HorizonNewspaper Exhibit "D by dealing with him inrespect of 24 Akanni Street, Lagos. There is noevidence before me that anybody else applied to beconsidered as the original owner in respect of theland in dispute".PARTICULARS(a) The notice, Exhibit D and information containedin Exhibit C - copy of the Lagos State Gazette,which authorized the return of the remnant of theacquired land back to the original owners is a mereexpression of Government's intention and not a16

conclusive proof of the Plaintiff/Respondent's rightto a declaration of Title to the land in disputeagainst the Appellant on the basis of a Will whichwas never proved or admitted to probate.(b) The right of the Plaintiff/Respondent to thereturn of the landed property is even conditionalupon meeting requirements specified in the Gazetteand above all, it is to be returned where it isfeasible to do so.(c) There is evidence before the court that the rightof a 3rd party i.e. the Appellant has intervened.(d) Both Exhibits C (the Gazette) & D (NewspaperHorizon) Publication of Tuesday 21/7-8/93)concerning the procedure for the return of theacquired landed property are mere formalities, anddid not return or vest the property in theRespondent.(e) From the evidence before the court, allpayments made by the Respondent to the UrbanRenewal Board were not demanded by the Boardhence there was no acknowledgment of thepayments by way of Official Receipts despiteseveral demands made on it by the Respondentvide Exhibits F-F2 and G.(f) The property was not at anytime released to theRespondent by the Urban Renewal Board nor was itvested in him by any other authority of the LagosState Government."This ground of appeal complains specifically thatthe trial judge misdirected herself on the facts setout therein. Ex facie the ground complains of noerror in law. A critical look at the particulars of this17

ground of appeal discloses that the particulars inthemselves do not constitute the misdirectionalleged. They are rather used to expand the ambitand scope of the ground of appeal. This theappellant cannot do. - See Briggs vs C.L.O.R.S.N. &ORS (2005) 12 NW R (pt 938) 59. Appellant'scounsel had conceded that paragraphs (a) and (f) ofthe particulars ought not to be there and asked thecourt to strike out those paragraphs. I find not onlyparagraphs (a) and (f) but all the paragraphs of theparticulars as unnecessary expansion of the scopeof ground 2 of the grounds of appeal. The saidparticulars are hereby struck out. All argumentsfounded on those particulars go to no issue.In formulating issue No. 1 the appellant raised theissue of the respondent's locus standi. This is anissue of law that cannot by any stretch ofimagination be founded on the misdirection of factcomplained of in ground 2 of the grounds of appeal.That issue falls outside the scope of ground 2 andcannot be entertained therein.The appellant had argued that the learned trialjudge had misdirected herself on the facts inaccepting that by exhibit "B" which is the will of therespondent's late father the respondent inheritedthe land in dispute. This argument is founded ontwo grounds (a) the property the subject matter ofthe dispute was acquired by the government in1951 while exhibit "B" the will was made in 1952;(b) The will exhibit "B" was not proved byadmission to probate. The appellant had argued at18

the court below that the respondent had admittedthat the government had in 1951 acquired the landin dispute and paid compensation for it. That beingthe case, all the interests of the late respondent'sfather in the land became extinguished and the laterespondent's father had nothing to devise to him in1952. The court below however stated that thenotice of acquisition and payment of compensationdo not on their own without more divest therespondent's father of title to the land in dispute.She held that to divest the respondent's father ofhis title, the government must in addition to thenotice of acquisition and payment of compensationobtain a Land Certificate in respect of the acquiredland. She held that the government, having notobtained a Land Certificate in respect of the land indispute, the title never left the respondent's father.She is right. The Supreme Court in Atunrase & Orsvs. Federal Commissioner for Works and Housing(1975) 1 ALL NLR (pt.1) 331 after construing Ss 25and 26 of the Public Lands Acquisition Act came tothe same conclusion.On the issue of the want of probate, its importanceis underscored by the fact that to confer title toproperty on the beneficiary of a Will, (i) thetestator must have died and (ii) the Will must havebeen admitted to probate. It is on admission toprobate that a will ceases to be ambulatory. SeeIgbiodu vs Igbiodu 1 NWLR (pt585) 27 at 37. It isonly when a Will has been proved that the courtcan take cognizance of its content and act thereon.19

See Emeeheta vs Ogueri (1997) 8 NWLR (pt.516)323.It is not in dispute in the instant case that thetestator had died. The court below found as of factthat the Will exhibit "B" was proved. This wasbuttressed by the fact that exhibit "B" the Will wascertified on 10/10/71 by the Probate Registrar. Theusual way to establish in court that a Will has beenproved is to produce in court a copy of the willcertified under the seal of the court - SeeEmeeheta vs Ogueri supra, Lijadu vs Franklin(1965) ALL NLR 114.The argument by the appellant that this method ofestablishing that a Will has been proved avails onlythe executors is at best preposterous. The courtbelow was right in holding that exhibit "B" wasproved. Having established that exhibit "B" wasproved, the court was right to look at its contentand act thereon. The testator did devise on the laterespondent in his will exhibit "B" his interest in theland in dispute and the court below was right inholding that the late respondent acquired interestin the land in dispute by inheritance vide exhibit"B". Issue 1 is hereby resolved in favour of therespondents.Issue No.2 is whether Notice No. 347 of 1951published in the Official Gazette No. 13 Volume 38of 15th March 1951 of the Federal Government ofNigeria and the Central Lagos Land (Acquisition)20

Law Cap 22 made on 21 April 1975 did validly vestthe property in Central Lagos Including thatclaimed by the respondent in the acquiringauthority contrary to the decision of the learnedtrial judge, as to have divested the respondent andhis predecessor in title of any further interestthereon from the date of acquisition.Both parties agree that notice No. 347 issued in1951 in which the Government gave notice ofacquisition of the land in dispute. It is also not indispute that the Central Lagos Land (Acquisition)Law was made in April 1975. However, as arguedby the respondent, the Central Lagos Land(Acquisition) Law and its effect on the suit was notcanvassed at the court below. It is a new issue,which cannot be raised in this court without theleave of court. The prior leave of this court nothaving been sought or obtained, issue No.2 asformulated is incompetent and cannot be sustainedSee Uko vs Ekpenyong (2006) 5 N LR (pt 972) 70,Jiddun vs. Abuna (2000) 14 NWLR (pt 686 209.Even if I should hold that prior leave isunnecessary to import the provisions of the CentralLagos Land (Acquisition) Law, the said law wasspecifically made in relation to land acquired inCentral Lagos. That being so, the law constitutes aspecial defence which must be specifically pleadedand proved. Not having been pleaded in theStatement of Defence nor proved in the courtbelow, it cannot be raised in this court. - See Kanovs Oyalekin (1993) 3 NWLR Pt.282) 399. IssueNo.2 is hereby struck out.21

Issue No.3 is whether the learned trial judge wasright to have raised the issue of validity orotherwise of the acquisition of the land in disputesuo motu in her judgment and resolving sameagainst the appellant without hearing the partiesthereon and when no issue was joined by theparties on same in their pleadings before her. Theappellant argued that issues were not joined onwhether or not there was an acquisition of the landin dispute nor on the payment of compensation forthe acquired land. Counsel argued that issues nothaving been joined, there was nothing in thatregard for the court below to adjudicate upon.Counsel is correct that both parties were agreedthat there was an acquisition in 1951 vide theacquisition notice and that government paidcompensation for the acquired land. However, it isthe judge who determines the effect in law of agiven state of facts. In the instant case the judgedid not question the validity of the contentiousacquisition. The only issue she determined waswhether in law title had passed to the acquiringauthority. That determination she is entitled tomake from the set of facts placed before her by thelitigants, and that determination she made in theinstant case - See Arabami vs Advance BeveragesLtd (2005) 19 NWLR (Pt.959) 1, Nwadiaro vs ShellDev. Co. Ltd (1990) 5 NWLR (pt 150) 322.Issue No.4 is whether upon the evidence beforethe learned trial judge, the respondent made out a22

case of trespass against the appellant as to entitlehim to an award of the excessive damage ofN900,000.00 and for order of injunction.It is to be noted that ground 4 of the furtheramended grounds of appeal upon which the issue ofdamages and injunction, were formulated iscompletely silent on damages and injunction. Theissue formulated, to the extent that it deals withdamages and injunction is to that extentincompetent.In issue No.4 the appellant, argues very stronglythat the respondent did not establish possessionand therefore did not make out a case of trespass.Trespass is the unlawful entry upon land or director immediate interference with its possession andto maintain an action in trespass to land, theplaintiff must have a present possessory title,actual or constructive - See Egharevba vsOruongha (2001) 11 NWLR (Pt 724) 318, Badiru vsOzoh (1986) 4 NWLR (pt38) 728.A person may not be in actual possession of athing. But if he has legal authority over the thingand manifests an intention to exercise dominionand control over the thing either personally or byan agent he is in constructive possession of it - SeeEgharevba vs. Oruongba supra.The respondents are not in actual physicalpossession of the land in dispute. But it has beenadjudged that title rests in them. They haveevinced a desire to exercise dominion and controlover the land personally. They can therefore be23

said to be in constructive possession. The appellantclaims to be in possession of the land the subjectmatter of the dispute. It also claims title. Wheretwo persons claim possession at the same time,possession resides in the person with better title -See Egharevba vs Oruongha supra, Ekpan vs. Ugo(1986) 3 NWLR (pt26) 63. In the instant case, therespondents clearly have better title than theappellant.This appeal must fail and it is hereby dismissedwith N10,000.00 costs to the respondents.CLARA BATA OGUNBIYI, J.C.A.: I have read indraft the judgment just delivered by my brotherAgbo JCA. I agree that the entire appeal is devoidof merit and which I also dismiss.It is obvious that in the absence of the governmentnot obtaining any land certificate on the property,the title to same is still vested in the respondent'sfather. Consequently, the right to inherit by virtueof exhibit B (the fathers' will) was therefore asproperly founded by the learned trial judge.In the case of Atunrase & ors v FederalCommissioner for Works and Housing (1975) 1 AllNLR (pt.1) 331, the main issue of consideration waswhether the mere issuing of acquisition notice hadpassed titled to the government. The case is on allfours with the one under consideration and theirlordships of the apex court for instance amongstothers has this to say at page 331."that until the Government has obtained a landcertificate in respect of the land purported to have24

een acquired by it, no title passes to the FederalGovernment by mere issuing of the acquisitionnotice; That the lower court's judgment cannotstand because the learned trial judge's finding offraud was made without fraud having been pleadedby the parties."The appeal in that case was accordingly allowed.It is also trite law that where two parties are indispute over a title to a piece of land, the duty onthe court in the determination of the party withbetter title is to examine the evidence. This is aslaid down in Adegbo v Williams (1998) 2 NWLR (pt536) 120 at 128.With reference to the appellant's statement ofdefence at pages 35 and 36 of the record of appealthe summary of paragraphs 2(a) (b) (c) and 4,copiously admitted that the land in dispute,although it belonged to the respondents late father,same was acquired by the Lagos ExecutiveDevelopment Board, an agency of the Lagos StateGovernment. It is therefore not in dispute that theland originally belonged to the respondent's latefather. The onus lied on the appellant to havedivested the respondent's interest i.e the father'stitle by way of evidence. In the absence of proof bythe Federal Government as specifically pronouncedin the authority of Atunrase & ors supra, the titlewas firmly vested in the respondent's father at thethe time the will was made in 1951. As rightlysubmitted by the learned respondent's counsel the25

mere publication of notice of acquisition in agazette does not ipso facto and without more, vestthe title to the land compulsorily acquired on theacquiring authority. The case in point and supportis Laguro v Toku (1986) 4 N R (pt. 33) 90 at 99 -100.The respondent on the balance of probability didestablish his claim before the trial court. The leadjudgment by my brother Agbo JCA has thereforeadequately dealt with all the issues raised in thisappeal. I also dismiss same as it lacks merit andabide by all orders made therein the judgmentinclusive of costs.26PAUL ADAMU GALINJE, J.C.A.: I was privilegedto have read before now the judgment of mylearned brother Agbo, JCA just delivered. Irespectfully agree with the reasoning and theconclusion arrived therein. For the same reasonswhich I adopt as mine, I too dismiss the appeal withTen Thousand Naira (N10,000.00) costs to theRespondents.AppearancesChief Wale Taiwo;Gbagbo Moses Gbagbo;M.A, OduwoleFor Appellant

27N. AmaechinaForRespondents