CHIEF G. A. TITILOYE & ORS VS CHIEF J. OMONIYI OLUPO & ORS

CORAM

W. S.ONNOGHEN JUSTICE, SUPREME COURT

M.L. UWAIS – JUSTICE, SUPREME COURT

A.G. KARIBI-WHYTE – JUSTICE, SUPREME COURT

S. KAWU – JUSTICE, SUPREME COURT

S.M.A. BELGORE – JUSTICE, SUPREME COURT

MUHAMMADU LAWAL UWAIS, CHIEF JUSTICE, NIGERIA ABUBAKAR BASHIR WALI, JUSTICE, SUPREME COURT IDRIS LEO

MOHAMMED BELLO – JUSTICE, SUPREME COURT

MOHAMMED BELLO, JUSTICE SUPREME COURT

M.L. UWAIS, JUSTICE SUPREME COURT

A.G. KARIBI-WHYTE, JUSTICE SUPREME COURT

S. KAWU, JUSTICE SUPREME COURT

S.M.A. BELGORE, JUSTICE SUPREME COURT

E.O. I. AKPATA, JUSTICE SUPREME COURT

P.K. NWOKEDI, JUSTICE SUPREME COURT

PARTIES

CHIEF G. A. TITILOYE AND ORS

APPELLANTS

CHIEF J. OMONIYI OLUPO AND ORS

RESPONDENTS

AREA(S) OF LAW

LAND LAW – PROOF OF STATUTORY AND CUSTOMARY RIGHT OF OCCUPANCY-PLEADINGS-LAND USE ACT.

SUMMARY OF FACTS

The appellants sought a declaration that they were the persons entitled to a grant of customary or statutory right of occupancy over the land in dispute and an order to void the certificate of occupancy issued to 2nd respondent by the 4th and 5th respondents.

HELD

The Court held that that the appellants had woefully failed to discharge the burden of proof upon them, consequently the trial court and the Court below were absolutely right in dismissing their claims.

ISSUES

1. Whether a Governor can grant a Certificate of Occupancy to another party when the Local Government had granted customary right of occupancy on the same land without first revoking the latter, think the answer can be found in S.9(1) of the Land Use Act which says:

2. Whether there was an admission in the pleadings of the respondents which could have entitled the appellants to the Judgment of the court

RATIONES DECIDENDI

POWERS OF THE GOVERNOR UNDER THE LAND USE ACT

It is clear that paragraph (b) of Sections 9(1) empowers a Military Governor to issue a statutory right of occupancy to a person who is already in occupation of land under a customary right of occupancy. In my view it is not the law that the customary right of occupancy enjoyed by such a person must be first revoked before he can be granted a statutory right of occupancy, and this is because upon such a grant all existing rights on that parcel of land are automatically extinguished. Per S. Kawu JSC

ADMISSION IN PLEADINGS

To determine whether there is an admission in pleadings one must look at the respondents’ pleadings as a whole and not just consider each paragraph in isolation. Per S. Kawu, JSC

CONDITIONS PRIOR TO THE COURT’S EXERCISE OF DISCRETION

In a declaratory action like this one in which the appellants wanted the courts to exercise its discretion in their favour, they were under a duty to adduce cogent and credible evidence to justify the exercise of that discretion and they cannot merely rely on the admissions in the pleadings. Per S. Kawu JSC