TITILOYE V. OLUPO

• Pages: 542-566

542

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NIGERIAN SUPREME COURT CASES

[1991] 2 N.S.C.C.

TITILOYE V. OLUPO

CHIEF G.A. TITILOYE & ORS.

V.

CHIEF J. OMONIYI OLUPO & ORS.

APPELLANTS

RESPONDENTS

APPEAL No. SC.2

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/

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989.

SUPREME COURT

BELLO,

UWAIS,Ag.

KARIBI-WHYTE,

KAWU,

BELGORE,

A KPATA ,

NWOKEDI,

4th October, 1991.

OF NIGERIA

C.J.N.

J.S.C.

J.S.C.

J.S.C.

J.S.C.

J.S.C.

Appeals -

Issues for determination - Appellate court not to over - Simply the issues -

Appellate Court not bound by issues formulated - Within competence of court to identify

real issues.

Evidence - Proof of customary right of occupancy - Burden of - On whom lies - What needs

to be proved - Admissions - When said to be made in pleadings - Action for declaration

- Requirements of proof - What are.

Practice and Procedure -

Issues for determination - Duty of appellate court in relation

thereto - Allegation of fact - Not specifically denied - Effect of - Pleadings - Whether

weakness in a party's case can strengthen case of the other party - Defective brief of

argument - Use of - Where objection not raised - Whether Appellate Court may permit.

Land law -

Customary right of occupancy - Grant of - Power of governor to do so - Caveat

- Where it exists - Right of local government to grant customary right of occupancy -

Unoccupied land - Held by community as personified in Oba - Where Oba sued in

personal capacity - Whether he could call communal title without joining community

in responsible capacity.

Legislation - Land Use Act - S.9(1) - Interpretation of - Powers of governor to issue

statutory right of occupancy.

ISSUES:

1.

What is the duty of an appellate court in relation to issues for determination in

an appeal?

2.

Whether occupation is all that is needed before occupancy can be granted?

3.

Whether a Governor can grant a certificate of occupancy to a party in respect

of land subject to litigation?

TITILOYE V. OLUPO

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4.

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?

5.

How may the courts know when an admission has been made in pleadings?

6.

On whom does the onus of proof lie in a declaratory action?

FACTS:

The appellants, as plaintiffs instituted an action against the respondents/defen-

dants at the Omu Aran High Court in Kwara State asking for a declaration that they

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were persons deemed tobe holders or occupiers of the parcel of land situate and

lying at Atankoro Area, Esie, to whom a customary right of occupancy had been

issued and also a claim that the issuance of the certificate of occupancy No. 6322

in favour of the 2nd defendant by the 4th and 5th defendants in respect of the

parcel of land was null and void. The trial Judge, after carefully evaluating the

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specific findings of fact supported by the evidence adduced dismissed the appel-

lant's claims in their entirety. Being dissatisfied with the decision of the trial court

the appellants appealed filing thirteen grounds of appeal. The Court of Appeal after

considering what it regarded as the relevant issues in the appeal dismissed the

appeal and affirmed the judgment of the trial court.

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The appellants who were also dissatisfied with the decision of the Court of

Appeal have now appealed to the Supreme Court.

HELD:

1.

It is the duty and responsibility of an appellate court to consider and pronounce

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on all the issues for determination arising from the grounds of appeal filed by

an appellant. A deliberate failure to do so may amount to failure to perform its

statutory duty.

(See p.548, lines 1 - 4).

2.

To be entitled to a grant of a c:ustomary right of occupancy by a Local

Government over a parcel of land, an applicant must satisfy the Local

Government he is a person lawfully using or occupying that particular parcel

of land in accordance with customary law. Under section 5 of the Land Use

Act, customary right of occupancy is defined as the right of a person or

community lawfully using or occupying land in accordance with customary law

and includes a customary right of occupancy granted by a Local Government.

In the instant case, the trial court rightly rejected the appellant's claim simply

because they were unable to prove the averments in their pleadings to the

effect that they were the customary owners of the land in dispute.

(See p.548,

lines 29 - 39).

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3. If the fact that the matter had been in litigation before the court was brought to

the notice of the Governor, he ought not to proceed to grant the certificate. He

should wait for the outcome of the litigation. But he can only do this if the matter

is properly brought to his notice and in this case there is no evidence that this

was the case.

(See p.548, lines 41 - 46).

45 4. The Land Use Act under S.9(1) paragraph (b) 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. 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

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upon such a grant all existing rights on that parcel of land are automatically

extinguished.

(See p.549, lines 7 - 13).

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