AKUNNE BOSA MBANEFO VS. MOFUNANYA ACBU & ANOR

 LEGALPEDIA  CITATION: LER[2014] SC 179/2007
AREAS OF LAW– LAND LAW-CERTIFICATE OF OCCUPANCY, TRESPASS, APPEAL, LAW OF EVIDENCE-BURDEN OF PROOF
SUMMARY OF FACT:
The Plaintiff/Appellant instituted a claim against the 1st and 2nd Defendants/Respondents that after selling the land in dispute to him, the Defendants/Respondents failed to obtain Governor’s consent under Section 22 of the Land use Act but have resold the land to another person.  The trial Court struck out the name of the 2nd Defendant/Respondent from the suit and entered judgment for the Plaintiff/Appellant. Dissatisfied, the 2nd Defendant/Respondent appealed to Court of Appeal whiles the Plaintiff/Appellant also cross-appealed. The lower Court dismissed the Plaintiff/Appellant’s cross-appeal and dismissed the case of the trial court. Dissatisfied, the Plaintiff/Appellant has appealed to Supreme Court.
HELD:
Appeal dismissed.
ISSUES FOR DETERMINATION:
Were the learned Justices of the Court of Appeal not grossly in error when they held that in the circumstances of this case it was the duty of the purchaser of land to obtain the consent of the Governor
Were the learned Justices of the Court of Appeal not grossly in error when they held that the appellant was put in possession of the land and therefore had taken title to the land
Were the learned Justices of the Court of Appeal not grossly in error when they held that the 1st respondent only acted as a legal practitioner in the sale of land transaction in this case
RATIOS:
CERTIFICATE OF OCCUPANCY-WHEN GOVERNOR’S CONSENT IS REQUIRED
“It is clear that it is only whenever certificate of Occupancy has been granted or is deemed granted and a holder of such certificate is desirous to transfer, assign, mortgage, lease and sublease of the land that is subject of such certificate that the Governor’s consent is required under the said section”. PER CHUKWUMA- ENE J.S.C.
TRESPASS -MEANING OF- WHEN AN ACTION IN TRESPASS WILL LIE
“It is settled law that trespass is an infraction of the right of exclusive possession to land and as the appellant there has been put in exclusive possession of the aforesaid land, an action in trespass is certainly maintainable by him by virtue of his rights against any trespass who in law cannot claim to be in possession by mere entry which is complained of by the appellant”. PER CHUKWUMA-ENE J.S.C.
BURDEN OF PROOF –ON WHO LIES
“It is trite that he who asserts must prove”. PER AKAAHS, JSC
ISSUES-IMPROPRIETY OF PARTIES RAISING NEW ISSUES ON APPEAL
“The law is trite that a party will not be allowed to introduce an issue in this Court which was not raised and pursued in the Courts below thereby setting up an entirely new case in his appeal before his Court”. PER MOHAMMED, JSC
CASES MENTIONED:
Adegoke Motors Ltd. V. Adesanya (1989) 3 N.W.L.R. (Pt. 109) 250 at 266
Owoniboys Technical Services V. Union Bank of Nigeria (2003) 15 NWLR (Pt. 844)545 at 583
Philips v. Ogundipe (1967) 1 ANLR 258
STATUTES REFERRED TO:

The Land Use Act, 1979

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