Filing an application pursuant to the provision of a rule on recovery of land in the Rules of Court to set down suit for hearing by a Claimant in default of pleadings in all civil actions including action for claim for title to land has become a usual practice and procedure in Nigerian Courts.

To many Lawyers, the recovery of land mentioned or provided for in the High Court (Civil Procedure) Rules applicable in some States like Ogun; Oyo; Ondo; Ekiti; Osun; and Lagos States covers action for claim for title to land. How correct and true is this?

It is against this background that this piece is written with utmost view to discussing the applicability or otherwise of the provision of a rule on recovery of land to the action for declaration for title to land with full recourse to other provisions of the Rules of Court wherein mention is made to action for recovery of land in the High Court (Civil Procedure) Rules applicable in South West States viz: Ogun; Oyo; Ondo; Ekiti; Osun; and Lagos States.

Before kick-starting the discussion on the applicability or otherwise of the provision of a rule on recovery of land to the action for declaration for title to land with full recourse to other provisions of the Rules of Court wherein mention is made to action for recovery of land in the High Court (Civil Procedure) Rules applicable in Ogun State, Ondo State, and Ekiti State; it is pertinently important to simply allude to the purpose of making Rules of Court in those States.

Rules of Court are not only made as a roadmap for steering parties’ cases through trial and beyond provided in a set of rules to govern business before the court on procedural matters and set out procedural pathways or guidelines for the conduct of litigation in order to allow the business of the courts to be carried on in an orderly manner but also are made as guidelines for each step which parties are to follow in the litigation process and the prescribed time within which parties are to take the step. What then is the extant provision of Order 20, rule 6 of the High Court (Civil Procedure) Rules in the High Courts of the aforementioned States?

The provision of rule 6 of Order 20 of the Rules of Court in Ondo, Ogun and Ekiti States goes thus:

‘In an action for the recovery of land, if the defendant makes default as mentioned in Rule 1, the Claimant shall apply that the case be set down for trial.’

It is further important to re-echo that the above quoted provision is the same provision provided under Order 20 rule 6 of the Rules of Court in Ondo State, Ogun State and Ekiti State with the same phrase ‘as mentioned in Rule 1’. What then is the provision of rule 1 mentioned in the rule 6 of Order 20 of the Rules of Court in Ondo State, Ogun State and Ekiti State?

It is not only to be noted that the provision in Rule 1 alluded to in rule 6 of Order 20 of the Rules of Court in the aforementioned States with the phrase ‘as mentioned in Rule 1’ is the same in all aforementioned States but also the purpose of reference to provision of rule 1 in rule 6 of Order 20 of the Rules of Court with phrase ‘as mentioned in rule 1’ is that the application of rule 6 in Order 20 of Rules of Court is subject to the failure of the defendant to file defence within the time allowed in the Rules of Court in the aforementioned States.

Flowing from the above stated purpose of the High Court (Civil Procedure) Rules applicable in Ogun State, Ondo State, and Ekiti State is the deductible fact that the rules of court provide for steps which parties are to take in court vis-à-vis their respective claims.

Besides the provision for steps which parties are to take in the determination of every case is unequivocal provision of order 4 rule 1 of the High Court (Civil Procedure) Rules applicable in Ogun State, Ondo State, and Ekiti State for mandatory indorsement that every originating process must contain the claim, the reliefs and names of the claimant. The provision of the rule 1 of order 4 goes thus:

‘Every originating process must contain the claim, the relief or remedy sought and the full names of the claimant.’

It is the writer’s stand that it is through the indorsement on every originating process that the claimant’s claim and relief sought against the party sued as defendant are known; it is through the said claim and reliefs contained on the initiating process that the kind of action instituted before court is known; and the mere fact that there is a mention of the word ‘land’ in the indorsed claim or relief does not make the claim for declaration for title to land the same with the claim for recovery of land provided for in the rules of court.

It is crystal clear that the provision of order 20 rule 6 of the High Court (Civil Procedure) Rules applicable in Ogun State, Ondo State, and Ekiti State is to the effect that a claimant for a recovery of land is to apply for his case to be set down for trial in default of pleading by the defendant and it is the writer’s stand that the said provision does not in any way relate to action for ownership tussle with relief of a declaration for title to land.

The word ‘recovery’ used in the rules of court under discussion is for action to regain land lost and for anyone to regain something lost, such person must have owned the lost thing before it was lost. Fortifying this proposition is the definition of the word ‘recovery’ given as ‘regaining or restoration of something lost taken away’ by the Black’s Law Dictionary, 9th edition. How then is the extant provision of order 20 rule 6 of the High Court (Civil Procedure) Rules in Ogun State, Ondo State, and Ekiti State applicable to action for ownership tussle over land with a relief of a declaration for title to land?

Combing through the extant provisions made under order 20 of the High Court (Civil Procedure) Rules in Ogun State, Ondo State, and Ekiti State with a view to finding out the applicability or otherwise of the said provision of order 20 rule 6 of the High Court (Civil Procedure) Rules in Ogun State, Ondo State, and Ekiti State beamed light to the extant provision of order 20 rule 7 of the High Court (Civil Procedure) Rules in Ogun State, Ondo State, and Ekiti State. What then is the said provision of rule 7 of order 20?

The extant provision of rule 7 of order 20 of the High Court (Civil Procedure) Rules in Ogun State, Ondo State, and Ekiti State goes thus:

‘Where the claimant has indorsed a claim for mesne profits or arrears of rent in respect of the premises claimed, or any part of them, or damages for a breach of contract or wrong or injury to the premises claimed upon a writ for the recovery of land, if the defendant makes defaults as mentioned in Rule 1, or if there be more than one defendant and some or one of the defendants make such default, the claimant may apply for final judgment against the defaulting defendant or defendants and proceed as mentioned in Rules 3 and 4.’

Deductible fact from the above quoted provision of rule 7 of order 20 is the required claims which a claimant for action for recovery of land must indorse on his writ of summons.

It is crystal clear that it behooves the claimant in action for recovery of land to indorse upon a writ for the recovery of land either of the following deductible reliefs from the above quoted provision of the rule 7 of order 20.

a claim for mesne profits in respect of premises claimed
a claim for arrears of rent in respect of premises claimed
a claim for part of mesne profits in respect of premises claimed
a claim for part of arrears of rent in respect of premises claimed
a claim for damages for a breach of contract
a claim for damages for wrong or injury to the premises claimed
Flowing from the above is the writer’s stand that the extant provision of rule 6 of Order 20 on recovery of land in the High Court (Civil Procedure) Rules in the aforementioned States is unequivocally clear and the action of recovery of land is not the same with action for claim for declaration for title to land.

Fortifying the stand of the writer is the decision of the Supreme Court in the case of NZEKWU & ORS V. NZEKWU & ORS (1989) LPELR-2139(SC) wherein the court held thus:

‘But the law is all the same settled that the Plaintiff in an action for the recovery of land or recovery of Possession is always a person who is out of possession, but who claims to have a right to the immediate possession of the land. If he desires to recover the whole of the premises mentioned in his writ, he should as a general rule join as a Defendant every person who is in possession of any part of them. He will be prima facie entitled to a verdict on proof that the land is his; for the ownership of land involves a right to the possession of it, unless the owner has voluntarily parted with possession to some third person. Where, however, there is no suggestion that the defendant received permission from the Plaintiff, or has paid him rent, the onus lies on the Plaintiff of strictly proving his title, and he must state his title in full detail in his pleading deducing it step by step through the various mesne assignments.(See Bullen and Leak and Jacobs, 12th Edition at p.67 ).’

The underlines are the writer’s for emphasis.

It is crystal clear from the cursory reading of the above quoted holdings of the court that in an action for recovery of land; the
i. claimant must have been out of possession
ii. claim must be for immediate possession of the land
iii. defendant has received permission from the Claimant before being possession of the land
iv. defendant must have paid rent to the claimant in respect of the land, subject matter in an action for recovery of land.

It is the writer’s submission that an action for declaration for title to land is distinctively different from action for recovery of land as none of the above deductible highlighted reliefs are inapplicable in action for declaration for title to land.

Also, reechoing the above principle of law is the case of ILODIBE V. ILODIBE MOTORS LTD (2017) LPELR-41641(CA) wherein the Court held thus:

‘In the action of ejectment, now called the action for the recovery of land, the plaintiff is out of possession and claims immediate possession of the land. To do this he must recover by the strength of his own title and not by the weakness of the defendants. He must therefore prove the links in his own title. He may, for example, prove his title as a mortgagee and claim for possession if the mortgagor is in default. The defendant, on the other hand, need only prove that he is in possession and need not prove any title. In ejectment, where a person was in possession those who sought to turn him out were to recover upon the strength of their own title; and consequently possession was at law a good defence against anyone, and those who sought to turn the man in possession out must show a superior legal title to his. Proof that the plaintiff was in possession before the defendant, no matter for how short a time, is prima facie evidence of his having title, for such prior possession raises a presumption that he was seised in fee; and such presumption cannot be rebutted merely by showing that the plaintiff did not derive his possession from any person who had title. Whether or not it may be rebutted by showing that the title is in fact in a third person in other words, whether justertii is a good defence to an action of ejectment is doubtful. The cases of Doe d. Carter vs. Barnard, and Nagel vs. Shea, are authorities in favour of the view that justertii is a defence.’ The underlines are the writer’s for emphasis.

Flowing further from the above quoted holdings is the fact that in an action for recovery of land, the defendant, on the other hand, need only prove that he is in possession and need not prove any title and that the Claimant must prove that he was in possession before the defendant no matter for how short a time.

This deductible fact further fortifies the writer’s stand that an action for declaration for title to land is distinctively distinct from action for recovery of land as none of the above deductible underlined reliefs in the above holdings are inapplicable in action for declaration for title to land.

It is the writer’s position that the claimant’s ownership of the land in question must have been ascertained before there could be a grant for the recovery of land in dispute.

In action for recovery of land provided for under order 20 rule 6 of the High Court (Civil Procedure) Rules in Ogun State, Ondo State, and Ekiti State, the main relief is for an order directing the Defendant or Defendants to deliver the possession of the land in question to the Claimant and this is far from the main relief in action for ownership tussle which is the declaration that the Claimant is the owner of the land in dispute.

In defining the phrase ‘Title to land’ in the legal parlance, Justice Tobi J.S.C (as he then was) held in Fagunwa Vs. Adibi (2004) 17 NWLR (Part 903)544@568 paragraphs D-E thus:

‘Title to land presupposes exclusive right to the land in the sense that the party does not share the allodia right of ownership with any other person. Ownership generally connotes the totality of or the bundle of the rights of the owner over and above every other person on a thing. Thus, ownership connotes a complete and total right over property.’

It is crystal clear from the above definition of title to land that there must be a dispute to title to land vis-à-vis ownership over the land in dispute in action for declaration for title to land which is far from action for recovery of land which is exclusively for claim for possessory right over the land in dispute and not ownership tussle. How then is it rationale to conclude that the rule on recovery of land provided for in the High Court (Civil Procedure) Rules applicable in Ogun State, Ondo State, and Ekiti State is applicable for action for ownership tussle over the land?

It is the writer’s further stand that invocation of provision of order 20 rule 6 in the High Court (Civil Procedure) Rules applicable in Ogun State, Ondo State, and Ekiti State to apply that an action for ownership tussle with a declarative relief inter alia as its main relief be set down for trial in default of pleading is a gross misapplication of the provision of the said rule.

Strengthening the writer’s stand that the action for recovery of land is distinctively different from action for ownership tussle over a land with a main relief of declaration for title to land is the reference or mention of the phrase ‘recovery of land’ in the provisions of order 9 rules 5 and 6 in the High Court (Civil Procedure) Rules applicable in Ogun State, Ondo State, and Ekiti State which go thus:

Order 9 rule 5

‘Any person not named as a defendant in an originating process for recovery of land may with leave of a judge appear and defend, on filing an affidavit showing that he is in possession of the land either by himself or through his tenant.’ The underlines are the writer’s for emphasis.

Order 9 rule 6

‘Any person appearing to defend an action for the recovery of land as landlord, in respect of property of which he is in possession only through his tenant, shall state in his appearance that he appears as landlord’. The underlines are the writer’s for emphasis.

Flowing from the above quoted provisions of order 9 rules 5 and 6 in the High Court (Civil Procedure) Rules applicable in Ogun State, Ondo State, and Ekiti State is the deductible fact that action for the recovery of land is a tussle over a possession of land between landlords and not ownership tussle over a land between different families or persons.

It is the writer’s stand that though there is no provision in the High Court (Civil Procedure) Rules applicable in Ogun State, Oyo State, Ondo State, Ekiti State, Osun State, and Lagos State on the interpretation or meaning of the phrase ‘recovery of land’ to clear the air on its application; the reference or mention of the phrase ‘recovery of land’ in other provisions in those Rules of Court suffice to say that an action for recovery of land exclusively confined to recovery of premises leased or rented out to defendant or other person and it exclusively involves claim for possession of the land in question.

It is equally pertinent and extremely important to say that provision of Order 20 rule 6 is the same in the High Court (Civil Procedure) Rules applicable in Oyo State, Osun State, and Lagos State and none of the Rules make provision for application for setting down action for recovery of land for trial. Yet, many lawyers are still used to making application before the court to set down for trial action for declaration for title to land in default of pleading. Fortifying the writer’s submission is the provision of Order 20 rule 6 in the High Court (Civil Procedure) Rules applicable in Oyo State, Osun State, and Lagos State on the recovery of land herein-under quoted thus:

‘In an action for the recovery of land, if the Defendant makes default as mentioned in Rule 1, the claimant may apply for a judgment that the person whose title is asserted in the writ of summons shall recover possession of the land with his costs.’ The underlines are the writer’s for emphasis.

It is pertinently important to submit that in the High Court (Civil Procedure) Rules applicable in Oyo State, Osun State, and Lagos State on the recovery of land, the claimant is to apply for a judgment in default of pleading by the defendant not for a claimant’s lawyer to apply to set action for ownership tussle over a land with a main relief of declaration for title to land down for trial in default of pleading as many lawyers do in those States.

Pondering on this ubiquitous practice of many lawyers applying to set an action for ownership tussle over a land with a main relief of declaration for title to land down for trial in default of pleading under misconception of the provision of Order 20 rule 6 in the High Court (Civil Procedure) Rules in South West States of Nigeria evinced that ground upon which many lawyers hinged their application to set an action for ownership tussle over a land with a main relief of declaration for title to land down for trial in default of pleading down is the principle of law that a declarative relief cannot be granted on mere admissions or default of pleadings.

It is the writer’s stand that this principle is no longer the position of law and the novel principle is the principle of law laid down in GE Int’l Operations ltd .vs. Q-Oil & Gs Services (2015) 1NWLR (Part1440) 244 @270 paras. B-D and GE Int’l Operations ltd .vs. Q-Oil & Gs Services (2016)10 NWLR (Part1520) 304 @ 331 paragraphs A-D by Justice Ngwuta J.S.C and Justice Eko J.C.A wherein court held thus:

‘I am, therefore, of strong view that the principle of law that declaratory reliefs cannot be granted on mere admissions or default of pleading applies to declarative reliefs in statements of claims not backed by affidavit evidence. In my judgment, therefore, I accept and hold that a witness statement made on oath is an affidavit, and the trial court can act on it to make or give declaratory judgment. If the facts therein are not disputed, challenged or contested, particularly where the declaration therein and the pleadings in the statement of claim, which the declarations on oath attest to, are not inconsistent or mutually contradictory. In such a situation, the trial is not by ambush and it is expeditious since the Defendant had known the case he was to meet at the trial and he has all the case, including the evidence and documents by which the case is to be proved before him, it does not lie in his mouth to say that he suffered any miscarriage of justice when he elected not to contest the Claim. In the instant case, the Declaratory judgment given in favour of the responsdent as supported by the pleadings in the statement of claim and witness’ statement on oath, which is evidence and the documents frontloaded and served on the Appellant was a good and lawful judgment.’

It is hereby advised that lawyers should endeavour to strictly follow the provisions of the Rules of Court with full understanding and put a halt to the common practice of applying for setting down for trial of an action for ownership tussle over a land with a main relief of declaration for title to land in default of pleading under the provision of Order 20 rule 6

It is finally advised and recommended at this juncture that since there is no single provision for procedural step of applying for setting down of action for ownership tussle over a land with a main relief of declaration for title to land in default of pleading in the preceding rules 1-8 of order 20 of the High Court (Civil Procedure) Rules in Ogun State, Ondo State, Ekiti State, Osun State, Oyo State and Lagos State of Nigeria in the event of default of the Defendant to file a defence to claimant’s claim within the time allowed for the purpose, the Claimant should invoke on the provision of Order 20 rule 9 to apply for judgment which provides thus:

‘In all actions other than those in the preceding rules of this Order, if the Defendant makes default in filing a defence, the claimant may apply to a Judge for judgment, and such judgment may be given upon the statement of claim as the Judge may consider the claimant to be entitled to’