Edokpolo & Co. Ltd. V. Samson Ohenhen & Anor (1994)

LawGlobal-Hub Lead Judgment Report

ADIO J.S.C. 

The appellant, as plaintiff, in the High Court of Justice, Benin Judicial Division of the defunct Mid-Western State of Nigeria, instituted an action against the 1st respondent and the father of the 2nd respondent. The father of the 2nd respondent died before the commencement of the hearing of the case and, on the application of the appellant, the 2nd respondent was substituted as the 2nd respondent. The appellant’s claim according to paragraph 23 of the Amended Statement of Claim, was as follows:-

“(i) Declaration of title to the piece or parcel of land shown on Plan number CS2/77 attached to the deed of conveyance registered as No.6 at page 6 in volume 274 of the Lands Registry in Benin and parcel A on Plan No. 1074/75 attached to the deed of conveyance registered as No.33 at page 33 of Volume 316 of the Lands Registry.

(ii) In the alternative the plaintiff seeks a declaration that the 1st defendant’s interest in the parcels of land described above extinguished on 1st day of May, 1977.

(iii) General damages of N2,000.00.

(iv) Perpetual injunction restraining the 1st defendant and his servants or agents from erecting permanent structure on the land.”

Pleadings were duly filed and exchanged by the parties. The evidence led was that the 1st respondent, sometime in 1974, obtained a lease for the period of fifty years from the father of the 2nd respondent in respect of his vacant parcel of land bounded on one side by Akpakpava Street and on the other side by Eheakpen Street in Benin City. Exhibit “9” was the deed of conveyance executed by the father of the 2nd respondent and the 1st respondent in relation to the transaction. The allegation was that not long after the transaction between the 1st respondent and the father of the second respondent in relation to the aforesaid parcel of land, the appellant received an offer of a freehold interest in relation to another parcel of land on which there was a building for which the appellant paid the sum of N4,000.00 to the father of the 2nd respondent as purchase price as shown by a deed of conveyance.

Exhibit “1”, executed by the parties in relation to the transaction. The cause of the present dispute was another parcel of land which the father of the 2nd respondent allegedly sold to the appellant which had earlier been leased to the 1st respondent by the father of the 2nd respondent for fifty years. The appellant paid N2,400.00 for it and the deed of conveyance executed by the parties in relation to the transaction was Exhibit “2”. At all material times and up to the time of his death in 1977, the father of the 2nd respondent, aged 120 years, was bed ridden and was a cripple.

As soon as the 1st respondent commenced building operations on the parcel of land, there were protests by the appellant. The appellant alleged that it brought the matter to the notice of the father of the 2nd respondent (hereinafter referred to as “the deceased”) and the deceased alleged that his thumb-impression on Exhibit “9” must have been forged and that he did not grant to the 1st respondent lease for a period of fifty years in relation to the land in dispute; the agreement was oral and only a lease for three years was granted.

The learned trial judge, after consideration of some of the evidence led by the parties and of the submissions made by their counsel, entered judgment for the appellant. He held that fraud was not established in relation Exhibits “2” and “9” executed by the deceased in relation to the land in dispute, in favour of the appellant and the 1st respondent, respectively. In his view, the Land Instruments Registration Law (Cap.81) was the relevant Law for the purpose of this case and he did not agree with the submission of the learned counsel for the 1st respondent that by virtue of section 5 of the illiterates Protection-Law non-compliance with the provisions of the Law in relation to Exhibit “9” did not invalidate the document. In the circumstance, he held that Exhibit “9” was invalid because its contents were not read and interpreted to the deceased and by reason also of the fact that there was nothing therein to show that it was executed in the presence of a magistrate or it Justice of the peace as prescribed in section 8 of the Land Instruments Registration Law, Cap. 81. He also held that Exhibit “2” was valid. In his opinion, the evidence led during the proceedings before him did not matter much; the main and fundamental issue was the validity or otherwise of Exhibits “2” and “9”.

Dissatisfied with the judgment, the respondents lodged an appeal against it to the Court of Appeal. The court below allowed the appeal after holding that the contention of the respondents that the deceased granted a lease of fifty years to the 1st respondent in relation to the land in dispute before subsequently purporting to grant to the appellant a freehold interest in the same parcel of land was established. In its view, Exhibit “9”, the deed of lease executed in favour of the 1st respondent by the deceased, was valid as there was nothing in relation to it which contravened the illiterates Protection Law and the Instruments Registration Law. For those reasons, the court below affirmed the decision of the learned trial judge granting title to the parcels of land conveyed by Exhibits “1” and “2” subject, however, to the 1st respondent’s enjoyment of his prior interest of 50 year lease conferred on him by Exhibit “9”. The orders of the learned trial Judge granting perpetual injunction, damages for trespass, and costs to the appellant were set aside.

The appellant was dissatisfied with the judgment of the court below and it lodged an appeal against it to this court. The parties, in accordance with the rules of this court, duly filed and exchanged briefs. The appellant identified, in its brief, three issues for determination while the 1st respondent, in his brief, identified two issues for determination. In my view, the three issues, identified for determination in the appellant’s brief which covered the two issues in the 1st respondent’s brief, are sufficient for the determination of this appeal. The three issues in the appellant’s brief are as follows:-

“(1) Whether the court of Appeal was right in holding that Exhibit “9” complied with the provisions of the Land Instruments Registration Law, Cap.81 of the Laws of Bendel State, 1976.

(2) Whether the Court of Appeal was right in raising and basing its judgment on an issue not raised by either party.