Pastor J. Akinlolu Akinduro V Alhaji Idris Alaya (2007)

LAWGLOBAL HUB Lead Judgment Report

P.O. ADEREMI, JSC

This appeal is against the majority decision of the Court of Appeal Kaduna Division (coram Umaru Abdullahi, Presiding Justice) (as he then was) and A.O. Ige JCA (of blessed memory)) who wrote the leading judgment delivered on the 24th February 1998 allowing the appeal against the judgment of the High Court of Kwara State Ilorin Division. The minority judgment dismissing the appeal against the same judgment of the said High Court was written by Ogebe JCA. Before the trial court, the present appellant who as the plaintiff at that court had by paragraph 28 of his statement of claim dated 17th June 1991 claimed against the respondent/cross-appellant who was the defendant in that court the following reliefs:- “(1) A declaration that the land at Tanke, Ilorin sold to the plaintiff by the defendant is at all times his property. (2) An order of perpetual injunction restraining the defendant from preventing the plaintiff or any of his agents and workmen from enjoying quiet possession of the premises. (3) The sum of N40,000.00 (forty thousand naira) being special and general damages for loss sustained by the plaintiff, as a result of the defendant’s obstruction of the plaintiff on his land.” Pleadings filed and exchanged between the parties are the statement of claim dated 17th June 1991 and statement of defence dated 18th February 1992 both sides called evidence in proof of the averments in their respective pleadings.

At the conclusion of their evidence and sequel to taking the formal addresses of their counsel, the learned trial judge, in a reserved judgment delivered on the 30th of June 1993, allowed the claims of the plaintiff in part and dismissed it in part; he held in his judgment, inter alia:- “From the evidence adduced, I have no hesitation in holding that the land at Tanke Area, Ilorin was sold to the plaintiff as per exhibits 1 and 2, belongs to the plaintiff – Pastor Akinduro and it was at all times his property. Because I have held as above, I hereby grant the order of perpetual injunction against the defendant who is restrained by himself, agents and workmen (sic) from enjoying quiet possession of the premises. It is clear from the evidence before me that the defendant caused the suspension of the building project of the plaintiff by causing the plaintiffs men to be harassed from the building site and also suing the plaintiff to be taken to the Area Court which restrained the plaintiff from further development of the building. The plaintiff who was dissatisfied did not appeal against the decision of the Area Court until a fresh action was instituted in this court in 1991. In the light of this, can the plaintiff claim the sum of N40,000.00 as special and general damages against the defendant after failing to minimise his own loss? I am of the firm view that this court should not allow his claim of N40,000.00 which has arisen as a result of his own failure to act timeously. The claim of N40,000.00 as special and general damages is hereby refused and it is accordingly dismissed.”

Being dissatisfied with the said judgment, the defendant (Alhaji Idris Alaya before that court and who is the present respondent cross-appellant aggrieved by a portion of that judgment appealed to the Court of Appeal (Kaduna Division) which granted an order of perpetual injunction against him, cross-appealed to this court.

As I have said, by the majority decision of that court and the court below, the appeal was allowed and a pronouncement was made that the claim for declaration of title failed thus setting aside the judgment of the court of trial with a proviso that the plaintiff/respondent before the court below, now appellant before us, should not be ejected until his equitable interest was satisfied. In the majority judgment, it was held inter alia:

“That notwithstanding, the appellant is duty bound to handover a plot of land to the respondent at Tanke, Ilorin because he received payment for the plot. By the act of payment of money to the appellant coupled with the later actions respondent has taken on the land, respondent has a right to an equitable interest which is enforceable by specific performance. It is my candid view that Exhibit 1 has not passed title to the respondent but has given rise to an equitable interest which is enforceable against the appellant. In order to be able to enforce his right to this equitable interest, the appellant should not do any act to prejudice the interest of the respondent until he has fulfilled his own part of the bargain by putting the respondent rightfully on a plot of land at Tanke.The claim for declaration of title has failed hence Issue. 2 is also resolved in favour of the appellant with a proviso that he should not eject the respondent from the land until his equitable interest is satisfied.” It is against the majority judgment that the appellant before the court below has filed an appeal via Notice of Appeal dated 30th April 1998 incorporating thereto three grounds of appeal. Suffice it to say that this appeal is against that portion of the judgment that dismissed his claim for title. In the minority judgment handed down by Ogebe JCA which judgment favoured the respondent (Pastor J.A. Akinduro) before that court, the learned justice, in reaching his decision, held inter alia:- “The first issue formulated by the appellant does not arise from any matter canvassed before the lower court. The question of the inadmissibility of Exhibit 1, the sale agreement for non-registration under the Land Use Registration Law of Kwara State was never raised in the lower court. The document was attacked that it was not stamped and did not come from proper custody. It follows therefore that the issue of non registration under the Land Use Registration Law is being raised for the first time in this court and the appellant requires leave of this court to raise.

I am firmly of the view that the appellant’s first issue is therefore incompetent and I hereby strike it out.” On Issue 2 formulated before the court below which reads:- “Whether from the totality of the case, the respondent who was claiming a declaration of title succeeded in proving same in accordance with any of the five methods of proving title to land under the law.”

The learned justice of the court below reasoned thus:

“Both sides are agreed that the appellant sold a piece of land to the appellant (sic) through a 3rd party who measured out the plots to numerous buyers, Exhibit 1 is a sale agreement which the parties signed. The respondent was shown the plot in dispute which he started developing before the appellant told him to leave it for another plot because he was given the wrong plot which he did not intend to sell. What is the effect of Exhibit 1?” In finding an answer to this question concerning Exhibit 1, the learned justice referred to the dictum of Bello, JSC (as he then was) in Okoye v Dumez Nig. Ltd (1985) 1 NWLR (Pt.4) 783 and held:- “Following this decision of the Supreme Court, I am of the view that the appellant cannot eat his cake and have it. By Exhibit 1 he has created an equitable interest in the land in favour of the respondent which he cannot now avoid. It is as good as a legal estate which the court must protect. Accordingly, I dismiss the appeal and affirm the decision of the lower court.” The respondent also cross-appealed against the portion of the majority judgment which granted equitable relief to the appellant. The Notice of Cross-Appeal dated 10th July 2000 carries two grounds of cross-appeal. When this appeal came before us for argument on the 27th of March 2007, Dr. Oluwole Aje learned counsel for the appellant referred to and adopted his client’s brief of argument deemed to have been properly filed on 11th December 2003 and the reply/cross-respondent’s brief deemed properly filed on 29/11/2003 and urged that the appeal be allowed. Mr. Eleja learned counsel for the respondent/cross-appellant also referred to and adopted his client’s brief filed on 23/7/03 and urged that the appeal be dismissed while the cross-appeal be allowed. He drew the attention of the court to paragraph 3 of his client’s brief and urged that the Notice of Preliminary Objection therein contained be upheld. I feel called upon to attend to the Notice of Preliminary Objection contained on page 3 of the cross-appellant’s brief. I have carefully examined additional grounds 1 and 4; it is true that both grounds relate to Exhibit 1 the receipt of money which the appellant paid to the cross-appellant as the purchase price of the land while the particulars appurtenant to ground 1 are mainly factual in nature; the particulars appurtenant to ground 4 are mainly of procedural law and case law. I think each can compliment the other, in the interest of justice, I am of the view that the two can stand. As to grounds 3 and 5, I agree with the cross-appellants that Issue No.3 does not flow from the judgment of the court below – it does not have any bearing on the judgment of the court below. Accordingly, I strike grounds Nos. 3 and 5 out; any issues emanating from them are hereby struck out. For the avoidance of doubt, it is only Issue No.3 that is caught by the preliminary objection considered above, I accordingly strike it out. The appellant/cross-respondent in his brief of argument therefore raised three valid issues for consideration by this court, they are, as contained in his brief, as follows:

“(1) whether there was a valid sale of a plot of land by the respondent to the appellant without Exhibit 1 being admitted in evidence.

(2) whether the learned justices of the Court of Appeal in their majority judgment were right to hold that the new point of objection on appeal raised for the first time in the Court of Appeal could be so validly taken and argued on appeal without the leave of the Court of Appeal being first sought and obtained as requested .

(3) whether the learned justices of the Court of Appeal in their majority judgment were right in holding that the claim for declaration of title by the appellant failed, after they had earlier in the same judgment held that the respondent was duty bound to hand over a plot of land at Tanke Ilorin to the appellant because the respondent had received payment for the plot.”

The cross-appellant for his part identified three issues as set out in his brief of argument; they are in the following terms:

“(1) whether the court below was not right in its view of Exhibit 1, having regard to the failure to register the said document, the purpose for which the document was tendered and the claim of the appellant before the trial court and whether the admissibility of Exhibit 1 was a new issue raised before the court below without the leave of court. (2) whether the court below failed to consider and resolve any of the issues properly raised before it by any of the parties in the appeal. (3) whether the court below was right in granting to the appellant a relief he did not claim at the trial, to wit, that the respondent should not eject the appellant from the disputed land having held rightly that the appellant was not entitled to declaration of title in his favour.”