Adiatu Ladunni V. Adejuwon Adepuji Adesoye (2015)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

UZO I. NDUKWE-ANYANWU, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the Judgment of the High Court of Lagos State delivered on the 18th of July, 2003 by Hon. Justice I.A. Sotuminu (Rtd).

By a Writ of Summons, together with a further Amended Statement of claim dated 30th of March, 2001, the Plaintiff now Respondent claimed as follows:-

1. A declaration that the Plaintiff is entitled to a Statutory Certificate of Occupancy in respect of Plot 149 on Plan OA 1381 at Idi-Araba Village, Ikorodu Road formerly known as Jemi-Alade Estate Lagos in the Lagos State of Nigeria.
2. An order of perpetual injunction restraining the Defendant, his servants, agents, or privies from committing any further act of trespass on the land referred to in paragraph 1 hereof.
3. N50,000 as special and general damages.

The Defendant, now Appellant, filed a 2nd Amended Statement of Defence dated 9th of December, 1992 to the action. The Respondent further filed a reply to the Appellant’s Statement of Defence dated 25th of June, 1984. At the trial, the Respondent told the Court that the land in dispute originally belonged to the Alashe Family, who sold the said land to Jemi-Alade by virtue of Exhibit B (Deed of Conveyance dated 19th of May, 1947) and registered as No. 22, at page 22, in volume 797.

After the death of Jemi-Alade, his Administrators conveyed the said land to his predecessor in title, Mr. Adefowope by virtue of Exhibit C (Deed of Conveyance dated 9th of April, 1970) and registered as No. 68 at page 68 in Volume 1315. Sometime in 1972, he bought the said land from Mr. Adefowope by virtue of Exhibit D (Deed of Conveyance dated 1st of September 1972) and was registered at the Land Registry as No. 64 at page 64 in Volume 1402. He went into possession immediately. It was, however, in 1977 that he noticed that the Appellant had trespassed into the land and had made efforts to ward off the Appellant from his land and hence this suit.

On his part, the Appellant led evidence to prove that he purchased the land from Alhaji Elias in 1968 and has been in possession since then. He relied on Exhibit P. He contended that Aborishade Lawanson had bought the land from the Alashe family and then sold to Alhaji Elias.

At the conclusion of the trial and address of counsel, the learned trial judge entered judgment for the Plaintiff/Respondent and granted all the reliefs sought. The Appellant being dissatisfied with the judgment of the Court below, filed this appeal. An Amended Notice of Appeal was filed on 21st of November, 2013 with leave of this Court. Thereafter, the Appellant filed Ten (10) grounds of appeal out of which the learned counsel for the Appellant formulated three issues for determination by this Court. The issues, as contained in the brief, are as follows:-

“1. Whether the Plaintiff proved a better title to the land in dispute, Ground 3, 4, 5 and 10 of the Amended Notice of Appeal.

2. Whether the learned trial Chief Judge was right when she held that both the Plaintiff and the Defendant as successors in title to Jemi Alade and Lawani Aborishade are precluded in law from relitigating over the issues alresdy laid to rest in Suit I/146/54 (E2) aforesaid. Ground 9 of the Amended Notice of Appeal.
3. Whether the learned trial Chief Judge was right when she entered judgment for the Plaintiff. Ground 1, 2, 6, 7, 8 and 11 of the Amended Notice of Appeal.”

The Respondent, in his brief, had adopted the above issues for determination by the appeal. Thus, this appeal will be determined in terms of the above issues raised.

ISSUE 1

Learned counsel for the Appellant submitted that the Plaintiff/Respondent had failed to prove his title to the land in dispute. According to counsel, the case of the Respondent at the trial Court was that, the land in dispute in the instant case formed part of the land litigated in Suit No. I/146/54 between Babatunde Jemi-Alade vs. Aborishade (Exhibit E-E2). That the Court in its judgment in suit No. I/146/54 confirmed the title of Jemi-Alade to the said land (including the land in dispute in the instant case). That upon the death of Jemi-Alade, the beneficiaries of his estate, by virtue of the said judgment, conveyed the land in dispute to Adefowope (Respondent’s predecessor in title) in Exhibit C, who in turn conveyed to the Respondent in Exhibit D. It is the submission of the Appellant’s counsel that the evidence of composite plan (Exhibit A and Q) and the testimonies of the surveyors (PW3 and DW4) at the trial Court shows that the land in dispute in the instant case did not fall within the land litigated in suit no. I/146/1954. Thus the root of title pleaded by the Respondent at the lower Court was not proved. It is also his submission that since the land conveyed by Jemi-Alade’s family to Respondent’s predecessor did not fall within the land litigated in Suit No. I/146/54, both Exhibit C and D are null and void on the doctrine of Nemo dat quod non habet. It is the case of the Appellant that the land covered by the judgment is verged “brown” on survey plan marked Exhibit J, whilst the land in dispute in this case claimed by the Respondent is verged “green” on survey plan Exhibit J. By the testimony of PW3, the land in dispute does not fall within the land litigated upon in suit No. I/146/54. In the same way, the land covered by the judgment in Suit No I/146/54 is verged “blue” in Exhibit Q [composite Plan prepared by DW4) whilst the land in dispute in this case is verged “yellow” and by the testimony of DW4 the land in dispute is outside the land litigated in Suit No. I/146/54. It is the submission of counsel that the Respondent is bound by its pleadings but the facts pleaded by the Respondent as the basis of his root of title is not supported by evidence before the Court. The Respondent has failed to discharge the burden of proving his root of title in this case. He relied on the case of Emegokwe vs. Okadigbo (1973) 4 SC 8; Obazee Ogiamien vs. Obahan Ogiamien (1967) NMLR 245; Olaloye vs. Balogun (1990) NWLR (Pt 148) Pg 24.Courts & Judiciary

He also submitted that the Court is bound by the pleadings of the parties and cannot make a case different from that placed by the parties before the Court. He relied on the case of Veronica Ciraham & Ors vs. Lawrence Esumai (1984) 5 SC 319; Shaibu vs. Bakare (1984) 12 SC 87.

On the other hand, the Respondent’s Counsel submitted that the identity of the land is not in dispute being the property at Plot 149 on Plan AO1381. According to him, this is acknowledged in the written Address of the Appellant at the trial Court. The Respondent acknowledged that there are two (2) farms; one big farm and a smaller one and that the land in dispute in this case forms part of the small farm. It is his case that the recital in Exhibit C (Deed of Conveyance between Adefowope and Jemi-Alade) referring to a judgment is making reference, though in error, to the big farm. It is the submission of counsel that the error in the Recital does not affect the body of the conveyance. He traced his title to the original owner of the land, The Alashe Family. According to the Respondent, the land in dispute forms part of the land sold to Jemi-Alade.

According to the Respondent, both parties in this case have traced their title to the land in dispute to the same source i.e. The Alashe Family. However, whilst the Respondent has been able to trace an unbroken root of title to that family, the Appellant has failed to do so as there is no evidence of purchase from the original owner to Aborishade from whom the Appellant claimed to have derived title. It is the contention of the Respondent that none of the witnesses could testify in support of such a purchase and none of them could produce the purchase receipt. Counsel urged the Court to resolve this issue in favour of the Respondent.