Alhaji Bilawu Badiru V. Alhaji Sulaiman Adeola Bisiriyu (1996)

LawGlobal-Hub Lead Judgment Report

PATS-ACHOLONU, J.C.A.

By a writ of summons dated 5/4/82, the plaintiff now the respondent claimed as follows from the defendant/appellant:

1. Injunction restraining the defendant and or his agents from further trespassing on the piece of land and the 16 rooms and one shop building thereon known as No. 21 formerly No.3 Fabukade Street, Sogunle Lagos State of Nigeria, the adjudged property of the plaintiff as per judgment in suit No. ID/369/78 in favour of the plaintiff.
2. N2,600 special and general damages for trespass on the said property.

The respondent had pleaded, and given evidence of the root of title to the subject matter of the action by tracing the devolution of title to one Alhaji Salisu Ajani Fabukade Obidairo who he stated sold the land to him between 1974 and 1975 and for which he paid by instalments. Sometime in 1981, he saw the defendant illegally on the land and despite warnings he continued to constitute himself into a trespasser. The defendant on his part traced the history of the land to one Aderonumu Fabukade who after his death was survived by his children including one Fabukade Owolabi Obidairo. The elder Fabukade’s land was partitioned after his death and a part given to him. His own portion was inherited by his children including of course a son by name Salisu Ajani Fabukade Obidairo who requested and was granted permission to erect a temporary building on the land. The family on discovering that he built in another parcel of land which belonged to him exclusively took back the land and thereafter sold same to the defendant/appellant.

The pleadings of the appellant was in consonance with this evidence. At the end of the proceedings, the court found for the plaintiff/respondent. The Defendant/appellant not happy with the turn of events as regards the decision by the presiding Judge filed notices of appeal wherein he framed 4 grounds of appeal. The main thrust of the grounds of appeal, are on the thematic premise that

(a) the plaintiff is not the head of the family and cannot pass any title.

(b) The court having held that exhibit D is a non registrable instrument that was registered but which he described as being useless and irrelevant could not turn round, to use the same document to fault the appellant case. The court indeed pronounced that exhibit D null and, void and of no effect. In his judgment the court had held as follows; “By virtue of section 10 cap 64 the deed of lease exhibit D should not have been registered. Then what is the effect of this instrument which should not have been registered but has been so registered in law. Here again section 15 of Cap 64 is also relevant; no instrument shall be pleaded or given in evidence in any court as effecting any land unless the same shall have been registered. The instrument exhibit D is registered hence it is my view admissible in evidence. Once admitted in evidence the weight be attached to it should be considered as decided in Kola James v. Lanlehin (1985) 2 NWLR (Pt.6) 262. This instrument, exhibit D is void and of no effect whatsoever in law. Before jettisoning exhibit D he had held.

“By virtue of exhibit D paragraphs “E”, F’, ‘G’, ‘H’, ‘I’,’J’ and K. show clearly that Alhaji Salisu Ajani Fabukade Obidairo is the owner of the land for it was he who agreed to lease and he acknowledged the receipt of N12,000.00.”

The appellant surprisingly framed six issues for determination from a mere three grounds of appeal if one would temporarily leave off the ground on weight of evidence. The issues formulated by the appellant are as follows:

(1) Whether the learned trial Judge having found that the radical title to the land in dispute was in Fabukade Obidairo family, was right in holding that the plaintiff’s vendor, a member of the family, could validly pass a good title to the plaintiff in the absence of any evidence that the said land had ceased to be the family property of Fabukade Obidairo.

(2) Whether the learned trial Judge was, on the evidence right in holding that the plaintiff’s vendor is the first child and Head of Fabukade Obidairo Family, and whether he was also right in so holding when neither of the parties has raised that issue in their pleadings.

(3) Whether upon all the evidence tendered by the plaintiff the learned trial Judge was right to have made an order declaring him the owner and the person entitled to the statutory right of Certificate of Occupancy in respect of the land in dispute.

(4) Whether the learned trial Judge was right to have made an order declaring that the plaintiff was the owner and person entitled to a statutory right of Certificate of Occupancy in respect of the land in dispute when the plaintiff did not make a claim in that regard and did not seek an order in such term.

(5) Whether the learned trial Judge was not in error when he made an award of damages against the Defendant even though the plaintiff did not tender evidence of being in actual or constructive possession of the land.

(6) Whether the learned trial Judge was not in error when he held, that the defendant was in breach of the court dated March 26, 1984.