Amusa Sanni V. Ebenezer Ayinde Ogunbode (2001)

LawGlobal-Hub Lead Judgment Report

CHUKWUMA-ENEH, J.C.A. 

In the court below the plaintiff’s claim as per the writ in this matter against the defendant is as follows:

I. Declaration of Title to a Statutory Right of occupancy to all that piece or parcel of land situate, lying and being at Rosanwo Street, Ikate near Aguda Village, Ikeja District of Lagos State, Nigeria.

2. N500 damages for trespass committed by the defendant, his servants and, or agents on the said land.
3. Injunction restraining the defendant his servants and, or agents from further act of trespass unto the said land.

Pleadings were filed and exchanged by the parties at the court below. The matter then went to trial on the issues as joined on the statement of claim, amended statement of defence, and a reply to the statement of defence. Parties and their witnesses testified before the court below, sitting at the Ikeja High Court, Lagos State (Coram Hotonu J.). In a considered judgment all the three reliefs Sought by the plaintiff failed and his claim was dismissed.

Dissatisfied with the decision, plaintiff (i.e. appellant) has appealed to this court against the said decision and has raised 8(eight) grounds of appeal. Briefs of arguments expatiating the case for each side have been filed and exchanged between the parties. The appellant in his brief of argument has identified 6(six) issues for determination to wit:

1. Whether the learned trial Judge was right in dismissing the plaintiffs claim for declaration of a statutory right of occupancy, to the piece or parcel of land described in the writ of summons, and statement of claim having held that he was the true owner of the said land?
2. Whether the learned trial Judge was right in his view that the land in dispute, was the defendant’s land and not that claimed, by the plaintiff in his writ of summons and statement of claim particularly when there was no counter-claim before the court?
3. Whether there was sufficient issue raised in the pleadings to permit the learned trial Judge to admit evidence on whether the defendant’s land was in a different location from that of the plaintiff?
4. Whether the learned trial Judge considered the validity and took the correct view as to the evidential value of the defendant’s deed of title Exhibit f?
5. Whether the learned trial Judge was correct in his application of the principles of law as laid down in Elabanjo & another v. Darlington (1970) 1 All NLR 41, and with particular reference to the assessment of the evidence of the independent surveyor?
6. Whether on the evidence of the parties and the findings of the trial court, the plaintiff was not entitled to the Judgment of the court?

The defendant/respondent on his part has raised 3(three) issues for determination in the appeal and they read as follows:

1. Whether on the evidence before the court the plaintiff proved ownership and title to the actual piece of land in dispute?
2. Whether the defendant’s Lease Agreement Exhibit “F” was wrongly admitted in evidence and if so whether it can reasonably be held to have affected the decision of the learned trial Judge, and that the decision would not have still been the same if Exhibit “F” had not been admitted and;
3. Whether the learned trial Judge was correct in his application of the principles of law as laid down in the case of David Taiwo Elabanjo and Anor. v Joseph Darlington (1970) 1 All NLR 41 with particular reference to the assessment of the evidence of the independent surveyor?

The respondent’s issues as formulated have not only encompassed the issues raised by the appellant they would be much more helpful in dealing with the appeal and I therefore adopt them for this judgment.

The facts of this matter are not complicated. The plaintiff (i.e. appellant) has claimed he bought the land in dispute, a plot of land otherwise known as plot 12 in the Isaac John Layout from one Retired Magistrate Isaac John in 1975, as per a deed of conveyance dated 5/6/75, registered as instrument No.58/58/1504 in the Land Registry office, at Lagos. By the said deed of conveyance he took possession; he built a shed and erected a sign board there. It was when he wanted to erect a building on the land that he was first disturbed. His vendor Retired Magistrate Isaac John, bought a large track of land from Onitire family, by a deed of conveyance dated 15/3/56 and laid it out into plots. Because of the act of trespass committed by defendant in the land in dispute he has taken out this action. The defendant on the other hand has said he bought the land from Iguru family, of Itire in 1977 and obtained a receipt and that it was then a virgin land and swampy. He cleared and sand filled it and fenced it. Subsequently a lease agreement was executed in his favour by the head of Iguru branch of Onitire family. Both parties filed their survey plans marked Exhs. A and E & K for the plaintiff and defendant respectively.

Going by the argument as proffered by the appellant, he is contending that the trial court having found that he has been proved to be the owner of the land in dispute, it should have been so declared in his favour as the defendant has not made any claim. He also has submitted at P.5 of the brief about 23 lines, from the bottom of the page that, “once it is agreed that the land in dispute is the appellant’s land as claimed in the writ and statement of claim, the identity and location of the respondent’s land becomes relevant to the resolution of the appellant’s prayer for a declaration of title only if it falls within the disputed land.”

He has challenged the judgment on the ground that issue was not joined as per the pleadings on whether the respondent’s land is differently located from that claimed by the appellant, even though the respondent has raised issue of “size and shape” and no more, and he has maintained that the trial court suo motu put the respondent’s land in issue.

He also has contended that Exh. F i.e. the lease agreement of 22/6/83, is inadmissible by virtue of s.15 Land Registration Act, Cap. 99, Laws of the Federation and further that, he could take the point on appeal. See: Owonyin v. Omotosho (1961) 2 SCNLR 57, (1961) 1 ANLR 48; Minister of Lands Western Nigeria v. Dr. Nnamdi Azikwe (1969) 1 All NLR 49. Furthermore, that even at that the transaction has not been consented to by Governor by virtue of s.34 of the Land Use Act, 1978.

On the issue of the composite plan tendered by an independent witness, he has opined that Exh. M produced by him is unreliable as the witness did go to the land. And that the trial court has erred in applying the principle in Elabanjo v. Darlington (1970) 1 All NLR 41, as the circumstances in that case and this case are different. And finally that the weight of evidence has preponderated in his favour. He then urged the court to allow the appeal.

The respondent contends that the appellant has failed to establish the identity of the land in dispute he is claiming, and that his survey plan Exh. A and the oral evidence of PW4, plaintiffs surveyor and Exh. D – the composite plan prepared by him are completely at variance with Exh. M – the composite plan prepared by the independent witness. And that Exhibits A & D tell untruths of the land in dispute.