Ayodele Ilori & Ors V. Alhaja Risikat Ishola & Anor (2018)
LAWGLOBAL HUB Lead Judgment Report
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C.
The appellants herein, being the children of one Festus Olanipekun Ilori (deceased), sued one Alhaji Sule Raji before the High Court of Lagos State, Ikeja Judicial Division, vide their writ of summons and statement of claim filed on 9/11/92 for various declaratory and injunctive reliefs challenging the purported assignment of their late father’s property situate, lying and being at 12/14 Oludegun (formerly Olanipekun) Street, Isolo, Lagos, covered by certificate of occupancy No. 98 at page 98 in Volume 1981F of the Lands Registry at Lagos, to the said Sule Raji. The said Festus Olanipekun Ilori died intestate on 26th January, 1983.
According to the plaintiffs, before his death, he had constructed four buildings consisting of fourteen flats on the land. There was also an undeveloped portion of the land, which was being used as a car park. His intention was to live in one of the four flats with his family and let out the remaining three to tenants. However, he died before he could move in. When he died, his wives and children moved to Shagamu, Ogun
State, where they stayed for about a year. Sometime late in 1983, on a visit to the property, it was discovered that there were tenants in occupation. Upon enquiry, it was discovered that they were let into possession by Sule Raji who was collecting rent from them as their landlord.
They discovered that sometime in April 1993, the said Sule Raji, through his Solicitor had applied to the Lands and Housing Department of Lagos State for the Governor’s consent to the assignment of the buildings to him by their late father. The Governor’s consent was granted “in principle” vide a letter dated 25th November, 1993 but purportedly endorsed on the deed of assignment on 4th November 1993. It was the appellants’ contention that it was Sule Raji and not their late father who applied for the Governor’s consent and to that extent, the Governor’s consent is null and void for offending the provisions of the Land Use Act, 1978 (hereinafter referred to as the Land Use Act). It was their contention that the signature on the deed of assignment purporting to be that of their late father is not his true, correct and usual signature. They also contended that the Governor’s
consent was not obtained prior to the transaction as required by the Land Use Act. Another grievance was that purported Governor’s consent was obtained after Sule Raji had been served with the writ of summons, statement of claim and an application for injunction in this suit. Despite efforts to convince the tenants of the true ownership of the land and buildings thereon, they insisted that Sule Raji was the only person they recognised as their landlord. The appellants claimed that under Yoruba native law and custom, the deceaseds property devolved on his children after his death and that in the present case, the rent derived from the property was required for the maintenance and education of his children, who were minors when he died.
By their writ sf summons filed on 9/11/1992, they sought the following reliefs against Alhaji Sule Raji (the original defendant):
“1. A declaration that the buildings and landed property lying being and situate at No.12/14, Oludegun (formerly Olanipekun Street, Isolo, Lagos State) (hereinafter called “the said buildings”) forms part of the estate of late Festus Olanipekun Ilori.
- A declaration that the
plaintiffs are the only persons entitled under Yoruba Native Law and Custom to the entire estate of Festus Olanipekun Ilori comprising inter alia of Buildings and landed property situate at No.12/14, Oludegun Street, Isolo, Lagos State of Nigeria.
- An order of this Honourable Court that the defendant shall give an account of all rents collected from tenants and/or the total amount of money collected by him for use and occupation of the said buildings and pay same to the Plaintiffs.
- An order of perpetual injunction restraining the defendant from collecting further rents from the tenants and/or money for use and occupation of the said buildings from the occupiers.
- An order of perpetual injunction restraining the defendant from dealing in any form whatsoever with the said building.”
Sule Raji, reacted by filing a Statement of Defence dated 7/4/93 to which the plaintiffs filed a Reply dated 17/6/93. Subsequently the Registrar of Lands was joined as 2nd defendant with the leave of the trial Court. The plaintiffs sought and were granted leave to file an Amended Statement of Claim to reflect the joinder. It was filed on 15/4/94. The
plaintiff’s filed a 2nd Amended Statement of Claim on 5/6/96. The suit was fought on the 2nd Amended Statement of Claim wherein the plaintiffs claimed as follows in paragraph 40 thereof:
ia. A declaration that the purported Deed of Assignment between Festus Olanipekun Ilori and Alhaji Sule Raji (the 1st defendant) dated 17th September, 1982 and registered as No.83 at page 83 in Volume 1950 of the Lands Registry in the office at Lagos is null and void and of no effect, or in the alternative.
ib. A declaration that there is no valid assignment of the buildings and landed properties lying, being and situate at Nos, 12/14, Oludegun Street, (formerly Olanipekun) Isolo, Lagos State (hereinafter called “the said landed properties”) by the late Festus Olanipekun Ilori to Sule Raji (the 1st defendant).
iia. A declaration that the purported Governor’s consent as contained in the letter dated 25th November, 1993 from the Lands and Housing Department Governor’s office addressed to Yinka Sogunle Esq., purportedly giving approval in principle to the purported assignment of the building and landed property situate at Nos. 12/14, Oludegun (formerly Olanipekun)
Street, Isolo, Lagos State by the deceased to the 1st defendant and later indorsed on the purported Deed of Assignment dated 17th September, 1982 and registered as No.83 at page 83 in Volume 1950 of Lands Registry in the office at Lagos is null and void and of no effect or in the alternative.
iib. An order of the Court setting aside the purported Governors consent contained in the letter dated 25th November, 1993 from the Lands and Housing Department Governor’s office addressed to Yinka Sogunle Esq., purportedly giving approval in principle to the purported assignment of the buildings and landed properties situate at Nos. 12/14, Oludegun (formerly Olanipekun) Street, Isolo Lagos State by the deceased to the 1st defendant and indorsed on the purported Deed of Assignment dated 17th September, 1982 and registered as No.83 at page 83 in Volume 1950 of Lands Registry in the office at Lagos to be unlawful and of no effect.
iii. An order of this Honourable Court directing the 2nd defendant to rectify the register of lands in the Lands Registry by delecting (sic) the name of the 1st defendant as an assignee of the said landed properties and/or
expunging from the Register of Lands the purported Deed of Assignment between Festus Olanipekun Ilori and Alhaji Sule Raji (1st defendant) dated 17th September, 1982 and registered as No.83 at page 83 in Volume 1950 of the Lands Registry in the office at Lagos leaving the name of Festus Olanipekun Ilori as the registered owner of the Certificate of Occupancy in respect of the said landed properties.
iv. A declaration that the said landed properties form part of the estate of late Festus Olanipekun Ilori.
v. A declaration that the plaintiffs are the only persons entitled under Yoruba Native Law and Custom to the entire estate of Festus Olanipeku Ilori comprising inter alia of building and landed properties situate at Nos.12/14, Oludegun Street, Isolo, Lagos State of Nigeria covered by Certificate of Occupancy registered as No.98 at page 98 in Volume 1981F of the Lands Registry in the office at Lagos now Ikeja.
vi. An order of this Honourable Court that the 1st defendant shall give an account of all rents collected from tenants and/or the total amount of money collected by him for use and occupation of the said buildings and landed
properties and pay same to the plaintiffs.
vii. An order of perpetual injunction restraining the 1st defendant, his servants, agents and privies from collecting further rents from the tenants of the said buildings and landed properties.
viii. An order of perpetual injunction restraining the 1st defendant, his servants, agents and privies from dealing in any form whatsoever with the said buildings and landed properties.
Whereof the plaintiffs claim as per their Writ of Summons.”
In his defence, the 1st defendant pleaded that sometime in 1982, the deceased, who was his friend, came to him at Osogbo and offered to sell the land in dispute and the uncompleted buildings thereon to him for the sum of N165,000.00. In September 1982, he handed over the Certificate of Occupancy in respect of the property to him. By a deed of assignment executed on 17th September, 1982, Festus Olanipekun Ilori assigned all his interest in the property to him for the unexpired period of 99 years. In the said deed of assignment, he acknowledged receipt of the agreed sum of N165,000.00. It was his contention that the 1st appellant, a son of the deceased, witnessed his
father’s signature on the deed. That the deed of assignment was duly stamped in 1983, at a time when no litigation was anticipated. The deed of assignment along with the Certificate of Occupancy surrendered by the late Ilori were deposited by him with Merchant Bank for Africa Ltd. to secure a facility granted to him. According to the averments in his Statement of defence, it was the bank, in order to protect its equitable interest in the property, that processed the registration of the deed of assignment and application for the Governor’s consent. He asserted that the Lands Registry was informed orally and by affidavit that the assignor was already dead at the time of the application and that the Governor’s consent was given in full appreciation of this fact. It was therefore his contention that the Governor’s consent was lawfully and regularly obtained in accordance with the provisions of the Land Use Act.
In their reply to the statement of defence the appellants maintained that their father never sold his property to Sule Raji and did not execute a deed of assignment in his favour. They averred that he did not surrender his C of O to Sule Raji.<br< p=””
At the trial, three witnesses testified in support of the plaintiffs’ claims while Sule Raji testified on his own behalf and called three other witnesses. The 2nd defendant did not participate in the trial. At the conclusion of the trial, in a considered judgment delivered on 20/11/97, the trial Court entered judgment in favour of the plaintiffs granting all their reliefs. Sule Raji was dissatisfied with the judgment and appealed to the Lagos Division of the Court of Appeal (hereinafter referred to as “the Court below” or “the lower Court”). Shortly after the filing of the appeal, Sule Raji died. He was substituted by the present 1st respondent. On 24/3/2004, the lower Court allowed the appeal and set aside the judgment of the trial Court. The appellants are aggrieved by this decision and have appealed to this Court vide their notice of appeal filed on 14/5/04 containing three grounds of appeal. With the leave of this Court, they filed an Amended Notice of Appeal dated 1/7/2011 containing five grounds of appeal.
At the hearing of the appeal on 9/1/2018, B.A. LAWAL ESQ. adopted and relied on the Appellants’ brief settled by MUFUTAU SANUSI ESQ., filed on
18/5/2016 and their Reply to the 2nd respondent’s brief filed on 2/6/2016, in urging the Court to allow the appeal. C.V.C. IHEKWEZU ESQ., leading other counsel, adopted and relied on the 1st respondent’s brief filed on 26/5/2016 in urging the Court to dismiss the appeal. R.A.O. ADEGOKE ESQ., also leading other counsel, adopted and relied on the 2nd respondent’s brief filed on 24/5/2016 in urging the Court to dismiss the appeal.
Learned counsel for the appellants formulated five issues for the determination of the appeal. They are:
- Whether the Court of Appeal was right in setting aside the judgment of the High Court in toto and so disturbed the finding of fact that the late Festus Olanipekun Ilori did not sell his property at No. 12.14 Oludegun Street, Isolo, Lagos State to late Alhaji Sule Raji when the onus of proof of that sale was not discharged by the 1st respondent who alleged it.
- Whether the Court of Appeal rightly disturbed the finding of the trial Court that the 1st respondent herein failed to discharge the onus of proof that late Festus Olanipekun Ilori signed the Deed of Assignment admitted as Exhibit 2 in the proceeding.
Whether the Court of Appeal was right in holding that due execution of Exhibit 2 was not necessary.
- Whether the Court of Appeal was right in setting aside the judgment of the High Court in which the transaction between the appellants and the 1st respondent was declared null and void having regard to the overwhelming evidence that it contravened Sections 22 and 26 of the Land Use Act 1978.
- Whether the Court of Appeal was right in holding that the appellants were not entitled to the declaratory reliefs sought on their Amended Statement of Claim.
The 1st respondent formulated 2 issues:
- Whether having regards to the totality of the facts in this case, the lower Court was right in setting aside the judgment of the trial Court (Condensing appellant’s issues 1, 2, 3 and 4)
- Whether the lower Court was right in holding that the appellants were not entitled to the declaratory reliefs sought in their Amended Statement of Claim
The 1st respondent incorporated a Respondent’s Notice in her brief seeking to contend that the judgment of the lower Court be affirmed on grounds other than those relied upon by the Court.
Respondent, on its part, distilled 2 issues for determination thus:
- In view of the appellants’ failure to join the Attorney General of Lagos State as a party in this action, whether the proper parties to this matter were before the Court as to entitle the appellants to reliefs iia and iib of the 2nd Amended Statement of Claim dated June 5, 1996 (Ground 5 of the Amended Notice of Appeal)
- Whether in view of the provisions of Section 25 of the Land Instrument Registration Law Cap L58 Laws of Lagos State 2003, a mere registration of an instrument suffices to cure any defect therein (Ground 2 of the Amended Notice of Appeal)
After a careful perusal of the issues formulated by the parties, I am of the view that the appellants’ issues are adequate for the determination of the appeal. I shall adopt the method used by the 1st respondent by considering Issues 1, 2 and 3 & 4 together and Issue 5 separately.
In respect of the first issue, learned counsel for the appellant submitted that the following facts are not in dispute:
- That the late Festus Olanipekun Ilori, the father of the plaintiffs, was the original owner of the land.<br< p=””
That he had Registered Certificate of Occupancy on the land dated 30th November, 1981 registered as No. 98 at page 98 in Volume 1981F of Land Registty Lagos.
- That late Festus Ilori was in effective possession of the land and was exercising the right of ownership thereon by building on the land.He submitted that it is trite law that once it is proved that the original ownership of property was in a particular party, the onus of proving that the said party had divested himself of his interest in the property lies on the person so alleging. He referred to: Itauma Vs. Akpe-Ime (2000) 12 NWLR (Pt.680) 156 SC; Isiba Vs. Hanson (1967) 1 ALL NLR 8; Ochonma Vs. Unosi (1965) NMLR 312; Thomas Vs. Holder 12 WACA 78; Nwosu Vs. Udeja (1990) 1 NWLR (Pt.125) 188 @ 223. He referred to the evidence of the Sule Raji before the trial Court to the effect that the deceased came to him at his home in Osogbo to offer the land in dispute with the buildings thereon to him for sale because he did not have the funds to complete the buildings, and that even though he tried to discourage him, he insisted on selling, consequent upon which he paid him the agreed price of
N165,000.00. He submitted that there was no evidence as to how the money was paid, as there was no receipt and no eye witness evidence. He submitted that there was no evidence to show that he was put into possession. He submitted that parole evidence is not sufficient to prove the sale of landed property. He argued that by Sections 1-3 of the Statute of Fraud 1677, the transaction must be evidenced in writing and that a party who makes allegations in his pleadings is bound to produce evidence to substantiate them. He argued that it is not sufficient to rely on the evidence of the adverse party to prove the allegations in the pleadings of the party making the allegations. He referred to: Akinfosile Vs. Ijose (1960) 1 NSCC 129 @ 133. In effect, he contended that Sule Raji failed to discharge the onus on him of proving that the late Ilori divested himself of his interest in the property.
On the execution of the Deed of Assignment, Exhibit 2, he referred to the evidence of DW3, a legal practitioner based in Ibadan who purportedly prepared the document and who stated that he never met Mr. Ilori nor had he ever seen him sign a document. That he also testified that
he only saw that the person whose photograph was on the C. of O. signed the document with Sule Raji. He therefore argued that from the evidence, the only person who could positively testify that the late Ilori signed Exhibit 2 was Sule Raji. He noted that PW2 and DW2 who allegedly witnessed the signatures on the document were not present at Ibadan where it was prepared but signed it when it was brought to Lagos. He submitted further that PW1, one of Iloris daughters testified that she was familiar with her father’s signature and that the signature on Exhibit 2 was not his. He submitted that PW1 and PW2 were eminently qualified to testify regarding their father’s signature and that their testimonies in this regard were unchallenged.
On the standard of proof required to establish forgery, learned counsel submitted, relying on Ndoma-Egba Vs. A.C.B. Plc. (2005) 10 MJSC 93, that Section 137(1) of the Evidence Act which stipulates that a criminal offence must be proved beyond reasonable doubt, is only applicable where a crime is imputed to a person in a civil trial. He argued that in this case, the fact that the appellants contended that the signature on
Exhibit 2 was not their father’s, did not amount to an allegation of crime against Sule Raji. He submitted, that the essence of the pleading to that effect was to put Sule Raji on notice that at the trial he would be required to prove that their father signed the document. He submitted that the 1st respondent failed to discharge the onus of proof on him, particularly as there was unchallenged evidence that ownership of the land was in their late father who remained in possession thereof until his death. He referred to Sogunle & Ors. Vs. Akerele & Ors. (1967) NWLR 58 @ 61.
He submitted that there was no allegation of the commission of a crime in the appellants’ pleadings and that the Court of Appeal was therefore in error to have held that the appellants raised the issue of forgery of the deed of assignment. He distinguished the cases of Adelaja Vs Alade (1999) 6 NWLR (Pt.608) 544 and Adelaja Vs Fanoiki (1990) 2 NWLR (Pt.131) 137 relied upon by the 1st respondent at the lower Court from the facts of this case.
With regard to the third issue i.e. whether the Court of Appeal was right in holding that due execution of Exhibit 2 was not necessary,
learned counsel submitted that unlike what transpired in Adelaja Vs. Alade (supra) and Adelaja Vs. Fanoiki (supra), where the Deeds of Conveyance being challenged had been registered long before the commencement of the action, in the instant case, the validity of the Deed of Assignment had been challenged in 1992 before the registration of Exhibit 2 in 1993. He submitted that the Land Instrument Registration Law (LIRL) Cap 111 Laws of Lagos State 1994 has not been shown to have a retroactive effect and cannot therefore affect Exhibit 2, which was registered in 1993.
Referring to Section 25 of the LIRL, which is to the effect, inter alia, that registration under the law would not cure any defect in any instrument, he submitted that the LIRL of Lagos State is not in pari materia with its counterpart in Oyo State, which was the applicable law in Adelaja Vs. Fanoiki (supra). He referred to: Dabo Vs. Abdullahi (2005) 5 MJSC 57 @ 90-91.
In respect of Issue 4, learned counsel reproduced the provisions of Sections 22 and 26 of the Land Use Act 1978 and submitted that it is not in dispute that at the time Sule Raji took possession of the property in dispute
in 1984, the Governor’s consent had not been obtained. He noted that Sule Raji not only took physical possession of the property, but also deposited the Deed of Assignment (Exhibit 2) along with the late Ilori’s Certificate of Occupancy with a Bank to create an equitable mortgage as security for a loan. He referred to the evidence of DW4 who testified that it was while going through the security provided for the loan that he noticed that the Governor’s consent had not been obtained. He argued that in the circumstances there had been a transfer of possession and the creation of an equitable mortgage on the property without the Governor’s consent, contrary to Section 22 of the Land Use Act. He referred to: Savannah Bank Vs. Ajilo (1989) 1 NWLR (Pt.97) 305 @ 307; U.B.N. Plc Vs. Ayodare & Sons Nig. Ltd. (2000) 11 NWLR (Pt.679) 644 @ 655.
He submitted that Exhibit 2 is void under Section 26 of the Act. He submitted further that the deposit of the documents with the bank as security for a loan distinguishes the facts of this case from the cases of Awojugbagbe Light Ind. Ltd. Vs. Chinukwe (1995) 4 NWLR (Pt. 390) 379 and International ile Ltd. Vs. Aderemi
(1999) 8 NWLR (pt. 614) 268. He contended that it is immaterial that the consent was subsequently given, vide Exhibit H, as the assignment was already null and void.
He submitted that the finding of the lower Court that any irregularity in the procedure for obtaining the Governor’s consent such as payment of development levy, obtaining tax clearance certificates and the filing of Form 1C does not affect the validity of the consent, as they are administrative revenue generating than legal requirements, overlooked the provisions of Section 46(1) (a) and (2) of the Land Use Act, which confers on the Governor the power to make regulations with regard to the matters listed thereunder. He contended that the Land Use Amendment Regulation 1982, made pursuant to Section 46(2) of the Land Use Act, amended the principal legislation by adding a third Schedule, which specified the development charges payable for residential, commercial and industrial plots in Lagos State. He submitted that applications for approval of subsequent transactions to grant of right of occupancy is also regulated by Land Use Amendment Regulation L.S.L.N. 11 of 1994. He submitted that in the
circumstance the requirements of Development Levy, Tax Clearance and Form 1C are all legal requirements for the purpose of obtaining the Governor’s consent. He contended finally, that the death of Ilori did not put an end to the process lawfully begun by him and that his next of kin, personal representatives, Executors or assigns were perfectly capable of seeing the transaction to its logical conclusion if they were notified. He maintained his assertion that the Governor’s consent obtained on behalf of a deceased person by false declaration, manipulation of process and misrepresentation is null and void. He contended that the lower Court erred in reversing the finding of the trial Court in this regard. He urged the Court to resolve these issues in the appellants’ favour.
Learned counsel for the 1st respondent in paragraph 4.0-4.2 of his brief gave notice of his intention to contend at the hearing of the appeal that the judgment of the lower Court should be affirmed on other grounds. The respondent’s notice was argued in paragraphs 5.6, 5.7, 5.8, 5.9, 5.10, 5.11 and 5.12 of his brief.
However, at the hearing of the appeal on 9/1/2018, the Court’s
attention was not drawn to the said respondent’s notice and no leave was sought to rely on it. Accordingly it is deemed abandoned. The arguments in paragraphs 5.6-5.12 of the 1st respondent’s brief are accordingly discountenanced.
In response to the submissions of learned counsel for the appellant, C.V.C. Ihekweazu Esq. for the 1st respondent submitted that there is no defect or irregularity in the registration of Exhibit 2 or the grant of the Governor’s consent thereto. He contended that the defect or irregularity complained of was an allegation of forgery, which the appellants failed to prove beyond reasonable doubt. He submitted that even if there was a defect in the execution of Exhibit 2, the registration of the instrument and the grant of the Governor’s consent thereto, have the effect of curing the defect. He submitted that the provision of Section 25 of the LIRL of Lagos State 1994 has been rendered redundant in a plethora of decided cases. He submitted further that the law as it stands today is that the appellants must rely on the strength of their case and not on the weakness of the defence, if any.
With regard to the attestation of Exhibit
2, he submitted that the lower Court was right when it held that it was not necessary to prove due attestation of Exhibit 2 since a deed of assignment does not require attestation for its validity. He submitted further that, in any event, from the testimonies of DW1 (Sule Raji) and Barrister Adebayo Adeyemo, DW3 – the legal practitioner who prepared Exhibit 2, both Sule Raji and the late Ilori signed the document in his presence in Ibadan. He referred to pages 116-123 and 127 of the record. He submitted that since Exhibit 2 is a registered instrument in the Lagos Lands Registry, the presumption is that all the required procedures for such registration had been duly complied with to the satisfaction of the registrar or other officer who registered same. He maintained that the onus of disproving the signature of the assignor on Exhibit 2 lay squarely on the appellants which they failed to discharge. He submitted that the reliance by the lower Court on Section 107 of the Evidence Act (now Section 100 of the Evidence Act, 2011) was in order. He submitted that having regard to the provisions of that Section and extant case law, a deed of assignment is valid and
enforceable even if it is signed by the assignor alone. He referred to: U.B.N. Plc. vs. Jase Motors (Nig.) Ltd. (1997) 7 NWLR (pt. 513) 387 @ 400; Awojugbagbe Light Industries Ltd. vs. Chinukwe (1995) 4 NWLR (pt. 390) 379; Anambra State Housing Development Corporation vs. Emekwue (1996) 1 NWLR (pt. 426) 505 @ 532. He submitted that since the appellants’ complaints about the validity of Exhibit 2 border substantially on the allegation that the signature on Exhibit 2 was not their late father’s signature, they had made an allegation of the commission of a crime i.e. forgery, which they were bound to prove beyond reasonable doubt.
With regards to the appellants’ contention that Exhibit 2 is unlawful for failure to obtain the Governor’s consent, learned counsel noted that this Court has in a number of decisions recognised the fact that it is after parties have agreed that the Deed of Assignment is prepared and sent to the Governor for his consent. He referred to the case of Yaro Vs. Arewa Const. Ltd. (2007) 17 NWLR (Pt.1063) 333 @ 376 per Chukwumah Eneh, JSC. He argued that Festus Ilori having benefitted from the agreement by receiving the contract sum and
whose duty it was to apply for the Governor’s consent, it does not lie in the mouths of the appellants to turn around and claim that the agreement is unlawful. He referred to Solanke Vs. Abed & Anor. (1961) 1 ALL NLR (PT. 1) @ 231 – 233 & 234.
On the contention of the appellants that the 1st respondent sought to rely on parole evidence to prove the sale of the property contrary to the requirements of Sections 1-3 of the Statute of Fraud, he submitted that the postulation is strange, having regard to Exhibit 2, which is documentary evidence.
On the applicability of the L.I.R.L of Lagos State 1994 to this case, he submitted that it is not in doubt, as it is a mere consolidation and amendment of existing laws regulating the registration of instruments and the filing of judgments affecting land in the State, He referred to its long title. He also noted that the commencement date of the law is 1st January 1925, which gives it a retroactive effect.
Learned counsel for the 2nd respondent addressed the issue of compliance with the Land Instrument Registration Law of Lagos State in his Issue 2. While conceding that by virtue of Section 25 of the
Law, mere registration of an instrument does not cure a defect therein, he submitted that where it appears to the Registrar that the necessary conditions for the registration as contained in Section 7 of the Law have been met, he has a duty to register the instrument. He submitted that in the instant case, the conditions for the registration of Exhibit 2 had been met and it was registered accordingly. He submitted that the Governor gave his consent to the transaction and the Deed of Assignment was duly stamped before it was submitted for registration.
Relying on Section 168(1) of the Evidence Act, 2011, he submitted that there was a presumption of regularity in favour of the Governor’s consent obtained and the stamping of the document prior to its registration. He referred to: Okeke Vs. The State (2003) 15 NWLR (pt. 842) 25 @ 102 E-G; Nwachukwu Vs. The State (2002) 7 SC (pt.1) 124 @ 133 lines 24-39; Bello Vs. A.G. Lagos State (2007) 2 NWLR (Pt.1017) 1 @ 140 A-C, and submitted that the presumption of regularity in favour of Exhibit 2 persists in the absence of any evidence in rebuttal.
I have examined the submissions of learned counsel for the
appellant in his Reply to the 2nd respondent’s brief. The reply seeks to adduce more facts in support of his argument that mere registration of an instrument cannot cure any defect therein. He is not entitled to a second bite at the cherry. That is not the purpose of a Reply brief. The submissions are accordingly discountenanced.
In resolving the issues in contention in this appeal, I deem it necessary to have another critical look at the reliefs sought in the appellants’ 2nd Amended Statement of Claim which have been reproduced earlier in this judgment. Reliefs (ia), (ib), (iia), (iv) and (v) are declaratory reliefs. Relief (ib) is an alternative relief to (ia). Issues (ia), (ib) and (iia) are the main reliefs, while the remaining reliefs are ancillary reliefs which depend on the success of the main reliefs. The guiding principle is that where a party seeks declaratory reliefs, he must succeed on the strength of his case and not on the weakness of the defence, if any. See: Dumez Nig. Ltd. vs. Nwakhoba (2008) 18 NWLR (pt. 119) 361; Bello vs. Eweka (1981) 1 SC (Reprint) 63; Emenike Vs. P.D.P. (2012) 12 NWLR (Pt. 1315) 556. A declaratory relief must be
proved to the satisfaction of the Court notwithstanding default of defence or any admission in the defendant’s pleading. See: Okoye & Ors vs. Nwankwo (2014) 15 NWLR (Pt.1429) 93; Eguamwense Vs. Amaghizemwen (1993) 9 NWLR (Pt.315) 1 @ 30. It is also settled law that a declaratory relief can only be granted where the plaintiff establishes that he has an interest or right which forms the foundation for the relief sought. See: Chukwumah Vs Shell (1993) 4 NWLR (PT. 289) 512; (1993) 4 SCNJ 1 @ 42; Alao vs. Akano (2005) 11 NWLR (pt. 935) 160; Obi vs. INEC & Ors. (2007) 11 NWLR (pt.1046) 565.
As stated in the introductory part of this judgment, the appellants are the children of one Festus Olanipekun Ilori, the original owner of the property in dispute, who died intestate on 26/1/83. Under native law and custom, his property devolved on his children after his death. The suit was instituted by the appellants on their own behalf and on behalf of all the children of the late Ilori. It is necessary to reproduce some of the pleadings of the parties to illustrate the basis upon which the case was fought at the trial Court.
In paragraphs 3, 5, 13, 14, 17, 18,
19, 20, 21, 22, 23, 31, 37, 38 & 39 of the Amended Statement of Claim it was averred as follows:
“3. The deceased was the owner and the holder of certificate of occupancy in respect of the piece and parcel of land lying, being and situate at No. 12/14 Oludegun (formerly Olanipekun) Street, Isolo, Lagos State of Nigeria measuring approximately 1449/952 square metres which is more particularly delineated in the plan No. LAT/355/D/77 annexed to the certificate of occupancy registered as No.98 at page 98 in Volume 1981F of the Lands Registry in the office at Lagos.
- The deceased had before and after obtaining the said certificate of occupancy being in lawful and special peaceful possession of the said place of land.
- The plaintiffs discovered in later part of 1983 on a visit to the said landed properties that there were tenants in the said buildings.
- On inquiry from the tenants/occupiers of the said buildings, they revealed that the 1st defendant put them in possession and that they all paid rents/money to him and he was their landlord.
- The 1st defendant by a letter from Yinka Sogunle Esq., of counsel dated April, 1993
applied for the Governors counsel to a purported transaction – assignment of the said buildings by the said deceased to the 1st defendant.
- By a letter dated 25th November, 1993 from the Lands and Housing Department Governors office addressed to the said Yinka Sogunle Esq., approval was purportedly given in principle to the said transaction – assignment by the Governor of Lagos State.
- The said purported consent of the Governor was endorsed on the purposed Deed of Assignment on the 4th of November, 1993.
- The plaintiffs aver that it was the 1st defendant who applied for the Governor’s consent and not the deceased and that the said purported Governor consent is therefore null and void and of no effect as it offends the provisions of the Land Use Decree 1978.
- The plaintiffs also say that the signature on the said purported Deed of Assignment, said to be the signature of the deceased is not the true correct and usual signature of the deceased.
- The plaintiffs also say that Governor’s consent was not first had and obtained prior to the purported transaction assignment as required by the provisions of the Land
Use Decree 1978.
- The plaintiffs aver that the purported consent to the transaction was irregularly and illegally obtained.
- The four buildings and landed properties lying being as Nos. 12/14, Oludegun Street, Isolo Lagos belonged to the deceased and form part of the Estate of the deceased.
- The deceased was a Yoruba man and a native of Shagamu.
- By the customary law which is applicable to Shagamu, the real property of a man devolves on the man’s death intestate to his children.
- The deceased died intestate.”
The late Sule Raji in opposition averred thus in his Statement of Defence:
“1. The defendant denies paragraphs 1 to 40 of the 2nd Amended Statement of Claim and put the plaintiffs to the strictest proof of them.
- The late Mr. Festus Olanipekun Ilori of 11, Tamurinati Street, Itire, Lagos was the owner of a parcel of land now called 12/14, Odugegun Street, Isolo by virture of a Certificate of Occupancy No. 98/98/1981 dated 3rd day of November, 1981.
- In 1982, the said Mr. Ilori decided to sell the property to the 1st defendant together with uncompleted four building block of flats thereon for
a sum of N165,000.00 (One Hundred and Sixty Five Thousand Naira).
- In September, 1982 the said Mr. Ilori surrendered his Certificate of Occupancy of the said property to the 1st defendant and executed a Deed of Assignment dated 17th September, 1982 transferring all his interests including the four buildings thereon to the 1st defendant after receiving the agreed price of N165,000,00 (One Hundred and Sixty Five Thousand Naira).
- The late Ilori’s Certificate of Occupancy is for 99 years as from 3rd November, 1981 and by the Deed executed by him on 17th September, 1982 and assigned to the 1st defendant all his interest and rights for the unexpired period of the 99 years.
- The payment of the agreed price was acknowledged by him in the said Deed of Assignment.
- The 1st plaintiff, a son of the Assignor was a witness to his father’s signature on the said Deed of Assignment The 1st defendant will rely on this documents (sic) at the trial.
- The Deed of Payment was duly stamped in 1983 when no one expected litigation on the matter.
- The said Deed of Assignment having been stamped was deposited with Merchant Bank for Africa
Limited with the Original Certificate of Occupancy surrendered by late Mr. Ilori as security for facilities and loans granted by the Bank and was still in the custody of the Bank when this case started.
- It was the Bank because of their equitable interest in the property that decided to process registration and Governor’s consent of the Assignment through one of their own internal Lawyers on behalf of the 1st defendant.
- The Deed of Assignment was registered as No.83/83/1950 with the Governor’s statutory consent duty endorsed thereon. The 1st defendant shall rely on this at the trial.
- The 1st defendant avers that the Land Registry was informed orally and by affidavit that Mr. Festus Olanipekun Ilori the Assignor was already dead and the Governor’s consent was given in full awareness of this fact.
- The 1st defendant avers and strongly contends therefore that the Governor’s consent was properly and lawfully given in accordance with powers given to the Governor under the Land Use Decree 1978.”
In their Reply to the Statement of Defence, the appellants pleaded in paragraphs 4, 5, 6 & 7 as follows:
“4. The plaintiffs
say that the deceased did not execute Deed of Assignment in favour of the defendant or any other person before his demise (and “the 1st plaintiff denies witnessing his father’s signature on the said Deed of Assignment”).
- The plaintiffs aver that the deceased did not surrender the Original certificate of occupancy of the said building and landed property to the defendant and that the said original certificate of occupancy of the said building and landed property was in possession of the deceased till he died and is presently in possession of the plaintiffs.
- In further answer to paragraphs 3 to 6 of the Statement of Defence, the plaintiffs aver that if at all there was any purported sale and/or assignment of the said property by the deceased to the defendant, the purported sale and/or assignment would be an illegal transaction and/or void and of no effect.
- That the plaintiffs in further answer to paragraphs 3 to 6 of the Statement of Claim say that no money was ever paid by the defendant to the deceased as consideration for the purported sale and/or assignment of the buildings and landed property.”
It must be
borne in mind that from the pleadings reproduced above, it was the appellants who were disputing their father’s signature on Exhibit 2. Indeed, at page 122 of the record, the allegation of forgery was put directly to DW1 under cross examination. It is also noteworthy that the 1st respondent did not file a counter claim. The appellants therefore had the burden of proving that they were entitled to the reliefs being sought by them.
Section 135 (1) of the Evidence Act, 2011 provides:
“If the commission of a crime by a party to any proceeding is directly in issue in any proceeding, civil or criminal, it must be proved beyond reasonable doubt.”
See: Nwobodo Vs. Onoh (1984) 1 SCNLR 1; Torti Vs. Ukpabi (1984) 1 NSCC 141 @ 145: Ogah Vs Ikpeazu (2017) 5-6 SC (Pt.1) 1.
The learned trial Judge at page 215 lines 10 – 13 & 27 -31 and at page 216 line 1, held thus:
“The plaintiffs insisted that the late Ilori never signed Exhibit 2. One would therefore expect the defence, who assert that he signed it, to prove it conclusively by going beyond the evidence of DW2. It is my humble opinion that the defence did not do that
examination of PW1, the defence counsel made her to agree that her father Festus Ilori used to sign documents. The defence counsel did not go further to explain why he could not procure such documents to ascertain Iloris genuine signature – He who asserts must prove.”
At page 216 lines 8 – 16, His Lordship held further:
“I believe there’s nothing that stops defence counsel seeking the Court’s leave to send such signatures of PW2 on Exhibit 2 and the affidavits being referred to, to the handwriting expert for analysis. I am therefore not convinced and I do not find that it has been conclusively established that the late Ilori was the one that signed Exhibit 2 as assignor or that PW2, one of his children witnesses the signature.”
From the excerpts of the judgment of the trial Court reproduced above, it is evident that the burden of proof was wrongly placed on the 1st defendant (now 1st respondent) to prove the genuineness of Exhibit 2. Since the signature on Exhibit 2 purports to be that of Festus Olanipekun Ilori and the appellants contended that the signature did not belong to their father,
the lower Court was right when it held that the appellants had made an imputation of crime against the 1st respondent, which they were bound to prove beyond reasonable doubt. See: Adelaja Vs. Fanoiki (supra) and Adelaja Vs Alade (supra) PW1 and PW2 offered no evidence whatsoever in proof of this allegation. They were also unable to discredit the evidence of DW3, the lawyer who prepared Exhibit 2, that Festus Olanipekun Ilori and Sule Raji signed Exhibit 2 in his office at Ibadan. DW2 testified that when Festus Ilori was brought to his office by Sule Raji, he was able to ascertain that he was the owner of the property by comparing his face to the photograph on his certificate of occupancy. Having regard to the circumstances of the case, the mere ipse dixit of PW1 and PW2 denying the signatures of Ilori and PW2 on the document was not sufficient to prove the offence of forgery beyond reasonable doubt. See: Famuroti Vs. Agbeke (1991) 6 SC 1 @ 11.
Learned counsel for the appellants has placed a lot of emphasis on the fact that the persons alleged to have attested to the signatures of the assignor and assignee did not do so in their presence in Ibadan but in
Lagos. The Court below was correct when it held that a deed of assignment does not require attestation for its validity. In Awojugbagbe Light Industries Ltd. Vs. Chinukwe (supra) at page 408 A – B, it was held that unlike a contract which is not binding on the parties until they have exchanged their parts, a deed is binding on its maker, even though the parts have not been exchanged, so long as it has been signed, sealed and delivered. It was further held that “delivery” in connection with a deed does not mean “handed over” to the other side, but means delivered in the sense that an act is done so as to evince an intention to be bound. In the instant case, the unchallenged evidence of the 1st respondent was that in addition to signing Exhibit 2, which signature has not been shown to be a forgery, Festus Ilori also handed over to him his Certificate of Occupancy in respect of the property, thereby signifying his intention to be bound by the agreement.
Learned counsel for the appellants has also argued that by Section 25 of the Land Instruments Registration Law of Lagos State, the mere fact of registration of Exhibit 2 is not sufficient to cure any defect
therein. He is correct in the statement of the law. However, the question arises as to what is the alleged defect being complained of in Exhibit 2 According to the appellants it is the non-execution of the document by their father. As I have held earlier, the appellants were unable to prove that their father’s signature on Exhibit 2 was forged. Exhibit 2 is a certified true copy of a document of title duly registered in the Lands Registry at Lagos. Having failed to prove the defect alleged, there is a presumption, though rebuttable, of regularity in the registration of the document. See Section 168 (1) of the Evidence Act 2011. See also:Moss & Ors vs. Kenrow Nig. Ltd. (1992) 9 NWLR (pt. 264) 207 @ 222 E-F. The burden of adducing evidence in rebuttal is on the party challenging the document.
Sections 22 (1) and 26 of the Land Use Act provide;
- (1) It shall not be lawful for the holder of a statutory right of Occupancy granted by the Governor to alienate his right of occupancy or any part thereof by assignment, mortgage, transfer of possession, sublease or otherwise howsoever without the consent of the Governor first had and obtained.
Any transaction or any instrument which purports to confer on or vest in any person any interest or right over land other than in accordance with the provisions of this Act shall be null and void.
It has been held by this Court that Section 22 (1) of the Land Use Act, 1978 does not prohibit the holder of a statutory right of occupancy from entering into some form of negotiation which may end with a written agreement for presentation to the Governor for his consent, so long as such written agreement is understood and entered into “subject to the consent of the Governor”. See: Awojugbagbe Light Ind. Vs. Chinukwe (supra) at 435 – 436 G – A. It was also held that there will be no contravention of Section 22 (1) by the mere fact that such agreement was executed before being forwarded to the Governor for his consent. As rightly observed by the Court below, it is clearly stated in the 4th recital in Exhibit 2 that the agreement was entered into subject to the Governor’s consent. The deposit of the document with the bank as security for a loan merely created an equitable mortgage. See: Yaro Vs. Arewa Const. Ltd. (2007) 17 NWLR (pt. 1063) 333; Usenfowokan vs.
Idowu & Anor. (1975) LPELR-3426 (SC) 1 @ 8 – 11. This explains the effort of the bank, as stated by DW4, to obtain the Governor’s consent on Sule Raji’s behalf, in order to properly secure its interest. PW3, a Lands Officer in the Governor’s office, who testified on behalf of the appellants and who processed the application for the Governor’s consent to Exhibit 2, testified that all the prerequisites for its grant were met. Under cross examination he stated that his office was notified by an affidavit (Exhibit 3J) deposed to by Sule Raji, that at the time of processing the application, Festus Ilori was dead. He stated that notwithstanding the demise of one of the parties, it would not halt the processing of the application, as the office had been officially notified. I agree with the Court below that this is an admission against the appellants’ interest and quite damaging to their case. The evidence of their own witness was that all necessary requirements for obtaining the Governor’s consent to the agreement between the parties had been fulfilled. It does not then lie in their mouths to contend that the Governor’s consent was not validly obtained.
lower Court at pages 404 to 405 of the record held thus:
“Late Ilori undertook to obtain the consent of the Governor. He benefitted from the transaction, but failed or neglected to do so before his death. It is not open to the representatives of his estate to seek to nullify the transaction on the basis of non-procurement of the Governors consent or invalid or irregular consent of the Governor.
The late Ilori, as the holder of the certificate of occupancy had the duty to apply for the Governors consent. It is morally despicable for a person who has benefitted from an agreement to then turn round to allege that the agreement is null and void. See: Adetuyi Vs. Agbojo (1997) 1 NWLR (Pt. 484) 705; Ibekwe Vs. Maduka (1995) 4 NWLR (Pt. 392) 716; Solanke Vs Abed (1962) WRNLR 92; Adedeji Vs. National Bank (1989) 1 NWLR (Pt 96) 212.”
I agree entirely with their Lordships. The late Festus Ilori, received the sum of N165,000.00 from Sule Raji, as consideration for the assignment of the property in dispute, receipt of which was duly acknowledged in Exhibit 2. He had thus derived some benefit from the agreement. I agree with their Lordships
that as a matter of public policy, it is unconscionable for the appellants to contend that the agreement is unlawful or to contend that the Governor’s consent was not lawfully obtained. I also agree with the Court that the appellants failed to prove their case at the trial Court and were not entitled to the judgment entered in their favour. In the circumstances, Issues 1, 2, 3 and 4 are resolved against the appellants.
Issue 5, which covers the 2nd respondent’s issue 1, is whether the lower Court was right in holding that the appellants were not entitled to the declaratory reliefs sought on their Amended Statement of Claim. Having held that the appellants failed to prove their case and having resolved issues 1, 2, 3 and 4 against them, this issue must also fail. In conclusion, I find no merit in this appeal. It is accordingly dismissed. The judgment of the Court of Appeal delivered on 29th March 2004 is hereby affirmed. The parties shall bear their respective costs in the appeal.