Chief Yele Oyeneyin & Anor. V. Dr. Akinkugbe & Anor. (2000)
LawGlobal-Hub Lead Judgment Report
IBIYEYE, J.C.A.
This is an appeal against the judgment of Olamosu J. sitting in the High Court of Justice in Ondo delivered on the 20th of February, 1995.
The 1st and 2nd plaintiffs now 1st and 2nd respondents in this appeal filed subsequent to an amended writ of summons, a joint statement of claim and reply and defence to the counter claim which were amended several times over and were eventually titled further amended statement of claim with the plaintiff’s reply and defence to the 2nd defendant’s counter claim. The 1st and 2nd defendants who are the 1st and 2nd appellants in this appeal on the other hand filed separate statement of defence with counter claim albeit amended respectively. The 1st and 2nd plaintiffs sought the following reliefs in their paragraph 27 of the further amended statement of claim against the 1st defendant.
“27. Where upon the plaintiffs claim against the 1st defendant:
(i) Possession.
(ii) N100 per day from 1st December, 1989 as agreed penalty until possession is given up.
(iii) N100,000 damages for trespass committed by the defendant, his agents and privies to Chief E. A. Akinkugbe (Deceased) land (sic) to the North and West of the area granted to the 1st defendant by plaintiffs in 1972 which is verged black in survey plan drawn by Mr. G.F. Okusanya licensed surveyor dated 2nd June, 1992.
(iv) Perpetual injunction restraining the 1st defendant, his agents and privies from committing further acts of trespass over the land referred to in (iii) above”.
Both defendants joined issues with the plaintiffs in the further amended statements of defence and the matter proceeded to hearing. The plaintiffs adduced evidence in person and called two other witnesses. The resume of their evidence is that, the plaintiffs traced their root of title to the land in dispute to grants made to their late father, Chief E.A. Akinkugbe, the Sasere of Ondo by Okedoko and Loduti and Ajaka families as reflected in Exhibits A and B respectively. The said two conveyances were made in 1962. Other documents tendered by the plaintiffs to establish ownership are the landlord and tenant agreement with the 1st defendant, letters of probate incorporating the will of Chief E. A. Akinkugbe, notice of plaintiff’s intention to terminate tenancy and recover possession and two survey plans of the land in dispute which are Exhibits H, F, G, S and K respectively.
The defendants equally testified in person and called four other witnesses. The 1st defendant’s case was that he was put in possession of the land in dispute by the 2nd defendant’s family under a lease in 1970. He cleared the land which was thick forest and commenced his sawmill business. Thereafter the plaintiffs claimed ownership of the land and he thereupon took a fresh lease from them (the plaintiffs). The 2nd defendant in 1989 equally laid claim to the same land and threatened the 1st defendant that if he did not renew the lease he (the 1st defendant) would be forcibly ejected.
The 2nd defendant’s case is that the land does not belong to the plaintiffs but to him through inheritance. He thereupon filed a counter claim seeking a declaration of title against the plaintiffs. The plaintiffs replied by countering the relief sought in the counter claim by saying that the land in dispute was part of the large parcels of land granted to their father by Okedoko family by a conveyance (Exhibit A).
At the close of hearing, the learned counsel for both parties addressed the court. The trial court in a reserved judgment partially allowed the reliefs sought. Thus, it allowed the first relief, stepped up the second relief to N2,000.00 per annum in accordance with Sections 5 and 6 of the Landlord and Tenant Law Cap 55 Laws of Ondo State of Nigeria volume III making a total of N10,500.00 for the preceding five years and three months when the 1st defendant was a tenant at will instead of N100.00 per day penalty agreed to by both the plaintiffs and the defendants. N25,000.00 was granted the plaintiffs for the trespass committed by the 1st defendant in respect of the parcel of land West of the sawmill but dismissed the claim for trespass on land North of the sawmill including the two buildings and wall fence in favour of the 1st defendant having found that the plaintiff’s family had not only sold that area to the 1st defendant but had also acquiesced and waived their right on the said portion of land. Perpetual injunction was granted only in respect of the sawmill and area West of it as well as areas described in Exhibits A and B shown on Exhibit K without the two buildings of the 1st defendant.
The defendants, now appellants are utterly dissatisfied with those parts of the judgment against them and appealed to this court on fourteen original grounds of appeal. The appellants subsequently, sought and got leave of this court to substitute those fourteen original grounds of appeal with only twelve grounds of appeal.
Parties filed and exchanged briefs of argument in accordance with the rules of this court. The appellants distilled the following twelve issues from their grounds of appeal:
“3.01 Whether the trial Judge was right in not dismissing the plaintiff/respondent’s claim in their entirety when the deed of gift by which the land in dispute was purportedly granted to the late father of the respondents in 1954 as recited in Exhibit ‘A’ i.e. Deed of conveyance dated 16th December, 1962 and registered as No.32/32/592 of the Lands Registry, Ibadan were not pleaded in evidence and when no evidence of the purported gift was also given at the trial; and whether the said Exhibits A and B can have any binding effect on the Loduti and Ajaka family.
3.02 Whether Exhibits ‘A’ and ‘B’ can confer any title in the land in dispute or any land at all on the late father of the respondents when the grants made vide Exhibits A and B are void ab initio,
3.03. Whether the trial court was justified in awarding the sum of N25,000.00 damages for destruction of economic trees on the land in dispute West of the sawmill area when no such claim was made by the respondents in their writ of summons and the amended statement of claim and when the said award was not proved strictly as required by law.
3.04. Whether the trial Judge was right in restraining the 2nd defendant/appellant family from further acts of trespass on the land West of the sawmill when that relief was not sought against the 2nd defendant/appellant’s family at the trial and whether the court has jurisdiction to award a relief not claimed in the pleading before it.
3.05. Whether the trial court ought to have given judgment in favour of the 2nd defendant/appellant in respect of the counter claim of Loduti and Ajaka family,
3.06. Whether the trial court was justified in law to have ignored and failed to consider the evidence of D.W.3, Olaloye Akinlosotu that the land in dispute is that of Loduti and Ajaka family and not of his (Okedoko) family.
3.07. Whether there was any basis of the trial Judge in holding that the 2nd defendant’s family had divested itself of the ownership of the land in dispute.
3.08. Whether by the evidence before the trial court and the plans filed and the visit to locus by the trial court, it could rightly be held that the identity of the area claimed by the 2nd defendant/appellant in the counter claim is not clear.
3.09. Whether by the evidence and the facts before the trial court, Exhibit M could rightly be described as a ruse and whether the holding by the court that Exhibit M is a ruse has not occasioned a miscarriage of justice to the defendants/appellants.
3.10. Whether Idoko family was a party in Suit No.HOD/27/74 and whether the finding by the trial court that either side in Suit No.HOD/127/74 was wooing the plaintiffs herein to its side is not erroneous and whether this error has not led the trial court to a wrong decision that has occasioned miscarriage of justice to the appellants.
3.11. Whether there is justification for the award of costs of N2,000.00 against the defendant/appellant and N4,000.00 against the 2nd defendant/appellant.
3.12. Whether on the totality of the evidence led at the trial, the orders made against the defendants/appellants by the trial court in its judgment and which formed the basis of the appeal by the defendants/appellants against the said orders complained of can legally be supported”.
The respondents on their part distilled the following three issues from the grounds of appeal for the determination of the appeal.
“i. Whether or not the learned trial Judge was right to have granted respondent’s claim for possession of the piece of land used by the 1st appellant as sawmill shown in survey plan dated 2nd June, 1992 drawn by G. F. Okusanya licensed surveyor.
ii. Whether or not the learned trial Judge was right to have dismissed the 2nd appellant’s claim for declaration of title and injunction restraining the respondents from collecting rents on the entire parcel of land in dispute.
iii. Can it be said that the damage awarded in favour of the respondents were based on wrong principles”.
From the respondent’s cross appeal which were premised on three grounds, three issues were formulated as follows:
“(i) Whether or not the learned trial Judge was right in giving any consideration whatsoever to the evidence of the 1st defendant that he bought the land to the North of the sawmill from a member of the plaintiff’s family.
(ii) Whether or not of (sic) the doctrine of laches, acquiescence and standing by could be invoked against the plaintiffs as regards their conduct in relation to the North of the sawmill.
(iii) Does the order of the learned trial Judge awarding the sum of N2,000 per annum against the 1st defendant from the 1st day of December, 1989 to the date of the judgment instead of N100 per day as agreed upon by the parties in Exhibit 11 not amount to rewriting the agreement for the parties?
The 1st cross respondent identified the following two issues as calling for determination:
“(i) Whether or not the trial court was wrong in giving effect to the intention of the parties in Exhibit H to the extent permitted by the law bearing in mind the combined effects of Sections 5, 6 and 30 of the Landlord and Tenant Law Cap 55 Vol. III, Laws of Ondo State of Nigeria 1978 and the attitude of Court of Equity to such penalty clauses in agreements.
(ii) Whether or not the plaintiffs would still be entitled to judgment with the area North of the sawmill premises assuming the trial court did not give consideration to or even expunge from the record the evidence of the 1st defendant that he bought the land North of the sawmill premises from a member of the plaintiffs; in the face of the plaintiffs/cross-appellant’s pleadings and evidence of sale and overwhelming evidence of estoppel, waiver and/or acquiescence given by the cross-appellants themselves at the trial”.
At the hearing of both the appeal and the cross appeal, the learned counsel for parties adopted and relied on their respective briefs and orally amplified certain issues therein.
I shall first of all consider the issues raised for determination in the appeal.
I shall in view of the encompassing nature of the issues formulated by the appellants, adopt them for the determination of this appeal.
On issue No. 1, A.A. Suleiman Esq., the learned counsel for appellants, referred to the recital in Exhibit A (Deed of Conveyance) dated 16th December, 1962 which states –
“… the Deed that a gift of the land in dispute comprising the sawmill premises in dispute in this case was made to the late father of the plaintiffs/respondents, Chief Sasere Emmanuel Akindolani Akinkugbe, as the grantee by the individual members of Okedoko family mentioned in the said conveyance as the grantors in 1954 via a Deed of Gift”.
He argued that failure to exhibit the ‘Deed of Gift’ made in favour of the respondents in 1954 was fatal to this case. The only gift referred to in Exhibit A is that of 1962. He further argued that since the deed of 1954 was the origin of the respondent’s title to the land in dispute and it is not in evidence, the trial Judge was in error to have given judgment to the respondents. The respondents did not consider this issue in their brief. It should be pointed that the recital reproduced above is not the same as the one in Exhibit A. The recitals in Exhibit A are instead the following:
“Whereas long before 1954, the grantors, were seized according to native law and custom of the piece or parcel of land hereinafter described and assured in unencumbered fee simple absolute in possession.
And whereas by a deed of gift made in 1954 the said land was granted to the said grantee by the said grantors. And whereas since the land had been given to the grantee, now proper conveyance of the land has been executed in accordance with land registration ordinance (Nigeria) and now that the grantee is desirous that a proper Deed of Conveyance conferring simple absolute in possession be executed in his favour, he has now requested the said grantors to execute these presents which they have now agreed to do in the manner following”.
The purport of the foregoing recitals, is that grantors are the absolute owners of the land described in Exhibit A and that land had by 1954 been informally given to the respondents/grantees and that at the grantees’ request, a formal Deed of Conveyance on the land was given to him in 1962. Exhibit A has done no more than complying with the provisions of the Land Registration Ordinance and I hold that that recourse was regular and it is even one of the recognized modes of establishing root of title to land. See Bala v. Bankole (1986) 3 NWLR (pt. 27) 141. The instant case is different from the case of Lawal v. G.B. Ollivant (Nig.) Ltd. (1972) All NLR 207 where it was held that a reference in a pleaded document to another document which is not pleaded is not tantamount to pleading that other document and it is not open to the court to act on such unpleaded document. The import of Exhibit A is that Chief E. A. Akinkugbe had legal interest in the land described in the Deed of Conveyance. There is no merit in this issue and it is resolved against the appellants.
On issue No.2, the learned counsel argued in essence that the land conveyed to Chief E.A. Akinkugbe by Exhibit A was not family land of Okedoko family and that all those who made the grant in point did so as beneficial owners. He further argued that none of the grantors in Exhibit A testified that that was the status of the land granted to the respondent’s father. He submitted that there is no evidence that Okedoko family land has been partitioned.
In the response, the learned counsel for the respondents contended that where a party in a land case relies and proves a conveyance as his root of title, it does not need to go beyond his vendor and proceed to prove the vendor’s title. He relied on the case of Dosunmu v. Joto (1987) 4 NWLR (Pt. 65) 297 at 312. In the instant case, he submitted that the respondents having tendered Exhibit A, being a certified true copy of the registered deed executed in favour of the respondent’s father by the Okedoko family there was no need for them to prove that the said conveyance was duly executed and he relied on the case of A. T. Jules v. R. Ajani (1980) 5-7 S.C. 96 at 110 and 113.
It is trite to say that a land in the family which has not been partitioned is prima facie family land. Four members of Okedoko community mentioned in Exhibit A and three members of Oke Otunba Quarters mentioned in Exhibit Bare not only members of the communities but also family heads and principal members. This assertion found support in particularly the evidence of the D.W.3 who was the appellant’s witness while being cross examined said that the persons mentioned in Exhibit A are the family head and the principal members of the family.
Furthermore, the items of evidence by the P.W. 2, P.W. 3 testified, inter alia, in order to establish title that the respondents won an earlier suit against one Johnson Olorunfemi when the latter trespassed on their father’s land whereas the 2nd respondent who brought a similar action against the same Johnson Olorunfemi lost. There is also unchallenged evidence by the P.W. 3 that the Loduti and Ajaka family gave land to his father in 1962 and that neither the 2nd appellant nor any other person challenged his family title to that land which is the subject of conveyance in Exhibit B. In these circumstances, there is no basis to hold that Exhibits A and B are void ab initio. The issue is resolved in the affirmative.
Issue No.3, the learned counsel urged the court to hold that the award of N25,000.00 as damages for trespass for felling economic trees is erroneous and devoid of legal foundation and that that amount which was for trespass simplifier was excessive as there was no evidence to justify it. He urged the court to set aside the award. He argued that since the claim was for cutting of economic trees, it should be in the nature of specific damages. It is obvious from the argument of the learned counsel for the appellants that he admitted the fact that trespass has been established. It is trite that proven tort of trespass attracts only general damages for which there is no strict proof. It is not enough for learned counsel to urge the court to reverse the finding of the trial court on damages without specifying areas of impropriety by the learned trial Judge. It is settled law that an award of damages is a matter for the trial Judge and normally an appeal court will not interfere with such award unless:
(1) Where the trial Judge has acted under a mistake of law.
(2) Where he has acted under a misapprehension of facts.
(3) Where he has acted in disregard of principles.
(4) Where he has taken into account irrelevant matters or failed to take account of relevant matter; or
(5) Where injustice would result if the appeal court does not interfere. See Union Bonk Nigeria Ltd. v. Odusote Bookstores Ltd. (1995) 12 SCNJ. 175 at 202 and 203, (1995) 9 NWLR (Pt. 421) 559 at 585. Solanke v. Ajibola (1968) I NMLR 253, 1 All NLR 46 and Zik’s Press Ltd. v. Alvan Ikoku 13 WACA 188.
The learned counsel failed to show that any of the foregoing circumstances existed in the approach of the learned trial Judge to this issue. The award of N25,000.00 remains as damages for destruction of economic trees. I also answer this issue in the affirmative.
Issue No.4 is the order of permanent or perpetual injunction made against the 2nd defendant/appellant. Learned counsel for the appellants submitted that it is wrong for the trial court to make an order of perpetual injunction against the 2nd appellant in respect of the area of land west of the sawmill as neither in the amended writ of summons and in the amended statement of claim nor in evidence did the respondents make or seek such relief. He further submitted that the learned trial Judge acted without jurisdiction when he made that order. He equally submitted that no court has the power to grant a relief not claimed in the writ of summons or statement of claim and he relied on the cases of Bola v. Bankole (1986) 3 NWLR (pt. 27) 141 at 149 and 150; Ekpeyong & Ors. V.Nyong (1975) 2 S.C. 71 at 80; Emiansegen v. Stephen (1985) 3 NWLR (Pt. 11) 154 Seaview Investment v. Toyin Munis & 2 Ors. (1991) 6 NWLR (Pt. 195) 67 at 86.
I have carefully considered the amended writ of summons, the amended statement of claim and evidence adduced in support of the averments in the amended statement of claim and I failed to find where the plaintiffs/respondents sought the relief of permanent injunction against the 2nd defendant/appellant in respect of the land west of the sawmill or at all. I agree with the submission of the learned counsel that no court has the right to grant a relief not sought. A trial court should instead confine itself to the reliefs raised by the parties in their pleadings and not venture into reliefs not pleaded. There is merit in this issue and it is resolved in the negative.
On issue No.5, the learned counsel submitted that since no evidence was led by the plaintiffs/respondents in support of the facts pleaded in their defence to the counter claim, judgment ought to have been entered on the reliefs sought therein in favour of the 2nd defendant/appellant.
It is not true that the respondents did not adduce rebuttal evidence to the reliefs sought in the appellants counter claim. Thus there is pungent evidence adduced by the respondent’s witnesses that the respondents have a better title to the land in dispute than that of the 2nd appellant. This is evidenced by Exhibits A, B, F, G, H, J and K which are deeds of conveyance, letters of administration, notice of owner’s intention to repossess, agreement between the plaintiffs and the 1st defendant and survey plans respectively. Aside the foregoing, it is apparent from the record that the 2nd appellant relied heavily on the traditional history given by the D.W.2. That reliance was misplaced as shown in the record of appeal that his items of evidence on title were ostensibly inconsistent. It is settled that a witness who testifies falsely on matters which are within his knowledge leaves no room for any Judge to credit him with any credibility on issues in contest before him. See Nnajiofor v. Ukonu (No.2) (1986) 4 NWLR (Pt.36) 505 at 521. There is no merit in this issue and it is resolved in the negative.
On issue 6, it is not true that only the D.W. 3 testified on the root of title to the land in dispute. The plaintiffs and their witnesses equally testified with more convincing documents such as Exhibits A, B, J and K that the land in dispute belonged to the plaintiff’s family at the time material to this case. I doubt if there is much to consider in the evidence of the D.W. 3 who is of Okedoko family and not Loduti and Ajaka family. He is even an errand man. The evidence of the D.W. 3 was damnified by the observation of the learned trial Judge who had the advantage of seeing and hearing the D.W 3 and he observed that he is a liar. See page 188 of the record of appeal. This is a finding of fact and this court shall not interfere with it as the trial court had made proper use of that opportunity.
See Woluchem v. Gudi (1981) 5 S.C. 291 at 295, 296326-329, Nwobodo v. Onoh (1984) 1 S.C. 1 at 53 and Ifeanyi Chukwu Osondu Co. Ltd. v. Akhigbe (1999) 11 NWLR (Pt. 625) 1 at 18. This issue lacks merit.
On Issue No.7, there is basis for the trial court’s finding that the 2nd defendant and his family had divested themselves of interest in Okedoko and Oke Otunda quarters through the grants made by the principal members of their family through Exhibits A and B. It is trite to say that a valid sale or transfer of family land has been effected where all the principal members actively participated in the transaction of its disposal.
Issues No.8 and 9 appear interrelated as they deal with the survey plans filed in the instant case. I shall accordingly deal with them together. The learned counsel for the appellants submitted in the main that since the area in dispute is well known and accepted by the parties to the action to be the same, the trial court could have relied on any of the plans before it. The trial court could not have done that because Exhibit L on which the 2nd appellant relied for describing the land and title to it is unreliable and inadequate. This is so because the D.W.4 who drew the plan testified that he had misgivings about it as it has no co-ordinates and the direction to the North is not shown on it (Exhibit L) as required by regulations. The D.W.4 further observed some discrepancies. Thus he said that while the dimension of the land in dispute on Exhibit B is 24.93 acres where as he indicated in Exhibit L that the respondent’s land covers an area of 400 feet by 400 feet. On the other hand, the authenticity of Exhibit Band K relied upon was not shaken. As regards visit to the locus in quo, it is observed from the record that the 2nd appellant testifying as tile D.W.2 who claimed to be farming on the land in dispute could not point out the location of his farm on the land in dispute to the learned trial Judge. The holding of the trial court that Exhibit M is unreliable has not occasioned any miscarriage of justice because of abundant evidence to that effect. I accordingly resolve the two issues in the affirmative.
I agree with the submission of the learned counsel for the appellants on Issue No.10 that Idoko family was not a party in Suit No. HOD/27/74 but I do not consider that that extraneous issue is pungent enough to occasion miscarriage of justice in view of the contention on the land in dispute which originally belonged to the Okedoko and Loduti and Ajaka families.
Issue No.11 is on the excessiveness of the costs of N2,000.00 and N4,000.00 awarded against the 1st and 2nd appellants respectively. The appellants are aggrieved by the excessiveness of the costs in point and directly appealed to this court on it. It is instructive to note that the object of awarding costs is not to punish the unsuccessful litigant but to compensate the successful litigant for his expenses. See Inneh v. Obaraye (1957) 2 F.S.C 58 at 59. Costs are also matter within the discretion of the trial Judge. As a rule, this court will not interfere with the Judge’s discretion except it is injudiciously exercised. See Ojeigbe v. Ubani (1961) 1 All NLR 277 and Haeo v. Brown (1973) 4 S.C. 149
In support of this issue, the learned counsel argued that the respondent’s learned counsel initially left it at the discretion of the court but that at the insistence of the trial court, the said learned counsel asked for N10,000.00 without showing any basis for that demand. He therefore urged the court to hold that the costs awarded are excessive. They should either be set aside or substituted with what is reasonable. I have considered pages 375 and 376 of the record of appeal but I failed to see where the learned trial Judge insisted that the learned respondent’s counsel should ask for costs. It is true that the respondent’s counsel said he would leave the issue of costs to the court’s discretion but in almost the same breathe he asked for N10,000.00 as costs. In backing up the demand for that amount, the respondent’s counsel said that the respondents employed the services of ‘a very senior surveyor’. It is settled that costs awarded are based on the principle of genuine and reasonable out of pocket expenses. In the instant case, the appellant’s counsel did not contest the status of the ‘very senior surveyor’ said to have been employed by the respondents. It should be recalled that the learned respondent’s counsel asked for the sum of N10,000.00 as costs but the learned trial Judge awarded only N6,000.00. In view of the undisputed fact that the respondents employed the services of a very senior surveyor towards the preparation for the suit before the trial court, I do not think the amount of N6,000.00 is excessive nor has the learned trial Judge exercised his discretion injudiciously. I shall accordingly not interfere with the award.
In retrospect, the evidence before the trial court substantially justifies the orders made against the appellants and they, save the order of permanent injunction against the 2nd appellant, shall not be disturbed. Issue No. 12 is also resolved in the affirmative.
The issues identified by the cross-appellants and the 1st defendant/cross respondent in their respective briefs have already been reproduced. I shall adopt the issues formulated by the cross appellants for the determination of the cross appeal.
On issue No. 1, the learned counsel of the cross appellant submitted that the evidence of the 1st defendant to the effect that he bought the land North of the sawmill from a member of the plaintiff’s family is inadmissible because it was not pleaded. Although he admitted that the plaintiffs pleaded the fact of the sale by the 2nd plaintiff to the 1st defendant, he went on to argue that the latter (1st defendant) could not rely on that averment in the pleading of the former.
In response, the learned counsel for the cross respondent admitted that the 1st defendant/respondent did not plead the fact of sale to him by the plaintiffs in the further amended statement of defence. He, however, argued that since the plaintiffs/cross appellants pleaded it and testified on it through the 2nd plaintiff that a known member of the plaintiff’s family sold the land to the 1st defendant/cross respondent, the 1st defendant/cross appellant could take advantage of it to strengthen his case that title in that land had passed to him. He therefore submitted that the uncontradicted evidence of the 2nd plaintiff has supplied the much needed legal evidence by the 1st respondent.
It is trite law that a plaintiff has to rely on the strength of his case and not on the weakness of the defence. See Mogaji v. Cadbury Nig. Ltd. (1985) 2 NWLR (pt. 7) 393 at 429; Kodilinye v. Odu (1935) 2 WACA 336 at 337. It is the duty of the plaintiffs/cross appellants to adduce credible evidence to satisfy the trial court of their claim to the land North of the sawmill. The plaintiffs instead of doing that, adduced evidence to found title in the 1st defendant. Since the plaintiffs supplied legal evidence on which the 1st defendant relied, I am of the view that the trial court was right to have made use of that unchallenged evidence and hold that the title in the land North of the sawmill had passed to the 1st defendant/cross respondent. I therefore resolve this instant issue in the affirmative.
On issue No.2, the learned counsel for the cross appellants submitted that the learned trial Judge was wrong to have relied on the doctrine of laches, acquiescence and standing by in dismissing the plaintiff’s claim for damages for trespass and injunction in respect of the land to the North of the sawmill. He argued that the doctrine could not operate because there is evidence that the 2nd plaintiff challenged the 1st defendant when he was erecting permanent structures on the land.
I am of the strong view that the circumstances of the land to the North of the sawmill do not admit of the operation of the doctrine of laches, acquiescence or waiver because there is unchallenged evidence albeit by the 2nd plaintiff that that parcel of land was sold to the 1st defendant by a member of the plaintiff’s family for N3,000.00. It will, however, be pointed out that the learned trial Judge did not only base his finding on the doctrine of acquiescence and laches but he heavily relied on the fact that property in the land to the North of the Sawmill had passed to the 1st defendant/cross respondent. I accordingly hold that reliance on the doctrine of acquiescence by the learned trial Judge is supplementary to the apparently substantial reason that title had passed. This appraisal notwithstanding, there is no doubt that the learned trial Judge invoked the doctrine of acquiescence and the principle of standing by in the determination of this case. There was no basis before him for such recourse. I therefore resolve this issue in favour of the cross-appellants.
On issue No.3, the learned counsel for the cross appellants submitted that the learned trial Judge was wrong when he awarded the sum of N2,000.00 per annum from the 1st day of December, 1989 to the date of judgment instead of the terms agreed by the plaintiffs and the 1st defendant in Exhibit H. He argued that from available evidence the agreement reflected in Exhibit H was voluntarily entered into by the parties. He submitted that the court being a stranger to the agreement should not have added or subtracted anything from it and he relied on the case of Obimiami Bricks & Stone (Nig.) Ltd. v. A. CB. Ltd. (1992) 3 NWLR (Pt. 229) 260 at 313. He contended that the learned trial Judge was wrong to have invoked the provisions of Section 5 and 6 of the Landlord and Tenants Law of Ondo State Cap. 55 Laws of Ondo State. He therefore submitted that the amount payable by the 1st defendant to the plaintiffs as agreed in Exhibit H is N186,200.00.
In response, the learned counsel for the cross respondent submitted that although the rules of Common Law and Equity recognize the right of parries to enter into a contract and impose on themselves terms and conditions as they intend to be bound, this right is not a blank cheque for those parties as such right is subject to the substantive provisions of statutes. He contended that parties are not allowed to enter into contract contrary to an express provision of the statute on the substantive issue involved in their transaction.
It is common ground that Exhibit H was voluntarily entered into by the plaintiffs/cross appellants and the 1st defendant/cross respondent. The 1st defendant/cross respondent who was aware of the implication of a breach is bound by the provisions of that agreement, in this case, Exhibit H. It is settled law that the court of trial is enjoined to enforce agreements between the parties and not to speculate or question the reasons for their entering into any agreement unless such agreement is illegal or contrary to public policy. See Obimiami Bricks Stone (Nig.) Ltd. v. A.C.B (supra) a page 313. There is no evidence in the instant case that the agreement in point (Exhibit H) is illegal. It should therefore be enforced as it is.
It is apparent from the record of appeal that the trial court failed to invoke the penalty clause in Exhibit H. It instead imported the provisions of Section 5 and 6 of the Landlord and Tenant Law of Ondo State Cap 55, Laws of Ondo State. I am of the strong view that that approach by the trial court was irregular. It is settled that a trial court, being a stranger to an agreement entered into by parties to it, should not add or subtract from it or import any provisions into it. See Nimanteks Associates v. Marco Construction Co. Ltd. (1991) 2 NWLR (Pt. 174) 411. I agree with the cross-appellants that the recourse of the trial court in importing the provisions of Ondo State Landlord and Tenant Law amounted to re-writing the agreement between the cross-appellants and the 1st defendant/cross-respondent. I therefore resolve this issue in favour of the cross-appellants.
In the final analysis, I find no merit in the appeal and it is dismissed. I award costs of N3,000.00 against the appellants. There is, however, merit in the cross appeal and it is allowed with costs of N3,000.00 against the 1st defendant cross respondent.
Other Citations: (2000)LCN/0794(CA)