Fasesin Olufemi Vs Oyerinde (1991)

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BELGORE, JSC.

The appellant, Mr. Fasesin, a legal practitioner, was the defendant at the trial court and the appellant at the Court of Appeal. The respondent, Dr. Joshua Popoola Oyewole Oyerinde is a medical practitioner. The suit leading to this appeal, relates to a piece of land at Ire Akari Estate, Isolo Isaga, Ikeja, Lagos.

By a deed of conveyance dated 12th day of November 1974, the Ikeja Real Estates Limited conveyed the said piece of land to the plaintiff/respondent (hereinafter referred to as the respondent) in fee simple absolute in possession. The land in question is marked Plot No 13 Block XIV Ire Akari Estate, Isolo, Isaga, Ikeja.

The layout of the estate was approved by the Lagos State Ministry of Works and Planning for the Ikeja Real Estates Limited on 17th day of September 1977 in a letter of that date, the layout being numbered TPA0633. On the 30th November, 1977 the respondent had his building plan for the land approved by the appropriate authority.  The appellant in his statement of defence based his right to possession of the plot in dispute to:

(i) Authority of the Ikeja Real Estates Limited. (ii) Deed of Conveyance dated 16th February 1977 registered as No. 85 page 85 in Volume 1609 of the Register of Deeds and Deed of Variation dated the 24th day of March, 1978 registered as No 35 page 35 Volume 1753 of the Register of Deeds.  (iii)   Actual possession, which surfaced by normal implication.  By virtue of the aforementioned he commenced building on the land without let or hindrance by anyone.

It was only in March 1978 when he had almost completed the building on the land that the respondent surfaced and claimed that the plot was his. He concluded his statement of defence by relying on “estoppel by conduct, laches, acquiescence, standing by and other legal equitable defence”.  During his evidence in defence, the appellant who gave his full name as “Christopher Olufemi Fasesin Kupoluyi” claimed that the land in dispute was his, relying on the points enumerated earlier in this judgment.

Thus, both the appellant and the respondent relied for their root of title on Ikeja Real Estate Limited; the former by a deed of variation of March 1978, whilst the latter is by an earlier deed F of conveyance of 12th November 1974 as evidenced later by the approved layout of 1977.  By further amended statement of defence the appellant averred that the original plot granted and conveying to him had already been allocated to someone else and he had to approach the vendor who gave him an alternative plot by a deed of variation on 24th March 1978; this happens to be the plot now in issue.

Meanwhile the respondent who had constantly visited the plot, was indisposed around January/February 1978, and could not make the routine visits during that period. However by February 1978, when he paid a visit, he discovered someone had not only entered into the land but a building was being erected on it. He made several efforts to locate the intruder.

The workers at the site were not helpful and the vendors were not also forthcoming. He had to contact his solicitors who made the normal routine investigations. Apparently, the appellant obtained the deed of variation of his conveyance after the respondent had made this visit to the site after March 1978. Each party gave evidence in line with his respective pleadings and it boiled down to a single question for the learned trial Judge to answer: Who was with the lawful title to the plot in dispute?

The answer in the learned trial Judge’s judgment is that the appellant was in unlawful possession, and that he trespassed on the land in dispute. The judgment was upheld by the Court of Appeal. After the suit was filed, the Land Use Decree came into existence and in accordance with the judgment was to the effect that the respondent was the one entitled to a right of occupancy over the land.  

In the appeal La this court learned counsel tor the appellant, Kehinde Sofola, S.AN., after selling out the claim as at the trial court, submitted that the appellant faced only the claim for declaration that the land in dispute was the respondent’s and also the damages for the trespass on the same land. He therefore, upon the claim and the battles fought by the parties in the courts below formulated tile following issues for determination:

(1)”Whether the court below was not in error when in all the circumstances of this case it held that the learned trial Judge was right to have exercised his discretion in favour of the respondent to make a declaratory order as claimed.  (2) Whether on the facts and in the circumstances of this case, the court below was right in holding that it could not interfere in the exercise by the learned trial Judge of his discretion in making in favour of the respondent the declaration sought by him. 

(3) Whether tile court below was right when it upheld the learned trial Judge that the respondent was entitled to Statutory Right of Occupancy to the land in dispute in this case under the Land Use Act.  (4) Whether the court below was not in error when it upheld the learned trial Judge’s refusal to re-open the case of the appellant in order to be able to admit in evidence the Layout plan which is relevant in this case”.

Learned Senior Advocate, relying on a line of decisions contended that a declaratory judgment is found in “equity and not in law”. He cited Russian Commercial & lndustrial Bank v. British Bank for Foreign Trade (l92l) 2 AC 438; lbeneweka v. Egbuna (1964) 1 WLR 219; Barclays Bank v. Ashiru (1978) 6-7 SC. 99 and Onuoha v. Okafor (1983) 2 SCNLR 244 as authorities for this proposition. It is submitted that if even a party has put forward enough evidence to support his claim for a declaration in law, there may be circumstances in equity which will hold the hand of the court in making the declaration.