Frederick Oluyole Bamgboye Vs Abeke Olusoga (1996)
LAWGLOBAL HUB Lead Judgment Report
The appellant was the plaintiff at the trial Court where his suit was dismissed and on appeal to the Court of Appeal, the decision of the trial Court was upheld. Thus he has appealed to this Court. The plaintiff’s claim was for a declaration of title on a piece of land situate, lying and being at Obele Igbodo otherwise known as Papa Ajao in Mushin District of Lagos State also called Palm Avenue and described in the plan as No. AL. 106.55 attached to a deed of conveyance dated 9th day of April, 1957, registered as No. 20 in Volume 196 at page 20 of Lands Registry, Ibadan. There was an alternative claim as follows:
A declaration that the plaintiff is the person entitled to the statutory right of occupancy in respect of the land described on Plan No. AL/ 106/55 attached to a Deed of Conveyance dated 9th day of April 1957 registered as No. 20 at Page 20 in Volume 196 of the Lands Registry, Ibadan.
N45, 000 special and general damages for trespass to the said piece of land known as Plots 40 and 41 of Chief J. A. Ajao’s Layout at Palm Avenue Mushin, Lagos State.
An Order of injunction restraining the defendant, her servants and or agents from committing further acts of trespass on the said land. Annual Rental Value is at least N20, 000.”
The defendant now respondent as she was in the Court of Appeal, simply defended the suit title and she never counter-claimed. In the statement of claim the Plaintiff averred that the land in dispute was a part of the land conveyed to Ojetola Ajao in 1953 by a deed of conveyance registered as No. 71 at page 71 in Volume 1028 of the Land Registry at Lagos on 24th December 1953, (Exhibit 1). The land, according to the appellant devolved on Ojetola Ajao’s children at his death.
The eldest of the children, Amos Adetona Ajao was given a power of attorney (Exhibit 2) dated 9th day of April 1957 by the other children. Amos Adetona caused the land to be laid out into plots and numbered consecutively. Of these plots, averred the plaintiff, he purchased three, namely Nos. 3, 40 and 41 respectively and was on the 18th of August 1955 duly issued a receipt (Exhibit 4 at the trial Court). The plaintiff was put into possession of the three plots; now in dispute are plots 40 and 41. The plaintiff exercised acts of possession over the land (plots 40 and 41) and remained in undisturbed possession all along until 1976.
He cleared the land of the bush, farmed on it by planting maize, vegetable, pepper, cassava and other crops and by 1957 had fenced the land in dispute. The plaintiff claimed that the sale of the plots was registered on a deed, Exhibit 3, in the Deeds Registry, Ibadan, on 9th April, 1957, as No. 20 page 20 in Volume 196 thereof. (It was Exhibit 3 at the trial Court).
The plaintiff, by virtue of being in possession, gave permission to Albert Adeoye Onitiri, P. W. 1, a motor mechanic to erect a workshop shed on the plots now in dispute. Mr. Onitiri duly erected a workshop on the land in 1974 and he had a thriving motor mechanic business there without let or hindrance up to 1976 when one morning he came to find that the workshop had been demolished and the spare parts store and the vehicles within the premises destroyed. His equipments were damaged and as a result of a complaint to the police by the defendant, he (P. W. 1) was arrested and locked up until the plaintiff stood surety for him. This was too much for Mr. Onitiri and he had to emigrate to the United Kingdom to seek new pastures.
At the trial, Isaac Owoade Ajao (P.W. 2) gave evidence and explained Exhibits 1, 2 and 3 aforementioned. He testified that Exhibit 3 forms part of the portion edged red in Exhibit 1. He tendered Exhibits 1, 2, and 3. The P. W. 1, Mr. Onitiri saw the foundation of the two buildings dug on the ruins of his workshop on the plot which later developed into two blocks of flats and stores erected by the defendant. The plaintiff’s witnesses testified in line with the statement of claim and he closed his case with the evidence of Marinho. Egidio de Souza who identified his signature as a witness on Exhibit 1 when he was a clerk in the Law Chambers of O. S. Thomas who prepared it.
The defendant claimed root of her title through Oteniya family and that she purchased the land in dispute through their attorney, Ali Isiba and tendered the power of attorney as Exhibit 11. She was given a receipt which the Court admitted as Exhibit 12 for the purchase of the two plots. It must be pointed out that Exhibit 12, the receipt was made in the form of a deed and duly stamped on 8th March, 1976 but not registered. It was prepared by a solicitor and it means nothing more than a receipt. It contained no plan of the land purchased and although it was signed by Alhaji Alli Isiba on 4th March, 1976. On the 8th day of November 1976 a conveyance was executed in her favour and it is Exhibit 13 which is certified true copy of the original. The survey plan attached to Exhibit 13 is about a single plot bound by beacons Nos 2346, 2347, 2348 and 2349, the land has the same shape as plots 40 and 41 on Exhibit 3, but the beacons on these Exhibits are at true North OB2602, OB2603 and OB2604 and on the true South OB2610, OB2609 and OB2608 respectively.
However, by the evidence before the trial Court the plots on Exhibit 3 form the plot on Exhibit 13, which are one and the same land. The defendant gave evidence as D.W.1 and tendered Exhibits 11, 12 and 13 and others not pertinent to this appeal but never went further than saying she acquired the title through Isiba (D. W. 2) the attorney of Oteniya family. Isiba in his evidence, for all the big issues raised in the pleadings was brief and only identified the power of attorney, Exhibit 11 and Exhibit 12, the receipt and cursorily Exhibit 13, the now contentious document.
The learned trial judge after reviewing the evidence and submissions of counsel, observed as I stated earlier in this judgment that the defendant (now respondent) did not set up a counter-claim and the onus was on the plaintiff to succeed on the strength of his case relying on Kodilinye v. Mbanefo Odu (1935) 2 WACA 336 and Martins V Strachan (1744) stermreo 197n at 110n, Vincent Bello v. Eweka (1981) 1 S.C. 101, Odofin v. Ayoola (1984) 11 S.C. 72 – 122. The two parties relied entirely on their documents in their efforts to prove title. Learned trial Judge then reviewed most of the authorities on how title could be proved. He held that by Exhibit 13 the defendant’s radical title could be traced under native law and custom and that Exhibit 13 was identified by D.W. 2 who confirmed his father’s signature on the document. He finally held as follows:
“From the totality of the evidence adduced in this case and my consideration of them with the said onus cast on the plaintiff that he must succeed on the strength of his own case rule that the plaintiff fails woefully to discharge the burden by not establishing before me definitive certainty the land on which he prays the court to grant him declaration of statutory right of occupancy to plots 40 and 41 of 1. A. Ajao’s Layout as shown in Exhibit 3 and in respect of the land situate lying and being at Obele Igbodo, Mushin. (Although the defendant did not counter claim I hold that she proved due execution and authentication of her land at Palm Avenue, Mushin as shown in Exhibit 13.) 1 hold and find as a fact that the imaginary scale tilts in her favour unlike the plaintiff’s case which is weak and unsustainable.”
In the same breadth, however, learned judge held in applying the ratio decidendi in the cases of this Court e.g. Mogaji v. Cadbury (1972) 2 S.C. 97, Okosun v. Aigbedion (1973) 1 NMLR 33, Odofin v. Avooya (1984) 11 S.C. 72 – 122, Oladimeji & Anor. v. Oshode & Anor. (1968) 1 All NLR and held: “Applying the above to the facts of this case the plaintiff produced the 1st plaintiff’s witness, and I believe his evidence. I therefore hold and find as a fact that between 1974 and 1976 with the consent and permission of the plaintiff he established a mechanic workshop on plots 40 and 41 at Palm Avenue as stated by him in his testimony. I hold and find as a fact that he erected sheds for his workshop on the land which were destroyed by the defendant and her agents sometime in 1976. That the defendant got the Nigeria Police to arrest the 1st plaintiff witness on the land and the 1st plaintiffs witness was released on bail to the plaintiff.
I also hold and find as a fact that the defendant erected three buildings on the land she drove away the 1st plaintiff’s witness. In establishing the trespass by the defendant the plaintiff relied on a composite plan Exhibit 8. I have already commented on the worthlessness of Exhibit 8 more also when no use was made of the survey plan attached to Exhibit 13, the land claimed by the defendant.
The 4th plaintiff’s witness testified that in compiling Exhibit 8 he used a survey plan made by him, which was not tendered in court and it is not the function of the court to speculate on the content of a document not tendered before it made me to hold that the plaintiff showed no nexus between Exhibit 1, his source or root of title and Exhibit 8 as the 4th plaintiff s was categorical that he did not make use of Exhibit 1 in producing Exhibit 8.
I relied on the case of Gbajor v. Ogunburegui (1961) 1 All NLR 853 that a court does not speculate on content of document not placed before it.
Applying the above authorities made me to hold and find as a fact that the land trespassed upon by the defendant has not been established with clear identity by the plaintiff as the land complained defendant trespassed upon.
As stated above I held that the defendant proved better title to the land than the plaintiff therefore ascribe possession to the defendant. I hold the plaintiff cannot succeed by canvassing a defective title (see Aromire v. Awoyemi (1972) 1 All NLR 101 at 112, Alhaji Adeshoye v. Siwoniku 12 WACA 86 at 87).
Be that as it may though 1 held 1st plaintiffs witness was in possession of Plots 40 and 41 and with consent of the plaintiff holds that he has possession against the whole world except a person who has a better title.”
The learned trial judge then concluded, even in the light of his findings on trespass, that the plaintiff’s claim must fail totally and he dismissed the claim. On appeal to the Court of Appeal, the plaintiff lost because the decision of the trial Court was affirmed. In doing so the Court of Appeal went a little further by holding:
“It is my view that on the fact of this case, the Appellant has woefully failed to prove the identity of the land over which he sought a declaration of title or a Statutory Right of Occupancy and the learned trial Judge rightly refused to grant him same.”
This finding is curious in view of the absence of the cross-appeal or prayer by the respondent to vary the decision on the other grounds under Order 3 rule 14 Court of Appeal Rules. (See ACB v. NDR & GW (1977) 5 S.C. 235 (decided under the old Supreme Court Rules), Adeleke v. Akin-Olugbade (1987) 3 NWLR (Pt. 66) 214, 216, Ogwuma v. IBWA (1988) 1 NWLR (Pt. 73) 658, Western Steel Works v. Iron & Steel Workers (1987) 1 NWLR (Pt. 48) 284). Against the judgment of the Court of Appeal, there is this appeal to this Court. Upon the grounds of appeal in Notice of Appeal the following issues were formulated for determination:
“2.1 Whether the decision of the Court of Appeal that the defendant proved title to the land in dispute was correct in law.
2.2 Whether the defendant’s title Exhibit 13 (deed of conveyance suit was pending in Court) relied on by the learned trial Judge in holding that the defendant proved a better title to the land in dispute was not void in law by the doctrine of lis pendens?
2.3 If so, can the Court of Appeal without a cross-appeal filed by the respondent now hold that the defendant proves title by virtue of a purchase receipt Exhibit 12 a document on which no finding of fact was made by the High Court.
2.4 Whether the decision of the Court of Appeal that the defendant established incidents of sale of the land under native law and custom by virtue Exhibit 12 a purchase receipt.
2.5 Whether the plaintiff having secured a finding possession in respect of the land in dispute was not entitled to judgment for damages for trespass and injunction against the defendant in this case.
2.6 Whether the plaintiff established his title to the land in dispute?” As I have indicated earlier, the identity of the land in dispute is clear, it is only a question of double grant – one by Ajao family and the other by Isiba who claimed to be attorney to Oteniya family. Apparently the coordinates of beacons erected when the grant was made to the plaintiff in 1955 were no longer there in 1976 when the defendant claimed to acquire her own interest in the land. The Court of Appeal never found anything wrong with the clear findings of the trial court on possession by the plaintiff since at least 1974, when he put Mr. Onitiri (P. W. 1) on the land to build a mechanic workshop. The trial judge found Onitiri to be a truthful witness and believed him that he was put in possession by the plaintiff before the defendant purportedly acquire her title. The plaintiff put forward evidence that he had been in possession since 1955 and by his pleadings, amply supported by the evidence, that he farmed on the land and fenced it; this the trial court believed. Trial Court also believed the respondent, vi et armis, went on the land and destroyed P.W. 1’s workshop, equipments and motor spare parts. There is a judgment in a case between one Bamigbele and the respondent in the High Court which the respondent won in respect of a parcel of land at Palm Avenue, Mushin, decided on 13th February, 1981, which is Exhibit 14 in this case. Exhibit 14 to all intent and purposes has nothing to do with the plaintiff/appellant, as it relates to Plot 54 in Ajao’s Layout to which the plaintiff was not privy. Exhibit 14, 1 must reiterate shows only actor ownership by Oteniya family, no more no less. So there is nothing big as an issue between Exhibit 14 and this matter now appealed against. Thus it remains the question: what has the Court of Appeal made of the clear finding of the trial judge when he held:
“Be that as it may, though I hold 1st plaintiff’s witness was in possession of plots 40 and 41 and with consent of the plaintiff hold that the has possession against the whole world except a person who has a better title.”
And there is no cross-appeal or respondent’s Notice under Order 3 rule 14 Court of Appeal Rules? To my mind that decision, being unchallenged must stand and that error ought to have been spotted by the Court of Appeal to rectify the judgment of the trial Court on the issue of possession in favour of the plaintiff. If the plaintiff failed to prove conclusively the title, he clearly established possession over the dispute land over a period of years, at least since 1955, a point that remains completely uncontradicted. Paragraphs 6, 7, 8, 9 and 10 of Amended Statement of Defence, to which the plaintiff filed a Reply, have no evidence led in proof. The evidence of Alhaji Raimi Isiba, D.W. 2, is really at variance with these paragraphs concerned with serious issue of traditional history of the land. Whereas the plaintiffs case hinged on paragraphs 6 and 7 of Statement of Claim was equally weak and falls short of proving the averments in them and this makes for the difficulty of finding title in his favour.
The defence mentions four branches of Oteniya family but led no evidence to this; in actual fact, D. W. 1 gave the shortest evidence one would normally expect on the state of the pleadings, but that is the case for the defence, the plaintiff must first prove his case as to title. However whenever title is claimed through a grant or inheritance there must be clear traditional history of how the family or community came on the land and this must be done through clear pleadings and evidence in support of genealogy as continuous exclusive possession. Without this stating just simply that a grant is from a family without more may not be enough. (Alade v. Awo (1974) 5 S.C.; Piaro v. Tenalo & Ors. (1976) 12 S.C. 21,411.
It must also be stated clearly that where a party relies on documentary title there must be evidence of due execution under s. 99 Evidence Act. As the defendant/respondent never counter-claimed at the trial Court it was the duty of the defendant to prove due execution. (Jobi v. Oshilaja (1963) 1 SCNLR 31; (1963) 1 All NLR 12; Nwaokafor v. Udegbe (1963) 1 SCNLR 184; (1963) I All NLR 104; Cardoso v. Daniel (1986) 2 NWLR (Pt. 20) 1, 36; Akeredolu v. Akinremi (1989) 3 NWLR (Pt. 108) 164, 172.
The appellant wants this Court to revisit the cases of Jules v. Ajani (1980) 5-7S.C. 96 and Odubeko v. Fowler (1993) 7 NWLR (Pt.308) 637,659 F-G. The learned counsel for the appellant postulated that these cases support the view that once a certified true copy of a registered conveyance is received in evidence this will be sufficient proof of due execution. He now invites this Court to depart from these decisions relying on Order 6 rule 5(4) Supreme Court Rules, and to apply s. 99 Evidence Act which is a Federal Act in exclusive List under the Constitution. With respect, this submission has over laboured a simple matter, all the cases we are asked to depart from are those decided on specific legislations rather than general legislation and I cannot find how they are in conflict with the decisions in Jobi v. Osilaja (1963) 1 SCNLR 31; (1963) 1 All NLR 12; Nwaokafor v. Udegbe (1963) 1 SCNLR 184; (1963) 1 All NLR 104; Gbangbala v. Alade (unreported) SC. 327/1964 delivered on 11th March 1966. At any rateJules v. Ajani (supra) has no relevance to this case and I shall not revisit it. Suffice to say it however that Cardoso v. Daniel (supra) is a sound and good judgment. It is always good to look at the legislation under which a decision is based before embarking on the request to reconsider that decision. Most of the decisions we are asked to reconsider are based on specific laws e.g. Land Instrument Registration Law (Lagos, Cap. 54) and Evidence Act were hardly in play. It must be home in mind that the provisions of s. 118 Evidence Act save documents for admission by the following words:
“The Court shall presume that every document purporting to be a power of attorney, and to have been executed before and authenticated by a Notary Public or any counsel or representative in Nigeria, or as the case may be, the President, was executed and authenticated.”
This Court has on previous occasion revisited Jules v. Ajani (supra) and explained its punch, it is no use now squeezing again an already ever-squeezed lemon as it may produce no more juice.
As for Exhibit 13, a document registered after litigation had started in this matter, counsel for the appellant has asked this Court to consider seriously the Exhibit as void due to principle of lis pendens. The writ of summons was sealed on 17th August 1976 and served on the appellant (now respondent) on 7th October 1976.
Exhibit 13 was executed on 8th November 1976 and presented for registration on 7th January 1977. Thus Exhibit 13 was executed and registered during the pendency of this case in the High Court. When a suit is filed it behoves each party not to change the nature of the action and evidence to support it so that the status quo must be maintained throughout unless the trial Court orders some things to be done to bring to light the real issues in controversy.
This is so vital to our jurisprudence so that the Court should not be taken for a ride. Exhibit 12 is the receipt issued on 12th May 1966 and it did not meet the Land Instrument Registration Law which requires an instrument to be registered. Exhibit 12 was stamped but not registered, it is no more than what it says, i.e., a receipt. The instrument conveying the disputed land to the respondent was not prepared even up to the time she chased out P. W. 1 from the land ten years after Exhibit 12 was made. The trial Court found the plaintiff/appellant was in undisputed possession up to when the defendant/respondent trespassed on it that must be from 1955.
On being served the writ of summons, she (defendant) rushed to the Land Registry after executing Exhibit 13 also after the writ of summons. Exhibit 12 is no more than a receipt and it is vague as to the very land it mentions; certainly it cannot be linked with the land in dispute at least as it is on its face. The transfer of a land during the pendency of a suit on it is against the law and the operation of a just trial of the suit, the more so when the purchaser has clear notice of the pending suit. Because when a case is pending, with either party claiming ownership or title and neither has been declared owner or winner, nothing must interfere with status quo at the time of litigation. Thus no person can validly convey that land in dispute to any other person including the parties to the suit during the pendency of that suit. The fact of Exhibit 12, for all its vagueness as to the land in dispute, makes mandatory for either party to desist from doing anything to gain clandestinely evidential advantage not available at the time the writ of summons was taken out.
The case of Ojugbele v. Olasoji (1982) 4 S.C. 31, 37 is distinguishable from the present case as in that case the registration was before a writ of summons was issued. Exhibit 13, I regret, was not given the attention it deserved by the Court of Appeal. It was a document, just cooked up so to say, to support Exhibit 12 (a receipt) immediately the writ of summons was taken out by the plaintiff and served on the defendant. I therefore on the doctrine of lis pendens hold that Exhibit 13 was not legally received in evidence.
What therefore remains is Exhibit 12 that is neither here nor there. But possession was all along with the plaintiff and I hold the plaintiff was in possession and the defendant trespassed on the land and I so find against her. The appeal therefore succeeds on trespass. Automatically the injunction claimed must also succeed. I therefore grant the injunction claimed and the respondent, her servants and or agents are hereby restrained from further acts of trespass on the land in dispute, i.e. Plots 40 and 41 at Ajao Layout as claimed by the plaintiff.
I award forty-three thousand and two hundred naira (N43,200.00) damages as assessed by the learned trial Judge, for the trespass. As the plaintiff has not satisfactorily proved title, his appeal on title fails. The appeal therefore partially succeeds as enumerated above.
As Exhibit 13, is void, neither party has proved title. I award N 1,000.00 as costs in this court. The costs in the lower courts, if already paid are to be refunded to the appellant. I award N500.00 as costs in the Court of Appeal and N300.00 as costs in the High Court against the respondent.
Other Citation: (1996) LCN/2693(SC)