Mr. Solana V. Josiah Olubanjo Olusanya & Ors (1975)
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- SOLANA Appellant(s)
- JOSIAH OLUBANJO OLUSANYA
2. SUNDAY ADEBAMBO ADEBULE
3. SAIBU TIYAMIYU OYELAJA Respondent(s)
G. S. SOWEMIMO, J.S.C.
This appeal is against the judgment of the Lagos State High Court, in which the court granted the claim of the 1st plaintiff to a declaration of title to a property situate at No. 5, Abey Road, off Ikorodu Road, but dismissed the claims for damages for trespass and injunction.
The court also ordered the defendant, now the appellant before us, to give up possession of the said property to the 1st plaintiff.The facts, which are not in dispute and which are set out in the pleadings, are as follows. The original owner of the property in dispute, which for the purpose of the trial in the lower court is demarcated on a plan tendered in evidence and marked yellow, was the late Chief A. O. Thomas.
The 1st plaintiff’s predecessors-in-title bought the property from the Federal Administrator- General (the Administrator of the Estate of A. O.Thomas deceased) under and by virtue of a conveyance dated 1st June, 1955 and registered as No. 70 at page 70 in Volume 11 of the Lagos Land Registry. The 1st plaintiff purchased the property on the 12th December, 1955, the conveyance of which is registered as No. 62, page 62, Volume 21.
The two deeds are Exhibits G & K. In 1957/58 the 1st plaintiff erected a storey building on the piece of land, and the property was let out after completion to several tenants from 1958 till 1971. On the 11th March, 1971, the 2nd and 3rd plaintiffs, who were the tenants then occupying the premises (two flats) at the material time, were ejected therefrom as a result of the execution of a warrant of possession issued at the instance of one A.Y. Ojikutu (now deceased) who claimed to have obtained judgment for possession in respect of the property in Suit SC/55/68.
The defendant, on the other hand, claimed to have purchased this property in February 1970 from Chief A. Y. Ojikutu (deceased) under and by virtue of a deed of conveyance dated 28th September 1970 and registered as No. 36 at page 36 in Volume 1340 – Exhibit F. The defendant’s predecessor-in-title was alleged to have bought the property in 1951 from Chief A. O. Thomas (deceased), but did not obtain a conveyance until after the death of the latter. The conveyance executed in favour of Chief A. Y. Ojikutu is dated 20th July, 1956 and registered as No. 60 at page 60 in Volume 179. Apart from the averment as to how the defendant bought the property, his main defence is contained in the averment in paragraph 3 of the Statement of Defence which reads:-
“The land in dispute was adjudicated upon by the High Court of Lagos in Suit No. 213/68 and later by Supreme Court of Nigeria in Suit No. SC/55/68 and Chief A. Y. Ojikutu was granted title, by the High Court and possession and injunction by the Supreme Court respectively.”
The learned trial Judge in his judgment on the above averment had this to say:
“There is certainly no evidence before me that the disputed land is a portion of the land in the litigation referred to above. The disputed land is shown both in Exhibit F and Exhibit G and not one witness ever said it falls inside the land then claimed by A. O. Karonwi in the plan attached to his conveyance Exhibit H. The land in dispute has pillars LB 5755, KE 1597, C.P. LB 5754 in both Exhibits F and G. At least two of these pillars are in Exhibit H showing them to be clearly outside the area verged “RED” as belonging to A. O. Karonwi. So that not only has the Defendant failed to prove the averment in para. 3 of the Statement of Defence above, but the fact seems to be that the land in dispute here is not part of the land adjudicated upon in Suit IK 213/62 as claimed. On the whole therefore I think that the Plaintiff is entitled to the possession of the property in dispute.”
On the first ground of appeal argued before us, learned counsel for the appellant submitted that the land adjudicated upon in Suit IK 213/62 and on appeal in Suit SC 55/68 was a larger area of land of which the land in dispute in the present appeal forms a portion and therefore that since declaration of title, possession and injunction had been awarded to Chief A. Y. Ojikutu, the predecessor-in-title of the appellant then, by the provision of Section 54 sub-section 2 of the Evidence Law, the court was in error to have granted a declaration of title in favour of the 1st respondent. Section 54 of the Evidence Act Cap. in Volume 2 of the Laws of Nigeria 1958 reads:-
“54(1) If a judgment is not pleaded by way of estoppel it is as between parties and privies deemed to be a relevant fact, whenever any matter, which was, or might have been, decided in the action in which it was given, is in issue, or is deemed to be relevant to the issue, in any subsequent proceeding.
(2) Such a judgment is conclusive proof of the facts which it decides, or might have decided, if the party who gives evidence of it had no opportunity of pleading it as an estoppel.”
Before we consider this matter further we wish to say that the averment in paragraph 3 of the Statement of Defence constitutes a plea of res judicata. This plea was adequately dealt with in the judgment of the learned trial Judge which we referred to above. Learned counsel for the respondent in reply drew attention to the fact that the plea was not available to the appellant, because the land and the parties in the earlier case are different from those in the present appeal. Learned counsel for the appellant now varied the defence and submitted that it came within the provisions of Section 56(2) of the Evidence Act. There is no doubt that in the earlier suit pleaded (Suit IK 213/62) the land in dispute was stated by the learned trial Judge (Kester J) to be a portion “edged in blue in the plan filed with the Statement of Claim”, but, in the final decree of the Judge, he did not restrict himself to the land in dispute as described by him but granted title to an area of land of 5.3 acres shown in the plan attached to Chief A. Y. Ojikutu’s conveyance Exhibit A; whereas the area which was the subject-matter of the land in dispute was 2,804.62 sq. yds. The judgment of Kester, J., must be restricted to the land in dispute, that is Karonwi’s land which is 2,804.62 sq. yds. It is to that extent that the judgment in Suit IK/213/62 and suit SC55/68 must be related to each other. It is indeed very clear that the piece of land then adjudicated on was never described either in the High Court judgment or in the Supreme Court judgment as being 5 Abey Road, off Ikorodu Road. The warrant for possession issued in the affidavit of Chief A. Y. Ojikutu was in respect of 5 Abey Road which is the property of the respondent in this appeal, but Chief A. Y Ojikutu is not a party either to Suit IK 213/62 or to Suit SC 55/68.
Learned counsel for the appellant did not proceed with his submissions on ground 2 and abandoned ground 7. Both grounds are accordingly struck out.
In arguing ground 3 he based his contention on ground 3(i) and abandoned sub-grounds (ii) and (iii). He submitted that the respondent could only succeed if he proved that his predecessor-in-title, Sonola, had executed Exhibit K in his favour. He referred to the averment in paragraph 5 of the Statement of Claim and Section 99 of the Evidence Act.
Paragraph 5 reads:-
“5. The 1st plaintiff further avers that the said Joseph Akintunde Sonola being seized in fee simple of the piece of land in dispute, sold same to the 1st plaintiff as evidence by a Deed of Conveyance dated 12th December, 1955 and registered as No. 62 page 62 Volume 21.”
There was no denial of paragraph 5 in the Statement of Defence. Paragraph 13 of the Statement of Defence reads:-
“13. The Defendant denies paragraphs 6, 7, 8, 9, 10, 11, 12, 13, 14, 15 and 16 of the 1st Plaintiff’s Statement of Claim and puts the 1st Plaintiff to the strictest proof of the allegation contained therein.”
Section 99 of the Evidence Act relied upon by learned counsel for appellant provides:-
“99. If a document is alleged to be signed or to have been written wholly or in part by any person, the signature or the handwriting of so much of the document as is alleged to be in that person’s handwriting must be proved to be in his handwriting.”
The portion of the judgment complained of is this:-
“My conclusion is that on the evidence, documentary and oral, the Plaintiff has a better title to this land, and is entitled to be declared as the owner in fee simple in respect of it.”
Mr. Sofola for the respondent submitted that the issue as to whether the conveyance of the respondent was duly executed was neither raised in the pleadings nor at any stage of the trial in the lower court. Trials in High Court are based on the pleadings filed by parties and on triable issues raised therein. Judgments must therefore necessarily be based on such triable issues as decided and the right of the parties determined on the claim before the Court. Mr. Olisa Chukura’s argument seemed to be that, in all cases where a declaration of title is sought and whatever the issues raised in the pleadings are, it is always essential that the plaintiff must prove that the deed of title he relied upon was duly executed. We do not agree with Mr. Chukura that this is a correct statement of the law. On a proper construction of Section 99 of the Evidence Act, the necessity to prove the signature or a portion of a written document will arise where there are averments which contain such allegations and which are not admitted. Where facts are directly admitted or deemed to be admitted as provided for in our rules of civil procedure dealing with pleadings, such averments do not need to be proved. We do not intend in this judgment to give an exhaustive consideration to the question of whether execution of a conveyance or other form of deed of title is necessarily an ingredient in civil cases tried on pleadings. It is safe to say that the court will always limit a trial to triable issues raised in the pleadings. In this appeal the issue as to whether a conveyance was “duly executed” was not raised on the pleadings. In this case the defence is that the property originally belonged to Chief A. Y. Ojikutu and not to the respondents’ predecessor-in-title and so the issue of “due execution” is irrelevant.
Learned counsel for the appellant further submitted that the conveyance by which title was vested in the respondents’ predecessor-in-title was void because it could not have conveyed any portion of the estate of A. O. Thomas to Sonola by virtue of Exhibit C which was registered prior in time to that of appellant’s predecessor-in-title. As a matter of fact, the contention was the other way round. Both respondent and his predecessor-in-title had valid deed of title in 1955 from the Federal Administrator General. The appellant’s predecessor obtained his conveyance in 1956 from the same Federal Administrator General and therefore it was appellant’s predecessor-in-title who could not claim any title to the land in dispute because it had already been validly conveyed to someone else in 1955. There is no merit whatsoever in this ground of appeal.
There is an averment in the Statement of Claim that the respondent claimed that he had bought the property in dispute again from A. Y. Ojikutu (deceased). In evidence, the respondent explained that, when Ojikutu caused some trouble over the area, he attempted to avoid his worry by paying him some money as purchase-money for the land. This was denied by the respondent. There was an attempt to join Ojikutu as a party but he died during the proceedings and so that was dropped. In any case this averment does not in our opinion constitute any form of acknowledgment of Ojikutu’s title to the piece of land. We do not see what error the learned trial Judge had made in the circumstances of his findings. Therefore, the appellant’s complaint in ground 5 lacks merit.
On ground 6 the learned trial Judge held that there was no iota of evidence that neither appellant nor his predecessor-in-title had been in possession of the land in dispute since 1951. As a matter of fact there was no evidence whatsoever, and reliance was placed on the findings in respect of suits IK/213/62 and SC/55/68. As we have earlier pointed out both the parties and land in dispute in Karonwi’s case are different from those in dispute in the case now on appeal before us. Whatever may be the findings in that case will not affect those in the present appeal. In any case it is clear that the Supreme Court did not in SC/55/68 order possession of No. 5 Abey Road off Ikorodu Road.
On the whole, we are satisfied that learned counsel for the appellant has failed in all the complaints against the judgment of the lower court. The appeal is therefore dismissed. The judgment of Dosunmu. J., in LD/169/71 delivered on 19th of February 1973 is hereby affirmed. We award costs of 196 Naira in favour of the respondent against the appellant. This shall be the judgment of the court.
Other Citation: (1975) LCN/2022(SC)