The Honourable Commissioner for Land and Housing, Kwara State & Anor. V. Mallam Jimoh Atanda (2006)

LawGlobal-Hub Lead Judgment Report

IKONGBEH, J.C.A.

This appeal is by the defendants before the High Court of Kwara State, sitting at Ilorin. The respondent had taken out a writ of summons against them, claiming three reliefs, the first, and the only one relevant to this appeal, being for –

“(a) A declaration that the plaintiff is the lawful owner of a parcel of land situate, lying and being at Offa Garage Area, Ilorin. The said land measuring 699ft x 30ft (35 Plots) to the exclusion of the defendant or any other persons. ”

The second and third were respectively for special and general damages for trespass to the land.

The appellants have submitted only one issue to us for consideration and resolution. The issue is based on the sole surviving ground of appeal, the other one having been withdrawn by the learned Attorney-General, who had settled the appellants’ brief of argument. The surviving ground of appeal complains about the way and manner the learned trial Judge, M. A. Folayan, J., had treated exh. ‘A’ in arriving at her decision in favour of the plaintiff/respondent.

Exh. ‘A’ was the agreement by which the respondent claimed to have purchased the land in dispute from one Malam Omoyiola Iyanda, at the material time, the head of the Olomooba family that owned it. When the respondent’s counsel tendered the document for admission in evidence the appellants’ counsel took objection, contending that the document was an instrument, as defined in section 2 of the Land Registration Law, Cap. 83, Laws of Kwara State, 1994, which ought to have been registered. It was, however, not registered. It was, therefore, not admissible in evidence because of the prohibition on the admission of such unregistered instruments by section 15 of the law. The learned trial Judge overruled the objection and proceeded to admit it in evidence as exh. ‘A’.

After hearing the evidence of the plaintiff and his four witnesses and that of the sole witness called by the defendants and taking written addresses from counsel for the parties she delivered her judgment on 07/05/05 in favour of the plaintiff. In the judgment she took note of the five issues identified on behalf of the defendants as arising for determination by her, the first two raising the question as to the validity of the respondent’s title, and the four on behalf of the plaintiff. She reviewed the evidence of the witnesses, particularly that of PW3 and PW5, who, she found at page 45 of the record, testified that “the plaintiff bought the land from their father and they witnessed the sale as evidenced by exhibit ‘A’.” She then observed and held at page 48, regarding exh. ‘A’:

“Exhibit ‘A’ tendered and admitted in evidence is an unregistered instrument and as such is not admitted to prove the plaintiffs title to the land sold to him, it is however admissible as a receipt or an acknowledgement of the payment of the money in respect of the land by the plaintiff and coupled with the delivery of possession of the land in dispute by the Olomooba family to the plaintiff gave rise to an equitable interest which is capable of being converted into a legal Estate by a specific performance …

The evidence of PW1 that he was farming on the land and planted cassava was neither challenged nor controverted, so it is proved that he was put in possession of the land after the sale of the land to him.”

Based on all this she then declared at page 49 that –

“…the plaintiff is the lawful owner of the disputed land near Woye Prints Press measuring 35 plots (699ft x 303ft) to the exclusion of the defendants and/or any other person(s).”

After considering the issue of damages she wound up her judgment thus at page 51 of the record:

“In conclusion judgment is entered in favour of the plaintiff as per his claim for declaration of title. The special damages is found not to have been proved and it fails. The plaintiff is awarded N20,000.00 general damages.”

The defendants were not satisfied with the decision and, so, lodged their appeal against it with this Court. As indicated at the beginning of this judgment, the notice of appeal contained two grounds of appeal. However, in the appellants’ brief of argument the learned Attorney-General expressly abandoned the first ground because, according to him, “the ground did not properly arise from the judgment of the court below”. Consequently he formulated only one issue for determination, based on the sole surviving ground 2. The sole issue that, in his view, calls for determination in this appeal is –