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Victoria Ibidun Ojugbele V. Joseph Oriade Olasoji (1982) LLJR-SC

Victoria Ibidun Ojugbele V. Joseph Oriade Olasoji (1982)

LawGlobal-Hub Lead Judgment Report

ESO, J.S.C. 

In the High Court of Justice Lagos State (Oluwa, J.) the plaintiff, who is the respondent to the appeal in this court as well as he was respondent in the Federal Court of Appeal from the High Court, claimed as per his amended writ of summons as follows –

“The plaintiff is a lessee of a plot of land situate, lying and being at Aro-Omo layout in Orile Ikeja in the Ikeja District of the Lagos State by virtue of a Lease Agreement entered by the plaintiff and his predecessor-in-title with the owner of the land, Madam Ayinke Banjoko Aro-Omo-Oba in 1962.The Defendant has without the consent or authority of the plaintiff and without any lawful excuse whatsoever, entered upon the said piece of land.

The plaintiff claims from the defendant.

  1. 1,000 pounds damages for trespass being committed by the defendant, her servants and or agents upon the said land 1967 up to date.
  2. An injunction restraining the defendant, her servants and or agents from continuing the said acts of trespass.
  3. Possession of the said plot of land.”

The parties will hereinafter be referred to as appellant and respondent respectively. However, as it has been observed by the Federal Court of Appeal (as per Nnaemeka -Agu, J.C.A.) the claim against possession was rightly struck out.

Now, the facts of this case have been set out in the judgment of the Federal Court of Appeal which is on appeal to this court. The respondent’s (plaintiff’s case was that Bashiru Babatunde Owe) by virtue of a power of attorney, granted to him by Ayinke Banjoko Aro, the only surviving child of Aro-Omo Oba (who was acknowledged by both parties to the dispute as the original owner of the land) leased the land in dispute to one F. O. Amadi in 1963. On the 8th of May, 1972, the aforesaid Ayinke Banjoko Aro revoked the power of attorney.

Meanwhile in 1964 the lessee Amadi with the consent of the Aro Omo-Oba family had sold his leasehold interest to the respondent. The respondent took immediate possession and in 1967 while in possession got an approved plan for a building in respect of the land and he proceeded to erect a foundation thereupon. The appellant, without respondent’s permission, in 1969 trespassed upon the land. This he repeated again in 1972 when this case had been in court.

It is to be noted that the first alleged trespass occurred before the revocation of the power of attorney which I earlier referred to. However, after that revocation, then by a deed of lease which was admitted in evidence as Exhibit L, Ayinke Aro confirmed the original grant made by Babatunde Owe, by making a grant to the present respondent to whom Amadi (who got the grant from Babatunde Owe) had transferred the interest in 1964. This Ayinke Aro did by making the lease for 50 years granted in Exhibit L to commence from 1st January, 1963.

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The appellant acknowledged, as I earlier said, Ayinke Aro as the original owner of the land but the appellant’s case was that, same attorney, Bashiru Babatunde Owe, by virtue of the same power of attorney, claimed by the respondent, had in 1966 by a deed of conveyance, Exhibit S, granted the same land to the appellant. This was before the power of attorney was revoked and according to the appellant, Exhibit L which was made by the owner of the land, Ayinke Aro in 1972 was fraudulent and of no effect.

The learned trial Judge in a well considered judgment found that Babatunde Owe exceeded the power conferred upon him by the power of attorney; that the transaction of 1966 was null and that Exhibit L made in 1972 conferred a valid title on the respondent. He therefore found in favour of the respondent. The appeal by the appellant to the Federal in Court of Appeal was dismissed and he has now appealed to this court on grounds of law and fact but the main issues in the appeal as could be gathered from the grounds of appeal and the briefs are –

“(1) Having regard to the fact that Exhibit L was registered on 30th May, 1972, the claim was filed on 24th May, 1972, before the registration of Exhibit L, and notwithstanding the fact that the first Statement of Claim was filed on 5th April, 1973, is Exhibit L not caught by Section 15 of the Land Instruments Registration Law of Lagos State (Cap 64) The appellant relies for his contention on the decision of this court in Patrick Ossai v. Victor Nwajide & Anor. (1975) 4 S.C. 207.

(2) Having regard to all the facts in this case especially the facts on the issue of possession, should the court not have found in favour of the appellant”

These are the two main issues in this case, and they have been adequately covered by the briefs of learned counsel and their submissions before us. To deal with the first issue, it was the contention of Mr. Lardner, learned counsel for the appellant that Exhibit L should not have been ple aded on the authority of Patrick Ossai v. Victor Nwajide (supra). Learned counsel contended that the expression “shall not be pleased” in Section 15 of the Land Instruments Registration Law refers to the date of the commencement of the action itself and not to the date when the pleadings were filed. In this case concluded learned counsel, the cause of action could not arise until the 30th May, 1972, when Exhibit L was registered.

The relevant provision of Section 15 of the Land Instruments Registration Law reads:”S.15 No instrument shall be pleaded or given in evidence in any court as affecting any land unless the same shall have been registered…….”

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In Patrick Ossai v. Victor Nwajide & Anor. (1975) 4 S.C. 207 this court had the opportunity of construing Section15 of the Land Instruments Registration Law (Cap.72) of the Laws of Eastern Nigeria which is in pari materia with the provision of Section 15 of the Lagos State Law, already referred to above. In that case, the instrument tendered in evidence was registered after the writ and the pleadings (both the statement of claim and the statement of defence) had been filed. Learned counsel’s argument in that case was that since the exhibit was not registered until after the pleadings have been filed “it could not be pleaded nor given in evidence until it has been registered”.

The court held – “At the close of pleadings it is quite clear that the plaintiffs did not plead any registered instrument as being the basis of the claim, because if the deed had been registered, which on the evidence was done subsequently after the close of pleadings, the registration particulars and date of registration would have been pleaded.

At this stage it was open for the learned trial Judge to strike out the pleadings for two reasons:

(a) because no registered instrument of lease was pleaded as required by law, and ……”

In my view the provision of Section 15 of the Land Instruments Registration Law is clear, and contrary to the submission of Mr. Lardner, the decision in Ossai v. Victor Nwajide supports the view taken by both learned trial Judge and the Federal Court of Appeal in this case. The true position of the law is – it would not matter when an action was filed. Indeed it might be filed before the registration of the instrument the party intends to rely upon in proof of his case.

However, when if by the time the pleadings are filed the instrument has not been registered, then it shall not be pleaded nor used in evidence. Nothing more than this should be read into the provision. In the instant case, as Mr. Oluowa, learned counsel for the respondent, has submitted, the instrument, Exhibit L, was registered well over ten months before the first statement of claim, (which was indeed later amended twice), was filed. The appellant’s contention in regard thereto fails and Exhibit L in my view confers a valid leasehold interest on the respondent. Both the learned trial Judge and the Federal Court of Appeal came to a correct decision. The second issue deals with evaluation of the facts of the case generally, especially on the issue of possession. Mr. Lardner’s contention was that the learned trial Judge did not deal with the issue of possession and therefore the Federal Court of Appeal should not have made any finding thereupon.

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The Federal Court of Appeal in dealing with this issue said: “The judgment of the learned Judge turned on the true import of the several documents of title relied upon by the parties to the case. In sum, the learned Judge held that the defendant’s deed of conveyance of 1966, Exhibit S, was ultra vires the power conferred upon the attorney, Mr. Owe, by his power of attorney, Exhibit C and a nullity in that it specifically excluded the power of the donee to sell the land; that the agreed original owner, Madam Aro, duly revoked the power of attorney by the deed of revocation, Exhibit P, with effect from 11.30 a. m. on the 8th day of May, 1972, and so the deed of lease, Exhibit L, which she herself executed in favour of the (sic) defendant with effect from 11.40 a.m. on the same day was valid; “On the question of possession it is true that whereas the appellant never pleaded possession as such in any paragraph of her Second Amended Statement of Defence filed on 14/11/75, the respondent in several paragraphs of his Third Amended Statement of Claim filed on 6/11/75 pleaded that he was in possession of the land in dispute.”

I shall here set down paragraphs 6, 7, 8, 11, 12, 13, 15, 16 and 18 of the Statement of Claim.” A thorough examination of these paragraphs bears out the conclusion of the Federal Court of Appeal. Assuming the parties took proper title from the common attorney before the revocation of the power of attorney it is clear on the evidence that the respondent got his title in 1964 while the appellant got hers in 1966. It is also clear that there was sufficient evidence before the learned Judge that the respondent did not stay idle but exercised various acts of possession on the land.

The judgment of the Court of Appeal to my mind is unimpeachable and the appellant has woefully failed to convince this court that either the trial Judge or the Court of Appeal went wrong.

This appeal lacks merit and it must be dismissed. It is hereby dismissed with costs as assessed in the judgment of the Presiding Justice Sowemimo, J.S.C.


SC.32/1981

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