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.

This, according to learned counsel, the courts, must bear in mind so as not to defeat the justice of a matter. He contended that the courts below dealt with the suit as a claim for legal right whereas it was not; rather it was a claim in equity being a declaratory judgment necessitating exercise of discretion even where evidence supports the claim.

As a result of this misconception, the counsel posits, there was a miscarriage of justice because tile claim ought not to have been granted. Thus, the appellant is now asking that the concurrent findings of tile courts below, even though based on the facts before them, were perverse because they were based on discretion without adverting to equity. The respondent, whose counsel never appeared but filed a brief of argument that was deemed argued formulated the following issues for determination:  

“In the respondent’s considered view, the main issues for determination by this court in this appeal arc as follows:    (i)   Whether the findings of facts and the exercise of her discretionary powers by the trial Judge based on the A totality of the evidence before her and the affirmation of such finding by the Court of Appeal were perverse.  (ii)   Whether the Common Owner (Ikeja Real Estates Limited) having conveyed the land in dispute plot No. 13 in Block XIV, lre Akari Estate to the respondent in 1974 could have validly and lawfully conveyed again the same land to the E appellant in 1978.  

(iii) Whether in view of the uncontroverted evidence of the respondent at the court below, the trial court and indeed the Court of Appeal have rightly rejected the equitable defences of estoppel by conduct, laches, acquiescence, standing-by and other legal and equitable defences.    

(iv) Whether the courts below have correctly interpreted sections 1,34 subsections 1 to 3 and section 50 of the Land Use Act 1978 in relation to the evidence adduced at the trial.”  In arguing these issues the respondent’s brief of argument relied on time honoured principle that the Supreme Court will not interfere with the concurrent findings of fact by the lower courts if those findings are based on lawful evidence before the court and cited Emenimaya & ors v. Okoroji & Anor. (1987) 3 NWLR (Pt. 59) at p. 6 The appellant had sufficient warning that the land he was erecting a building upon could lead to litigation as he admitted under cross-examination that he saw that notice the respondent posted on the land when he discovered the construction being undertaken.

He ignored this warning and perhaps never took steps to make adequate searches about the title or right to possession. The respondent made several efforts to locate the appellant, and when he succeeded, he was confronted with the respondent’s claim of right on the land. The appellant also ignored this and with great rush continued erecting the building on the land to completion.

The structure is a storey building and it was completed in about six months. The land was conveyed to the respondent in 1974 as explained earlier and he was in possession since. What the appellant was first given was discovered to be void as it was already vested in someone else; the second assignment, now subject of this suit on appeal, was no better either, as it was already vested in the respondent. It must be pointed out that learned counsel for the appellant has not disputed the facts of this case as put before the trial court on which its decision, and that of the Court of Appeal, were based. What he questions in his forceful brief of argument is that the courts below never adverted to equity of the case before arriving at their decisions. To my mind this argument might have some validity but for the glaring facts of this case. The appellant was first given a plot of land by the Common vendor which he discovered was vested in some person already.

This has been notice enough for him to be cautious in the alternative plot for the person who comes to equity or intends to resort to equity must be vigilant – vigilantibus et, non dormientibus,jura subveniunt. The laws will aid those who are watchful and not those who go to sleep. On being intimated that he could have been twice bitten the appellant accelerated his building operations on the disputed land to completion. He certainly started building around February 1978 and it was the same month the respondent discovered this and took every steps reasonably expedient to discover the person on the land and warn him.

The appellant was not the one to be stopped. He certainly took a risk.  It is true much discretion is required in declaratory judgment. In itself discretion is part of equity and must be granted judiciously having regard to the facts and equity of the case. All declaratory reliefs must be granted on a thorough consideration of all the facts before the court including defences and objections advanced by the parties. But where the hard facts are uncontroverted, the applicant (plaintiff) has no equity on his side and has behaved recklessly the court will be on the side of the truth and law in support of the case.

The appellant has no equity on his side because he had adequate notice and chose to ignore it. The courts in this instance have no reason on the facts placed before them to do otherwise than to grant the respondent’s prayers because the appellant behaved without equity on his side. Whoever comes to equity must have clean hands and thus do equity.

The facts in the cases ably researched by learned senior advocate have facts in support of their decisions, it is the opposite in this case. [See Barclays Bank v. Ashiru (1978) 6-7 SC 99,130,131; lbekife lbeneweka & ors v. Peter Egbuna & Anor. (1964) 1 WLR 219, 224; Russian Commercial & Industrial Bank v. British Bank for Foreign Trade (1921) 2 AC 438; Egbunike v. Muonweoku (1962) 1 All NLR 46,511 (1962) 1 SCNLR 97. I find no merit in this appeal for the reasons set out in this judgment and I dismiss it with N10,000.00 costs to the respondent.

WALl, JSC. I had the privilege of reading in advance, the lead judgrnent of my learned brother Belgore, JSC. and I entirely agree with it. Having nothing more useful to add. I adopt as mine, the reasons contained in the judgment and hereby dismiss the appeal for want of merit. The judgment of the courts below are affirmed with N 10,000.00 costs to the respondent.

Other Citation: (1991) LCN/2453(SC)