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 The issue is based on the sole surviving ground of appeal, the other one having been withdrawn by the learned Attorney-General, who had settled the appellants’ brief of argument.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 –
“Having regard to the evidence placed before the Honourable court, was the learned trial Judge right in granting the order for declaration of ownership of the land in question in favour of the respondent?”
Mr. A. O. Mohammed, who settled the respondent’s brief, used different words in his formulation to raise the same question raised by the Attorney-General. I therefore see no point in setting out the respondent’s formulation.
The learned Attorney-General kicked off his arguments with the submission that “there was no sufficient legally admissible evidence before the trial Court to justify the granting of a declaration of ownership to the land in question.” He came to this conclusion by the following process of reasoning: The plaintiff/respondent specifically pleaded the sale agreement exh. ‘A’, and nothing else, as his root of title. In their testimonies the plaintiff and his witnesses traced his root of title to that same document. He introduced it into the evidence before the court for the sole purpose of establishing his root of title. The document was, therefore, an instrument within the meaning of that term in section 2 of the Land Registration Law. By virtue of section 15 of the Law it should have been registered before it could be allowed in evidence. It was not registered. The learned trial Judge was, therefore, in error in admitting it in evidence, since it was not available for the only purpose for which it was tendered. The document would have been relevant had the suit been between the respondent and his vendor, who had collected his money but would not give him legal estate in the land. He could then, with a view to obtaining an order for specific performance against such vendor, use such unregistered instrument, not to establish legal title in the land, but only to show that he had paid, and the vendor had received, the purchase price. It would not be relevant where, as in this case, the plaintiff relies on it, and on nothing else, to seek a declaration of title to land against a third party who had no hand in the collection of the purchase money from him. If this inadmissible piece of evidence, namely, exh. ‘A’, were discounted, there would be no evidence left before the court to sustain the respondent’s claim for a declaration of title to the land in dispute.
In answer, Mr. Mohammed, for the respondent, submitted in the respondent’s brief that “the respondent clearly proved his entitlement to a declaration of ownership and title over the land through purchase and positive numerous acts of possession which is one of the five methods of proving ownership of land in Nigeria”.
In support of this conclusion learned counsel made two noteworthy submissions, one on the facts and the other on law. On the facts learned counsel submitted in paragraph 3.20 of the respondent’s brief that “the contention by the appellants’ counsel that respondent pleaded exhibit ‘A’ as his root of title is … a misconception and misinterpretation of paragraph 8 of the statement of claim which is sound and clear.” On the law counsel submitted in paragraphs 3.17 and 3.18 that-
“3.17. Beginning with the first leg of complaint that exhibit’ A’ being a registerable instrument and having not been registered, it cannot sustain the claim for declaration. This is not the true position of the law regarding exhibit ‘A’. Submit that exhibit ‘A’ being a land transfer agreement and registerable document, is admissible in evidence as prove (sic) that the respondent who paid the purchase price and has been put in possession of the land has acquired equitable interest over the land in dispute which may only be displaced upon proof of better legal title by the appellants, but which they have woefully failed to do.
3.18. Submit that this is the true position of the law regarding transfer agreements involving lands held under customary law as in this case.”
I must say straight away, with all due respect to the respondent’s counsel, that if anybody had misconceived and misinterpreted the pleadings and evidence before the learned trial Judge it was he and, if I may be so bold as to add, the learned Judge. Paragraph 8 in which the plaintiff/respondent pleaded his root of title reads:
“8. The plaintiff says that upon the death of Bello Gambari, the disputed land by custom and tradition devolved on Malam Omoyiola Iyanda of Olomooba compound Itakure Ilorin who was a direct descendant of Bello Gambari who exercised acts of ownership on the disputed land until sometimes 1976 when by an agreement dated 10th August: 1976 the said Malam Omoyiola Iyanda sold the disputed land to the plaintiff. The said agreement is hereby pleaded and will be found (sic) upon at the trial of this suit.” (All emphases mine for highlight).
It is quite clear to me from the emphasised words that the respondent pleaded the agreement referred to in the paragraph as his root of title. That was the document he introduced into evidence as exhibit ‘A’. He did not trace his root of title to any other transaction, either under the received English law or customary law. He did not plead that he bought the land under customary law. He specifically pleaded that it was “by an agreement dated 10th August, 1976” that Malam Omoyiola Iyanda sold the disputed land to him, thereby transferring title in the land to him. The only reference that the respondent made to custom and tradition was in relation to the holding of the land, not the sale of it. It does not follow that any sale of land, held under customary law is necessarily a sale under such customary law. Land held under such customary law could just as easily be sold under such custom as under the received English law. What determines under which system of law the sale has been made depends on the nature of the transaction and the procedure followed in making it.
It was, therefore, clearly a misconception and a misinterpretation of paragraph 8 of the statement of claim on the part of the respondent’s counsel to contend, as he did in paragraph 3.20 of the respondent’s brief, that the respondent had not pleaded exh. ‘A’ as his root of title. That was indeed the only root of title that he pleaded. He did not plead that the sale to him of the land was conducted under customary law.
With all due respect to learned counsel and the learned trial Judge, I think their misconception has arisen from their gross want of appreciation of the distinction in law between sale of land under our customary laws and one under the received English law. The conditions for a valid sale are not the same in both cases. Sale by agreement in writing is one of the absolutely necessary features of a valid sale under the received law. Under our traditional laws, on the other hand, such writing is unknown and a valid sale of land usually comes about without it.
“There can be no doubt,”
observed the West African Court of Appeal, per Verity, Ag. R, in Ogunbambi v. Abowab (1951) 13 WACA 222 at 225,
“that by such law and custom no such things as written contracts or conveyances are necessary to a valid sale. The payment of purchase money and the delivery of possession are enough.”
It was necessary for the learned trial Judge to have borne this distinction in mind in approaching the case regarding the admissibility in evidence and use of exh. ‘A’ because of the requirements of the rules of pleading and the proof of pleaded facts. The adversarial nature of our legal system regarding practice and procedure requires a party, in order not to spring unnecessary and unfair surprises on his adversary, throughout the proceedings to stick in all material particulars to the case he had set up at the inception in his writ of summons and statement of claim, unless, of course, he is allowed an amendment to his writ or pleadings to alter such case. A party cannot, therefore, set up one case in his writ of summons and pleadings and proceed at the trial to lead evidence in proof of another one materially different.
Relating this observation to the case in hand, the respondent would not be allowed to lead evidence in proof of a sale under customary law when the case he had set up in his pleadings (paragraph 8) was sale by a deed of conveyance under the received English law, which is what exh. ‘A’ really was. A cursory look at the document would confirm this. The relevant part of the document read:
“THIS AGREEMENT is made and entered into this 10th day of August, 1976 Between: MALLAM OMOYIOLA IYANDA of OLOMO-OBA COMPOUND, ITAKURE AREA, ILORIN, KWARA STATE (hereinafter referred to as ‘the TRANSFEROR’ which expression shall where the con so admits include his heirs, assigns, successors, and anybody deriving title under his authority) of the one part, AND: MALLAM JIMOH ATANDA of GAA-IMAM VILLAGE AREA, ILORIN, KWARA STATE, (hereinafter referred to as ‘the TRANSFEREE’ which expression shall where the con so admits include his heirs, assigns, successors, and anybody deriving title under his authority) of the other part.
WHEREAS:
(a) Under and by virtue of Native Law and Customs, the transferor herein is from time immemorial absolutely seized of or well and sufficiently entitled to the said portion of land (hereinafter described) and intended to be hereby transferred and conveyed;
(b) The transferor in his capacity as the only person who has the right to grant, transfer and alienate and conveyor otherwise deal with the land thereof;
(c) The transferor has agreed to transfer and convey unto the said transferee – ALL THAT PORTION OF LAND described in the schedule hereto, and to hold the same unto and to the use of himself and the said portion of land was transferred at the sum of N21,600.00 (TWENTY-ONE THOUSAND, SIX HUNDRED NAIRA ONLY).
NOW THIS AGREEMENT WITNESSES that in pursuance of the agreement, and according to Law and Customs, and in consideration of the sum appeared in paragraph 2(c) above (the Transferee PAID IN FULL to the Transferor) the receipt whereof the Transferor hereby acknowledged) as the beneficial owner, hereby transfer and convey unto the Transferee, the said portion of land described in the schedule hereto, and to hold the same unto and to the use of himself and his heirs, assigns, successors-in-title FREE from all incumbrances, and subject to the consents of the Kwara State Government or the Local Government in-charge (as the case may be).
THE TRANSFEROR shall save harmless and keep indemnified the Transferee against all losses, costs, charges, damages and expenses which the Transferee may sustain or pay or be put into by the reasons or as a result of a direct or indirect claim or claims made by any person or persons in respect of the said portion of land described below in the schedule.
THAT THE SCHEDULE REFERRED TO: ALL that portion of land being lying and situated at GAA-IMAM AREA, Ilorin, Kwara State, and the land cover an area of 699 feet by 303 feet square in dimension.
IN WITNESS whereof the parties have hereto set their hands, sealed, the day and year first written above.”
It can be seen from the words that I have highlighted by italics and bold letters that the parties meant the document to be evidence of their intention to transfer outlight legal title in the land from the transferor to the transferee. This fact clearly made exh. ‘A’ an instrument as defined in section 2 of the law, which defines that term to mean –
“…a document affecting land in Kwara State whereby one party (hereinafter called the ‘Grantor’) confers, transfers, limits, charges or extinguish in favour of another party (hereinafter called the ‘Grantee’) any right or title to or interest in land in Kwara State and includes a Certificate of Purchase and a Power of Attorney under which any instrument may be executed, but does not include a Will.”
It was quite different from the agreement entered into between the land owners and the purchaser (admitted as exh. ‘B’) in Coker v. Ogunye (1939) 15 NLR 57, which Ames, Ass. J., described at page 59 as “really little more than a glorified receipt and record of what the receipt was for, and what was agreed upon”. Unlike in exh. ‘A’ before us, in exh. ‘B’ in that case the parties were merely described as “vendor” and “purchaser” respectively. Again, unlike in our exh. ‘A’, the parties to exh. ‘B’ in that case did not evince any intention to use the document as evidence of transfer of legal title in the land. The operative clauses (clauses 1 – 4) read:
“1. The vendor will sell and the purchaser will buy the fee simple in possession free from incumbrances of all that piece or parcel of land with the buildings thereon situate at Kemta Oke Agbede Abeokuta which property originally belonged to our mother Maria Adewunmi of Kemta Oke Agbede deceased and which descended to us in inheritance after her death in 1918 according to Native Law and Customs as per boundary below.
- The price for the said purchase is twenty pounds (?20) which has been fully paid by the purchaser to the vendors on 17th September, 1938 and the receipt whereof the vendors doth hereby acknowledged and confirmed.
- The said piece of land with the buildings thereon shall be surveyed by the purchaser at his own convenience and expense.
- The vendors or their heirs shall be prepared to execute a formal deed of conveyance of the said piece of land whenever called upon by the purchaser so to do.”
All this was clearly merely evidence of intention of buying and selling of land. Evidence of the actual transfer of legal estate in the land was to come by further action to be taken at a later date.
Now, by section 15 of the Land Registration Law “No instrument shall be pleaded or given in evidence in any court as affecting land unless the same shall have been registered.”
We have seen that exh. ‘A’ was not registered. We have seen also that this notwithstanding, the learned Judge admitted it in evidence, but, according to her, only in proof of the fact that the purchase price in respect of the land was paid by the respondent to Omoyiola Iyanda.
The question then is whether or not the Judge was right in proceeding in that manner.
With all due respect to her and learned counsel for the respondent, I do not think she was. What she held in effect was that, even though exh. A was a registerable instrument in its main purpose, there were other elements of it that could be used as evidence without the necessity for registration. In addition to transferring title in the land from Omoyiola Iyanda’s family to the respondent, exh. ‘A’ also served as evidence in proof of the fact that money was paid by the respondent to Omoyiola Atanda for the purchase of the land. It showed also that the parties intended to do the buying and selling according to customary law.
Was this reasoning justified by the pleadings and evidence before the court?
In my view, the learned Judge was not, having regard to the pleadings and evidence before her, justified in admitting exh. ‘A’ for the sole purpose of providing evidence of payment of the purchase price in respect of the land or for any purpose at all. The fact that the document could also serve as evidence of payment of the purchase price was, with respect, of little or no moment before her. As has been seen, it had not been brought up for that purpose. It had been produced as the very document that effected the transfer of interest in the land. No such document which is not registered is allowed even to be pleaded, not to talk of being given in evidence. The learned Judge should not have admitted it at all for any purpose and should have told the respondent that he could not, in the circumstances, even plead it. Having found that it ought to have been registered but was not, she should have rejected it outright. In Coker v. Ogunye, supra, Ames, Ass. J., gave some useful guide as to how to handle alleged instruments that should have been but were not registered and tendered in evidence. He said:
“…the principle to be followed in deciding whether any particuiar document is an ‘instrument’ within the meaning of the ordinance so as to require registration is … that only those which actually are the very means by which a right or title to or interest inland is conferred, transferred, limited, charged or extinguished in favour of another party are within the ambit of the ordinance and have to be registered. If on the other hand the right or title to or interest is not conferred etc. by the document but was conferred etc. independently of the document by some other act of the parties or by some other means and could exist without the document, so that the document becomes only an appendage, so to speak, to that other act or those other means, such a document is not within the ambit of the ordinance.” (Italics mine).
Exh. ‘A’, as has just been seen, was the very and, indeed, the only means by which the right or title to or interest in the land in dispute was conferred or transferred in favour of the respondent. The facts and circumstances of this case were such that there could be no half-way house. Either it was registered and, therefore, admissible or it was not and, therefore, inadmissible.
Had the respondent’s case been that he had bought the land under customary law then he could have relied on exhibit ‘A’ as evidence of payment of the purchase price and then proceeded to proffer evidence of the other elements of a valid sale of land under customary law. On the state of the pleadings when the case went to trial, however, the only evidence that the respondent could legitimately have called was such evidence as was geared towards establishing his root of title based on exh. ‘A’ and on nothing else. There was no room for any piece of evidence aimed at showing that the document was only a receipt, which, coupled with the delivery of possession to him, constituted a valid sale to him under customary law.
To be fair to the respondent and his counsel, they were consistent in the formulation and presentation of the respondent’s case before the trial court. We have seen paragraph 8 of the statement of claim where it was pleaded that exh. ‘A’ constituted his root of title. No attempt was made by them to prove sale to him under customary law. There was nothing in the testimony of the respondent or the submissions of counsel in answer to the objection to the admission of the document to suggest that they were tendering it merely as a receipt of payment. On the contrary, the respondent, testifying as PW1, made it absolutely clear that his root of title lay in exh. ‘A’ and that he was tendering it in proof of that fact and of no other fact, certainly not as a mere receipt. The relevant portions of his evidence-in-chief on pages 27 and 28 of the record and the Judge’s minutes of how exh. ‘A’ was admitted in evidence are as follows:
“I bought the land from a man called Omoyiola Iyanda Olomooba of Ita Kure Ilorin. It is about 35 plots of land. I have an agreement paper that I bought this land. I bought the land long time ago. I don’t know the date but it is a longtime ago. I believe the date is on the agreement paper.
…
If I see the agreement paper with which I bought the land I can identify it. This is the agreement. My, name is written on it.”
“Mr. Obadofin: I seek to tender it in evidence.
Mr. Fakayode: We are objecting to the admissibility. This is a document that transfers an interest in land and for it to be admissible it must be registered. This document is not registered. We urge the court to reject it.
Mr. Obadofin: This document is relevant and the fact that it is not registered does not make it inadmissible. I pray the court to admit it.
Court: A registerable instrument that is not registered is admissible only as a receipt and not as conforming (read conferring?) title on the land to the party. So I hold that this document is admissible and the parties at the appropriate stage can address the court on the probative value of the document. I therefore admit the agreement between Mallam Omoyiola Iyanda of Olomo Oba comp, Itakure Ilorin and Mallam Jimoh Atanda of Gaa Imam Village Ilorin dated 10/8/76, and it is marked exh. ‘A’.” (All emphases mine for highlight).
It can be seen from the emphasised words that the respondent’s testimony was consistent with his pleading that he was basing his root of title on exh. ‘A’, which he regarded as the deed of conveyance that effected the transfer of title from Omoyiola Iyanda to him and not as a mere receipt. It can be seen also that it was the learned trial Judge who, on her own and without any prompting from the respondent or his counsel, introduced the idea of the document being tendered merely as a receipt and not a deed of conveyance. Mr. Obadofin in his address on the objection never said he was tendering the document as a receipt and there was nothing in the testimony of the respondent to suggest that he was tendering it as such. Even after exh. ‘A’ had been admitted in evidence the respondent never said or did anything to indicate that the document was a mere receipt and that the other elements of a valid sale under customary law would be introduced. Neither in the remainder of his testimony nor in the evidence of his four witnesses was any such indication given. With the possible exception of PW4, each witness made it abundantly clear that exh. ‘A’ was the foundation on which the respondent’s case rested. PW2 testified:
“The plaintiff bought the land and I was one of the signatories to the sale agreement. He bought the land from a man called Moyiola who is now deceased. He died long time ago. When the plaintiff bought the land I signed as a witness. If I see the agreement and my signature I can identify. This is the agreement and my signature.” (Emphasis mine).
PW3 for his part said:
“The plaintiff is the owner of the land as of now. He bought the land from the Olomooba family and the person from whom he bought it is the father of one Babatunde Akanji. I don’t know his name. He is a member of Olomooba family. I was one of the signatories to the sales agreement. I signed as a witness to the plaintiff. If I see the paper I signed and my signature I can identify. This is the agreement and this is my signature.” (Emphasis mine).
PW5:
“An agreement was drawn that my father sold the land to the plaintiff and he thumb printed it. I signed the agreement and my brother also signed. If I see the paper I signed that day I can identify. This is the paper and this is my name and signature on it.” (Emphasis mine).
It was inspite of all this that the learned Judge in her judgment was, as we have seen, still able to insist that the document was “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.” This no doubt was a correct statement of the law, but only in an appropriate case. This, with respect, was not an appropriate case. The statement would have been quite in order had the respondent based his case on sale under customary law. The Judge’s observation here was clear evidence that she was thoroughly mixed up regarding the concept of sale under customary law and sale under the received English law. As we saw, neither the respondent nor any of his witnesses said that the respondent acquired equitable interest by paying the purchase money and being put in possession and that exh. ‘A’ was tendered as evidence of the first step in this customary procedure. The pleading and their evidence was that exh. A was the alpha and omega of the acquisition of legal estate in the land by respondent.
The only sources from which the learned Judge could possibly have got the impression that the respondent was put in possession of the land in dispute are the averment in paragraph 9 of the statement of claim and the testimony of PW4. In paragraph 9 of the statement of claim it was pleaded:
“9. The plaintiff avers that upon the sale of the disputed land to him by Mallam Omoyiola Iyanda, he took possession of same and exercised acts of ownership until sometimes in 1992 when all of a sudden, the agents of the 1st defendant trespassed on the said land by clearing and fencing same thereby dispossessing and depriving the plaintiff access and usage of the said land.”
With respect, I do not understand this pleading to mean that the respondent was put in possession after a customary law sale. The sale sequel to which he was alleged in this paragraph to have been put in possession could, in the circumstances, only have been the salementioned in paragraph 8, namely, the sale effected by exh. ‘A’. I see no justification for supposing that it referred to another sale. In his evidence-in-chief PW4 testified:
“Alhaji Mohammed Atanda Jimoh (plaintiff) is the owner of the land in dispute. I was one of the people delegated to go and show the parcel of land to the plaintiff by our fathers when he approached the family that he want to buy the land. The role I played is that I went back to the elders to report to them that I have shown the land to the plaintiff and he like it. I was mandated to go and measure the land and after measuring I told them it was 35 plots. The plaintiff went and paid for the 35 plots to our fathers and I told the plaintiff to quickly develop the land. After he paid an agreement was made that he is now the owner of the land. I was called upon to sign as a witness on behalf of our fathers that the plaintiff bought the land from them.”
Based on this, one could say that the sale of the land to the respondent had been conducted both under customary law and under the acquired law in that order. The evidence shows that negotiations were conducted in the traditional way. The respondent paid the agreed purchase money and was put in possession by PW4 on the instruction of the elders of the family. Thereafter the parties superfluously executed exh. ‘A’.
The evidence of this witness would clearly have won the day for the respondent but for one small snag, namely that it was completely out of tune with the case set up by the respondent in his writ of summons and statement of claim. We have seen what that case was. The evidence of PW4 we have just seen does not support that case. Rather it supports a different case, which, unfortunately, was not the respondent’s case. The evidence, therefore, went to no issue and ought accordingly to have been discountenanced by the Judge.
The net result of all that I have said is that, as the only evidence that the respondent relied on for his claim for a declaration of title to the land in dispute, namely, exh. ‘A’, was inadmissible in evidence for the purpose for which it was tendered, it follows that there is merit in the complaint of the appellants. Once exh. ‘A’ is discounted, as it ought to be, there is no evidence left to sustain the respondent’s claim for a declaration of title to land.
In the circumstances, I must resolve the sole issue canvassed before us in favour of the appellants. Having regard to the pleadings and evidence before the learned trial Judge she was not justified in granting the plaintiffs/respondent’s claim for declaration of title to the land in dispute. In the result the appeal ought to be and is hereby allowed. The decision of the learned trial Judge is set aside in its entirety. In its place I make an order dismissing the plaintiff’s/respondent’s case before the lower court in its entirety.
I must confess that this appeal gave me anxious moments. It is with much sadness that I had to hand the respondent the bitter pill to swallow. This is a case that he ought not to have lost had his lawyers put in more work in the court below than they did. They were a little too complaisant. Had they taken more time to study their client’s case more carefully in all its ramifications and tried to plug all holes through which the case could, considering the adversarial nature of our legal system, have legitimately slipped away to the detriment of their client the story would have been different now. Had they taken the trouble to plead all the sources from which their client could have acquired title to the land in dispute, which the evidence they had at their disposal supported, the hapless respondent would have been smiling today. However, much as I sympathise with him for this avoidable loss, there is little I can do. I have to apply the law as it is, not as I think it ought to be, even if as has happened in this case, it is rough on some.
I do not think that the circumstances of this case warrant further encumbering the respondent with the appellants’ costs. I therefore order each side to bear its own costs.
Other Citations: (2006)LCN/1908(CA)
