Abiodun Adelaja & Ors. V. Yesufu Alade & Anor. (1999)
LAWGLOBAL HUB Lead Judgment Report
ACHIKE, J.S.C.
The plaintiffs, herein referred to as appellants, claimed jointly and severally against the defendants, herein referred to as respondents, in paragraph 19 of the amended statement of claim as follows:-
“1. Declaration of title to a statutory right of occupancy under the provision of Decree No.6 of 1978 in respect of all that piece or parcel of land lying, being and situate at Tabontabon village, off Ring Road, Ibadan, as per the plan No.FA/M/32A drawn by licensed surveyor A.O. Adebogun dated 16/11/79.
- N200.00 general damages for a continuing trespass commenced since the month of June, 1977 by the defendants, their agents and/or servants on the said landed property in Ibadan.
- Injunction restraining the defendants, their agents, servants, privies and all those claiming through the defendants from committing further acts of trespass on or in any other way interfering with plaintiffs’ ownership and/or possession of the said landed property.”
It is necessary to draw attention to the fact that by the ruling of this court dated the 17th of June, 1994, appellants were granted leave to amend paragraph 19(1) of their amended statement of claim to reads as follows:
“19(1) Declaration of title to a statutory right of occupancy under the provision of Decree 6 of 1978 in respect of all that piece or parcel of land particularly plots 28 and 29 property of Kola Ayodele suing by his attorney, the third plaintiff, plot 32 property of first plaintiff and plot 33 property of second plaintiff, all within Alade Layout, lying, being and situate at Tabontabon village, off Ring Road. Ibadan verged black as per the plan No. FA/M/32A drawn by licensed surveyor A.O. Adebogun dated 16/11/79.”
The plaintiffs’ case as portrayed in their amended statement of claim was that sometime in 1957, the Alade family established a layout of plots for sale of their family land at Tabontabon village near Ring Road, Ibadan. The family head and representatives were Adebayo Alade. Adetohun Alade (deceased) and Yesufu Alade (first defendant). The first plaintiff, Abiodun Adelaja bought six plots in the layout. i.e. plots Nos.20,21.24, 25. 32 and 37 and was evidenced by a sale agreement dated 23/3/58 and a conveyance registered as No.53/53/259 of 16/6/58.
The 2nd plaintiff, Abiodun Oyetubo bought plot No.33 as witnessed by a deed of conveyance registered as No.48/48/353 and dated 4/12/59 while the 3rd plaintiff. Kola Ayodele bought four plots, i.e. plots Nos. 16,17,28 and 29 as also witnessed by a deed of conveyance registered as 16/16/254 of 16/5/58. The eleven plots bought by the plaintiffs are as shown “in survey plan FNM132A dated 21/1/78 prepared by A.O. Adebogun, a licensed surveyor.
The plaintiffs have been put in possession and exercised acts of ownership on the land until 30/5/77 when 1st plaintiff saw 2nd defendant and two workmen constructing a building foundation on the land. The said building construction not only obstructed the proposed road within the Alade family layout but protruded at various places into plot No. 32, plot No. 33 and plot Nos. 28 & 29 which are the respective properties of 1st, 2nd and 3rd plaintiffs. These interferences on the plaintiffs’ plots of land triggered off this action.
In their statement of defence, the first defendant denied being a party to the execution of the documents of title pleaded by the plaintiffs, and except that he admits selling two plots of land to the 1st plaintiff but also denies that he trespassed on both plots. The second defendant denied liability as he was a workman of the 1st defendant. The defence also stated that the plaintiffs plan included areas of land already litigated upon in Adelaja (as attorney for Victor Oludemi) against Olatunde Fanoiki and Yesufu Alade, suit No. 1/147/75, which suit was dismissed. It was also the defence case that the plaintiffs’ plan included land not sold to them. It was also averred that the 3rd plaintiff was guilty of laches and acquiescence. Finally, the defence averred that the 1st and 2nd plaintiffs’ claims to plots 32 and 33 were dismissed in suit No. 1/402/77. A. Adelaja & anor Yesufu Alade & anor on 16/10/78 and consequently, in respect to these two plots, they rely on the plea of res judicata.
In the plaintiffs’ amended reply to statement of defence they averred that the dismissal of suit No. 1/402/77 was not on its merits and therefore could not support a plea of res judicata.
After due trial, the trial Judge, at p.60 of the record made the following findings of fact:
”The area allegedly trespassed upon and the cause of dispute in the present action is the area verged black in Exhibit ‘K’. The building which has been erected on the said area touches slightly plot 32 in the area verged green in Exhibit ‘K’, claimed by the 1st plaintiff. It also touches plot 33 in the area verged blue in Exhibit ‘K’ claimed by the 2nd plaintiff. And so does it abutt (sic) on plots 28 and 29 in the area verged yellow in Exhibit ‘K’ claimed by the 3rd plaintiff.”
Thereafter, judgment was entered in favour of the first and second plaintiffs on their declaration as sought but their claims for trespass and injunction were dismissed, whilst the case of the third plaintiff was dismissed in its entirety.
On appeal by both parties against the judgment of the High Court, the Court of Appeal unanimously held that 1st and 2nd appellants did not prove their title to the land in dispute, The court further held that the appellants never proved that the parcels of land in dispute were within the Alade Layout, plan which they pleaded, and in the result, an order of non-suit was entered against the three appellants. Their appeal on trespass and injunction was dismissed. The cross-appeal of the respondents succeeded as the judgment of the High Court in favour of the 1st and 2nd appellants was set aside. In the final result, the appeal succeeded in part and the cross-appeal also succeeded partially.
It is against this dcision of the Court of Appeal that this appeal is lodged to the Supreme Court only by the three appellants. They filed four original grounds of appeal which were amended, with leave of this court, on 29/8/94 to include a fifth ground of appeal. I do not find it necessary to reproduce the grounds of appeal. The appellant, in their brief, identified the following three issues for determination:
“(a) Did Exhibits D, E and F i.e. the deeds of conveyance in favour of the appellants pass title in the land in dispute as reflected in Exhibit K to the appellants.
(b) Did the appellants by the preponderance of evidence prove their case to entitle them to their claims for title, injunction and damages in respect of the disputed plots of land as reflected in their plan No. FNM/32A drawn by licensed surveyor A.O. Adebogun, dated 16/11/79.
(c) Whether the Court of Appeal was right to have non-suited the appellants:’
On examination of the grounds of appeal and the above issues formulated therefrom. it seems to me that the issues as set out above arise from the judgment of the lower court as well as the grounds of appeal and are sufficient for the determination of the appeal. The respondents filed no brief of argument in response to the appellants’ brief and at the instance of the appellants this appeal was ordered to be heard on the appellants’ brief alone. Respondents were not represented at the hearing of the appeal either.
We now take off with arguments on issue one. There is no doubt that the pivotal question in a declaration of title action founded on registered deed of conveyance of land, in a layout of plots of land is the burden and quantum of proof needful for the plaintiff to succeed. 1st appellant’s registered conveyance of 16/6/58 was tendered in evidence as Exhibit D, that of 2nd appellant of 4/12/59 was admitted in evidence as Exhibit E while that of the 3rd appellant of 16/5/58 was received in evidence as Exhibit F. PW6, the appellants’ surveyor prepared Exhibit K – the plan of the land in dispute – the composite plan on the basis of what he saw on the land and the plans attached to Exhibits D, E and F. The said Exhibit K was however never made with reference to the entire Alade Layout plan. It is common ground that late AT. Bicketsteth who prepared the Alade Layout plan was the same surveyor who made the plans attached to Exhibits D, E and F i.e. the deeds of conveyance. The deeds of conveyance and all the plans indicate that the plots of land contained therein are within the Alade Layout.
The Court of Appeal was in no doubt that by the combined effect of sections 18(1) – (5) and 31(2) of the Land Instruments Registration Law, Cap 56 Laws of Oyo State 1978, an instrument, including a deed of conveyance when registered, under this Law, both the original and its certified true copy under the hand of the registrar in the land registry are admissible in evidence and constitute sufficient proof of its due execution. The leading judgment of Ogundere, J.C.A. then continued,
“It is only when a conveyance is registered under section 5 of the Land Titles Registration Law Cap. 57, 1978 Laws of Oyo State that by virtue of section 48 thereof when pleaded and tendered in evidence of title. Therefore unless so admitted in pleadings or at the trial its due execution must be proved unless the party concerned can pray in aid the presumption under section 130 of the evidence Act.”
Notwithstanding the passing reference to sections 18(1) – (5) and 31(2) of the Land Instruments Registration Law of Oyo State on1y in the leading judgment of the Court of Appeal ,it seems to me very clearly that the effect of such “due execution” was not fully appreciated by the lower court and indeed constitutes an erroneous oversight of the requirements and provisions of sections 18(1) -(5) and 31(1) and (2) of the aforesaid Law of Oyo State. Therefore, the necessity of a close examination of the provisions of these sections becomes compelling. Section 18(1) -(5) provides: “(1) Any person desiring that any instruments shall be registered shall deliver the same together with a true copy thereof and the prescribed fee to the registrar of the office.
(2) The registrar shall, immediately after such delivery, place upon the instrument and upon the copy thereof a certificate, as in Form B in the First Schedule.
(3) Unless the instrument is one which is declared by this Law to be void or the registration of which is prohibited by this law, the registrar shall compare the copy of the instrument with the original and if he shall find such copy to be a true copy and to comply with any regulations made under this law and for the time being in force he shall certify the same by writing thereon the words ‘certified true copy’ and appending his signature thereto.
(4) The registrar shall thereupon register the instrument by causing the copy so certified to be pasted or bound in one of the register books and by indorsing upon the original instrument a certificate as in Form C in the First Schedule: and upon such registration the year, month, day and hour specified in the certificate indorsed on the instrument in pursuance of sub- section (2) shall be taken to be the year, month, day and hour at which the instrument was registered.
(5) The original instrument shall thereafter, upon application, be returned to the person who shall have delivered it for registration:
Provided that if application for the return of the instrument is not made within twelve months after the date of registration the registrar may destroy the instrument.”
Section 31(1) provides:
“The registrar shall upon request give a certified copy of any entry in any such register book or register, or of any filed document.’;
While section 31(2) provides:
“Every such certified copy shall be received in evidence, without any further or other proof in all civil cases.”
The resultant effect of the combined reading of sections 18(1) -(5) and 31(2) of the Land Instruments Registration Law is that once an instrument has been registered in accordance with sections 18(1) -(4), a certified copy of a conveyance so registered, and in compliance with section:11 (2) “shall be received in evidence without any further or other proof in all civil cases.” This construction accords with the decisions of this court in A.T. Jules v. Raimi Ajani (1980) 5-7 SC 96 and Adelaja v. Fanoiki (1990) 3 SCNJ 131; (990) 2 NWLR (Pt. 131) 137. In both cases the Supreme Court reaffirmed the principle that a registered conveyance under the Land Instruments Law is sufficient evidence of its due execution.
The lower court however stated that unless a conveyance registered under section 5 of the Land Titles Registration Law of Oyo State is admitted in pleadings or at the trial, its due execution must be proved unless the party concerned can pray in aid the presumption under section 130 of the Evidence Act as to recitals etc. Reliance on section 5 of the Land Titles Registration Law, in my view, after due compliance with sections 18(1) – (5) and 31(2) of the Land Instruments Registration Law in order to establish due execution of a registered conveyance is uncalled for. And as was pointed out in Adelaja v. Fanoiki (supra) the question whether the deed of conveyance admitted in evidence is proof of its execution does not arise under the presumption of due execution set out under section 122 or 129 of the Evidence Act. On the contrary, the question of due execution of registered conveyances admitted in evidence in this case as Exhibits D. E and F manifestly falls within the ambit of the provisions of section 32(2) of the Land Instruments Registration Law, o Cap., 56 Laws of Oyo State. 1978 Vol. III and they require no further proof whether or not admitted in pleadings or at the trial -as regards their due execution. See Cardoso v. Daniel (1966) 1 All NLR 25. The effect of section 31(2) is indeed far-reaching. Thus when a conveyance has been duly executed under section 18(1)-(4) of the Land Instruments Registration Law, the mere denial by one of the executants of being a party to the execution cannot avail him nor affect the validity of the registered conveyance because section 31(2) enjoins that even a certified copy of the conveyance registered in accordance with section 18(3) and (4) will be admitted in evidence without any further or other proof in all civil cases.
It seems useful to take up the question of 1st respondent’s denial of being a party to any of the documents relied on by the appellants in proof of the registered conveyances. Paragraph 3 of the statement of defence states:
“3. The 1st defendant is not a party to the various documents pleaded by the plaintiffs except that he admits selling 2 plots of land to the 1st plaintiff and he has not trespassed on both plots,”
No doubt, the relevant documents are Exhibits D, E and F, i.e. certified copies of registered conveyances in favour of the appellants of which Exhibits H and R respectively are the original of Exhibits D and E. In each of these exhibits the 1st respondent’s thumb – print is clearly shown, yet he denied being a party thereto even though the jurat incorporated in the conveyance was duly made in the presence of a magistrate and its content in the English language was read over and explained to the 1st respondent in Yoruba language by an interpreter before he affixed his right thumb-print. In my opinion, the implication of 1st respondent’s denial that it is his thumb-print that appears in Exhibits D, E, F, Hand R is tantamount to saying that these documents are a forgery or a fake. Of course, in such a situation the burden of proof of the forgery rests on the party who alleges. See section 137(2) Evidence Act. Since a crime is alleged, the standard of proof is demanding because the onus is on him who alleges to prove it beyond reasonable doubt. See Ikoku v. Oli (1962) 1 All NLR (Vol. 1) 194 at 199. (1962) 1 SCNLR 307; 1st respondent has not led evidence to establish that he did not thumb-print Exhibits D. E.F.H. and R are a forgery. As we have noted earlier, it has been established that Exhibit D, E and F are certified true copies of deeds of conveyance duly executed and respectively in favour of the 1st, 2nd and 3rd appellants, and Exhibits H and R are the originals of Exhibits D and E executed in favour of the 1st and 2nd appellants respectively. An instrument is said to be duly executed when all acts necessary to render it complete and give it validity have been performed. Thus Exhibits D, E and F are valid conveyances respectively between 1st appellant and the 1st respondent’s family, 2nd appellant and the 1st respondent’s family and 3rd appellant and the 1st respondent’s family. Exhibits D, E and F being certified true copies of deeds of conveyance that have been duly executed were properly received in evidence and required no further proof or other proof.
The appellants having established due execution of Exhibits D. E and F. then prima facie they have established their title, tracing it to the Alade family. Learned appellants’ counsel, Mr. A.O. Oduleye, calls in aid the Supreme Court decision in Idundun v. Okumagba (1976) 1 NMLR 200 wherein that court enumerated the five ways in which ownership of land may be proved, and one of them is by deed of conveyance. Referring to the second way in this regard, this court stated as follows:
“Secondly ownership of land may be proved by production of documents of title which must, of course, be duly authenticated in the sense that their due execution must be proved:’
Appellants have produced documents of title, Exhibits D, E and F which are duly authenticated and registered, and by virtue of section 31(2) of the Land Instruments Registration Law of Oyo State they require no further proof of execution. The court below was manifestly in error in holding that Exhibits D. E and F which are registered deeds of conveyance were not prima facie evidence of title to land. Appellants, as plaintiffs, who claim declaration of title must succeed or fail on the strength of their own case see Kodilinye v. Odu 2 WACA 336. The appellants’ case is hinged entirely on Exhibits D. E and F. It has been established in this judgment that Exhibits D, E and F were duly executed and thereby established appellants’ title to plot Nos. 32. 33. 28 and 29 as shown in litigation plan. Exhibit K.
It may be recalled that one of the reasons why both the High Court and the Court of Appeal found against the appellants was that the appellants did not relate their composist litigation plan. Exhibit K to the Alade Layout plan which the land in dispute forms part. In the same vein the Court of Appeal held the view that if the Alade Layout plan was produced by the appellants and superimposed on the survey plans in exhibits H and R i.e the originals of Exhibit D and E and proved as part of the layout, the appellants’ claims should have succeeded. The above opinion is predicated on the evidence of P.W.6. Adesina Olufemi Adebogun, appellants’ surveyor who testified that he did not use the layout plan in preparing plan comprised in Exhibit K and therefore it would be difficult for him to say whether the plots reflected in Exhibits D, E and F fell within the Alade Layout plan. On this point, learned appellants counsel submitted that this opinion of the Court of Appeal was based on the misconception of the issue involved in this case. First, the identity of the land in dispute both from the parties’ pleadings and evidence was not in controversy and secondly, the combined effect of Regulations 32 and 37 of Survey Regulations (Cap.123 Laws of Oyo State of Nigeria 1978) P.W. 6, not being the maker of the Alade Layout plan. P.W.6 was not competent to obtain or possess the said plan. To the second point I shall return anon.
I consider it proper to state that where there is no dispute as to the identity or particular location of the parcel of land in dispute failure to file a plan would not necessarily be detrimental to a claim for title, damages for trespass or injunction in so far as from the description of the land in controversy it is apt for a court to determine, with certainty, the particular area where an order will be made.In this case, a plan, Exhibit K was filed with the amended statement of claim which was never challenged by the respondents either in their pleading or in evidence as not reflecting the area in dispute, nor did they file any plan with their statement of defence reflecting a different area as the land in dispute. It is now trite when a fact is not denied. it is deemed admitted.See Ogunleye v. Oni (1990) 2 NWLR (Pt.135) 745. For the same reason, where the appellants pleaded and served the respondents a survey plan, which subsequently was admitted in evidence as Exhibit K, which showed the boundaries and the features of the land in dispute, these will constitute sufficient proof of the boundaries and features set out in the land in dispute.
Therefore, where the respondents intend to challenge or dispute such boundaries or features they must do so by specifically traversing the appellants’ pleading in this regard because a simple or mere general traverse will be insufficient. See Elias v. Oma-Bare (1982) 5 SC 25 at pp 38-39. Omoregie v. Idugiemwanye (1985) 2 NWLR 41 (Pt. 5) at p.60 and Adimora v. Ajufo (1988) 19 NSCC (Pt.1) 1005; (1988) 3 NWLR (Pt.50) 1. Since there was no specific traverse or challenge of the boundaries of the land in dispute as set out in Exhibit K, then the admission of Exhibit K in evidence is tantamount to sufficient proof of the boundaries and features therein. In the result, the respondents must be taken to have admitted the correctness and accuracy of the dimensions and boundaries of the land in dispute as reflected in the appellants’ plan filed with their amended statement of claim and admitted in evidence as Exhibit K. And. if needed, the converse was sought to be made by the respondents, they would either have introduced in evidence the Alade Layout plan or caused a separate plan of the land in dispute to be made and tendered in evidence. This they also failed to do, as earlier noted, having neither contested positively or obliquely that the plan Exhibit K did not reflect part of the Alade Layout in dispute nor did they plead or lead evidence to that effect at the trial court. It is however clear that the issue of superimposition of the Alade Layout plan on the appellants’ composite plan was introduced by the two lower courts and not by the respondents. This court has repeatedly pointed out that it is not open to the court to introduce new issues which do not arise from the parties’ pleadings. Any decision based on issues not raised by the parties will not be allowed to stand; see Yakassai v. Incar Motors Ltd. (1975) 5 SC 107, Idiko v. Erisi (1988) 5 SCNJ 208; (1988) 2 NWLR (Pt.78) 563 and Adeniji v. Adeniji (1972) 4 SC 10.
There remains a second point that calls for consideration, albeit briefly, under this issue which complains about failure of the appellants to produce a copy of the Alade Layout plan. Regulation 37 of the Survey Regulation Law of Oyo State: of Nigeria 1978 provides as follows:-
“Copies of plans submitted by licensed surveyors under regulation 32 shall be available for purchase only to surveyors who lodged the particular plans and to persons for whom the surveys were made or their legal representatives, at the prescribed rates.
The above provisions clearly preclude P.W.6, the appellants licensed surveyor from procuring the Alade Layout plan which was prepared by another surveyor. one AT Bickersteth. It follows that if any one was to obtain the Alade Layout plan, then, certainly, it was the 1st respondent for whose family’s benefit the plan was made. In my view, in the face of the unchallenged composite plan, Exhibit K. the need to procure the Alade Layout plan did not arise moreso when the plans attached to Exhibits D, E. F. H and R prepared by A. T. Bickersteth. the maker of the Alade Layout plan, clearly stated that the numbered plots of land contained in the respective plans are also within the Alade Layout plan. This is sufficient proof on the part of the appellants that the vexed plots of land, reflected in Exhibit K, which was prepared from the aforesaid plans, fall within Alade Layout plan. Any view to the contrary will shift the burden of proof of the specific plans on the respondents and can only be discharged by production of their Alade family layout plan, or make their own litigation plan. This the respondents failed to do.
The sum total of the above discussion on issue one is that Exhibits D, E and F. the deeds of conveyance respectively in favour of the appellants passed title to the land in dispute to the appellants, as shown in Exhibit K.
Finally, it is worthy of note that even without the much-talked desire for superimposition of Exhibit K on the Alade family layout plan, the learned trial Judge, from the pleadings and evidence before him, made lucid findings of the land in dispute and consequently trivialized the necessity for the exercise of super imposition. These unchallenged findings had earlier been reproduced in this judgment and no good reason calls for their further reproduction. Clearly, the peculiar circumstances of this case wherein the parcels of land comprising the land in dispute form part of a larger area within a plotted layout hardly make superimposition needful.
This brings me to the second issue which seeks to determine whether the appellants established preponderance of evidence to entitle them to their three pronged claims for title, injunction and damages in respect of the disputed plots of land reflected in their plan No. FA/MI32A. Exhibit K. With regard to their claim for title their learned counsel recapitulates the submission in this regard earlier canvassed under issue one and urges the court to decree a declaration of title in appellants’ favour in respect of the land in dispute, and specifically. plot 32 in favour of 1st appellant, plot 33 for 2nd appellant while plots 28 and 29 for 3rd appellant. He further submits that it has not been established by evidence that 3rd appellant was guilty of laches and acquiescence. Secondly, counsel submits, as may be confirmed from Exhibit K. that the erection of the building shown in area verged black constituted trespass on the aforementioned appellants’ plots of land. Since the appellants were in exclusive possession they were entitled to action in trespass for damages. Concluding the argument on issue two, learned counsel submitted that the appellant’s are entitled to an order of injunction to enable them restrain the respondents from committing further acts of trespass on the land in dispute or in any other way interfering with the appellants’ ownership and possession of the said land in dispute.
As we had earlier shown under issue one, and there is no compelling reason to rehearse the submissions, appellants have successfully proved that there were due executions or Exhibits D, E and F by which they were vested with some plots in the Alade family layout. See Jules v. Ajani (supra) and Adelaja v. Fanoiki (supra).
With proof of due execution of their respective deeds of conveyance which required no further proof of due execution, appellants would have been entitled to a claim of declaration because they relied on the strength of their own case based entirely on Exhibits D, E and F See Idundun v. Okumagba (supra),
However this does not conclude the discussion on declaration of title under issue two. A final resolution on this aspect of issue two has been confounded by the further amendment granted by this court to the appellants to amend paragraph 19(1) of their amended statement of claim. I have earlier in this judgment reproduced the said amended paragraph 19(1). For purposes of emphasis, clarity and case of reference I would wish again to set out paragraph 9(1) as amended. It reads:
“19(1) Declaration of title to a statutory right of occupancy under the provision of Decree 6 of 1978 in respect of all that piece or parcel of land particularly plots 28 and 29 property of Kola Ayodele suing by his attorney, the third plaintiff, plot 32 property of first plaintiff and plot 33 properly of second plaintiff, all within Alade Layout, lying being and situate at Tahontabon village, off Ring Road, Ibadan verged Mack as per the plan No. FA/M/32A drawn by licensed surveyor A,O, Adebogun dated 16/11/79,” (emphasis supplied by me)
Whereas a look at Exhibit K visibly shows that the area of the land in dispute comprises plots 28 and 29 which are within the area verged yellow, plot 32 which is within the area verged green, and plot 33 which is an area verged blue yet I am clearly of opinion that the said land in dispute is definitely not verged black as alleged in paragraph 19(1) reproduced above, The area verged black in Exhibit K, in the notes on the top left hand side of Exhibit K is lucidly described as “Portion trespassed upon by the defendant’s and cause of dispute edged black with building under construction thereon:’ Indeed, the learned trial Judge had no difficulty whatsoever in identifying it when stating his findings of fact in relation to the area trespassed upon by the respondents. In the opening sentence of his findings (which had also been reproduced earlier it this judgment) his Lordship said, inter alia,
“The area allegedly trespassed upon and the cause of dispute in the present action is the area verged black in Exhibit K.”
This finding was in keeping with the appellants’ pleaded facts and evidence led at the trial.
Strangely, the appellants’ learned counsel sought and obtained from this court an amendment to paragraph 19(1) of the amended statement of claim (reproduced herein in the last paragraph above) wherein declaration of title was sought for the area “verged black as per the plan No, FA/M/32A drawn by licensed surveyor A.O, Adebogun dated 16/11/79,” (Emphasis supplied by me) We have also shown earlier that the area verged black is the area trespassed by the respondent, the cause of this action but by no stretch of imagination could this peripheral portion trespassed upon by’ the respondents constitute the large area for which declaration of title was intended to be sought. As if this is not enough, a quick glance at the area verged black in Exhibit K clearly shows that a larger part of the area verged black lies on the proposed road within the Alade family layout. It is ridiculous for appellants’ counsel to seek a declaration of title to a parcel of land clearly outside the area respectively conveyed to the appellants as adumbrated in Exhibits D, E and F.
The blunder on the part of counsel in this regard is of an unpardonable magnitude. Clearly, I think it is too late in the day to accommodate further amendment which could reflect the true state of affairs in this appeal. This court, although it is the court of last resort, cannot suo motu venture to remedy the situation by tinkering the appellants’ claim without eye-brows being raised in legal circles even though the mistake is manifest. After all, it is trite that parties as well as the court are bound by their pleadings and issues joined which are to be adjudicated by the court. As a necessary corollary, the court, not being a charitable institution, cannot award to a person either what he has not claimed or more then what he has claimed; see Ekpenyong &. ors. v. Nyong & ors. Nyong & ors. (1975) 2 SC 71 at p. 80, and Hon. Justice Adenekan Ademola v. Chief Harold Sodipo & ors; (1992) 7 NWLR (Pt.253) 251 (1992) SCNJ (Pt.11) 417 at pp. 446-447
It has earlier been shown that appellants’ learned counsel has erroneously averred that the declaration of title prayed for is with regard to the area verged black in Exhibit K. This generates a further complexity to the appellants’ claim because neither in their amended statement of claim nor in evidence was it stated that the land verged black belonged to the appellants jointly or as tenants in common to justify a declaration communally in their favour.
The net result of what I am saying is that appellants’ claim for declaration of title to certain plots of land in the Alade family layout plan, particularised as plot Nos. 28,29, 32 and 33 as led in evidence, and fully supported by Exhibits D, E and F does not tally with paragraph 19(1) of their further amended statement of claim wherein the area on which declaration is sought to be pronounced is said to be the area ‘verged black on appellants’ litigation plan No. FA/M/32A, drawn by licensed surveyor A.O, Adebogun dated 16/11/79. As we have earlier noted, the area verged black is simply the area trespassed upon by the respondents and in fact it includes a portion of Alade Layout plan allegedly said to be an area for a proposed road within the area that the appellants are seeking a declaration of title to be made in their favour, and could not be because the area of the proposed road is clearly outside the area covered by appellants’ plots Nos.28, 29, 32 and 33. It is now well settled I think, that in an action for declaration of title to land, the identity of the said land must be ascertained with certainty. While a plan is not a sine qua non in all cases for declaration of title to land, nevertheless the land must be described with such degree of accuracy that the said parcel of land to which the declaration of title is sought to be tied cannot be in any doubt. Needless to say that the onus is on the plaintiff to establish the identity of the land in dispute, See Baruwa v. Ogunsola 4 WACA 159 and Kwadzo v. Adjei 10 WAC A 274.
I am clearly of the opinion that the appellants failed to discharge this onus placed on them of properly identifying the land in dispute in the face of the muddle or mix up of their counsel in the averment in paragraph 19(1) of the further amended statement of claim. Thus whereas the land in dispute is the area covered by plots 28,29,32 and 33 in Exhibit K yet it was mistakenly referred to as the area verged black in Exhibit K and paragraph 19(1). No evidence was led identifying the area verged black as the land in dispute. In the result, I am bound to re-solve issue two as it relates to declaration of title against the appellants because they failed to produce preponderance of evidence which would entitle them to this discretionary relief.
It will be recalled that appellants’ claim for damages for trespass as well as injunction was dismissed by the two lower courts. We have highlighted the muddle by appellants’ counsel with regard to the area verged black which includes an area of land completely outside the area conveyed to appellants as reflected in Exhibits D, E and F. As we have also noted, the appellants did not show joint ownership of the land trespassed nor did they show that they are tenants in common with respect thereof. Undoubtedly, it is extremely difficult. in the face of the mix-up of the appellants’ case for any court to award damages for the alleged acts of trespass by the respondents.
Be that as it may. I need not finally decide the question of trespass in this appeal because at p.13 of their brief, appellants indicated that since there is no positive evidence to determine the quantum of damages separately due to each of the appellants consequent to the respondents’ trespassory acts, they would abandon the second arm of their claim, that is to say, the relief for damages in trespass. Thus the proper order to make in respect of the claim for trespass in this appeal, bearing in mind that the claim for damages was dismissed by the lower court, is one of dismissal.
On the third arm of issue two regarding the grant of injunction, in the light of the mix-up in paragraph 19(1) of the further amended statement of claim I am bound to observe that the identity of the land to which an order of injunction is to be tied on this case, to say the least is nebulous and remains anybody’s guess. In other words, an injunction cannot be granted in appellants’ favour in respect of unspecified land.
Issue No.2 is accordingly resolved against the appellants.
In view of the final order that I am about to make coupled with the aforesaid muddle in appellants’ case precipitated by their learned counsel, the question of non-suit under issue three is bound to be a non-issue, and at best, an excursion on an academic exercise. A court of law is enjoined to adjudicate between parties in relation to their competing legal interests and never to engage in a mere academic discourse, no matter how erudite or beneficial it may be to the public at large. See Union Bank v. Edionseri (1988) 2 NWLR (Pt.74) 93 and Julius Berger (Nig) Ltd v. Femi (1993) 5 NWLR (Pt.295) 612.
In the result, the appeal fails and the claims for declaration of title, trespass and injunction are hereby dismissed. There will be no order as to costs as respondents neither filed brief nor were present at the hearing of the appeal.
SC.45/1993
