Abraham Folorunso Ajayi V. Madam Esther Osunuku & Ors. (2008)
LawGlobal-Hub Lead Judgment Report
CLARA BATA OGUNBIYI, J.C.A.
This is an appeal against the judgment of the Lagos State High Court delivered on the 30th June, 1995 by Justice Moni Fafiade sitting at High Court No.6 Ikeja Division.
The claim of the Plaintiff/Appellant as endorsed in his writ of summons was for:-
(i) A declaration that he is entitled to the Certificate of Occupancy In respect of the piece of land and the building thereon situate at and known as 24B Olowu Street, Bariga and contained in the Deed of Conveyance dated the 28th day of February 1978 and registered as No.95 at page 95 in Volume 1687 of the Lands Registry in the office at Lagos and delineated on the Survey Plan NO.LSED12/77 attached thereto.
(ii) An account of all the rents collected from tenants in respect of the said building known as 24B, Olowu Street, Bariga, Lagos State from the 1st of January, 1979.
(iii) Perpetual injunction restraining the defendant from further parading herself as the Landlady of the said house built on the land and from collecting further rents in respect thereof.
The action was first commenced against one Madam Kaiza Sampson Odiowei. She died intestate at Lagos on the 4th day of December, 1986; her five children who are the respondents herein were substituted in place of the deceased defendant by the order of the High Court made on 25th May, 1987.
Pleadings were filed and exchanged but were eventually settled by the plaintiffs’ Amended Statement of Claim dated 2nd day of May, 1989 and the 2nd Amended Statement of Defence dated 23rd May, 1990.
On the one hand the facts of the plaintiffs case briefly stated, were that he bought the land in dispute known as No. 24B Olowu Street, Bariga from one Abdul Ganiyu Salami Alli and was given a purchase receipt dated 19th November, 1976. That the land sold to him was subsequently conveyed to him by a Deed of Conveyance dated the 28th day of February 1978 and registered as No.95 at page 95 in volume 1681 of the Lands Registry, Lagos. That the land in dispute formed part of the land demised to the original defendant by his vendor for a term of 20 years from May 1956 which lease expired in May 1976. The plaintiff/appellant’s case further was that the structure (a building) on the land in dispute was sold to him by one Sunday Odiowei to whom the original defendant, Madam Kaiza Sampson Odiowei had granted the same.
On the other hand, the defendants/respondents’ case was that their mother Madam Kaiza Sampson Odiowei owned 24 Olowu Street and that 24B Olowu Street has nothing to do with 24 Olowu Street, Bariga. That the land was leased to her in 1956 and by a subsequent agreement the lessor agreed to sell the said land to her for the sum of N600.00kout of which she paid the sum of N200.00; by way of deposit. That on presentation of the balance of N400.00k the lessor refused to accept same even though he did not refund the deposit paid.
In her judgment and having heard the case of both parties, the learned trial judge dismissed the plaintiffs claim in its entirety. Urked and dissatisfied with the decision as it were, the plaintiff/appellant filed an initial notice of appeal on the 13th July, 2005, containing two grounds of appeal. Pursuant to a motion dated 27th July 2008 leave of this court was obtained to amend the original notice and same was granted on the 15th April, 1999 with a further order that the amended notice be filed within 14 days of the order made. The amended notice was filed on the 26th April, 1999 and containing three grounds of appeal.
On the said 15th April, further leave was obtained to file an appellant’s brief of argument, which same so filed on the 26th April, 1999.
On the 23rd September, 2008 when the appeal came up for hearing, the learned appellant’s counsel Mr. S. O. Anipasan adopted and relied on their said brief and urged that the appeal be allowed.
Mr. A. A. Oyewole representing the’ respondents also adopted and relied on the joint respondents amended brief of argument dated 22nd and filed 30th March, 2006 but deemed properly filed and served on the 26th September, 2006. The learned counsel urged for the dismissal of the appeal therefore.
In further submission, the learned appellant’s counsel also adopted and relied upon the appellants reply brief filed 23rd January, 2008 but deemed properly filed and served on the 23rd September, 2008.
The appellant from his three grounds amended notice of appeal proceeded to formulate three issues wherein the 1st covered ground 3 while 2 and 3 from grounds 1 and 2 to the exclusion of ground 4 as erroneously conceived by the appellant in the absence of any such existing ground 4 of the ground of appeal. The three issues reproduced are as follows:-
“i. Whether the learned trial judge was right in holding that the identity of the land in dispute has not been sufficiently ascertained on the face of the evidence adduced before the court and the state of pleadings.
ii. Whether the learned trial judge was right in holding that the land was vested in the deceased Defendant before the sale to the plaintiff on the face of the evidence that what was granted to the Defendant was leasehold for twenty years which expired in 1976 and in the absence of any evidence that a subsequent sale of the land to her whether under Native’ Law and Custom or by a Conveyance in English fom1.
iii. Whether the plaintiff/appellant has not established ownership of the land in dispute.”
The three issues formulated by the respondents are also as follows:-
“1. Whether the plaintiff/appellant had sufficiently and satisfactorily established the identity of the land in dispute.
- If issue No. 1, is answered in negative, whether the plaintiff/appellant is entitled to a Declaration of Title for Certificate of Occupancy.
- Whether it could be rightly said that the interest in the land situate, lying and being and known as 24, Olowu Street, Bariga, Lagos State, has passed without any encumbrance vide the purchase receipt Exhibit “A” dated 19/11/76 (19th November, 1976).
The appellant’s issue no.1 was covered by ground 3 of the ground of appeal. Submitting and establishing the said issue, the learned appellant’s counsel re-iterated the credible nature of the oral evidence adduced by his client and also the survey plan attached to his deed of conveyance showing the extent and limit of the land in dispute. Reference was made to specific evidence by the plaintiff and also that by his witness. The learned counsel’s further reference was made to Deed of Conveyance which was admitted as exhibit B and annexed to which was, a survey plan of the property known as 24B Olowu Street, Bariga. That the description on this survey plan accords with the description of the land given by the plaintiff. That the defendants who claimed that 24, Olowu Street, Bariga has nothing to do with the land being claimed by the plaintiff did not produce or tender a survey plan of the land to which they refer. That the defendants/respondents, on the state of pleadings, have admitted the identity of the land in dispute. Reference to buttress the submission was made to paragraphs 3 and 4 of the plaintiffs/appellant’s statement of claim and defendants/respondents statement of defence respectively.
Issues 2 and 3 were taken together and in respect of which learned counsel re-iterated the plaintiff/appellant’s case at the trial and submitted that the effect of exhibit “B” had vested the legal estate in respect of the land in dispute in the plaintiff. That at the material time there was no interest subsisting on the land as the lease granted to the deceased defendant had expired. That the learned trial judge came to a wrong conclusion when he arrived at the decision that the lease for a term of (20 years) granted to the deceased Defendant had graduated into a free-hold title. That in the absence of any conveyance of the land to the deceased Defendant, no sale had been established under native law and custom. Counsel cited in support the case of Cole v Folami (1956) 1 F.S.C. 66, Adelakin v IshoIa (1975) 1 WSCA 174 and Lydia v Owokoniran (1965) NMLR 479. That in the absence of establishing a sale either under the Common Law or Native Law and Custom there was no basis for holding that at the time the sale to the plaintiff/appellant was being transacted, the land was vested in the Defendant. That with the lease granted the Defendant having expired at the material time, there was therefore no further interest left in the Defendant. That the appellant is therefore entitled to his claim for declaration of title as well as his claim for trespass and injunction in the light of Exhibit B.
Learned counsel urged in favour of the appeal which he submitted should be allowed and a further order setting aside the judgment and the order thereof and instead enter judgment for the appellant for all the reliefs claimed.
In response to the 1st issue the learned counsel Mr. A. A. Oyewole on behalf of the respondents posed a question whether the plaintiff/appellant had satisfied the fundamental conditions upon which grant of declaration to title to land is made. Further reference was also made to the case of Lordye v Ihyambe (2005) 15 NWLR (Pt.692) on how identity of land claimed is established. That no credible, sufficient, direct, cogent evidence has been led to succinctly make the land adequately identifiable with relative degree of ascertain ability by the appellant. Cited to buttress his submission is the case of Ehidimhen v Musa (2008) NWLR (Pt.669) p.540 a supreme court decision on the effect of evidence led at variance with pleadings. That the survey plan having not been pleaded goes to no issue. See again the case of Lawal v G.B. Ollivant Ltd. (1972) 1 All NLR 207. Also African Continental Seaways Ltd. v N.D.R.G. Ltd. (1977) 5 SC 235. Further reference on the necessity of a composite plan is the case of Edun v Provost LACOED (1998) 13 NWLR (Pt.52-58). Learned counsel argued and submitted further that no oral or documentary evidence was adduced by any of the plaintiffs/appellant’s witnesses as to variance in the identity and or description of the land, subject matter of dispute. That there is nothing before the court to show that 24B, Olowu Street, Bariga exist and that if it does exist it definitely does not form part of price of the Defendant’s property situate at 24, Olowu Street, Bariga, Lagos State. This he argued especially when there abound copious evidence vitiating the evidence led by the plaintiff/appellant witnesses falling short of the chequered principle of law as it relate to Declaration of Title to land. Counsel urged us to hold that the identity of the land claimed by the plaintiff/appellant is vague, indefinite, unascertainable and a subject of ambiguity.
In further reference to the plaintiff/appellant’s Amended Statement of Claim dated 2nd May, 1989 at pages 78-82 of the record, the learned counsel re-iterated their admission at pages 86-87 of the said record which he argued did not establish the identity of the subject matter of the suit and or appeal. The learned counsel on the whole on this issue urged us to uphold the findings of the learned trial judge and the conclusion reached and arrived thereupon. In other words that the plaintiff/appellant is not entitled as he has to-prove title and identity by clear emphatic satisfactory and cogent evidence. Reference in furtherance was made to the case of Sules v Ajani (1980) 5-7 SC 96, and Urofo Epi v Igbedion (1972) 10 SC 53.
That with further submission on the pleadings of both parties, the reference to 24B or 24 Olowu Street, Bariga had been distinct and different structures with different identity. That there is only one property known as 24, Olowu Street, Bariga, Lagos State; hence the coinage of 24b, Olowu Street, Bariga is most speculative, frivolous and lacking in merit which the learned counsel re-affirmed was rightly dismissed. Cited again in support was the case of Elias v Omobare (1982) 1 All NLR (Pt.1) 70.
In response to the 2nd issue, the learned respondents’ counsel adopted their submission made to substantiate issue 1 in respect thereof. Counsel therefore urged us to hold that the judgment of the lower court be upheld in dismissing the plaintiff/appellant’s claim in entirety.
Submitting on issue 3, the learned counsel dwelt at great length on the evidence of both parties at the lower court and argued that the acceptance of the part payment had vested in the deceased intestate (the original defendant an equitable interest in the land, which is properly recognized. Learned counsel cited a number of authorities in support and inclusive of Orasami v Idowu (1959) 4 F.S.C.40; Ogunbambi v Abowaba (1951) 13 WACA 222; Fakoya v St. Paul’s Church, Shagamu (1966) 1 All NLR 74; and Ojukpan v Orovuygube (1967) NMLR 287 at 291. Learned counsel also gave out the true meaning/working interpretation of part payment as stated in Words and Phrases (Vol.IV) Judicially defined edited by Poland Burrows, Esq., KC. and published by Butter Worths & Co., publishers Ltd. Bellyard Temple Bar London at page 163. Further reference is the case of Aboyade Cole v S.R. Folami (supra). That the deceased defendant had been dealing with the land as their own on the strength of the representation of the free hold to the property having passed to the predecessors in the title to the respondents. That the sale in this case would be voidable at the instance of the family if they had taken steps to set aside the sale as soon as possible. Counsel in support cited the case of Aralawon Arornire & Aiyedun v Chief Aromire 15 NLR 90.
The learned counsel urged us to dismiss the appeal therefore as wholly lacking in merit and frivolous, with costs.
The resolution of the 1st issue relates to whether or not the identity of the land in dispute has been sufficiently ascertained. In his findings at page 135 of the judgment the learned trial judge amongst other and in summary said:-
“I can come to no other conclusion than that the identity of the land subject matter of this suit has not been sufficiently ascertained. Declaration sought is therefore refused.”
The general principle of law is that for a plaintiff to be entitled to a declaration of a land in dispute he must as a duty clearly establish to the satisfaction of the court the identity of land he is claiming. See the well enunciated principle by their Lordships of the apex court in the case Onibudo v Akibu (1982) 7 SC 6 and Jules v Ajani (1980) 5/7 SC 96.
A plaintiff to therefore be entitled to such declaration must be up to that expectation to earn the judgment in his favour. This again is well expounded in the authorities of Udofe v Aquisne (1973) 1 S.C. 119, and Obione v Olomu (1978) 3 SC 1, wherein his Lordship Sowemimo JSC (of blessed memory) held emphatically that if the subject matter of the claim in an action for declaration of title is not properly identified, then the declaration would not be granted. The same principle was upheld in the cases of Oke v Oke (1982) 12 SC 218; Epi v Igbedion (1972) 10 SC 53 and Elias v Omo-Bare (1982) 5 SC 25.
In the authority of Oke v Oke supra for example, his Lordship Obaseki JSC at page 246 had this to say amongst others.
“……where evidence as to boundaries of a piece of land, in respect of which a declaration of title is claimed, is inconclusive, scanty or of little or no weight, declaration should be refused for lack of certainty and identity of the subject matter.”
Also and again in a further decision by their Lordship of the apex Court in the case of Awomuti v Salami (1978) 3 SC 105 at 110, Eso JSC delivering the lead judgment said:-
“In our view, the deed of conveyance is worthless. Apart from referring to the inadmissible plan, there is no reference to any feature on the land by means of which the land would have been identified with the deed of conveyance.”
In a claim for declaration of title therefore, the onus lies on the plaintiff to prove his title to the land and he succeeds on the strength of his own case and not depend on the weakness of the defence. See Awomuti v Salami and also Elias v Omobare under reference supra.
The determination of issue no. 1 therefore is a matter of evidence and in respect of which the learned appellant’s counsel submitted the admission of the defendant/respondents by their paragraph 4 of the plaintiff/appellant’s paragraph 3 of the parties pleadings respectively. It is elementary and trite to restate also that parties are bound by their pleadings. The reproduction of paragraphs 3 and 4 of the said statement of claim and defence respectively are relevant wherein the plaintiff averred and said as follows at page 79.
“3. The land the subject matter of this action formed portion of a large tract of land originally owned by the Oloto Chieftaincy Family and is situate at Bariga in the Shomolu Area, Lagos State.”
The defendants in response at their paragraph 4 at page 86 of the record said:-
“4. The defendants admit paragraphs 3 and 6 of the amended statement of claim.”
The question to raise is whether the averment by the defendants/respondents’ paragraph 4 served sufficient to establish the identity of the land, the subject matter, in question as submitted and argued by the learned appellant’s counsel? It is trite law as restated earlier that the plaintiff must rely on the strength of his case and not on the weakness of the defendant’s case. See the case of Itanma v Akpe-Ime (2001) 7 S.C. (Pt.2) p.24. It is also encumbent on the plaintiff/appellant to prove the title and identity of the land claimed by clear, emphatic, satisfactory and cogent evidence. See the case of Jules v Ajani (1980) 5-7 SC 96 also Urofo Epi v Igbedion (1972) 10 SC 53.
In summary, the plaintiff/appellant submitted their sufficient credible and satisfactory evidence adduced both orally and by way of Survey Plan attached to his deed of conveyance showing the extent and limit of the land in dispute. In his evidence in Chief for instance, at page 72 of the record, the plaintiff testified that he bought and owned the property No. 24B Olowu Street, Bariga.
The 1st PW Abudu Karimu Salami Ali also gave evidence in chief at page 103 of the record and said:-
“I know 24, Olowu Street, Bariga. I am the owner of the land, I released it to deceased defendant in 1956 for 20 years.”
Under cross examination the witness further said:-
“I described the land sold to plaintiff as No.24, Olowu Street.
It is described as 24B, in Exhibit “B”. I sold different property to the parties not the same thing.”
Exhibit “B”, the deed of conveyance to the plaintiff/appellant describes the land sold as that situate, “lying and being at Bariga and known as No.24B, Olowu Street, Bariga village.”
Paragraphs 3, 6 and 7 of the plaintiff/appellant’s amended statement of claim at page 79 of the record of appeal also state as follows:-
“3. The land the subject matter of this action formed portion of a large tract of land originally owned by the Oloto Chieftaincy Family and is situate at Bariga in the Shomolu Area, Lagos State.
- ……………………
- ……………………
- The said Abudu Salami Alii died intestate many years ago and was survived by many children who continued to be in possession of his said land and were exercising all the rights of an owner thereon.
By a purchase receipt dated the 19th November, 1976 and made by one Abdul Ganiyu Salami Alli, the Head of Salami Alli Family, a portion of the said piece of land measuring approximately 23 1/2ft by 110ft and known as 24B, Olowu Street, Bariga was sold to the plaintiff by the said Salami Alli Family and the plaintiff caused it to be surveyed.”
In response, the respondents by their 2nd Amended Statement of Defence at paragraphs 4, and 6 had this to say.
“4. The defendants admit paragraphs 3 and 6 of the amended statement of claim.
- The defendants deny paragraphs 7 and 8 of the amended statement of claim and say that if any piece of land was sold and conveyed to the plaintiff by one Salami Alli it was not the Defendant’s piece of land which is at No.24, Olowu Street, Bariga.”
Having regard to the appellant’s contention, the property 24B Olowu Street Bariga, Lagos State, is part of 24 Olowu Street, Bariga Lagos State. With reference to the evidence of both parties on the record, there is no clear cut evidence adduced by the plaintiff/appellant as to how the property 24B, Olowu Street, Bariga Lagos State became part of 24, Olowu Street, Bariga Lagos State. In other words, the admission by the respondents at their paragraphs 4 of the appellant’s paragraph 3 is not tantamount to the proof of how the said property 24B became part of 24, Olowu Street, Bariga Lagos State as grossly misconceived by the learned appellant’s counsel on his submission.
This is more so especially having regard to the evidence by the plaintiff himself which at pages 101-102 of the record he said this amongst others under cross examination:
“I know the property, it is at 24, Olowu Street, Bariga. The property at 24, Olowu Street, belongs to Abudu Salami Alli……………………
The family of Abudu Salami sold the land to me………………. I saw the deceased defendant occupying part of the land I asked my vendor how defendant got to the land. My vendor said he leased the land to the defendant for 20 years ……………….. half of the land 24, Olowu Street was sold to me I knew defendant lived on the land. . . .. . .. I do not know if defendant has already paid part of the purchase price of land to Abudu Salami Ali family.”
Abudu Karimu Salami Ali in his evidence in chief at page 105 also said:-
“I am the owner of the land, I leased it to deceased defendant in 1956 for 20 years.”
The witness stated how the defendant built up part of the land and that her son Sunday was to continue paying for the lease; the defendant also said the witness could sell Sunday’s part to the plaintiff and which he did on 10/5/76 and gave him deed of conveyance. It is significant to note further that the witness in question like the plaintiff also testified in respect of 24, Olowu Street Bariga and not 24B Olowu Street, Bariga, the subject matter of the plaintiff/appellant’s claim at the lower court.
It is trite as repeatedly stated that the plaintiff can only succeed on the strength of his case and not rely on the weakness of the defence case.
As rightly submitted and argued by the learned respondents’ counsel, there is no oral or documentary evidence adduced either by the plaintiff and or his witnesses as to how the 24B, Olowu. Street, Bariga Lagos State became part of 24, Olowu Street, Bariga, Lagos State.
It is trite law that parties are bound by their pleadings and with the plaintiff having pleaded No. 24B Olowu Street Bariga Lagos State, his evidence in Court relating to No. 24 Olowu Street, Bariga simplicita worked at great variance to his pleadings and which the court is not disposed to act on such evidence which had no foundation. In the case of Eludimhen v Musa (2000) 8 NWLR (Pt.669) 540 their Lordships of the apex court held and re-iterated that evidence led at variance with pleadings settled by the parties should be discountenanced. The law is also trite and elementary that in civil cases, the standard of proof is on balance of probabilities.
On the legal effect of survey plan annexed to the deed of conveyance admitted and marked exhibit B, the appellant in his submission did not see any big deal in the absence of pleading same. Counsel rested and hanged fixed his submission on the authorities of Ifeadi v Adedje (1998) 13 NWLR (Pt.593) 17and Okeke v Oruh (1999) 6 NWLR (Pt. 606) 175.
With reference to paragraph 8 of the plaintiff/appellant’s pleadings at pages 79 and 80 of the record, reliance was sought to be made on the deed of conveyance and also the survey plan attached thereto.
In my humble opinion even if the said averment is taken to satisfy the con of the submission as advanced by the .appellant, the documents in question, on the pleadings, were in respect of a property No. 24B Olowu Street, Bariga and not in respect of No. 24 Olowu Street, Bariga, upon which the plaintiff/appellant and his witnesses testified thereon. In that con therefore and as rightly submitted by the learned respondents’ counsel, the appropriate survey plan and indeed the deed of conveyance were not pleaded and consequent to which the said paragraph 8 of the plaintiff/appellant’s pleading had no bearing to his case as it is grossly at variance with his evidence. The authority of Lawal v G. B. Ollivant Ltd. (1972) 1 All NLR 207 is in point and consequent to which the decisions cited by the appellant’s counsel in the cases of Ifeadi v Adedje and Okeke v Oruh supra do not in the circumstance support his case.
Abudu Karimu Salami Ali the vendor in his evidence under cross examination at page 104 of the record further said:-
“I described the land sold to plaintiff as No.24, Olowu Street. It is described as 24B in Exhibit “B” the conveyance Exhibit ‘B’ was executed in February 1978, 2 years after I took the money from defendant. I sold different property to the parties not the same thing.” (underlining is for emphasis).
The 4th defendant/respondent Florence Awoiba at page 115 of the record in her evidence under cross-examination also said:-
“I know the property at 24 Olowu Street, Bariga. I do not know 24B, Olowu Street, Bariga. I have been in 24 Olowu Street, Bariga since 1956 till now not 24b…………………”
The said evidence under cross examination was not re-examined upon.
From the record before us and with particular reference to the evidence adduced by the plaintiff/appellant, there is no oral or documentary evidence adduced on his behalf in substantiation of either the identity and or description of the property, the subject matter of dispute.
As rightly submitted by the learned respondents’ counsel therefore there is nothing before this court to show that 24b Olowu Street, Bariga exist and that if it does exist it definitely does not form part of price of the defendants property situate at 24, Olowu Street, Bariga Lagos State.
In other words, from all there is before us and on the record, the identity of the land claimed by the plaintiff/appellant is very vague, indefinite and unascertainable. This has been compounded by the confused nature of the plaintiff/appellant’s evidence and that of his witnesses as well as the exhibits which are very much at variance with his pleadings as well as being contradictory, resulting into absolute ambiguity. With Exhibits A and B both relating to 24B Olowu Street Bariga, the evidence given by the appellant on No.24 Olowu Street Bariga is completely outside the scope of reality and connecting nexus. It is trite and elementary that in a claim for declaration of title to land, the onus is on the plaintiff, the appellant herein, to satisfy the court that he is entitled on the evidence adduced by him to the declaration he sought. The case of Itauma v. Akpe-Ime (2001) 7 SC (Pt. 2) 24 is relevant in support. In my humble view, the reference made to 24B cannot possibly be synonymous to 24 Olowu Street, Bariga but are very much distinct and portraying different structures with different identities. This is confirmed by the plaintiff/appellant’s claim which was for the property known as 24B Olowu Street, Bariga contained in the Deed of Conveyance dated 28th February, 1978 registered as No.95 at page 95 in volume 1687 of the Lands Registry, Lagos.
The evidence was given in respect of different property which was very conflicting. The coinage of 24b, Olowu Street, Bariga is therefore most speculative, frivolous and lacking in foundation and consequent to which the learned trial judge rightly dismissed as submitted by the respondents counsel. The authority in the case of Elias v Omobare (1982) 1 All NLR (Pt.1) 70 is firmly in point and thus concluding the 1st issue in the positive and against the appellant.
With the determination of issue I in the positive; that is to say in holding that the plaintiff had failed to adduce evidence to sufficiently ascertain the identity of the land in question, issues two and three are also a matter of consequence and flowing as a natural phenomenon there from. In her judgment from the three reliefs sought by the plaintiff/appellant at paragraph 16 (i), (ii) and (iii) of the amended statement of claim at page 81 of the record, the land was vested in the defendants/respondents at the time the purported sale was being transacted. The learned trial judge from the deduction before him was in my humble opinion on a very sound footing and reasoning by holding that there was no evidence adduced either by or on behalf of the plaintiff/appellant that the defendants/respondents transferred the land to him (the appellant).
Reliance again can be made to the evidence of Abudu Karimu Salami Ali, at page 103, of the record wherein Sunday the deceased defendant’s son brought the plaintiff/appellant to him and told him he had sold the house he built to the plaintiff. The said Sunday Odion the 2nd,PW in his evidence also at page 10 of the record said the deceased defendant gave him the property No.24, Olowu Street, Bariga free of charge and the same land was sold to the plaintiff/appellant.
In the absence of any evidence of the land having been vested in the witness PW2, therefore, the submission by the appellant’s counsel of any subsisting interest on the land cannot hold. The confirmation of this is the evidence by Abudu Karimu Salami Ali at page 104 wherein he said thus under cross examination:
“I was paid N200 by defendant from N600. I got the N200 in 1976. She wanted to pay the balance of N400 which I rejected. I have not refunded the N200.”
It is of significance to restate that the said witness at page 103 of his evidence in chief said he is the owner of the land and which he leased to the deceased defendant in 1956 for 20 years. Contrary to the submission by the appellant’s counsel therefore, the said land could not in the circumstance been free of subsisting interest and consequent to which the error attributed to the learned trial judge was wrongful.
Further more, the evidence of Florence Awoiba the 4th defendant/respondent is also relevant and in confirmation thereof wherein at page 111 – 112 of the record and in her testimony in chief, she again said:-
“My mother leased the land from Ganiyu Salami Alli in 1956 she was paying N20 rent per annum for a period of 20 years. The lease expired in 1976. Before the lease expired, she was approached and offered to buy the land at N600.In July, 1976 my mother paid N200 to Ganiyu Salami Alli and she was given a receipt. On 8th October, Ganiyu by a letter threatened to resell the land. On 27/10/76 Ganiyu wrote demanding the balance of N400. My mother therefore tendered the N400.00. Ganiyu however started to avoid taking the payment. My mother therefore contacted lawyer Aregbesola. Ganiyu did not receive the money from the lawyer…………… To my knowledge Ganiyu did not refund N200 paid by my mother. Exhibit E is the receipt when my mother paid N200 …………. my mother paid for No.24, Olowu Street. There is no 24B. My mother did not give Sunday part of the land.”
The evidence of PW2 is closely corroborated to that of the 4th defendant/respondent. It is trite and as laid down in plethora of authorities the various ways by which land can be acquired under native law and custom which are by (a) sale, (b) inheritance (c) settlement and (d) by grant. Taking for granted that the identity of the land in question is not an issue, from the evidence at the lower court the interest in the land is properly vested in the defendant/respondent subject to the final payment of the sum of N400 (four hundred Naira) being the balance of the purchase price. From the cumulative deduction of that before the court, the defendants/respondents had been in continuous, effective and undisturbed possession and therefore had equitable interest in the land and on the doctrine of priority, the vendor cannot vest or alienate the interest in the land situate at 24, Olowu Street Bariga, Lagos. The relevant and applicable authorities are the cases of:- Orasanmi v Idowu (1959) 4 FSC 40, Ogunbambi v Abowaba (1951) 13 WACA 222, Fakoya v St. Pauls Church, Shagamu (1966) 1 All NLR 74, Ojukpan v Ororuygube (1967) NMLR 287 at 291. In the case of Ogunbambi v Abowaba supra, the main action was in trespass but issue of title was however raised. The plaintiff at the trial was in possession and eventually judgment was given in his favour. The defendant/appellant had the onus in the court below to justify his entry by establishing that he had a better title to the land than the person in possession. In delivering the judgment of the court, it was held amongst others:-
“There was evidence which justified the finding of the trial judge that the respondent is in possession and has been in undisturbed possession for many years. The evidence adduced by the appellant as to his own alleged possession was in my opinion unsatisfactory, and in parts contradictory, and I do not consider that this finding of fact, can be disturbed.”
In the said case, the appellant was plainly aware that the respondents’ vendor had some interest in the land, for he sought to purchase it. Upon his offer being refused he sought and obtained a conveyance from another party whom he knew to be out of possession, without any enquiry or investigation which would have disclosed to him the nature of the interest which he had himself believed to be vested in the party from whom he had sought to purchase. It was decided that the appellant had failed to show a better right to possession than that of the respondent, who was the person in possession, and therefore entitled to succeed.
The purchase receipt being an unregistered instrument was also inadmissible to prove title; the defendant/appellant in that case was held to have acquired knowledge of the respondents equitable interest but for his gross or culpable negligence, and was therefore presumed to have had notice of the plaintiffs’ /respondents equitable interest.
Also in the case of Orosanmi v Idowu (supra). This is an appeal in an action for a declaration of title to land, damages, for trespass and an injunction to restrain the defendant. Two points of arguments were that the appellant (the defendant) in the court below having paid for the land and obtained receipt followed by going into possession, had created for himself an equitable interest in the land, and secondly that the plaintiff/respondent, it was argued, bought the land with knowledge of that interest.
Reliance was made on the case of Ogunbambi v Abowaba (supra). It was held by their Lordship at p.99 that for a successful reliance to be made on Ogunbambi v Abowaba (supra):-
“there must be in addition to payment, an undisturbed and continuous possession for many years by the claimant or by his predecessor in title under whom he claims. In other words it was not enough that the appellant should go into possession after the sale to him, but it is important for him to establish that he remained in possession.”
The learned trial judge then in that case considered the position of the parties and came to the conclusion that unless the plaintiff could show he was a purchaser of the legal estate for value without notice of the prior equitable interest of the defendant, the plaintiff would not have better title to possession of the land. Ademola F.C.J. in further delivering the judgment of the court endorsed the trial Judge and said at pages 99-100.
“I am satisfied in this respect that the learned Judge then posed the correct statement of the law. The learned Judge, however, found that on the evidence before him the plaintiff had no notice of the prior equitable interest of the defendant. I share the view of the learned judge in this respect on the evidence before the court.”
The learned trial judge was held to have therefore come to the correct decision and the appeal was accordingly dismissed. The same principle was also applied in the case of Fakoya v St. Pauls Church, Shagamu. Similarly and in Ojukpan v Orovuygube also supra their Lordships did not depart from, but articulately followed their earlier decision in the case of Ogunbambi v Abowaba by affirming the admissibility of the purchase receipt as an acknowledgement of the payment of money.
Also relevant is section 15 of the Land Instrument Registration Law Cap.64 Laws of Lagos State 1972 which requires that Instruments of Land to be pleaded or given in evidence as affecting land shall be inadmissible unless same is registered.
From the evidence of both parties the making of part payment by the deceased defendant, Madam Kaiza Odiwe was not an issue. So also was the refusal to receive the balance of N400= by the vendor despite the defendant/respondents’ repeated attempt to pay the said sum. The learned respondents counsel in substantiation of the meaning and working Interpretation of part payment amply cited the restatement by Rowland Burrow Esq., K. C. in words and phrases (vol. iv) judicially defined which same was published by Butter Worths & Co., Publishers Ltd. Bellyard Temple Bar London wherein at page 163 it was held that:-
” In a contract of sale of land, instalment of the purchase price were recoverable by the purchaser, although the purchaser was in default. In giving the judgment of the board, LORD DUMED IN SAID “Their Lordships think that the solution of a question of this sort must always depend on terms of a particular contract. It is true that this case proceeded on the construction of the part contract that was then before the court, but nonetheless emphasis was laid on the distinction between a payment designated as deposit and one designated as part payment the former serving two purpose “-namely in the event of the contract and completion to operate as or guarantee that the contract shall be performed.”
The learned appellant’s counsel submitted and related the law governing a sale under Native Law and Custom wherein he argued that certain conditions must be fulfilled as follows:-
- Payment of the purchase price;
- handing over of the land to the purchaser and
- The performance of (1) and (2) in the presence of witnesses
Learned counsel further submitted that part payment of the purchase price did not transfer the land to the vendee.
Counsel cited in support the cases of Cole v Folami (1956) 1 F.S.C. 66, Adelakun v. Ishola (1975) 1 W.S.C.A. 174, and Lydia vs Owokoniran (1965) NMLR 479. That in the absence of establishing any sale either under Common Law, or Native Law and Custom, there was therefore no basis for holding that at the time the sale to the plaintiff/appellant was being transacted, the land was vested in the Defendant. That with the lease to the defendant having expired, her interest had also been extinct.
It was in evidence on the record and as restated earlier that the vendor and the head of the family of the vendor having acknowledged and accepted the part payment of the land known and being at 24, Olowu Street, Bariga Lagos State, certainly had vested in the original defendant interest in the land and which only a purchaser for value without notice of legal estate can exert and or have priority against the equitable interest. The case of Ogunbambi v Abowaba supra is in reference. In other words, assuming the identity of the land is not a matter in issue the interest in the land is properly vested in the Defendant/respondent subject however to the final payment of the balance of N400 being the purchase price.
The plaintiff/appellant in his evidence under cross examination at page 94 of the record said:-
“I made enquires to defendant title of interest in the land, I was told defendant had 20 years lease on the land from Abudu Salami Alii family. Defendant took her lease in 1954 for 20 years.”
Also at page 102 the witness said further:-
“I was not told that the defendant had been ejected from the land before the land was sold to me. Defendant was on the land when this action was filed. I do not know if Salami family took action against the defendant. I knew defendant lived on the land, I do not know if she lived and died there.”
It is trite that priority in law is basically determined by the principle “Qui prior est tempora, poteor est jure.” The case of Adukoyi v Gaaje (1942) W.A.C.A. page 198 is relevant wherein the basic rule of temporal order of priority are modified by the maxims in stating that where equities are equal, the first in time ought to prevail; where however there exists both legal and equitable interest, in property, the former would supercede and take over priority over the latter. As rightly submitted and argued by the learned respondents’ counsel, the plaintiff/appellant no doubt had constructive notice of the subsistence of the defendants’ interest. The glaring confirmation was the evidence on record as stated supra. The appellant in the circumstance cannot be said to be a Bonafide purchaser for value of a legal estate without notice. It is trite that equity aids the vigilant and not the indolent. The case of Aboyade Cole v S. R. Folami (supra) is in point.
Evidence was given of the move to pay by the respondents but same was refused. As rightly submitted and argued by the learned respondents’ counsel, his clients had equitable interest in the land. On the doctrine of priority therefore, the vendor cannot vest or alienate the interest in the land situate at 24, Olowu Street, Bariga Lagos. This is apt and especially where evidence abound, that the defendant/respondent had been in continuous, effective and undisturbed possession. This was what occasioned the findings by the learned trial judge at page 134 of the record wherein he said:
“The land was vested in defendant at the time the purported sale was being transacted and I have no evidence that defendant transferred the land to him. It is obvious that the arrangement between the parties upon the receipt of the sum of N200, as part payment of the purchase price had raised an equitable interest in favour of the Defendant/respondent. Relevant in support is the case of Aganran v Olushi & Ors. 1 NLR 66. Exhibits E, E1 and E2 at pages 148-150 of the record are very relevant and explicit on the agreed purchase price of the land, the initial payment of N200= as well as the balance of N400= yet to be paid. The effect of the part payment was to vest in the defendant/respondent an equitable interest which can only be relegated on the doctrine of priority by a purchaser for value without notice of the subsisting equitable interest.
In summary and with the plaintiff/appellant having had actual and constructive notice of the existing equitable interest of the original defendant/respondent, the predecessors-in-title to respondents herein, the learned trial judge I hold did arrive at the right conclusion and rendering his judgment unassailable. The issues are therefore also resolved against the appellant and in favour of the respondents.
On the totality of the appeal before us and with all the three issues resolved against the appellant, the same and the grounds of appeal predicated thereupon are all dismissed.
The appeal is hereby dismissed as it is lacking in merit. There shall also be N30,000=costs to the respondents.
Other Citations: (2008)LCN/2972(CA)
