Adeniyi Olufemi Olumide & Ors. V. Dr. Tosin Ajayi (1997)
LawGlobal-Hub Lead Judgment Report
UWAIFO, J.C.A.
The parties in this appeal from a judgment of Ajao Oshodi J. delivered on 6 December, 1991, are agreed that the Kuyasi Awushe family is the original owner of the land in dispute. That family owned a large tract of land at Onigbagbo Village, Ikeja, Lagos. The land in dispute formed part of it and according to a composite survey plan No. JO 98/88, exhibit J, produced by the plaintiffs/appellants, the said land is more particularly shown to be along Opebi Road.
A layout plan of the large tract of land was made by Kuyasi Awushe family in October, 1975 as shown in exhibit H. It was thereafter laid out into residential plots. Part of the land use thereby created is reflected in a layout survey plan No. JO 87c/75, exhibit F, drawn also in October, 1975. It shows what is referred to as Block II which includes, among others, plots 5, 6, 7 and 8.
One Mr. Abiodun Bababunmi Olaiya, a Solicitor, as owner of a parcel of land described in a deed of conveyance dated 25 October, 1975 and registered as No. 100 at page 100 in volume 1525 of the Register of Deeds kept in the Lands Registry in the office at Lagos, exchanged the same with the Kuyasi Awushe family for plots 5, 6, 7 and 8 in Block II and plot7 in Block VIII in addition to paying the said family the sum of N1,000.00 naira. In other words, Mr. Abiodun Bababunmi Olaiya acquired those plots from Kuyasi Awushe family. This is evidenced by a deed of conveyance dated 13 February, 1976 and registered as No. 93 at page 93 in volume 1542. The registration actually took place on 19 February, 1976: see exhibit B.
The 1st and 2nd plaintiffs bought plot 7 in Block II from Mr. A.B. Olaiya as evidenced by a deed of conveyance dated 20 May, 1976 and registered as No. 92 at page 92 in volume 1560. The registration was done on 21 May, 1976: see exhibit E. The 3rd plaintiff bought plot 5 in Block II from Mr. A. B. Olaiya by deed of conveyance dated 10 March, 1977 and registered as No. 28 at page 28 in volume 1614 on 16 March, 1977: see exhibit C.
Plots 5 and 7 in Block II are contiguous. The 3rd plaintiff erroneously developed plot 7 instead of his own plot 5. However, it was mutually agreed between the 1st and 2nd plaintiffs on the one part and the 3rd plaintiff on the other part to swap plots. This agreement had not yet been evidenced in writing when the defendant, claiming to have bought from the Kuyasi Awushe family, now encroached substantially partially on both plots 5 and 7 as shown in the composite survey plan No. JO 98/88, exhibit J.
An action was begun by originating summons, first by the 1st and 2nd plaintiffs, who are husband and wife, against the present defendant and the 3rd plaintiff (who was then the 2nd defendant): “for the determination of the following questions:
- Ownership of the said parcel of land designated as Plot No.5, Block II and situate at Onigbagbo Village Ikeja, Lagos.
- Damages of N100,000.00 for continuous and repeated trespass to the said parcel of land by the 2nd Defendant.”
Somehow, the learned trial judge ordered pleadings to be filed. The said 2nd defendant was eventually made the 3rd plaintiff.
The statement of claim was amended a couple of times. The last one was filed on 3 June, 1991. Although the said statement of claim as amended was, with due respect to counsel who settled the pleading, rather inelegant, one is left in no doubt that the two plots in issue are plots 5 and 7 which the plaintiffs together claim as against the defendant. The relevant paragraphs of the said pleading which indicate this when read together are paragraphs 16, 17, 19, 22 and 36. I shall set out only paragraphs 19 and 36:
“19. The Plots designated as No.5 and No.7 were conveyed by the same vendor, A.B. Olaiya (Deceased) to the Plaintiffs under the same root of title.
- The Plaintiffs will at the trial rely on the site Plan, Letter dated 23rd August 1988 written to the Defendant, Photographs of the site, the Deeds of Conveyance, Composite Plan of the land dated 23rd of December, 1988 and all relevant documents to prove their case.:
The reliefs as finally claimed were a bit tersely worded. They state:
“AND the Plaintiffs claim:
- Declaration of title
- Possession of the land and premises
- Damages of N100,000.00 (One Hundred Thousand Naira) from the Defendant. ”
It should be remembered that there are three plaintiffs and so the reliefs sought are for them all. However, in the course of address, learned counsel for the plaintiffs abandoned relief 2, i.e. possession of the land and premises. It is important that I emphasize that although the action was begun by originating summons supported by affidavit evidence, it ended up with pleadings filed by both sides as already indicated.
Evidence was led by the plaintiffs to establish the titles they acquired upon the facts already stated above. In regard to the deed of conveyance relied on by the defendant, although it was dated 6 January 1976 and registered as No. 50B at page 50B in volume 1628, it was registered on 24 August. 1977: see exh. N. The plaintiffs in their pleading attacked the genuineness of the deed of conveyance and alleged that the registration was obtained by fraudulent means. The deed of conveyance in question was tendered through p.w.4, Mr. Olatunji Adeyemi, the Land Registry Assistant, under cross-examination by the defendant’s counsel. He said he carried out a search on the instructions of the Registrar of Title following an inquiry made by the plaintiffs’ counsel.
In his evidence-in-chief, the said p.w.4 gave a detailed procedure for registering documents in the Land Registry and his discovery during the search. It is necessary to confine his evidence within the aspect relevant to this case. In that regard he said:
“I know the defendant in this suit only by name because his name appears as one of the owners of fake registered documents in the Land Registry in the report of the Committee on Prevention of Fraud in the Land Registry. I have seen a copy of the record ………………..
The document No. 50B at page 50B in volume 1628 dated 6th January 1976 is faked and it (is) shown on the report of the Committee. I also conducted searches in the Land Registry, Lagos to determine the genuineness of the purported registered document. In the course of my search, I looked at the Treasury Receipt quoted as the payment particulars at the back of the instrument and checked the counterfoil of the triplicate copy of the treasury receipt and discovered that the original of that receipt was made in the name of one Mrs. G.A. Marsh. The amount stated on the purported instrument is N24.00 and on the Treasury Receipt it is N6.00. I also checked the case register where R. V. Particulars were recorded I discovered that the name Mrs. Marsh appeared on the register. I turned to the day book for registration of deed discovered that that payment was made for instrument made in favour of Mrs. Marsh.”
The questions that certainly arise from the above evidence are whether the defendant has a genuine conveyance; whether the deed of conveyance he relied on was duly registered; and what is the relationship between him and the said Mrs. Marsh, or what was the reason for the conflict as to whose instrument was registered as No. 50B at page 50B in volume 1628 as between the defendant and Mrs. Marsh? The defendant did not lead evidence but rested his case on that of the plaintiffs. He did not therefore challenge, let alone controvert, the strong evidence that his said conveyance was registered fraudulently and that the registration in question did not even bear his name.
The learned trial judge in his judgment held (1) that the land in dispute was not properly identified; (2) that the 1st and 2nd plaintiffs did not perfect their exchange of title with the 3rd plaintiff in respect of the said land, plot 5 in block II, beyond the mutual oral agreement of such exchange and that by virtue of section 4 of the Statute of Frauds 1677, the 1st and 2nd plaintiffs were incompetent to maintain the action against the defendant; and (3) that the suit was incompetent having been commenced by an originating summons. He then dismissed the action.
In their appeal against the judgment, the plaintiffs have in their appellants’ brief raised a number of issues for determination. I do not need to set them out. It is sufficient to state that those issues as well as those stated by the defendant in his respondent’s brief were intended to resolve, and did focus on, the reasons given by the learned trial judge for dismissing the action. In the course of argument of the appeal the issue of priority of interest which inevitably arose in comparing the titles registered or purportedly registered was considered by and large as a primary point in addition to the other issues canvassed.
Let me begin by considering the validity of the reasons given by the learned trial judge for dismissing the action. I start with the last one, namely, that the suit was incompetent having been begun by an originating summons. It is true that originating summons is prescribed and is suitable for use in very limited circumstances. When a dispute involves mere questions of construction of documents or statutes, order 44 of the High Court of Lagos (Civil Procedure) Rules 1973 then in force provided for the use of originating summons in an action to resolve such questions. An originating summons should not be used where there is dispute of facts or the likelihood of such dispute. In other words, it is not suitable for what may be called ‘hostile proceedings’ in which facts are in dispute: see Doherty v. Doherty (1968) NMLR. 241: National Bank of Nigeria v. Alakija (1978) 9 – 10 S.C. 59.
By the High Court of Lagos State (Civil Procedure) Rules made in 1973, it is stated in Order 1, r. 2(1) that the provisions of section 12 of the High Court Law shall apply to the said Rules. Section 12 of the said Law provides:
“12. The jurisdiction vested in the High Court shall, so far as practice and procedure are concerned, be exercised in the manner provided by this or any other enactment, or by such rules and orders of court as may be made pursuant to this or any other enactment, and in the absence of any such provisions in substantial conformity with the practice and procedure for the time being of the High Court of Justice in England.”
As there are no provisions in the said Law or were there any in the Rules of 1973 as to what procedure to take when an action is inappropriately brought by an originating summons, it is the Rules of the Supreme Court of England 1965, Order 28, r. 8(1) which may be resorted to in a fit and proper case. Order 28, r.8(1) provides:
“8(1) Where, in the cause of a cause or matter begun by originating summons, it appears to the Court at any stage of the proceedings that the proceedings should for any reason be continued as if the cause or matter had been begun by writ, it may order the proceedings to continue as if the cause or matter had been so begun and may, in particular, order that any affidavits shall stand as pleadings, with or without liberty to any of the parties to add thereto or to apply for particulars thereof.”
A relevant commentary is made under Rule 28/8/1 (Supreme Court Practice 1985, Vol. 1 page 452) which is that: “When this rule is invoked, the usual order will be for pleadings to be served very quickly and then for the matter to be restored for final directions. It is better not to let affidavits stand as pleadings because affidavits cannot be amended nor can particulars of them be ordered.”
What the learned trial judge did in the present case was to order pleadings and deal with the motion for direction which the plaintiffs had brought. The pleadings, as already said earlier, were amended several times. It was a proper procedure to take and was in line with the observation of Eso J.S.C in National Bank of Nigeria Limited v. Alakija (supra) that “….. to proceed merely by Originating Summons would not meet the justice of the case and we think that the learned trial judge should have made an order for pleadings .”
It was therefore not open to the learned trial judge to say at that stage of judgment that the suit was incompetent because it was begun by an originating summons instead of by a writ of summons. It was also not open to the defendant to raise the issue in his final address at the lower court that the procedure for the commencement of the present action was wrong. The parties clearly consented to go on with the proceedings by filing pleadings and having the matter adjudicated on that basis. So that even if the original process taken out was done upon a wrong procedure, the law is that, generally, in civil cases, where a party or parties have consented to a wrong procedure which has not led to injustice, none of them can thereafter be heard to complain that the procedure was improper. There is a long line of decisions in support of this principle: see C.F.A.O. v. Onitsha Industries Ltd. (1932) 11 NLR 102; Colonial Development Board v. Kamson (1955) 21 NLR 75; Akhiwu v. The Principal Lotteries Officer Mid-Western State (1972) 1 All NLR (Pt.1) 229 at 232 – 234: Ayanwale v. Atanda (1988) 1 NWLR (Pt.68) 22 at 34; Saude v. Abdullahi (1989) 4 NWLR (Pt. 116) 387 at 405.
The time to challenge a wrong procedure is at the commencement of the proceedings or so soon thereafter but not when the irregularity or error is allowed to continue to the finality of the said proceedings: see Adebayo v. Shonowo (1969) 1 All NLR 176 at 190. Nor indeed can there be said to be any irregularity capable of impugning the proceedings when at a stage and consistently with laid down procedure the irregularity was corrected and the proceedings regularized.
As to the failure of the 1st and 2nd plaintiffs to document the exchange of their plot 7 with the 3rd plaintiff’s plot 5 and whether section 4 of the Statute of Frauds 1677 applied, I have a simple answer. The question of documenting that exchange of plots is entirely a matter between those two parties. If there should be a dispute between them, the 3rd plaintiff may be taking a risk because the 1st and 2nd plaintiffs might be entitled to their plot 7 together with the house the 3rd plaintiff has erected on it. As long as both parties have joined together to fight the title over plots 5 and 7 with the defendant (since he has trespassed on both) they are relying on the two deeds of conveyance relevant to the said plots. The question of the Statute of Frauds as between them on the one hand and the defendant on the other hand does not remotely arise as it is not a case of vendor and purchaser, or lessor and lessee or mortgagor and mortgagee and the like as between the defendant and the plaintiffs.
It is well-known that section 4 of the Statute of Frauds 1677 has been replaced in Lagos by section 5 of the Law Reform (Contracts) Law (Cap. 66) Vol. III Laws of Lagos State effective from 28 December, 1961. The relevant provisions of section 5 sufficient for the present purposes read:
“5(1) This section applies to-
(a) every contract for the sale of land;
(b) every contract to enter into any disposition of land being a disposition that is required by any enactment to be made by deed or instrument or in writing or to be proved in writing; ……………
(2) No contract to which this section applies shall be enforceable by action unless the contract or some memorandum or note in respect therefore is in writing and is signed by the party to be charged therewith or by some other person lawfully authorized by him.”
In the present case there was no contract in respect of land entered into between the plaintiffs and the defendant in respect of which the defendant can rely on the above-quoted provisions (or section 4 of the Statute of Frauds 1677) which he and the learned trial judge relied on; nor is there any issue between the 1st and 2nd plaintiffs on the one hand and the 3rd plaintiff on the other hand requiring the application of the said law in the present proceedings. It was, therefore, entirely out-of-place, in my respectful view, for the learned trial judge to give as one of his reasons for dismissing the plaintiffs action the so-called non-compliance with section 4 of the Statute of Frauds 1677. He was in grave error.
The last point is whether the land in dispute was sufficiently identified. The learned trial judge held that it was not. This is rather surprising because exhibits C, E, F and J speak for themselves and are clearly unmistakable as to the land in dispute. Exhibit J, a composite plan, shows plot 5 and 7 in question and the manner the defendant’s trespassory act straddles the two plots substantially. There is no contention by the defendant that the deed of conveyance, exhibit B, by which Mr. A.B. Olaiya derived title from the Kuyasi Awushe family is invalid or does not identify plots 5 and 7. That deed of conveyance was registered on 19 February, 1976. The evidence is that the plaintiffs bought from the said Mr. A.B. Olaiya. The 1st and 2nd plaintiffs registered their deed of conveyance, exhibit E, on 20 March, 1976. The 3rd plaintiff registered his own deed of conveyance, exhibit C, on 16 March, 1977. The defendant’s deed of conveyance, exh. N, which evidence shows was fraudulently registered, bears date of registration of 24 August, 1977. Even if the registration was not fraudulent, it is the last in time.
It therefore follows that the issue of priority of interest based on the times the relevant deeds of conveyance were registered cannot be ignored. This will be considered on the basis of section 16(1) of the Land Instruments Registration Law (Cap. 64) Law’s of Lagos State, 1973 which provides:
“16(1) Subject to the provision of this law, and in particular of subsection (2) of this Section, every instrument registered under this law shall, so far as it affects any land, take effect, as against other instruments affecting the same land, from the date of its registration as hereinafter defined in the proper office as specified in section 3, and every instrument registered before the commencement of this law shall be deemed to have taken effect from the date provided by the law in force at the time of its registration.
The deeds of conveyance relied on by the plaintiffs having been registered before the controversial one relied on by the defendant take priority over that of the defendant. It is a well-known principle that where the equities are equal, the first in time prevails. There is no equity in favour of the defendant in the present case which he can rely on to defeat the earlier interests that were registered in the names of the plaintiffs.
The plaintiffs clearly, in my view, proved their case and were entitled to judgment. The learned trial judge ought to have given judgment in their favour. I therefore allow this appeal and set aside the judgment of the lower court delivered on 6 December, 1991. I enter judgmenrin favour of the plaintiffs to the effect that, as between themselves they are entitled to a right of occupancy to the said plots 5 and 7 in Block II situate at Onigbagbo, Ikeja, Lagos covered by deeds of conveyance, exhibits C and E but more particularly shown to be along Opebi Road as delineated in composite survey plan No. JO 98/88, exh. J. I award damages of 10,000.00 for trespass. I also award N2,000.00 as costs in the court below and 3,000.00 as costs in this court.
Other Citations: (1997)LCN/0282(CA)
