Alhaji A. Aliyu V. Dr. John Adewunmi Sodipo (1994)

LawGlobal-Hub Lead Judgment Report

OGUNDARE, J.S.C.

The Ifadu Alase family of Ojuwoye in Mushin district of Lagos State owned a large area of land at Idiroko near Maryland Ikeja. Some years ago the said family sold a part of their land to one Fashola (who had since died) under customary law. In 1956 the children of Fashola sold portion of their father’s land which he bought from Ifadu Alase family to the plaintiff, Dr. John Adewumi Sodipo and joined the accredited representatives of the Ifadu Alase family in conveying the land to Dr. Sodipo.

It appears that at the time the conveyance was executed the plan attached to it and showing the delimitations of the land sold to Dr. Sodipo was not counter-signed by the Surveyor-General of Western Region as required by section 3 of the Survey Law of Western Region of Nigeria Cap. 121 then applicable in the area where the land is situate. The conveyance was presented for registration at the Registry office in Ibadan. According to the evidence of the surveyor who surveyed the land at the instance of Dr. Sodipo and who presented the Deed on registration at Ibadan, the Registrar of Deeds on noticing that the attached plan to the Deed of conveyance was not counter-signed by the Surveyor-General returned the same to the Surveyor for counter-signature of the Surveyor-General.

The surveyor later procured the counter-signature of the Surveyor-General and returned the deed to the Registrar of Deeds who thereafter registered it as No.19 at page 19 in Vol.145 of the Lands Registry Ibadan. Dr. Sodipo took possession of the land jointly conveyed to him by the families of Ifadu Alase and Fashola. After the land had been conveyed to Dr. Sodipo and he had taken possession, he noticed in 1957 that one Sinotu trespassed on the land and he sued her and had judgment given in his favour. In 1961, he partitioned the land into three pieces marked A, B and C. He fenced round the whole land and built on a portion of it.

Portion A was subsequently leased to a construction company which appeared not to have gone into possession. Sometime in 1976 Dr. Sodipo noticed that some workmen came on portion A and commenced building thereon. On enquiry made by him he discovered that it was one Lt. Col. A. Aliyu that was developing the land. He challenged Lt. Col. Aliyu who claimed that the land was sold and conveyed to him by one Yesufu Salami Okunade, the head of the Abdul Salami Okunade family or Fashola family. When Lt. Col. Aliyu would not desist from continuing with his building on the land, Dr. Sodipo instituted the action leading to this appeal, claiming:

“1. A declaration that the plaintiff is the owner in fee simple of all that piece or parcel of land situate, lying and being at Idiroko Village, Ikorodu Road in Ikeja Division of Lagos State which land is more particularly described and delineated on the plan attached to a Deed of Conveyance in favour of the plaintiff dated the 30th day of June, 1951 and was registered as No.19 at page 19 in Volume 145 of theLand Registry in Ibadan now in Lagos.

2. N200 damages against the defendant for trespass committed on the land by the said defendant, his agents, servants and/or privies during the period of January to September 1976.
3. A perpetual injunction restraining the defendant, his agents servants and/or privies from committing further Acts of trespass on the land.”

Pleadings having been ordered, filed and exchanged the action proceeded to trial. The learned trial Judge in a considered judgment found in favour of the plaintiff and entered judgment for him in terms of his claims with costs. Being dissatisfied with this judgment, the defendant Lt. Col. Aliyu (also known as Alhaji A. Aliyu) appealed unsuccessfully to the Court of Appeal (Lagos Division). Being dissatisfied with the judgment of the Court of Appeal, he has further appealed to this court, with leave of this court, upon three original and three additional grounds of appeal. The additional grounds are numbered 4-6. Both parties filed and exchanged their respective Briefs of Argument and in the defendant/appellant’, Brief, the following questions are set down for determination:

“1. Whether the survey plan attached to Exhs. 8 and 2 was valid and admissible in evidence without the counter signature of the Surveyor General when Exhs. 8 and 2 registered by the Registrar of Deeds and the effects of its inadmissibility under Laws of Western Nigeria 1959 Cap. 121 and Cap. 56 if that Law was the applicable law at the time (Ground 1).

2. Whether Exhs. 8 and 2 clearly show the land conveyed to the plaintiff/respondent without the plan annexed to it. (Ground 1).
3. Whether the defendant/appellant and his witnesses proved in their evidence the fraud alleged. (Ground 1).
4. Whether the importation of evidence on processes by which Exhs. 8 and 2 went through made by the Court of Appeal was wrong in law and adversely affected the judgment of that court (Grounds 4 and 5).
5. Whether the Court of Appeal was right in upholding the decision of trial Judge that Exh. 4 proved acts of ownership in the absence of execution by a third party or the lessee therein stated (Ground 3).
6. Whether the Court of Appeal was right in agreeing with the trial court that the evidence of the defendant and his witnesses did not show that the land sold to the plaintiff/respondent did not include the land in dispute i.e. that the land sold to the plaintiff/respondent was less than what the plaintiff/respondent claimed and registered in Exhs. 8 and 2 with the plan. (Ground 6).
7. Whether considering the totality of the evidence before the trial Judge, the Court of Appeal was right in dismissing the appeal. (Ground 7).”

The plaintiff/respondent on his part set out in his Brief two issues, to wit:

“1. Whether the parcel of land sold to the plaintiff by the Fashola family was as extensive as claimed in Exhibits 2 and 8 or whether the grant was enlarged by the fraud allegedly perpetrated by the plaintiff.

2. Whether the Court of Appeal was right in affirming the decision of the lower court granting judgment in favour of the plaintiff.”

The issues set out in the appellant’s Brief are rather prolix while those formulated by the respondent do not meet all the issues raised in the grounds of appeal. The issues raised by the appellant can be classified as hereunder:

1. Whether Exhibits 2 and 8, the Deed of conveyance relied on by the plaintiff for his title, were rightly admitted;
2. If the deed was rightly admitted, what is the weight to be attached to it:
3. Whether defendant proved the fraud pleaded by him; and
4. Whether plaintiff established enough acts of ownership to entitle him to judgment.

Admissibility of Exhibits 2 and 8

This perhaps is the crucial issue in this appeal. The two exhibits are the original and copy of the Deed of conveyance whereby Ifadu Alase family and Fashola family allegedly transferred title to the plaintiff in respect of the land in dispute. I say “allegedly” because the case of the defendant was that these two families did not grant to the plaintiff as much land as was shown on the plan attached to the Deed of conveyance. The plaintiff pleaded as follows:

“3. The plaintiff is the lawful owner of a parcel of land situate, lying and being at Idiroko near Maryland Ikeja by virtue of a Deed of Conveyance dated the 30th day of June, 1956 registered as No.19 at page 19 in Volume 145 of the Lands Registry at Ibadan now in Lagos.