Alhaji Imam Y. Togun & Ors V. Mr. Justice I. Ishola Oluwa (2007)
LawGlobal-Hub Lead Judgment Report
ISA AYO SALAMI, J.C.A.
The Plaintiff averred in paragraph 29 of his amended statement of claim as follows:
“AND THE PLAINTIFF CLIAMS:
i. A declaration that the plaintiff is entitled to possession and the holder of a deemed right of occupancy by virtue of the Land Use Act, 1978 of all that portion of land marked C on Survey Plan No. SME/W/258A/7 drawn by Mr. M.A. Seweje and annexed herewith.
ii. The sum of five hundred thousand naira (500,000,00) as general damages for trespass and nuisance perpetrated by the said defendants.
iii. The sum of forty-one thousand naira (N=41,000.00) as special damages for the destruction of the Plaintiffs boundary trees, fruits trees, cassava and top soil on the said portioned land an the 24th of August. 1990.
PARTICULARS OF DAMAGE
- Boundary trees N=3,000.00
- Fruit trees (Cassava Cashew, Mango etc) N-3,500.00
- Cassava N=5,000.00
- Damage to top Agricultural soil N=30,000.00
Total N=41,500.00
iv. Perpetual injunction restraining the restraining the Defendants, their agents or privies from further trespassing on the said portion of farm land.”
The 1st – 4th, 6th and 7th defendants joined issue with the plaintiff by their amended statement of defence and counter – claim wherein they claimed as follows-
“38. WHEREOF the defendants claim against the plaintiff as follows-
i. DECLARATION that the Deed of conveyance dated April, 1975 and registered as No. 40 at page 40 in volume 1503 of the Register of Deeds in Lagos in favour of the Plaintiff is NULL and VOID and of No EFFECT Whatsoever under the DOCTRINE NEMO OAT QUOD NON HABET as five branches of the Iyewure family did not execute sale.
ii. The sum of five hundred thousand naira as spoiled and General damages against the plaintiff for trespass to the family land.
iii. A DECLARATION that Iyewure family is entitled to the statutory right of occupancy of the piece or parcel of land more particularly delineated on Survey Plan to be filed in this suit.
iv. AN ORDER OF PPERPETUAL INJUNCTION restraining
The plaintiff his agents and privies from trespassing on the Land in dispute.
The fifth defendant, on his own part, filed a separate amended statement of defence.
In addition, the plaintiff joined issue with the first, second, third, fourth, sixth and seventh defendants on their counter – claim by filing thereto an amended statement of defence to the counter – claim.
At the hearing in the trial court, plaintiff testified on behalf of himself and called five witnesses in support of the averments contained in his amended statement of claim as well as amended statement of defence to the counter-claim. On the other hand, for first, fourth, sixth and seventh defendants, second, fourth and sixth defendants testified and called seven witnesses. The fifth defendant neither called witness or witnesses nor testified on behalf of himself.
It is necessary to state the facts of the case howbeit succinctly. The land in dispute situates in Idimu. Lagos State originally belonged to one Abisiwa who founded the land. Abisiwa’s land was eventually partitioned into five portions and each of his five children was given his own share pursuance of a court judgment of 23rd day of June, 1939. exhibit p2. The five branches of Abisiwa family are (a) Lasinlo, (b) Iyape, (c) Faileke, (d) Akilo and (e) Iyewure.
The respondent purchased the whole Iyewure share of the larger parcel of land in 1964 and obtained a Deed of conveyance exhibit p13. which was registered in 1975 as No. 40 at page 40 in volume 1503.
The defendants took no step until 1990 when they trespassed on the land which the respondent had held and exercised acts of ownership including fencing, surveying, farming and disposing of portions of the land conveyed to him for over a period of 25 years. Upon this acts of trespass in 1990 by the defendants the plaintiff instituted an action on the trial court for declaration that he was entitled to possession, special and general damages an injunction.
The defendants also have a counter-claim in which claim they asked for two declarations, general damages as well as an order for injunction restraining the Plaintiff.
The matter went on trial and the learned trial judge in his judgment acceded to all the reliefs sought by the plaintiff, respondent herein. The lower court then dismissed the counter – claim. The defendants who were thereby aggrieved appealed to this court.
At the hearing of the appeal parties adopted their respective briefs of argument file on their behalf, which briefs were settled at appellants, respondent’s and appellants’ reply briefs, in compliance with the provision of Order 6 the of Court of Appeal Rules 2002.
The defendants. including the fifth (hereinafter referred to as appellants) identified three issues in their own brief of argument as follows-
- Whether the learned trial judge was correct in holding that Exhibit P 13 was properly executed by the Head and principal members of Iyewure family without making a finding on the number of branches constituted on Iyewure family.
- Should the decision of the trial judge be allowed to stand when he has not given any reason for his decision and has also not evaluated the evidence before him as enunciated in Mogaji v Odofin (1978) 4 S.C. 91.
- Whether the learned trial judge properly applied the Principle of law enunciated in Idubdun v. Okumagba (1976) 10 S.C 227 as to proof of ownership and possession by the parties and the award of damages against the Appellants in the circumstances of this case.”
The plaintiff (hereinafter referred to as respondent) also formulated the following three issues for consideration and determination in this appeal.
“1. Whether learned trial judge was correct in holding that the Executors of certified true copy of Deed of conveyance registered as 40/40/1503 at Alausa (Exhibit P13) were the head of family and principal members of Iyewure family.
- Whether the learned trial judge rightly preferred the evidence of the Respondent’s and his witnesses to that of at the appellants as more cogent, credible and more probable than that given by the defendants and their witnesses.
- Whether Respondent established ownership in accordance with the principles of law enunciated in Idundu v. Okumagba (1976) 10 NSCC 4.4. 5.
- Whether the Respondent proved the damages awarded against the appellants.”
It is not clear if the fifth defendant can rightly appeal against the decision of the learned trial judge which he did not oppose. It is true he filed an amended statement of defence for his own benefit or on behalf of himself as against the joint statement of defence filed by other defendants. He, however failed, refused or neglected to lead evidence in support of the said statement of defence. It is impliedly settled that where issues are joined on any averment in the Pleadings but no evidence was adduced in support of such averments or facts contained in the pleading the result is that such facts or averments in the pleading are deemed abandoned and would either be struck out or dismissed: Alao v. Akano (2005) All FWLR (Pt.264) 799, 814 and Balogun v. Amuhikanhun (1985) 3 N.W.L.R (Pt. 11) 27. The defence, having been struck out, that defendant would not have opposed the suit or would be presumed to have admitted the contents of the statement or amended statement of claim. When judgment is entered against him he cannot qualify as an aggrieved person having not apposed the suit initially.
Learned senior counsel for appellants contended that the parcel of land in dispute is the whole 93 acres of the land allotted to Iyewure family which the respondent purportedly purchased as per exhibit P13 based on agreement and receipts of purchase, exhibit P9 – P.12. Learned counsel further contended that while respondent claimed the land by relying all exhibit P13 signed by four persons made up of three branches, the appellant sought to declare exhibit P.13 null and void because the signatories to exhibit P.13 only make up three branches out of five branches of Iyewure family. Learned counsel further contended that the respondent at paragraph 13 of the statement of claim averred that the land was sold to him as per exhibit P.13 made between himself and
- Yesufu Togun
- Safiu Owo-odun
- Saliu Adekanlekan
- Ewusi Adekanlekan
learned counsel then argued that inspite of pleading exhibit P.13. the respondent failed to produce evidence in proof of authentication and due execution of the said document as no member of Iyewure family was called in support of the Exhibit P.13. See the case of Romaine v Romaine (1992) 4 NWLR Pt 238. 650. 662. He stated further that, at the trial, the appellant challenged the capacity of late Imam Togun and the other purported signatories to exhibit P.13 to dispose of Iyewure family property. He went on to contend that late Imam Togun was hospitalized while Safiu Owo-odun was blind at the time material to the execution of exhibit P.13.
There is no merit in the submission of the learned counsel for appellants. The respondent testified for himself and called five witnesses including second plaintiffs witness who is a member of Lasinlo branch of Abisiwa family to which the defendants’ family belongs. The defendants and the second plaintiffs witness are relations. Not only are they related, Oba Wababi Ayinde Balogun is the traditional ruler of the environ. He testified as follows.
“Before 1938 there was a dispute on the whole land.
One Kelani Ogunsola and Oseni Ogunsola started to sell part of the family land. My late father, Lawani Ogunleye sued the Ogunsolas to court. In Suit No. 272/1938 my grand father, Saka Olugboke of Akila, Gbadamosi Faleke of Faleke Branch, and Owo-odun of Yewuren Branch sued Kelani Ogunsola and Oseni Ogunsola of Iyepe Branch, Abisiwa had five children they were all families – namely Iyepe, Lasilo, Faleke, Yawuren and Akilo.
The court decided that the land should be partitioned into five equal parts.
Later the Yowuren Branch sold their portion to the plaintiff. The people who sold are Yusufu Togun, Owoodun known as Safiu Owoodun, Saliul Adekanle and Akilo my grand father was the Head of family in 1941. He handed over the land to the Yewuren branch and they were in possession. In 1964 they sold the land to the plaintiff. He was put in possession since 1964.”
Under cross-examination by Adewopo plaintiffs second witness testified as follows-
” I know the history of the place. I know the area partitioned and allotted to each Branch. The people I know who were prominent among them, and Head of the Branch were Yesufu Togun, Safiu Owo-odun, Saliu Adekunle and Aina. Those I mentioned were the representative of Iyewuren family at that time.
Yesufu Togun was the Head of family at that time.”
When further cross-examined
“I was not there when the alleged sale took place what know was that the land was sold to the Plaintiff. I was not caretaker of the plaintiff on the land. The plaintiff confessed to me that they bulldozed the land.”
Further on in the cross-examination he stated thus believe the story of Iyawuren family when they said they sold the land to the plaintiff. I know the plaintiff since he came to be in possession. He use to pass through my compound to his farm.”
Plaintiff in his evidence in Chief testified that-
“Four members of the family executed Exhibit P.13 including the Head of the family. The Head of family is related to the first defendant. After the Deed exhibit P.13 had been drawn up, I went along with the executants to the Magistrate’s Court where the contents were read out to them as they were illiterates. They thumb print and the magistrate signed:”
(underlining mine)
The evidence of first plaintiffs witness as well as that of the plaintiff if uncontradicted established authentication and due execution. To tilt the balance of probability on their side the first defence witness testified as follows “Aro the son of Ilubanto was the head of the family. I belong to Ogisanyin branch of Iyewure family. During the life of my father Ganiyu Ogisanyin was the head of Ogisangin family. Are the head of Iyawure family would sign, Jinadu the head of Dadu family would sign Ganiyu Ogisanyin who was a brother to my father’s mother. Musliu Owoodun would sign for Owo-odun branch. Yekini Adekanlekan would sign”.
Second appellant on his own part testified as second defendant as follows-
“Ilubanto begat my father Aro. My own father was older than the father of 1st defendant. Are was the head of family my father did not sign any conveyance for the plaintiff. The father of the 1st defendant was not the head of the family. His father was the head of his own branch”
6th Appellant as 6th Defence witness stated “The father of the second defendant was older than the father of the first Defendant ….
Those who sold in Exhibit P13 had no auhtority sell family land.”
Learned trial judge painstaking evaluated and reviewed the evidence tendered before him by the parties, particularly in respect of the executers of the conveyance and concluded as follows-
That the executors of Exhibit P.13 were head of the family and principal members of Iyewure family. I specifically find as a fact that Togun – the father of 1st Defendant was head of the (sic) 1st Defendants unlawfully went on the land in dispute in 1990.”
I am unable to fault, with respect, this finding of the learned trial judge which is supported by evidence some of which were elicited under cross- examination. The Plaintiff, respondent herein, pleaded in paragraph 13 of the amended statement of claim as follows-
“By a Deed of conveyance dated the 26th day of April 1975 and registered as No. 40 at page 40 in volume 1503 of the Register of Deed kept at the Lands Registry, Lagos made between
- Yesufu Tagun (as Head of family
- Safiu Owo-odun
- Saliu Adckanlekan
- Ewusi Aina Adekanlekan
as the Head and principal members of Iyawure Alias Iyawure family and the plaintiff, the plaintiff became seized in fee simple of the area of land therein described which is part of the land previously sold to him on the 20th day of July 1964 by Iyewure family,”
This averment was not denied specifically nor impliedly by the appellants in their own amended statement of defence and counter-claim. But more importantly the appellants particularly first appellant had admitted in a statement of defence, exhibit 20 and a counter affidavit, exhibit 19 that his father was the Head of Iyewure family. The first defendant in his statement of defence dated 1st July, 1991, in paragraph 5 thereof, averred thus-
“The 1st defendant further states that his father Yesufu Togun was the Head of the family when the purported Deed of conveyance was executed in favour of the plaintiff”
(underlining mine)
In a counter affidavit deposed to by the first defendant, appellant herein. Exhibit 20, he averred as follows-
“2. That I admit that the facts averred to in paragraphs 3,4,5,6,7 and 8 were only known to me after the event as my father who was then the Head of the family, then passed to me limited information about the administration of the family properties”
(underlining mine)
These admissions enure to the respondent. It is trite that in cases of declaration of title the burden of proof lies on the plaintiff who must succeed on the strength of his own case and not on the weakness of the defendants’ case although the plaintiffs in certain circumstances, can derive succour from the defendants’ case. These pieces of evidence are admission either expressly or impliedly which strengthened the case for the respondent. See Kodilinye v. Odu 2 WACA 336. Akunwata Nwagbogu v Iheziako (1972) Vol. 2 Pt.1 E. C S L R 335, 338 and Akinola & Another v. Olowo & others (1962)1 All NLR 224. 227. On the issue of headship of Iyewure, it seems on the pleadings and evidence should be resolved in favour of the respondent because apart from the evidence adduced through the plaintiff and his witnesses there is both implied and express admission. It is an elementary principle of our law which no longer requires citing or authority that, in civil cases, what is admitted requires no proof. See section 75 of the Evidence Act. Cap 112 of the Laws of the Federation of Nigeria 1990 and the case of Owosho v Dada (1984) 7 SC 149, 163 -164 where Aniagolu. JSC state thus “But a plaintiff need not proceed to prove an admitted fact.
And a fact is deemed to be admitted if it is neither specifically admitted nor admitted by implication, having regard to the other facts averred in the pleadings”
See also N.B.N v. P.M Olatunde Co. Nig. Ltd (1994) 3 NWLR (Pt.334) 512, 526; The British India Insurance Co. Nig. Ltd vs Therswards (1978) 3 S.C 143. 148 where the Supreme Court discussed and approved Okparaoke v. Obidike Egbonu 9 WACA 53, 55
Further more the plaintiff conveyance had been registered as No. 40 at page 40 of Volume 1503 at the Lands Registry Lagos. The certified true copy of the conveyance was produced in evidence admitted and marked as exhibit P13, The document was executed before a Chief Magistrate after reading and interpreting same to the illiterate executants before registration at the Land Registry. There was therefore a due presumption of a due execution of Exhibit P13.
The evidence that Owoodun was completely blind was rejected rather the evidence of the plaintiff that he was only blind in one eye was preferred by the learned trial judge. Second plaintiff witness an independent witness stated that the man was a farmer and was not blind in both eyes while the defendants who have interest to serve merely stated tersely that he was totally blind. Learned trial judge saw and watched the witnesses. There is no reason to lightly disturb the finding of the learned trial judge even though and appellate court is in as good a position as the trial court to evaluate evidence but it should give weight to the view of a trial court. See Benmax v. Austin Motors Ltd (1955) All ER 326,
The defence equally made a mountain out of a mole hill in respect of exhibits D2 and D3 which are respectively admission to and discharged from a government hospital.
They jointly indicate that Yesufu Togun was admitted to hospital on 19th February 1975 and discharged on 5th August, 1975. This is a public document because it was issued by a public officer, a doctor in the service of the Lagos State Government. They are therefore inadmissible being original. By virtue of section 109 (a)(iii) of the Evidence Act, Cap 112 of the Laws of the Federation of Nigeria 1990, the two documents being acts of a public officer or officers qualify as public documents such documents could only be proved by production of certified true copies thereof. See section 111 and 112 of the Evidence Act Cap 112.
However, exhibits P.9 to P12 are respectively
(i) the purchase agreement.
(ii) receipt dated 10/1/68
(iii) receipt dated 7th April 1969 and,
(iv) receipt dated 1st June 1966 were all signed by Yesufu Togun Iyewure.
But exhibit P13 was merely thumb printed by him. His son, the first defendant, identified and admitted that the signature on exhibits P9, P10, P11 and P12 which are respectively the purchase agreement and the receipts acknowledging the payment of the purchase price or consideration was that of his father. Could there be any justification for the father of first defendant to recede from the agreement having entered into the purchase agreement and fully received the consideration? I do not think so. If the failure to append his signature was to frustrate the contract, it does not enure to the family. It is trite that no one should be allowed to profit from his own wrong. This is incapsuled in the Latin maxim – nollus comodum capere potest de injuria sua propria. See F.B.N Plc v. Medical Clinics (1996)9 NWLR (Pt 471) 195,204; Adedoji v. N.B.N Limited (1989), N.W.L.R (pt.96) 212, 226 – 227 and Solanke v. Abed (1962) 1 All NLR 230.
Be that as it may, respectfully, in the circumstances of this case, the provisions of section 17 sub-sections (1)-(5) and section 29 of the Land Instrument Registration Law Cap L. 58 of the Laws of Lagos State of Nigeria 2003 completely take care of all the provide thus provisions were not referred to the learned trial judge submissions of the learned Senior Counsel for appellants. It is pertinent to note that these Sub-sections (1)-(5) of section 17
“17(1) Any person desiring that any instrument shall be registered shall deliver the same together with a true copy thereof and the prescribed fee to the registrar at the office.
(2) The registrar shall immediately after such delivery, place upon the instrument and upon the copy thereof a certificate, as in Form 8 in the First Schedule.
(3) Unless the instrument is one which is declared by the 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 a 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 wards “certified true copy” and appending his signature thereto.
(4) The registrar shall there upon register the instrument by causing the copy so certified to be pasted or bound in one of register books and by endorsing 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 endorsed on the instrument in pursuant of subsection (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 returned of the instrument is not made within twelve months after the date of registration the registrar may destroy the instrument.”
(underlining mine)
In the instant appeal, the original deed was not put in evidence. It can therefore be inferred that the copy of deed 40/40/1503 pasted in the registry of deed from which certified true copy exhibit P13 was made must have been presumably compared with the original deed in accordance with section 17(3) (supra) before it was registered and found to be a true copy in the terms of the names of the executants or executers contained therein are the same as those who actually executed and that the original might have been taken away by the person who deliver for registration or destroyed within 12 months of registration pursuant to section 17(5) of Land Instrument Registration Law Cap L 58 (supra).
The certified true copy tendered and admitted as exhibit P13 carry thumb print or impression because it was a product of development in technology of photographic as production which would have been well nigh impossible or unknown when the enactment was first promulgated. It was made pursuant to section 29 of the Land Instrument Registration Law Cap L. 58 (supra) which provides as follows-
“29(1) The registrar shall upon request give or certified copy of any entry in any such register book or register, or of any field document.
(2) Every such certified copy shall be received in evidence without any further or other proof in all civil cases”
(underlining mine)
Exhibit P 13 was issued pursuance of section 29(1) set out immediately above.
Section 29 as well as section 17 of the Land Instrument Registration Law Cap L. 58 (supra) should be read together. It is respectfully my opinion that once sub-section(1) of section 29 and sub-section (3) and (4) of section 17 are complied with the deed will be receivable in evidence without any further assurance or other proof of such matters as to execution by the parties mentioned in the deed. I am encouraged in this view by the dictum of Nnamani. JSC, in the case Aiyedun T. Jules v. Raimi Ajani 1980 FNR 290, 299 where he stated thus-
“Exhibit “A” was issued pursuant to sub section (1) above.
The whole section must be read together with section 18 and it is my view that once sub section (1) of section 30 and subsections (3) and (4) of section 18 are complied with the deed will be admitted in evidence without any further proof or other proof of such matter as execution by the parties named therein.
Section 26 of the Law to which learned counsel for the appellant made reference is irrelevant in the present proceedings. Though it provides that registration shall not cure any defect in any instrument or confer upon it any effect or validity which it would not otherwise have had it (i.e section 26) is made subject to the provisions of this Law and cannot operate to make exhibit “A” worthwhile document unless there is evidence that section 18 of the Law was not complied with by the Registrar of Deeds. There is no such evidence”
(underlining mine)
Sections 18 and 30 considered in the dictum just recited are from Land Instrument Registration Law of Western Region of Nigeria. 1959 which are in pari materia with section 17 sub-sections (1) – (5) and section 29 of the Land Registration Ordinance Cap 99 of the Laws of Federation of Nigeria 1958 applicable to Lagos State. The same provisions of the Ordinance are now re-enacted as: the Land Instrument Registration Law Cap L. 58 (supra). Consequently the provisions of the three legislations are in pari materia
I am bound by the decision of the Supreme Court per Nnamani, JSC, of the blessed memory. I have nothing further to add. The appeal fail and is accordingly dismissed.
I make an order as to costs which I assess at N=10,000.00 in favour of respondent.
Other Citations: (2007)LCN/2299(CA)
