Anor in the Court of Appeal of Nigeria (2007)
LawGlobal-Hub Lead Judgment Report
YARGATA BYENCHIT NIMPAR, J.C.A.
This appeal is against the judgment of the Lagos State High Court delivered on the 21st day of January, 2011 by HON. JUSTICE L. A. OKUNNU wherein the claim was dismissed in its entirety. The original claimant was substituted by the present Appellant in the course of the proceedings.
The Appellant took out a writ of Summons against the Respondents claiming the following:
1. A declaration that the claimant is the person entitled to the statutory Right of occupancy in respect of all the pieces of land with the building on it known as No.1 Moyo Agoro Street, Ifako and more particularly delineated on survey plan NO.LAT/1002/76 dated 28/10/76 and particularly identified on Plan NO. AD/6/2003 dated 14/4/2003 drawn by M. A. ADEOTI licensed surveyor.
2. An order of Court compelling the 1st defendant to give up possession forthwith and render account of the money collected on the 2nos 3 bedroom flats each and 8 Bedroom in the building known as No.1, Moyo Agoro Street, Ifako Agege from September, 1989 till possession is given up.
3.A Declaration that any
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purported execution carried out on the property of the claimant pursuant to any judgment in suit No.ID/306/75 is illegal, unconstitutional, null and void, Claimant having not been made a party to such suit.
4. An order setting aside any certificate of execution dated 25/8/89 (as regards the claimant) issued pursuant to illegal execution carried out on the claimant?s property at No.1 Moyo Street, Ifako Agege in purported execution of Judgment in Suit No, ID/306/75, a suit in which she was not a party.
5. A DECLARATION that any purported transfer of the claimant’s property by Rebecca Taiwo Olowo family to 2nd defendant in 1990 and/or from 2nd defendant to 1st defendant in 1992 is illegal, wrongful, unconstitutional, and same be declared null and void on the principle of nemo dat quod non habet.
6. The sum of N500,000.00 as aggravated damages for illegal execution carried out on claimants property.
7. AN ORDER of perpetual injunction Restraining the defendant?s, their servants, agents, privies, assigns, and/or any person(s) claiming through them, from further acts of trespass or possession on the claimants property known as No.1
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Moyo Agoro Street, Ifako, Agege covered by Plan No.LAT/1002/76 dated 28/10/76.
In the course of trial, the Appellant called 3 witnesses and tendered 9 Exhibits marked as C1-C9, different types of documents to support the claim. The 1st Defendant testified for himself, tendered two exhibits marked as Exhibits D1 and D2 being receipt and survey plan No.JAS/LA/92. The 2nd Defendant called two witnesses, himself and one Madam Lijadu; he tendered 13 exhibits marked Exhibit D3 – D10B.
Learned Counsel filed closing addresses which were adopted and upon due consideration, the claim was dismissed thus this appeal.
The brief facts are that the Defendants in another suit- ID/306/75 got judgment against trespassers on a piece of land part of which is the land on which the Appellant built her house, the land in dispute. The Appellant was not a party to the suit. The judgment was later executed on the property owned by the Appellant without notice, she felt aggrieved and filed the action leading to this appeal. The learned trial judge dismissed the claims of the Appellant in its entirety.
?The Appellant?s brief settled by Stephen Yemi Kuyoro is
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dated 18th day of February, 2016 and was filed on the same day. It sets out 7 issues for determination in the appeal as follows:
1. Whether it was right for the learned Trial judge to have wholly elevated the assertions in the pleading in suit No.ID/210/91 (Exhibit D10, D10A and D10B) as Evidence in this case (when the said assertion never went through the crucible of evidence and cross-examination in the original suit itself as the case itself was struck out) and adopted the said assertions in the aforesaid statement of claim as constituting an admission by the Appellant in making her findings that (the Appellant was a privy of Arowokoko family defendants in that case and that she was shopping for better title when she went to Obawole Family in this case on appeal), and if the answer is in the negative whether that decision is not perverse and whether it had not occasioned grave miscarriage of Justice. Grounds 1 and 4.
2. Whether there was any admissible evidence by the Defendant in the lower Court upon which the learned Trial Judge could have reached the conclusion that the land in dispute in this case is the same land litigated in suit
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No.ID/306/75 and whether or not Exhibit D12 was not wrongly admitted and ought to be expunged from the records of the Court. Grounds 2 & 3.
3. Whether it is the duty of the learned Trial Judge to inquire into how Exhibit C3 was obtained in reaching her conclusion of discrediting same and whether the learned trial judge could use oral evidence to contradict the content of document before him.
4. Whether it was proper for the learned trial judge to have isolated pieces of evidence in Exhibit C5 & D3 in making her finding against the Appellant that her vendors were never given title over the land, in preference to the conclusion reached in the judgment which was in favour of the Appellant’s vendor. Grounds 6 & 8.
5. Whether the learned Trial Judge was correct in reviewing the Judgments in Exhibits C5, C6, C7, C8 and C9 with the sole aim of discrediting any favourable findings in favour of the Appellant?s vendor, when the sole purpose for which they were tendered was to show cumulative acts of possession exercised by claimants vendor as an aspect of the acts of Ownership of their parcel of land part of which is subject matter of
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his suit. Ground 7.
6. Whether from the state of pleadings of the parties in this case the evidence tendered before the Court, issues had not been joined on whether or not there was need to obtain LEAVE of Court before execution could be levied on the property of the claimant now substituted Appellant having regard to the fact that she was not a party to the Judgment obtained in Exhibit D8. Ground 9 &10.
7. Whether or not the Judgment was not against the weight of evidence before the Court. Ground 11.
The 1st Respondents brief settled by Ayo Fadahunsi is dated the 3rd March 2016 and deemed on the 7/2/17 and it distilled 7 issues also though couched differently. They are as follows:
1. Whether the learned trial judge was right to admit and rely on Exh. D10, D10A and D10B.
2. Whether there was any admissible evidence by the defendants in the lower Court upon which the learned trial judge could have reached the conclusion that the land in dispute in this case is the same land litigated upon in suit No.ID/306/75, and whether Exhibit D12 was wrongly admitted and ought to be expunged from the records of the Court.
3. Whether the
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learned trial judge was right in given less probative value to Exhibit C3.
4. Whether it was proper for the learned trial judge to have used isolated pieces of evidence in Exhibit C5 and D3 in making her findings against the Appellant that her vendor are (sic) never given title over the land rather than the conclusion reached in the judgment which was in favour of the Appellant?s vendor.
5. Whether the learned trial judge was right to conclude that the land in this case is the same as the land in Suit No.ID/306/75.
6. Whether from the state of pleadings of the parties in this case and the evidence tendered before the Court, issues had not been joined on whether or not there was need to obtain LEAVE of Court before Execution could be levied on the property of the claimant now Appellant having regard to the fact that she was not a party to the judgment obtained in exhibit D8.
7. Whether or not the judgment was against the weight of evidence before the Court.
The 2nd Respondent?s Brief settled by Oluwole Ademuwagun is dated 4th March, 2016 and filed on the 8/3/16 and deemed on the 12/7/16, it adopted the issues formulated
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by the 1st Respondent.
After a careful review of the briefs and the issues set out by both sides, they basically reflect the same questions for determination but drafted differently, the Court shall adopt the issues put forward by the Appellant for determination in this appeal. Issues 4 and 5 shall be resolved together as they are closely related.
ISSUE ONE
Whether it was right for the learned trial Judge to have wholly elevated the assertions in the pleading in suit No.ID/210/91 (Exhibit D10, D10A and D10B) as Evidence in this case (when the said assertion never went through the crucible of evidence and cross-examination in the original suit itself as the case itself was struck out) and adopted the said assertions in the aforesaid statement of claim as constituting an admission by the Appellant in making her findings that (the Appellant was a privy of Arowokoko family, defendants in that case and that she was shopping for better title when she went to Obawole Family in this case on appeal), and if the answer is in the negative whether that decision is not perverse and whether it had not occasioned grave miscarriage of Justice. Grounds 1 and
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4.
The Appellant submitted that the trial Judge erred in relying on the assertions in the pleadings in suit No ID/210/91 (Exhibit D10, D10A and D10B) as evidence in this case, thereby coming to the conclusion that the Appellant admitted buying the property from one Arowokoko family and that this admission goes against the Appellant’s interest in the property. The Appellant further contended that the finding of the Court in this regard is perverse and unfair because they had denied knowledge of the assertions in the said Exhibit D10, D10A and D10B and there was no evidence led in support of the said assertions and therefore they are deemed as abandoned. Finally, the Appellant submitted that the assertions in Exhibit D10, D10A and D10B are hearsay evidence and urged the Court to enter Judgment for the Appellant instead. The following cases were referred to by the Appellant in support of his submissions; JUDICIAL SERVICE COMMITTEE V OMO (1990) 6 NWLR (PT 157) 407, OLALOMI INDUSTRIES LTD V. NIDB (2002) 17 NWLR (PT.795) 58, BUHARI V. INEC (2009) ALL FWLR (PT.459) 419, VICTABIO VENTURES LTD V. W. VANDER ZWANS & Z.N.B.V. (2009) ALL FWLR (PT.490) 756,
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ARABAMBI V. ADVANCE BEVERAGES IND. LTD (2006) ALL FWLR (PT.295) 581.
On the other hand, the 1st and 2nd Respondent in their respective briefs argued that Exhibit D10, D10A and D10B are relevant to the facts in issue and have been rightly admitted and relied upon. They submitted that it was clear from the testimony of the claimant that she was plaintiff in that suit and that the claimant?s statement of claim is admissible as a statement made by her, referred to Section 201 (1) of the Evidence Act andANYABUNSI V UGWUNZE (1995) 6 NWLR (PT 401) 255 SC, AGBAHOMOVO v. EDUYEGBE (1999) 2 SCNJ 94.
RESOLUTION
The contention here is simply the propriety of the learned trial Judge’s reliance and use of pleadings in a case struck out, as evidence in the suit to determine the claim of the Appellant herein. The case is suit No. ID/210/91 and Exhibits (Exhibit D10, D10A and D10B) are the writ of summons, statement of claim and the statement of defence in the said suit. It is a fact that the said suit was struck out for want of diligent prosecution before the present suit was filed and prosecuted. Admissibility is primarily founded on relevancy and
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pleading; it must be shown that what is sought to be established by the piece of evidence is relevant. The law is that even if the evidence is admissible, if it is not relevant, it cannot be admitted because it does not advance the cause of the party seeking to tender same, see A.C.B. LTD v GWAGWADA (1994) 5 NWLR (PT.342) 25; OMEGA BANK (NIG) PLC V O.B.C. LTD (2005) 8 NWLR (PT.928) 547; TORTI V UKPABI (1984) 1 SCNLR 427 and MAGAJI V THE NIGERIAN ARMY (2008) LPELR-2170 (SC).
It is also not the rule that documents admitted in evidence must be attached probative value, it will depend on a number of factors. The issue here, was that the trial Court admitted the writ and pleadings in a struck out matter and relied on the pleadings as evidence to arrive at a decision. Pleading generally is not evidence but mere averments which remain floating and only crystallizes when evidence is supplied in support. It is defined as the body and soul of any case in a skeleton form which is built up and solidified by the evidence in support thereof. They are never regarded as evidence by itself and if not followed by any supporting evidence, they are deemed abandoned, see
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JOLAYEMI V. ALAOYE (2004) 12 NWLR (PT.887) 322. In this case, Exhibit D10, D10A and D10B are processes in a matter (suit No.ID/210/91) filed by the Appellant but struck out. The suit was instituted after the judgment in ID/306/75. The suit struck out means that it did not get to hearing stage and so no evidence was presented in support of the pleadings. The processes were tendered by the 2nd Respondent. His pleading on the processes is paragraph 28 (d)(e)(f) of his Statement of Defence which state thus:
?The 2nd defendant shall at the trial of this suit rely on the said Deed of Assignment.
(d) That the 2nd defendant will at the trial of this suit rely on all the processes filed by the claimant herein in the aforesaid Suit No: ID/210/91.
(e)That when it became clear to the claimant that she could not maintain any action against the 2nd defendant and his predecessor in title, the claimant abandoned the afore said suit and pleaded with the defendant to maintain peace and consequently the Honourable Court presided over by Honourable Longe struck out the suit.
(f) That the 2nd defendant shall at the trial of this suit rely on the order of
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His Lordship dated the 20th June, 1994 in suit No.ID/210/91.?
I agree that a suit struck out is one that has not been judicially concluded and therefore it is dormant because a party has an option to either revive it or file a fresh action abandoning the one struck out. However, the fundamental question is whether the averments in the pleadings, i.e. the statement of claim in suit No.ID/210/91, can be relied upon as evidence in the suit leading to this appeal? No witness testified on the paragraph singled out by the Court. The 2nd Respondent argued that a paragraph singled out of the claimant’s statement of claim is admission against the Appellant, he relied on Section 20(1) of the then Evidence Act. The Section states:
?Statement made by a party to the proceeding, or by an agent to any such party; whom the Court regards, in the circumstances of the case, as expressly or impliedly authorized by him to make them, are admission.”
The focus of the 2nd Respondent is on admission by a party or his agent in the proceedings. What is an admission? An admission is a statement made by one of the parties to an action which amounts to a prior
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acknowledgment by him that one of the material facts relevant to the issues is not as he now claims. Generally, in an ideal situation, facts admitted require no proof by way of evidence, see CAPPA & D’ ALBERTO LTD v AKINTILO (2003) 9 NWLR (PT.82) 4 wherein TOBI, JSC (of blessed memory) said:
?An admission is a statement, oral or written (expressed or implied) which is made by a party or his agent to a civil proceedings and which statement is adverse to his case. It is admissible as evidence against the maker as the truth asserted in the statement.”
Now, can the said writ and pleadings of the Appellant in suit No.ID/210/91, including the statement of defence filed by the 2nd Respondent, be taken as admission against self-interest by the Appellant? On evaluation, the trial Court found that the claimant averred in the statement of claim in suit No.ID/210/95 that she had bought the property in dispute from the Arowokoko family in the year 1975 and that those representations had turned out to be an admission against interest. However, those same averments were not pleaded in the case in hand. Even if Exhibits D10, D10A, D10B contain admissions,
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they are not so in the suit before the trial Court. They were tendered by the 2nd Respondent and the Appellant was cross examined on the relevant paragraphs and she explained the circumstances of the paragraph in question. Generally, a party who had made a previous statement can be confronted with such statement and once, the party offers good explanation on the inconsistency between his statement and his previous statement, then that does it and the case of inconsistency cannot be proved. In this case, the Appellant was asked a question thus (see page 525 of the records):
Question: In the suit you filed in 1991, your root of title was traced to Arowokoko Family, and not to Obawole Family-Elizabeth Orebo Durosimi v. F. A. Taiwo & Al Maroof.
Answer: I am not aware of that.
Question: But you had earlier said your brother who took care of the land on your behalf knew how you had procured the land?
Answer: Yes, but he is dead now.
Question: I put it to you that you were just searching for who you could root your title through that was why you went for the Obawole Family- when you knew you could not succeed in the earlier case you
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filed.
Answer: No
Admissions are either formal or informal and the law is trite that not all admissions are conclusive against the maker as each and every admission must be carefully evaluated by the Court against the particular circumstances under which it was made, seeNWANKWO V NWANKWO (1995) 5 NWLR (PT.394) 153. There are conditions that must be fulfilled for admission against interest to apply, the apex Court in the case of ODUTOLA V PAPERSACK (NIG) LTD LPELR-2259 held:
?An admission against interest in order to be valid in favour of the adverse party, must not only vindicate or reflect the material evidence before the Court; it must also vindicate and reflect the legal position where an admission against interest does not vindicate or reflect the legal position, it will be regarded for all intent and purposed as superfluous. And a Court is entitled not to assign any probative value to it.?
I dare add that admission in pleadings must be direct and positive to the issue it seeks to establish, see DICKSON V ASSAMUDO (2013) LPELR ? 20416 (CA).
The Court below went in to the pleadings of a different case and applied the
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averments therein as evidence against the Appellant. The 1st Respondent relied on AGBAHOMOVO v EDUYEGBE (1999) 2 SCNJ 94 to argue that a plaintiff’s statement of claim with an admission even when amended can still be used by the Court to find against the plaintiff. This contention in my view is untenable because the Appellant did not make any admissions in the pleadings in issue. The Court below went outside the pleadings in the case being tried.
The Court cannot rely on the statement of claim in a previous case and in a case that did not go to hearing as basis for its finding. The said Exhibits ?D10, D10A and D10B? were admitted not for the purpose of confronting the Appellant but as admission and that is not right. A Court cannot do so, the pleadings were abandoned. The Court in the case of NASCO MANAGEMENT SERVICES LTD. vs. A.N. AMAKU TRANSPORT LTD (2002) LPELR 7139 (CA) held thus:
“That on the authority of Agbasi vs. Ebikorofe (supra) the Court has the power to look at documents in its file which are not tendered as Exhibits. But there is no power to take and rely on facts disclosed in a supporting affidavit to a motion which is
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abandoned.?
Flowing from above, the Court was wrong to find that a paragraph in the said Statement of Claim tendered is an admission. An abandoned suit is one that is left with no intention of returning to it, more, by the filing of a new suit.
The section of the Evidence Act specifically referred to provided that the admission is made by a party to the proceeding. The phrase ‘to the proceeding’ is specific and means the particular proceedings in issue not other proceedings which was not referred by any witness in the witness box. In the case of AGBAHOMOVO v EDUYEGBE (supra), the amended pleadings were in the same matter before the same Court unlike here where the suits are different and the pleadings came in without an opportunity to confront the Appellant with regard to the facts therein, more so, the admission is not glaring on the face of the pleadings. The trial Court drew conclusions and termed it admission. The Court below held thus:
?It is my finding that as far as the present case is concerned, that earlier case of the claimant and specifically the representation made by her in the statement of claim thereof has turned out
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to be an ADMISSION against interest.?
No witness made that out before the Court. It was solely the Judge’s self imposed duty of fishing for evidence. Where the alleged admission is in mere pleadings of an abandoned and different suit, the law cannot admit that as an admission. So also, in proceedings which had been struck out without going to determination stage. To make it worse, the alleged admission was not direct and positive but a general statement. This is total departure from simple rules of due trial.
The Respondents also contended that paragraph 1.9 of the claimant’s Statement on oath in this current suit is an admission. The paragraph states:
?Sometimes in September, 1989, I received a message from my overseer that the defendants have vit-et-armies and armed with dangerous weapons have entered the building and chased out all my tenants and have since taken possession of same. I enquired for their authority for doing so, but my overseer could not provide any answer to me, I therefore instructed him to get in touch with a solicitor in Nigeria to file an action on my behalf.?
Admission cannot produce what is vague,
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not clear and uncertain and I do not see the above paragraph qualifying as an admission against interest and definitely, not from a statement of Claim which has been abandoned, it cannot by any stretch of argument be evidence in any proceedings. The claim before the Court is title to land, the Respondents denied and traversed the Appellant’s pleadings. How then can anybody consider the above as an admission? Assuming that the paragraph is the pleading in issue, the rule is that admission in pleadings are not taken on a single paragraph but holistically. Before a Court decides whether or not there is an admission in a suit in respect of an averment in a claim, it must consider the entire pleadings of the parties as a whole, see TITILOYE V. OLUPO (1991) 7 NWLR (PT.205) 519 where the apex Court held:
?Now to be able to decide whether there was an admission in the pleadings of the Respondents which could have entitled the Appellants to the judgment of the Court, one must look at the Respondents’ pleadings as a whole and not just consider each paragraph in isolation.?
See also BUHARI V OBASANJO (2005) 7 SC (PT 1); PAN ASIA AFRICAN CO LTD V
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NICON LTD (1982) 9 SC 1; OKOYE & 6 ORS V NWANKWO (2014) 6-7 SC. The Respondent failed to do as above but singled out a paragraph to hold that it was an admission.
The trial Court therefore erred in relying on Exhibits D10, D10A, D10B to find against the Appellant without oral evidence tying the exhibits to the pleadings. All finding based on the piece of evidence must be struck out because they are perverse. The Court below erred in elevating pleadings to the status of admission even when the witness was not challenged on any inconsistency. The pleadings is from an abandoned suit and not the pleading before the Court.
Issue one is resolved in favour of the Appellant.
ISSUE TWO
Whether there was any admissible evidence by the defendant in the lower Court upon which the learned trial Judge could have reached the conclusion that the land in dispute in this case is the same land litigated in suit No:ID/306/75 and whether or not exhibit D12 was not wrongly admitted and ought to be expunged from the records of the Court.
The Appellant argued that Exhibit D12, a survey plan purported to be the plan describing the land in dispute, was
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wrongly received in evidence because the said Exhibit was never pleaded or frontloaded in clear violation of Order 32 Rule 4 of the Lagos State High Court Rules and that it was not also relied upon nor tendered by the Defendants as part of their defence. Thus, the Appellant contended that there was no admissible evidence before the trial Court upon which the trial judge could have reached a conclusion that the land which is the subject matter of this suit is part of the land which is the subject matter of Suit No. ID/306/75. He finally submitted that since his objection to the admissibility of Exhibit D12 was overruled, the said Exhibit should be expunged from the records, referring to ONOCHIE V ODOGWU (2006) ALL FWLR (PT 317) 544, OLAYINKA V STATE (2007) ALL FWLR (PT 373) 163 in support.
However, the 1st and 2nd Respondents submitted that from the state of pleadings and reliefs sought by the claimant, the identity of the land is not in dispute. That Exhibit D12 is relevant to this case and having been elicited under cross examination of the witness to the 2nd Defendant, same ought to be admitted and relied upon by the trial Court, referring to BAMGBOYE v
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OLANREWAJU (1991) 4 NWLR (PT.184) 132, IGBEIDE V. OSULA (2004) 12 NWLR (Pt.886) 86. Finally, they submitted that this issue does not relate to the ratio decidendi of the judgment of the lower Court and should be discountenanced.
RESOLUTION
This issue revolves around the conclusion of the Court below in the following words:
?It is not in dispute that the land in issue herein- No.1. Moyo Agoro Street, Ifako, Agege, Lagos State forms part of the land that was subject of suit No: ID/306/75, I say this because the claimant in her reply did not deny that assertion which was made in paragraph 24 of the 2nd defendant’s statement of Court below in the defence. By the state of the pleadings, therefore, she has admitted the same. Indeed, she could not deny the assertion anyway as it formed the basis of her first Court action suit No.ID/210/91. And it is uncontested that the Taiwo Olowo family, was the finding of the Court in suit No. ID/306/75 have been in possession of No. 1 Moyo Agoro Street, without let or hindrance for the better part of a century.”
The 2nd Defendant by paragraph 24 of his amended statement of defence pleaded as follows:<br< p=””
</br<
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?24. That consequent upon the judgment in Suit No. ID/306/75 an execution was carried out in respect of the entire land in dispute, by the bailiff of this Honourable Court and a certificate of execution (form O) dated the 25th August, 1989 was issued in favour of the aforesaid Taiwo Olowo family.”
The Appellant in her reply did not deny the said paragraph and the effect of not traversing any averment is obvious. It means the said averment is admitted, see MOTUNWASE V SORUGBE (1988) NWLR (PT 92) 90.
I have carefully considered the averment alleged to have been admitted by failure to traverse. I see a factual statement based on the judgment of the Court which unless set aside remains valid. I therefore do not see facts that should be traversed. It was the execution that gave rise to the claim leading to this appeal. I cannot agree with the position of the Respondents because the main claim is fundamentally a challenge to the execution of the judgment on a piece of land including the Appellant’s building on the land. The claim of the Appellant is against the judgment in ID/306/75 as it affects her land clearly identified and backed by plans. Can
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it be concluded that since the Appellant did not traverse the said paragraph, it should be a closed matter? No. The fact of the judgment and execution is established but the Appellant who was not a party is not bound by the judgment. Paragraph 24 quoted above did state that judgment was executed and Appellant is challenging the same execution, she cannot then say that the judgment was not executed. So the issue of traverse cannot arise. The trial Court erred in finding that the Appellants vendors were bound by the judgment after they had divested themselves of title to the land. The Appellant had been in possession since 1970’s without any challenge.
The basic question to consider is whether by the root of title leading to the Appellant’s claim, can she be bound by the judgment? If she is bound then, she may not have a case but if she is not bound, then she can challenge the judgment. In any case, she was not a party to the suit leading to the judgment. The Court was wrong to rely on the previous judgment because it was executed over the entire land to bind a stranger to the judgment. The simple question is whether estoppel can be invoked? If not,
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then, the trial judge made a grievous error by finding that the execution of the judgment has sealed the fate of the Appellant. It was too presumptuous. The evidence before the Court clearly shows that Appellant?s root of title is different from the Respondents root of title.
The Appellant submitted that she pleaded a plan and a composite plan to identify the land she claims. The Respondents did not plead any plan but relied on a plan attached to the judgment in ID/306/75. I agree with the Appellant that she is challenging the execution of the judgment on her land for which she pleaded a survey plan, the Respondents should have joined issues with her and not just rely on the judgment in a case she was not a party as proof of identity of the land. Issues cannot be joined by the mere pleading of the judgment because it is obvious that the Appellant’s claim is not the entire land covered by the judgment sought to be set aside and if so, there is need to clearly identify the area claimed by the Appellant vis-a-vis the entire land covered by the judgment in ID/306/75. As contended by the Appellant, page 468 of the record shows that there was no plan
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tendered to identify the land of the 2nd Defendant/Respondent therein, the land was identified by conjecture between 2 other plans belonging to neighbors. The Court therein observed that no survey plan was tendered and the evidence on the identity of the land was as the Court below said:
?It was during the search for it among the documents of late Rebecca that the family found other survey plans prepared by the same surveyor for two adjoining owners, Jacob Odesile and Adeogun.?
It can therefore be safely concluded that there was no plan tendered showing the area claimed by the 2nd Defendant at the trial Court and that explains all the effort to use the other judgments as proof to silence the Appellant. Identity of a land in dispute is established by filing of survey plans or sufficient and accurate description of the land in a manner that a surveyor can produce a survey plan based on the description. The initial burden is on the claimant to define the land he seeks a declaration with certainty or else he fails, see OTANMA V. YOUDUBAGHA (2006) 2 NWLR (PT.964) 337. However, it is trite law that this duty does not arise if the Defendant does
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not dispute the identity of the property or location of the property in dispute in his statement of defence, see ALIMI AKANBI DADA V CHIEF JONATHAN DOSUNMU (2006) 9 SCNJ 31. If a Defendant contests the identity of the land, he must specifically make it an issue in his pleadings by disputing the area or location or features described by the claimant, and then, identity becomes an issue for determination in the suit, see ALHAJI RAUFU GBADAMOSI V OLAITAN DAIRO (2007) 1 SCNJ 444. In traversing here, the Respondents pleaded the judgment in which the identity of the land was not defined, not precise but dependent on survey plans of adjoining plots. To arrive at a finding that the land in dispute is the one covered by the Judgment in ID/306/75, the Court would need clear evidence and definitely survey plans of both parties and a composite plan which must be the same in all its particulars is necessary. It cannot be determined on assumption or on a one sided case in the absence of admission by the other party. The only document before the Court was Exhibit C2, a composite plan by the Appellant but the Court ignored it. The Respondents herein did not plead any survey
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to contrast the claimant’s survey plan. They only relied on the plan attached to the judgment, Exhibit DB (a judgment not binding on the Appellant- ID/306/75). Furthermore, as contended by the Appellant, Exhibit D12 (a plan purported to be that of the land in dispute) was not listed nor frontloaded as required by the rules of the Court below. It had no foundation or root.
The second leg of this issue is the admissibility of Exhibit D12, a plan purported to be that of the disputed land. It was tendered during cross-examination of the witness to 2nd Respondent. It was not backed by pleadings of any of the parties. The 2nd Respondent’s reaction is that relevant evidence can be elicited under cross examination. Admissibility is founded on relevancy and pleading, see OYEDIRAN V ALEBIOSU (1992) NWLR (PT. 249) 550 which held that a document must be relevant to be admissible and must be pleaded to be admissible. It is consistent with legal principle that evidence extracted during cross-examination is admissible on issues joined. Issues are usually joined in the pleadings. The document in contention was not pleaded, not frontloaded and not listed. The law is that
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the pleadings of the parties must streamline the relevant issues/facts between the parties. Thus, for a document to be admissible, the said document must be duly pleaded or there must be facts in support of the document in the pleadings of the party relying on same, see SULEIMAN ADAMU V MUHAMMAD SANI TAKORI & ORS (2009) LPELR-3593; TORTI v UKPABI (1984) 1 SCNLR 214 and FADLALLAH V. AREWA ILES LTD (1997) 8 NWLR (PT.518) 546.
The plan – Exhibit D12 was not pleaded by any party, neither were there facts pleaded on the said plan. So if there were no pleaded facts, can the document be relevant and be admissible? How can it be relevant without pleadings? I think not, relevancy is gauged by pleaded facts, address of counsel alone cannot ground admissibility of a document. Though the document itself is admissible piece of evidence, the conditions to be satisfied must be so satisfied before it is admitted. The law is settled that for a document to be admissible in evidence, it must be pleaded, it must be positively relevant to facts in issue and must fulfill any condition that may be prescribed in any law for its admissibility, see ONKONJI & ORS V
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NJOKANMA & ORS (1999) 14 NWLR (PT 638) 250. The admissibility of the document was opposed but the Court over ruled the objection. That was a fundamental error by the Court below. The legion of defects definitely make the exhibit wrongly admitted and it must be discountenanced. A document wrongly admitted can be expunged at judgment stage and on appeal, see ONOCHIE V ODOGWU (2006) ALL FWLR (PT.317) 544.
The said Exhibit D12 is hereby expunged from the evidence because it is not legal piece of evidence upon which the Court can rely on to arrive at a finding in determining the claim. There was no legal basis for the finding based on the said Exhibit D12. Any finding on such piece of evidence is perverse and must be set aside. Consequently, the finding that the land in dispute is the same land covered by the judgment in ID/306/75 is perverse and is hereby set aside.
Issue Two is resolved in favour of the Appellant.
ISSUE THREE
Whether it is the duty of the learned trial judge to inquire into how Exhibit C3 was obtained in reaching her conclusion of discrediting same and whether the learned trial judge could use oral evidence to vary the
31
content of Exhibit C3.
The Appellant submitted that having received Exhibit C3 (the claimant’s purchase receipt) in evidence, the Court had no business making prejudicial inquiries into the said Exhibit, referring to TORTI v UKPABI (2000) FWLR (PT 29) 2481. The Appellant submitted that the finding of the Court showed bias as it relieved the Respondent from discharging the burden placed on it to prove their assertions in their pleadings, citing AUDU V NDUBUISI (1997) 3 NWLR (PT 493) CA. He also submitted that by using oral evidence to vary, contradict or alter the contents of Exhibit C3 contrary to Section 132 of the Evidence Act, the judgment of the lower Court is perverse and should be set aside.
However, the 1st and 2nd Respondents in their respective briefs contended that contrary to the Appellant?s submissions, what the learned trial judge did was to ascribe probative value to the evidence placed before it and that the judge was right to have given less probative value to Exhibit C3. They relied on FATUNBI V. OLANLOYE (2004) 40 WRN 130 and FAGGE V. ADAKAWA (2006) 46 WRN 162 in support.
RESOLUTION
The contention here is a
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challenge to the probative value ascribed to Exhibit C3 – the claimants purchase receipt issued by Obawole Aina Arupe’s Family. It is trite that the duty of evaluation and ascription of value to any piece of evidence is that of the trial Court.
A Court cannot investigate how any documentary evidence was obtained. Evidence which is generally relevant cannot be excluded merely by the way it is obtained. What is paramount is relevancy and if it is admissible, then the Court is not concerned with how the evidence is obtained or its custody, see TORTI V UPKABI (supra).
The document in contention here is a receipt of purchase issued by one Femi Aina. The witness who tendered the receipt under cross-examination, in answer to a question gave the age of the said Femi Aina at the time of the testimony to be between 40 and 50 years old and the receipt was issued in 1974.The Court below made the following erroneous finding which is not based on evidence before the Court.
It said:
?I must say by the way, that the receipt (Exhibit C4) adduced in evidence in this respect, Exhibit C3, looks quite new very crisp, and very white for a flimsy piece of paper
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that was said to have yellowed and softened. And indeed the truth came to be revealed in the course of the testimony of Mr. Lamide Lawal Obawole (CW2), a member of the Obawole Aina Arupe, when under cross examination, it transpired that a certain Femi Aina Arupe, who CW2 had said was the secretary of the family at the time the receipt was issued, was far too young to have held such a position in 1974.? See page 726 of the record.
There was no question as to how old was the author? There was no pleading to warrant such evidence before the Court and to inform its reliance for the finding. Furthermore, where was it stated or made out that the secretary must be of a particular age. Was the age in issue?
I believe the trial judge got distracted, lost touch with its duty to determine the dispute before it. The age of the author of the receipt was not in issue and there was no definite date of birth, the witness merely said he should be between 40 – 50 years ord. That was the opinion of the witness. And even at that, it was not an exact date nor year to warrant concluding on the age of the author of the receipt as basis for rejecting same. The point
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to consider is whether the receipt was discredited by evidence and not whether it was affected by the age of the person who authored it, more so, the person is not before the Court to enable the judge use its judicial eyes to make a finding. It is trite that when evidence is exaggerated, it enters a realm of flamboyancy or recklessness and then it is only reasonable to jettison such piece of evidence as held in FATUNBI V. OLANLOYE (2004) 40 WRN 130 at 148- 149 cited by the 2nd Respondent. However, the principle concerns oral evidence not documentary evidence that speaks for itself and one that oral evidence is only required to tie it to the relevant paragraph in the pleadings. I therefore agree with the Appellant that, the judge lost focus and was carried away by other irrelevant issues and thereby finding that the piece of evidence, a document, Exhibit C3 which was not traversed in the pleadings of the Respondents was unreliable. I agree with the Appellant that you cannot use oral evidence to vary, contradict or discredit a document, see AGBAKOBA v INEC (2008) 18 NWLR (PT.1119) 489 where the apex Court held:
“It is settled that oral evidence cannot be
35
allowed to add or subtract from or alter or contradict a written document.?
See also UBN V. OZIGI (1994) 3 NWLR (PT.333) 385.
There was also no feature of the document that will make the Court jettison with the document completely. There was no legal basis for the findings of the trial Court. The purpose of tendering the document was clearly pleaded and there was no traverse. This issue is resolved in favour of the Appellant.
ISSUE FOUR AND FIVE
Whether it is proper for the learned trial Judge to have taken isolated pieces of evidence in exhibit C5 or D3 in making her finding against the appellant that her vendors were never given title over the land the subject matter of this suit rather than the conclusion reached in the said Judgment which was in favour of the Appellant?s vendor.
Whether the learned trial judge was correct in reviewing the judgment in Exhibit C5, C6, C7, C8 & C9 with a view to impeaching any claim of title by the claimant?s vendor when the sole purpose for which they were tendered was to show cumulative acts of possession exercised by the claimant’s vendor’s family.
Under this
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issue, the Appellant submitted that the trial judge had taken isolated pieces of evidence in Exhibit C5 or Exhibit D3 (both being the judgment of the Supreme Court dated 30/2/1986) in suit No. 128/1896, and twisted the evidence in such a manner that is prejudicial to the Appellant and contrary to the actual findings of the Court in the said Exhibits. Appellant also argued that there was no admission by Obawole as an individual that is binding on the family and that the said Obawole was not even a party to the suit. That the trial Court had gone contrary to the settled principles of law with respect to the use of a Court’s judgment in trial, referred to AJIBO V. CBN (2011) ALL FWLR (PT 554) 104, AJEIGBE V ODEDINA (1988) 1 NWLR (PT 72) 544. The Appellant further contended that the title of the Appellant’s vendor is not in issue considering the fact that Exhibit C5 (the Judgment of the Supreme Court dated 30/2/1896 in suit No.128/1896) gave title to the Appellant’s vendor family and the averments of the Appellant in their 5th Amended statement of claim was never challenged. Thus, the learned trial judge by holding otherwise and specifically going against the
37
purpose for which the judgment was tendered, produced an erroneous finding, citing OMEGA BANK (NIG) PLC V. OBC LTD (2005) ALL FWLR (PT 249) 1964 SC.
On the other hand, the 1st and 2nd Respondents submitted that the testimony and purported admission by Obawole Bada in the 1896 suit binds the claimant and Appellant herein and that since he has denied ownership of the land in dispute, the claimant has no title to lay claim to. They submitted that contrary to the assertions of the Appellant, the judgment in Exhibit C5 did not confer any title on the claimant?s predecessor in title and the Appellant cannot rely on this to fortify the claimant?s title in the property in dispute and that in any case, such title cannot bind the Respondents herein as they were not parties to that suit. They referred to MOROHUNFADE V ADEOTI (1997) 6 NWLR (PT 508) 329, NWANCHUKWU V THE STATE (2002) 7 SC (PT 1) 124, OJIEGBE & ORS v. OKWARANYIA & ORS (1962) ALL NLR (PT 11) 598 and SEISMOGRAPH SERVICES (NIG) LTD V. EYUAFU (1976) 9 & 10 SC 135.
RESOLUTION
Two judgments are in issue here, the Appellant alleged that the trial judge picked snippets from the
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two judgments to arrive at a finding that the Appellant?s vendor was never given title over the land. They are exhibits C5 and D3 (Judgment in suit No.128/1896). The trial Court relied on a portion of Exhibit C5, (Suit No. 129 and 130 of 1895, see pages 734 of the record of appeal) and went on to find that the Appellant cannot rely on the judgment as root of her ancient title and that the Court could not rely on the evidence in Exhibit C5 to find for the Appellant. The trial judge went on to trace the root of the Defendants title through the same consolidated judgments and got to suit No.ID/306/75 wherein the defendants vendor’s claim also failed. The Court opined that the Appellant was privy to suit No, ID/306/75 and the admission in her pleadings in suit No.ID/210/91 struck out will weigh against her claim. As earlier mentioned, the trial Court erred in its finding in this regard. Also, the arguments of the Respondents that the said consolidated judgments did not grant title to the Appellant vendors does not also favour the Respondents because the claims were founded on trespass and the Court found for the Appellants vendors in possession. The vendors
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had possession and though it cannot translate into title, it is good against any person with a weaker title. Only a party with better title can challenge the Appellant’s vendors and none could do that. In any case, the suit was founded on trespass. It is trite that the duty of evaluation of evidence is that of the trial Court, but the Court is to evaluate evidence properly before it and not pick extracts from other judgments and which was done in a clumsy fashion to arrive at a decision.
Without going into the details of the consolidated judgments, it is trite that evaluation of evidence is to ascertain whether or not it establishes the facts stated therein. A judgment is essential for what it decided and when tendered in Court it is not for the Court to go into the evidence therein to pick and use portions in determining the case in hand, see AJIBO v CBN (2001) ALL FWLR (PT.554) 104 wherein the Court held:
?Judgments are only used when tendered in a trial to determine and confirm what was actually decided in the case and not to use the evidence given in them for or against any of the parties therein.”
The rationale is simple, the witnesses are
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not before the Court for their evidence to be tested under the file of cross examination. Unless a witness can go through the crucible of cross-examination, his evidence cannot be relied upon and it also offends the rule of fair hearing to do so, see AL-MUSTAPHA V STATE (2013) LPELR – 20995 (CA).
It is not the duty of the Court to make a case for the parties. To do so will be against all known principles of fair hearing or fair trial, see KIYALI v YILBUK & ORS (2015) 7 NWLR (PT 1457) 26. Any finding not supported by pleadings and evidence is perverse. The trial judge therefore erred in picking from particularly Exhibit C5 and D3 to inform the decision arrived at.
Now to the contention of the Appellant that the said paragraphs of the Amended statement of claim were not traversed and therefore deemed admitted and if admitted, there was no need for any proof. The Appellant argued that the Court below re-evaluated the exhibits C5 ? C9 (Judgments) with a view to using it to determine the claim before the Court. The purpose of tendering the said exhibits is clearly stated in paragraph 4 (g) and (h) of the Amended statement of Claim which states
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thus:
?(g) The Plaintiff vendors acts of possession exercised by the family includes:
i. Farming and reaping of palm nuts and tapping of palm wine
ii. Putting tenants on the land and collecting rents and terminal dues and tributes from them and appropriating same without let or hindrance.
iii. Having shrines on the land and worshipping same.
iv. Building houses on their herein land by themselves and their grantees including the plaintiff.
(h) the averments above have been confirmed and reinforced by the following judgments:
i. Judgment of Chief Justice Rayner in the consolidated suit 128/1896 between
1. ASHADE V. BRAIMO BASHORUN & AWUDU 2. OSHO V. ODU IJEBU
2. OSHO V SHOMEFUN DATED 28/9/1896 in the SUPREME COURT of Colony of Lagos.
ii. Judgment of Honourable Justice A. Ade Alabi in suit NO.ID/1536/88 between ALHAJI MUNIRU ANIMASHAUN & ORS V. SALIU AINA ADISA ARUPE & ORS dated 19/7/91
iii. Judgment of Supreme Court of Nigeria dated the 3rd day of June 1994 between LAMIDI OBAWOLE & ANOR V. OLUSOJI COKER.
iv. Suit No.SC/198/1990 AGANGA WILLIAMS V. LAMIDI LAWAL OBAWOLE & ANOR<br< p=””
</br<
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v. Judgment in suit No. ID/1846/95 OLUWADARE V LIJADU by Coker J. dated 19/12/2003
The plaintiff shall be relying on the above judgments to confirm and consolidate her root of title in this case.?
The trial judge then went ahead at page 736 of the record to say as follows:
“I see that the judgments of the Courts in Exhibits C6, C7 and C8 were merely to the effect that the claimant in those cases failed to prove their respective cases. The judgments did not confer title to the parcels of land there in issue on the Obawole Aina Arupe Family. And with particular regard to Exhibits C7 & and C8, although the respective claimants’ cases were dismissed, the counter claim of the Obawole Aina Arupe family in both actions had equally been dismissed. Thus, they were not adjudged to be the owners of the parcels of land therein.?
The Appellants however argued that Exhibits C5, C8 and C9 affirmed the radical ownership of claimants vendor- the Obawole Aina Arupe family.
?Generally, a document is tendered in support of pleaded facts and it is not at large. A document is pleaded for a purpose tied to what it is meant to prove. It is
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therefore for such purpose only that documents tendered should be evaluated. The Appellant pleaded the said exhibits for the purpose of showing cumulative acts of possession by the Appellant’s vendor’s family. I however disagree with the Appellant that the judgments pleaded were only to show cumulative possession and therefore the judge cannot acknowledge the decisions that were reflected therein. A judgment would be accorded the value of what it decides. I have carefully perused the named exhibits and I disagree with the trial judge on her findings on the decisions in the judgments. Obviously, the Court below did not read them and if it did, then did not understand the final decisions of the respective Courts. The Respondents contended that what was granted in favour of the appellant’s vendor’s family was merely possession and not title. The law is trite that long possession coupled with enjoyment of a piece of land can only be defeated by a person with better title.
It is again settled that proof of possession of connected or adjacent land, in circumstances rendering it probable that the owner of such connected or adjacent land would, in addition, be the
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owner of the land in dispute, may also rank as a means of proving title to land in dispute, see IROLO v UKA (2002) 14 NWLR (PT.786) 195.
It is obvious the Court went fishing for reasons to justify the decision it arrived at but certainly not based on what was before it. On that ground, the findings are perverse and must be reversed. A Court cannot go into a judgment fishing for reasons in order to rule one way or the other. It taints the outcome of a trial and occasion a miscarriage of justice.
I find for the Appellant under issues four and five.
ISSUE SIX
Whether from the state of pleadings of the parties in this case and the Evidence tendered before the Court, issues had not been joined on whether or not there was need to obtain leave of Court before execution could be levied on the property of the claimant now appellant, having regard to the fact that she was not a party to the judgment in Exhibit D8.
The Appellant submitted that since the claimant was not a party to the judgment in Exhibit D8, it was obligatory on the Defendants to obtain the leave of Court before they could levy execution on the claimant’s property, also being that the
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Judgment was obtained against named parties on record and for trespass which is judgment in personam. Not having obtained the required leave of Court, the Appellant submitted that the purported execution is null and void. He referred to ENABIRHIRE & ANOR v ATAMANO (1967) NMLR 253 and ADENIKE & ORS V ADESANWO (1962) WNLR 339.
The 1st and 2nd Respondents however argued that the execution of judgment carried out in suit No.ID/306/75 does not require the leave of Court as it is a judgment executed against parties and their privies and not one for which leave is needed.
RESOLUTION
It is not in contention that the Appellant was not a party in Exhibit D8-judgment in suit No. ID/210/75. The judgment was executed on the property of the Appellant without any notice to the Appellant. Execution of judgments is governed by the Judgment Enforcement Rules of the Sheriff and Civil Process Act. First and foremost, the issue here raises the legitimacy of the judgment. Can judgment entered against a non-party stand? It is settled that judgments entered against a person who was not a party to the pending suit cannot stand and is to no avail, see OLOWOYE v
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JIMOH (2013) LPELR-20344 (SC). That being the case, it is only sensible that before any step is taken against such a party it must be with the express approval of the Court. The Lagos State High Court (Civil Procedure) Rules also provides that before such execution, the Court has to direct. See Order 51 Rule 3, which states:
?The Judge may give any special directions concerning the execution of the Judgment, or the service thereof upon persons not parties to the cause or matter as he deems fit.”
The Appellant pleaded the fact that leave of the Court should have been sought before the judgment was executed. Issues were actually joined on this point and evidence led in this regard but curiously the trial Court held at pages 737 as follows:
?The claimant did not raise the matter in her pleadings, so that parties did not join issues on same. Indeed, no evidence was led in that respect, as a result it could not properly arise for determination as the Court only properly considers and determine issue that have been truly raised and truly joined, by the pleadings.”
There was cross-examination of Madam Lijadu at page 599 where the
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issue of execution of the said judgment was mentioned. Counsel also addressed the Court on it. The findings of the trial judge are perverse and must be set aside. The Appellant not being a party to the judgment executed and such execution was done without notice to the Appellant is wrong because declaration of title is judgment in rem and therefore binding on parties only. The Respondents did not show that the Appellant is a privy to any of the parties to the Judgment. I resolve this issue in favour of the Appellant.
ISSUE SEVEN
Whether the judgment was not against the weight of evidence before the Court.
The Appellant strenuously argued and proffered reasons to show that the preponderance of evidence weighs more in favour of the Appellant than the Respondent. He urged this Court set aside the Judgment of the lower Court while relying on the case of OHIARI v AKABEZE (1992) 2 NWLR (PT 221) 1. However, the 1st and 2nd Respondents submitted that the Appellant failed to prove a better title as the Defendants predecessor in title have shown evidence of long possession, occupation and title to the disputed land.
RESOLUTION
Having resolved
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the preceding issues in favour of the Appellant and having found that the judgment was based on wrong premise, improper assessment and evaluation not having been done as required and even where evaluation was done, it gave rise to wrong findings which are perverse, the trial Court made use of extraneous issues in arriving at judgment. Definitely, the judgment cannot stand and the appellate Court can re-evaluate evidence if it is established that the trial Court fumbled.
The Appellant in proof of her case tendered her purchase receipt (Exhibit C3), survey plan (Exhibit C1), approved building plan (Exhibit C4) and a composite survey plan. None of these documents were challenged either in the pleadings of the Respondents or under cross examination. The Appellant also called the surveyor to her vendor?s family and the head of the family of her vendor, the Obawole Aina Arupe Family who gave the genealogy of the land and evidence of their possession. None of their evidence was discredited under cross-examination during trial. The Defendants however failed to prove a better title. They relied on the stool land belonging to the Olofin of Isheri and then a
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Court ordered sale in 1897 as their root of title but failed to trace how the land was transferred to the various title holders to get to the Respondents. Also the Respondents did not show how the plan they tendered is connected to the land in dispute. The Court in the case ofUKACHUKWU & ORS V IHEJIRIKA & ORS (2014) LPELR – 24102 (CA) where the Court held:
?… in order to succeed on traditional history as proof of title, it is not enough for the party to plead per se that he and his predecessors-in-title own the land but he must go further to trace the pedigree or origin of the land and prove
(a) the founder of the land
(b) how the land was founded and
(c) the particulars of intervening owners through whom he claims the land.? Per AGUBE J.C.A
In the instant case, it is clear from the evidence adduced at the trial Court that the Appellant had all along been in possession of the land in dispute without any disturbance since 1974 when she bought the land until 1989 when the Appellant was informed that her land had been intruded upon. The Appellant thereafter instructed the person overseeing the property to file an
50
action on her behalf which resulted in Suit No. ID/210/91, though the matter was subsequently struck out for lack of prosecution. Like I earlier mentioned, the processes in that case cannot be relied upon as admission because the case did not go to hearing. So from the facts of the case, the Appellant have proved a better title to the land on the preponderance of evidence and I have every reason to find as such. The evidence of the Respondents is inconclusive. It would therefore be in the interest of justice to allow this appeal and set aside the judgment of the lower Court.
Consequently, this appeal is meritorious and is allowed. The judgment of the trial Court is hereby set aside because it is perverse and a complete travesty of justice. I must say that the manner the trial judge determined the claim, turned principles of law upside down. A situation where pleadings are recklessly overlooked and what should not have been considered was made the basis of findings cannot stand. The claims of the Appellant as per the writ of summons are hereby granted as follows:
1. A declaration that the claimant is the person entitled to the statutory Right of
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occupancy in respect of all the pieces of land with the building on it known as No.1 Moyo Agoro Street, Ifako and more particularly delineated on survey plan NO.LAT/1002/76 dated 28/10/76 and particularly identified on Plan NO. AD/6/2003 dated 14/4/2003 drawn by M. A. ADEOTI licensed surveyor.
2. A Declaration that any purported execution carried out on the property of the claimant pursuant to any judgment in suit No.ID/306/75 is illegal, unconstitutional, null and void, Claimant having not been made a party to such suit.
3. An order setting aside any certificate of execution dated 25/8/89 (as regards the claimant) issued pursuant to illegal execution carried out on the claimant’s property at No. 1. Moyo Street, Ifako Agege in purported execution of Judgment in Suit No.ID/306/75, a suit in which she was not a party.
4. A DECLARATION that any purported transfer of the claimant’s property by Rebecca Taiwo Olowo family to 1st defendant in 1990 and/or from 2nd defendant to 1st defendant in 1992 is illegal, wrongful, unconstitutional, and same be declared null and void on the principle of nemo dat quod non habet.
5. AN ORDER of perpetual
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injunction Restraining the defendant’s their servants, agents, privies, assigns, and /or any person(s) claiming through them, from further acts of trespass or possession on the claimants property known as No.1 Moyo Agoro Street, Ifako Agege covered by Plan NO.LAT/1002/76 dated 28/10/76.
6. The sum of N200,000 as aggravated damages for illegal execution carried out on the Claimant’s property.
Cost of N100,000.00 to the Appellant to be paid by the Respondent.
Other Citations: (2007)LCN/2610(CA)
