Mr. Emmanuel A. Adeniran V Mr. Emmanuel Alao (2001)
LAWGLOBAL HUB Lead Judgment Report
UWAIFO, J.S.C.
This is an appeal from a judgment of the Court of Appeal, Lagos Division, given on 12th December, 1991 now reported as Adeniran v. Alao (1992) 2 NWLR (Pt.223) 350. It affirmed the judgment of the High Court of Lagos given on 12 December, 1986 which dismissed the plaintiff’s claim. In his claim, the plaintiff (now appellant) sought three reliefs against the defendants (now respondents) which I paraphrase as
(1) a declaration of title to a statutory right of occupancy to a parcel of land at Plot No. 53 Opebi Street, Onigbagbo village, Ikeja Lagos;
(2) N1,000.00 damages for trespass; and
(3) an order of perpetual injunction.
Having lost in the two courts below, the appellant has asked this court to consider his appeal on the following issues:
“(1) Whether under the facts and circumstances of this case where parties are agreed that no issue was joined on due execution of Exhibit 1, the learned justices of the Court of Appeal were right to have affirmed the decision of the trial court that the appellant ought to prove the due execution of Exhibit 1 and or failed to prove same.
(2) Whether the appellant established his claim of being entitled to the grant of statutory right of occupancy to the land in dispute, trespass and injunction as against the respondents.
(3) Whether under the facts and circumstances of this case, the Court of Appeal rightly held that the equitable defences of estoppel, laches and acquiescence availed the respondents.
(4) Whether the learned Justices of the Court of Appeal properly evaluated the evidence led in this case.
(5) Whether in view of the evidence led by the parties the land sold by Felix Olatunde Thomas (late) to the Durosimi-Etti DW4 is not different from the land in dispute in this case.”
Let me first state the facts of the case briefly. One Felix Olatunde Thomas owned a large tract of land at Agbole Onigbagbo in Onigbagbo Village, Ikeja District, Lagos. He inherited it from his mother, Mariam Ayodele Gooding. She herself had inherited the land from her father, James Gooding, being his only child. These facts were agreed by both parties. By an instrument dated 25 September, 1972 registered as No. 42 at page 42 in volume 1409 of the Lands Registry in the office at Lagos, the said Felix Olatunde Thomas conveyed a portion of his land to the appellant. The survey plan attached to the deed of conveyance shows that the vendor had laid out his land into ten plots, which he duly numbered 1 to 10. The portion conveyed to the appellant comprised two of the plots, numbered 3 and 4. The beacon Nos. are EB 164, EB 219, EB 225, and EB 226 for plot 3, while plot 4 bears EB 212, EB 213, EB 225 and EB 226. The two plots share a common boundary length-wise with beacon Nos. EB 225 and EB 226. The deed of conveyance was admitted as Exhibit 1. By an instrument dated 31st January, 1973 registered as No. 29 at page No. 29 in volume 1415, Felix Olatunde Thomas conveyed plot NO.2 to one Mr. Nasirudeen Akinola Durosimi-Etti. The beacon numbers are EB 160, EB 212 EB 224 and EB 225. Plot 2 shares common boundary with plot 4 breath-wise with beacon Nos. EB 212 and EB 225. The survey plan attached to the deed of conveyance, which was admitted as Exhibit 3 (Photostat copy) or 3A (original), clearly shows these facts.
The appellant retained his said parcel of land of two plots. Durosimi-Etti did not retain his. On 21st April, 1977 he conveyed his land to one Madam Hannah Meude and this was registered as No. 53 at page 53 in volume 1622. The deed of conveyance is Exhibit 4 (Photostat copy) or Exhibit 4A (original). On 30 November, 1978 Madam Hannah Meude conveyed to Iyabo Omobonike Adebiyi and the deed was registered as No. 22 at page 22 in volume 1764. It is Exhibit 5. The history of the transfer of that land by deed of conveyance terminated with exhibit 5. Then on 30 September, 1983, the 1st respondent, Mr. Emmanuel A. Alao issued a receipt in the sum of N80,000.00 to the 2nd respondent “being full purchase price of my plot of land known as No.9 on survey plan No J.O. 333/77 with pillar Nos BL 2951, BL 2952, BL 2972 and BL 2973 …..”
The receipt is Exhibit 7. It is the land for which Exhibit 7 was purportedly issued that is now alleged was plot 2. How the 1st respondent became the owner of the land, how the land became plot No.9, how the beacon numbers completely became different, how from some of the survey plans and composite plan relied on by the respondents, the land shifted physically from its location to another totally different and far away position, and how the land has become rather larger in size are now posers which have turned out to be real puzzlers, and must be dealt with along with other issues in this judgment.
I have already set out five issues the appellant has called upon this court to determine in resolving his appeal. The respondents have also set out five issues. Although they are differently couched, they are essentially the same as the appellant’s issues except issue 2 by the respondents which states:
“2. Whether the appellant was able to prove title to plot 2 claimed by the respondents and upon which the respondents had been in possession since 1971.”
This issue, in my view, is misconceived apart from not having been based on any ground of appeal. In the first place, the appellant’s case has never been a claim to plot 2 but that instead of the respondents staying upon plot 2, they trespassed upon his own plots 3 and 4.
Second, the respondents’ assertion that the said plot 2 has now become plot 9 is in conflict with the reality on the ground having regard to the relevant documents of title and survey, plans. Third, the respondents have no document of title to show that plot 2 was ever conveyed to them let alone that it is now plot 9. Fourth, Durosimi Etti who was the earliest person to acquire plot 2 from Felix Olatunde Thomas was not given possession until January, 1973. I shall therefore rely on the appellant’s issues for the determination of this appeal.
Issue 1
The appellant pleaded a deed of conveyance from Felix Olatunde Thomas and tendered it in evidence, Exhibit 1. Exhibit 1, as already shown, relates to plots 3 and 4. The respondents pleaded a similar deed of conveyance from the same Thomas and tendered it in evidence, exhibit 3 (or 3A). This relates to Plot 2. The two exhibits were executed in person by the said Felix Olatunde Thomas. A comparison of both shows exactly similar signatures. At no stage, as rightly submitted by appellant’s counsel, was the due execution of Exhibit 1 joined as an issue on the pleadings of the parties. It is elementary principle that the parties and the court are bound by the parties’ pleadings. Therefore, while the parties must keep within them, in the same way but put in other words, the court must not stray away from them to commit itself upon issues not properly before it: see African Continental Seaways Ltd. v. Nigerian Dredging Roads & General Works Ltd (1977) 5 SC 235 at 250 where this court observed:
“The court itself is as much bound by the pleadings of parties as they are themselves. It is no part of the duty or function of the court to enter upon any inquiry into the case before it other than to adjudicate upon specific matters in dispute which the parties themselves have raised by their pleadings.”
In the present case, the two courts below went into diversionary issues not relevant and not canvassed by the parties. The real issue is whether the appellant’s deed of conveyance, Exhibit 1, was executed by Felix Olatunde Thomas, just as the respondents relied, initially, on Exhibit 3 which was similarly executed by the said Thomas. In his address before the trial court, the respondents’ counsel submitted that the appellant did not call any member of Opebi family to confirm that he got land from Felix Olatunde Thomas “or called (sic) anybody to identify plaintiff’s vendor (sic) signature. On the contrary the defendants through 4th defence witness proved due execution of Exhibits 3 and 3A.” Learned counsel for the appellant in reply submitted that Exhibits 1 and 3 were executed by the same Thomas and therefore there was nothing else as to due execution that the appellant needed to prove. The learned trial Judge in his judgment observed and held:
“………a party relying on ownership of land by production of document of title must prove due authentication in the sense of due execution of the said execution (sic)
After a careful consideration of the evidence led by the plaintiff on this point I hold that the plaintiff failed woefully to establish due authentication and due execution of Exhibit 1 every evidence determined with Felix Olatunde Thomas, no evidence whether the said family of Felix Olatunde Thomas died childless and the family thereby extinct. It is to cover this gap that plaintiff averred ratification and confirmation by Egba Refugees Descendants Community but no satisfactory and credible evidence was led to support the averment.”
Apart from the fact that the question of due execution by Felix Olatunde Thomas was never raised as an issue on the pleadings, I am quite baffled how the learned trial judge came by his finding and a good portion of his observation quoted above. The respondents’ counsel’s submission before him was that the appellant called nobody to identify Mr. Thomas’ signature on Exhibit 1 but that on the contrary the respondents through the 4th defence witness proved due execution of Exhibit 3. The appellant who got Exhibit 1 from Mr. Thomas said in evidence:
“Mr. Thomas sold the piece of land to me for 500 or N1,000.00. I was later given a conveyance. This was in 1972. This is the conveyance executed in my favour.”
The deed of conveyance was then received in evidence as Exhibit 1. No suggestion was ever made by the defence to the appellant that exhibit I was not executed by Mr. Thomas. In the same manner, 4th defence witness, Mr. Nasirudeen Akinola Durosimi-Etti, who got Exhibit 3 from Mr. Thomas, said in evidence as contained in the printed record:
“I have heard of Mr. Felix Olatunde Thomas before. In 1973 Thomas sold a parcel of land to me he showed me the land at Opebi he executed a deed of conveyance in (my) favour in respect. I see Exhibit 3 is the deed of conveyance made in my favour by Thomas.”
The original deed of conveyance was then admitted as Exhibit 3A.
As can be seen both sides obtained a deed of conveyance each from Mr. Thomas in the same circumstances so that the question of due execution in respect of the appellant’s could not reasonably arise. This point was seriously canvassed by Chief G.O.K. Ajayi SAN on behalf of the appellant at the court below in the appeal against the trial court’s decision. He argued that both parties were agreed that the land was the personal property of James Gooding which devolved to Felix Olatunde Thomas from whom each of the parties obtained a conveyance. He contended further that neither party suggested nor pleaded that the Egba Refugees had any proprietary interest in the land to necessitate their consent or confirmation of sale in order to make it valid; and that a party who pleaded any unnecessary fact would not fail in his claim simply because he failed to prove such fact. That was obviously a point well taken with which the court below agreed but the argument as a whole did not seem to have weighed with that court in the end as to whether the appellant proved that there was due execution of his deed of conveyance (Exhibit 1) in order to confer title in him.
In his leading judgment, Tobi JCA stuck to the issue of due authentication and execution when he observed in Adeniran v. Alao (1992) 2 NWLR (Pt.223) 350 at pp.369-370]:
“A Deed of Conveyance without due authentication and execution is in law worthless for the purposes of proving title to land. It has no probative or evidential value beyond the printed document. A document by itself has no legal life unless there is a human intervention by way of due execution.
Apparently, learned Senior Advocate did not specifically react to this aspect of authentication and execution. He merely submitted that since both parties to the suit pleaded deeds of conveyance from the descendant of James Gooding and did not suggest or plead that the Egba Refugees or the Leader had any proprietary interest in the land, his consent or confirmation was not necessary to the acquisition of a legal title to the land. With respect, I am not with learned Senior Advocate here. The point made is neither here nor there. The requirement of due authentication and execution in Idundun [i.e. Idundun v.Okumagba (1976) 9-10 NSCC (vol.10) 445] is so clear and has been followed in subsequent cases, as not to admit (of) the submission of learned Senior Advocate.
While I concede to learned Senior Advocate that a party is under no legal duty to prove an unnecessary averment in his pleadings, I am of the firm view that he is under a strenuous and compelling duty to prove averments which are not only germane to his case but affect the props, the foundations and the roots of his cause of action and claim.” [Parenthesis supplied]
The question of due authentication by execution other than by Mr. Thomas did not arise as an issue in this case where, as I have said earlier, the land sold was the personal property of Thomas who signed the deed of conveyance and not that of a native community or the Egba Refugees Descendants’ Community to require their consent or approval of the sale. The court below fell into error to have, like the trial court, insisted on it. Apart from this however, I think, with due respect, the learned Justice of the Court of Appeal may have misconceived the essence of Idundun’s case as regards the requirement of due authentication by execution. The learned justice,
just as the learned trial Judge did, talked about the “requirement of due authentication and execution” of a document of title (e.g. a deed of conveyance) when a party relies on such a document in support of his claim to ownership of land. He used ‘authentication’ and ‘execution’ conjunctively as if they are two separate requirements that have to be fulfilled in such documentary transaction. In my view, when so used in this con one is faced with a meaning difficult to comprehend as though a document of title must be proved to have gone through the process of authentication and then execution to have validity. If not, as observed by Tobi JCA, it is “worthless for the purposes of proving title to land.” But in the said case of Idundun v. Okumagba (1976) 9-10 S.C. 227 NSCC (vol. 10) 445 relied on by the learned justice, this court per Fatayi- Williams JSC (later CJN) said at p.454:
“……..ownership of land may be proved by production of documents of title which must, of course, be duly authenticated in the sense that their due execution must be proved ”
[Italics mine]
The above-quoted observation means no more than that a document of title must be authenticated by due execution of it by the owner or owners of the land it purports to alienate.
This does not suggest that authentication is a different or additional requirement to the execution of the document itself. But that is what the two courts below have said, or at least implied. The learned justice quoted inter alia the learned trial Judge’s observation thus-
“After a careful consideration of the evidence led by the plaintiff on this point I hold that the plaintiff failed woefully to establish due authentication and due execution of Exhibit 1.”
He himself then said: “It is extremely difficult to fault this finding of the learned trial Judge.”: See Adeniran v. Alao [(1992) 2 NWLR (Pt.223) at p.339]. Had the court below appreciated the principle in Idundun’s case to mean that a deed of conveyance (or document of title) must be duly executed by the owner of the land or his agent so as to authenticate it; or put in other words, a document of title must be authenticated by due execution, then it would have only had to consider whether Exhibit 1 was executed by Felix Olatunde Thomas. That the said Thomas executed Exhibit 1 was never in dispute. In a most compelling submission on this point in the court below, Chief Ajayi SAN said that the evidence of the appellant that the said Thomas executed Exhibit 1 in his favour as the sole owner of the land was not challenged by the respondents and so the evidence must be accepted to have established due execution. He added that if the respondents were minded to falsify the signature on Exhibit 1 as being that of’ Thomas, they had every opportunity to do so since they themselves had in their possession their own deed of conveyance bearing the signature of the same Thomas. I find it difficult to understand how such a plain and incontrovertible argument was of no moment to the court below. The signature on Exhibit 1, the appellant’s deed of conveyance, is similar to that on Exhibit 3 or 3A, the deed of conveyance of Durosimi-Etti who claimed he passed on his title to his successors. That signature on Exhibit 1 is the authentication required. The learned counsel for the appellant has in the very forceful presentation of his case before this court made this point again plain beyond any argument, and 1 accept the merit of it. Once it is shown that the appellant’s deed of conveyance (Exhibit 1) has been duly executed by the owner of the land as vendor, it is sufficient evidence to support the award he seeks of title to the land. Relying on Idundun v. Okumagba (supra) this court reached that conclusion in the recent case of Aliyu v. Sadipa (1994) 5 NWLR (Pt.342) 1. I must therefore answer issue in the negative.
Issue 2
The submission on behalf of the appellant by his counsel in pressing this issue is that the appellant is armed with a valid deed of conveyance (Exhibit 1) derived from a root of title not in dispute. The said exhibit clearly identifies the parcel of land (plots 3 and 4) in the survey plan attached thereto. That survey plan bears all the beacons and, as already shown, plot 2 acquired by Durosimi-Etti (D.W.4) is shown as having a common boundary with plot 4. It is through D.W.4 the respondents would ordinarily have traced their entitlements to that plot 2. This is because their pleading throughout suggests that. So is the evidence up to a stage. The surveyor called by the respondents, Joel Olusola Ogunsanya, testified as DW1. He produced what looks like a composite survey plan for the respondents. It is interesting that he indicated the exact positions of plots 2, 3 and 4 which right from the beginning, shows their relationship. That ‘composite’ plan is exhibit 6. He said in evidence:
“I know the yellow portion in Exhibit 6 was prepared by the plaintiff for the Egba Refugees in 1971…………… I see Exhibit 3 and the survey plan attached to it. It (i.e. Exhibit 3) is the predecessor in title of the 1st defendant. Plot 2 was conveyed in 1973, January, 1973 to Durosimi Eti (sic). I see the four pillars shown in Exhibit 3 are reflected on Exhibit 6.”
The yellow portion is a correct representation of the layout of the land in the survey plan attached to the appellant’s Exhibit 1 wherein plots 2, 3 and 4 among others are depicted. Plot 2 which is the subject of the deed of conveyance, Exhibit 3, has been shown by this witness in Exhibit 6 as having a common boundary with plot 4 (which belongs to the appellant). Now, if plot 2 is what was available to be traced through Durosimi-Etti to the respondents, one must wonder how it is that this witness has shown the said land contained in plot 2 in a completely different position he re-names plot 9, far away from plot 4. They no longer share common boundary as they must. The said land to which the respondents pretend to lay claim now has different beacon numbers BL 2951, BL 2952, BL 2972 and BL 2973. Instead of the size being about 50′ x 100′, it is now 60′ x 120′: see exhibit 6A, a survey plan tendered by the respondents. This is a curious state of affairs, where a parcel of land is made to shift from its original position completely without being the result of a dislocation of’ the earth’s crust in that area. But the respondents could not quite demonstrate that it was possible for plot 2 to shift to become plot 9 in the present case because in Exhibit 6 produced by D.W.1, plot 2 with beacon numbers EB 160, EB 212, EB 224 and EB 225 in common boundary with plot 4 by beacon numbers EB 212 and EB 225 is still where it has always been; while at the same time a certain plot 9 is shown on the same Exhibit 6. The two plots are shown to exist, not that plot 2 has been re-named plot 9. Therefore, the so-called plot 9 is a strange element to this case and to the land Durosimi-Etti acquired from Mr. Felix Olatunde Thomas.
The correct position is that D.W.1 saw plot 2 physically and depicted it in Exhibit 6. Mr. Durosimi-Etti (D.W.4) himself gave evidence. After rambling in his evidence, he faced the reality when he said:
“I have heard of Mr. Felix Olatunde Thomas before. In 1973 Thomas sold a parcel of land to me he showed me the land at Opebi Road he executed the deed of conveyance in (my) favour in respect. I see Exhibit 3 is the deed of conveyance made in my favour by Thomas.”
Then he moved to the impossible when he said:
“Plot 2 was conveyed to me in Exhibit 3A. The land in dispute is the same land as plot 2 that was conveyed to me by Felix Olatunde Thomas.”
This evidence that the land in dispute is the same land as plot 2 i.e. that plot 2 is the land in dispute, would better be told to the marines. This is clearly controverted by the respondents’ exhibit 6. Not quite exhausted yet, the witness continued under cross-examination:
“I was taken round plot 2 shown to me. I see the plan attached to Exhibit 3. I see plots 3 and 4 under plot 2. Plot 2 became plot 9 when the master plan was eventually made.”
If the witness was saying that plot 2 has been renumbered plot 9 one would have wondered what sense he intended to convey. But looking at Exhibit 6, there is simply no room for thinking along with him. He is saying what is impractical to convince anyone looking at Exhibit 6. Rather, the appellant has produced a composite plan (Exhibit 2) showing a parcel of land with beacon numbers BL 2951, BL 2952, BL 2972 and BL 2973 together with a wall fence all round sprawling on a substantial part of plots 3 and 4, and touching small areas of plots 1 and 2, and the fringe of Opebi Road. That shows the manner and extent of the trespass by the respondents on the appellant’s land. There could be no difficulty in discovering the extent of the trespass if one cared to examine the survey plan exhibits before the court. It seems to me the two courts below either did not look at those exhibits or peruse them carefully or did not appreciate what they essentially convey. But they are, in my view, very plain and instructive. They are part of the evidence which would assist in arriving at the justice of the case. Neither of the two courts below, on a close perusal of their judgments, called Exhibits 1, 2, 3 and 6 in aid. These are the exhibits which help to establish the appellant’s title to the land in dispute and to put its identity beyond doubt. Not having done so, their judgments were bound to be perverse.
It is true that a plaintiff must succeed on the strength of his case. If his case is weak it does not matter that the defendant’s case is also weak or that he makes no case at all. The plaintiff’s case will fail: see Kodilinye v.Mbanefo Odu (1935) 2 WACA 336; Kaiyaoja v. Egunla (1974) 12 SC 55; Enigwe v. Akaigwe (1992) 2 NWLR (Pt.225) 505; Adeyeri v. Okobi (1997) 6 NWLR (Pt.510) 534. In the present case, the respondents traced their root of title to the same source of the appellant’s although in respect of different parcels of land. Their source was Mr. Thomas down through Durosirni-Etti, then to Madam Meude, and later to Madam Adebiyi. All these transactions were by means of deeds of conveyance, Exhibits 3, 4 and 5 in that order. The 1st respondent was pleaded in the statement of defence as a caretaker to Madam Adebiyi in respect of this land as follows:
“22. Madam Iyabode Omobonike Adebiyi had a caretaker on her land known as Mr. E. A. Alao who was her attorney who was responsible for the maintenance, (sic) building and the consequent (sic) sale of same to Tosil Holding Ltd.
- Tosil Holding Ltd since then had exercised the following acts to demonstrate fully its undisputed ownership and possession of the said piece or parcel of land –
(i) Purchase receipt from Emmanuel A. Alao to Tosil Holding Ltd being full purchase price of land covered by Survey Plan No. JC 333/77 with pillars No. BL 2951, BL 2952, BL 2972 and BL2973 at Opebi Scheme, Ikeja, Lagos….. ”
It will be noted that no mention was made of the deed of conveyance (Exhibit 5) by which Madam Meude conveyed land known as plot 2 with beacon numbers EB 160, EB 212, EB 224 and EB 225 to Madam Adebiyi. The land purported to have been sold per the said purchase receipt (Exhibit 7) has no known root of, title. It has no connection with plot 2 although Durosirni-Etti (D.W.4) made concerted effort to say they are the same. There is nothing on record to indicate that Madam Adebiyi is even aware that her land has been brought into this matter apart from the evidence of 1st respondent (Mr. Alao) that Madam Adebiyi is his wile and he her attorney or caretaker of her land. It seems to me that it is the 1st respondent and the D.W.4 with the assistance of some legal practitioners involved who have engaged in this crooked device to try to deprive the appellant of his land (plots 3 and 4). They decided to resort to a mere purchase receipt instead of deed of conveyance by which Madam Adebiyi got her land. Mr. Alao who testified as D.W.5, in his evidence which was inconsistent with the pleading of the defence, said inter alia:
“I know the land in dispute is 53 Opebi Road, Ikeja. I know the land in dispute. I negotiated for the land through J.A. Adebamawo. Later I purchased the land and a deed of conveyance was executed in favour of my wife. I identify Exhibit 5. I am the attorney to my wife.”
But there is obviously no connection between Exhibit 5, the deed of conveyance of Madam Adebiyi, and the land of which Exhibit 7 (the purchase receipt) speaks about. It is easy to see that exhibit 7 was the hocus-pocus employed by the respondents to fight their cause with the appellant.
I cannot comprehend how the two courts below were so easily unable to see that the appellant’s case was very firm and that the respondents do not have a ghost of a chance on the baseless purchase receipt they rely on. This is a very simple case if the exhibits are carefully understood. The two courts below, unfortunately, concerned themselves with irrelevancies, but I can say that the Court of Appeal, with the greatest respect, was more steeped in that frolic per the judgment of Tobi JCA. The appellant proved all he was expected to in order to have his claim for entitlement to a statutory right of occupancy awarded. He also certainly proved that he was entitled to damages for trespass and an order of injunction. He is the owner of the land and was, from the evidence in possession. He allowed his daughter, Modupe Adeniran (P.W.3) to farm the land. An owner of land who has not alienated it by way of lease or tenancy is prima facie entitled to damages if a third party goes upon the land without his consent. The slightest evidence of possession by him is enough. In the present case PW3 was simply a licensee; the appellant was in effective physical possession through her. It has in fact been held that to cultivate a piece of land, erect a fence thereon, demarcate it with pegs or survey beacons may be sufficient act of possession in certain circumstances: see Wuta Ofei v.Danquah (1961) 3 All ER 596; Alatishe v. Sanyaolu (1964) 1 All NLR (Pt. 1) 398; Mogaji v. Cadbury Fry (Export) Ltd (1972) 2 SC 97; Ladipo v. Ajani (1997) 8 NWLR (Pt.517) 356. I accordingly answer issue 2 in the affirmative.
Issue 3
The court below dealt with the defences of estoppel, laches, standing-by and acquiescence. These defences were not pursued at the trial court nor raised at the Court of Appeal. In his judgment Tobi JCA observed inter alia Adeniran v. Alao [1992 2 NWLR (Pt.233) at pp.373-375]:
“Although the respondent did not specifically raise the issue of the statute of limitation, he raised the equitable defences of estoppel, laches, standing-by and acquiescence in paragraph 40 of the statement of defence. The law is common place that a party who wants to rely on the above equitable defences must specifically plead them. This is to enable the plaintiff (to) react to them one way or the other. The plaintiff will not be said to have been taken by surprise. A defendant who does not specifically plead the equitable defences cannot rely on them in the proceedings”
I must say that the learned trial Judge did not specifically raise the issue of the defences in his judgment but the parties did in their submission. Since the equitable defences were duly pleaded by the respondent and there is evidence before him in vindication of the defences, this is a case where this court can invoke its section 16 of the Court of Appeal Act jurisdiction. And I so invoke it. For the avoidance of doubt, I should say that the defences were raised in the alternative. I have also invoked them in the alternative.”
Learned counsel for the appellant submits that the learned Justice was in error to say that the parties raised the issue of those equitable defences in their submissions as no where does it appear recorded that they were raised in either the trial court or the Court of Appeal. I think learned counsel is definitely right in that contention. I cannot find where those defences were raised in any of the submissions made to the two courts below even by way of mere mention. The learned Justice nonetheless proceeded to discuss them in his judgment and to hold that their effect militated against the claim the appellant set out to make when none of the parties canvassed them. He clearly descended into the arena in that sense to fight the respondents’ battle. In actual fact and as a matter of practice, the respondents did not, in conformity with pleading procedure, raise those defences in their statement of defence. All they pleaded in that regard is in para. 40 as follows:
“40. Further and in the alternative the defendants will among other legal and equitable defences open to them rely on (a) Estoppel, (b) Laches, (c) Standing by and (d) Acquiescence.”
On this type of pleading, a defendant will be precluded from leading evidence and will not be allowed to rely on the defences. The law is clear that those defences must be specifically pleaded with full particulars. It is the facts averred which determine what the real defence is and so it is necessary that the facts be adequately and carefully stated. I need not say more on this but, for example, see Bullen & Leake & Jacob’s Precedents of Pleadings, 13th edn. pp. 1254-1255. I accordingly answer issue 3 in the negative.
Issues 4 and 5
From the facts already discussed in the course of this judgment, it is plain to me that the court below did not properly evaluate the evidence led in this case. It will be inevitable for me to repeat myself when stating the facts to resolve these issues. The evidence is largely documentary.
The deed of conveyance, Exhibit 1, indisputably confers upon the appellant a valid title in respect of plots 3 and 4. Exhibit 2 shows that it is upon those plots the respondents trespassed. The building erected thereon by the 2nd respondent was obviously done in a rush.
The 1st respondent who testified as DW5 said:
“In October 1983 the land was sold to 2nd defendant. In November 1983 the uncompleted structure on the land was pulled down in my presence. The following day 2nd defendant dug the land for foundation of the building.”
The evidence of DW6, Mohammed Muritala Shittu, a building contractor shows when the building was completed. He said:
“I then commenced the building by laying the foundation on 9th September 1983. The building was completed in 1984.”
On the question whether the land sold by Felix Olatunde Thomas to Durosimi-Etti (DW4) is not different from the land in dispute, even the evidence led by the respondents betrays them on this. In his evidence, DW4 said that plot 2 which was sold to him by Thomas is the same as the land in dispute. In fact, he claimed that the said plot 2 became plot 9 although at the same time he said plot 2 was under plots 3 and 4. In the same way, D.W.5 claimed that plots 2 and 9 are the same. Both D.W.6 and D.W.7, Sylvester Okokhune Eguabor, 2nd respondent’s General Manager, claimed that the land sold to them was 60 ft by 120 ft, the latter adding that they built on plot 9. As earlier said in this judgment, plot 2 is about 50ft by 100 ft whereas the so-called plot 9 is 60ft by 120 ft. They could not therefore be the same, that is to say, plot 2 and plot 9 could not be the same plot. That this is definitely so, Exhibit 6 which is a composite plan produced by the respondents as part of their case shows plot 9 far away from and toward the top right side of the position of plots 3 and 4, whereas plot 2 is still shown to be below plot 4 and in boundary with it. In other words, both plot 2 and plot 9 are shown by the respondents themselves to exist as separate entities which would be an impossibility if their case were to have any probability of truth. Therefore both DW4 and D.W.5 lied to deceive the court. Once the respondents claim to rely on the title covering plot 2, it is clear that the land conveyed to Durosimi-Etti (d.w.4) is different to the land in dispute in this case. The truth is that Exhibit 7, a purchase receipt, which purports to ‘sell’, plot 9 to the 2nd respondent, has no root of title. The further truth is that the building erected by the 2nd respondent is not on the so-called plot 9 but. As already shown, on plots 3 and 4 as demonstrated in Exhibit 2, while plot 2 is supposed to be there though shown in Exhibit 2 as having been partially encroached upon by the wall fence erected by the 2nd respondent on plots 3 and 4. I answer issue 4 in the negative and issue 5 in the affirmative.
The appellant no doubt adduced compelling evidence in support of his claim and was entitled to the judgments of the two courts below. He proved his title to the land in dispute and the blatant act of trespass thereon by the respondents. The two courts below failed to evaluate the evidence properly. I find great merit in this appeal and allow it. I therefore set aside the judgments of the two courts below together with the costs awarded. Going by the claim, I enter the following judgment in favour of the appellant (as plaintiff) against the respondents (as defendants) jointly and severally:
- A declaration that the plaintiff is entitled to a statutory right of occupancy to all that piece or parcel of land situate, lying and being at No. 53 Opebi Street, Onigbagbo, Ikeja, Lagos State which is more particularly described and delineated on plan No. LS/EB 174/71 and marked plots 3 and 4 demarcated with beacons EB 164, EB 219, EB 225, EB 226, EB 212 and EB 213 dated 19 December, 1971 (and countersigned by the Surveyor-General Lagos Slate on 17 July, 1972) attached to a deed of conveyance dated 25 September, 1972 and registered as No. 42 at page 42 in volume 1409 of the Lands Registry in the office at Lagos.
- N 1,000.00 general damages for trespass.
- An order of perpetual injunction restraining the respondents either by themselves or their servants, agents and/or privies or howsoever from entering upon the said land and committing further acts of trespass thereon.
I award N2,500 as costs in the trial court, N5,000.00 as costs in the Court of Appeal and N10,000.00 as costs against the respondents jointly and severally in favour of the appellant.
SC.90/1995
