Pastor J. Akinlolu Akinduro V Alhaji Idris Alaya (2007)

LAWGLOBAL HUB Lead Judgment Report

P.O. ADEREMI, JSC

This appeal is against the majority decision of the Court of Appeal Kaduna Division (coram Umaru Abdullahi, Presiding Justice) (as he then was) and A.O. Ige JCA (of blessed memory)) who wrote the leading judgment delivered on the 24th February 1998 allowing the appeal against the judgment of the High Court of Kwara State Ilorin Division. The minority judgment dismissing the appeal against the same judgment of the said High Court was written by Ogebe JCA. Before the trial court, the present appellant who as the plaintiff at that court had by paragraph 28 of his statement of claim dated 17th June 1991 claimed against the respondent/cross-appellant who was the defendant in that court the following reliefs:- “(1) A declaration that the land at Tanke, Ilorin sold to the plaintiff by the defendant is at all times his property. (2) An order of perpetual injunction restraining the defendant from preventing the plaintiff or any of his agents and workmen from enjoying quiet possession of the premises. (3) The sum of N40,000.00 (forty thousand naira) being special and general damages for loss sustained by the plaintiff, as a result of the defendant’s obstruction of the plaintiff on his land.” Pleadings filed and exchanged between the parties are the statement of claim dated 17th June 1991 and statement of defence dated 18th February 1992 both sides called evidence in proof of the averments in their respective pleadings.

At the conclusion of their evidence and sequel to taking the formal addresses of their counsel, the learned trial judge, in a reserved judgment delivered on the 30th of June 1993, allowed the claims of the plaintiff in part and dismissed it in part; he held in his judgment, inter alia:- “From the evidence adduced, I have no hesitation in holding that the land at Tanke Area, Ilorin was sold to the plaintiff as per exhibits 1 and 2, belongs to the plaintiff – Pastor Akinduro and it was at all times his property. Because I have held as above, I hereby grant the order of perpetual injunction against the defendant who is restrained by himself, agents and workmen (sic) from enjoying quiet possession of the premises. It is clear from the evidence before me that the defendant caused the suspension of the building project of the plaintiff by causing the plaintiffs men to be harassed from the building site and also suing the plaintiff to be taken to the Area Court which restrained the plaintiff from further development of the building. The plaintiff who was dissatisfied did not appeal against the decision of the Area Court until a fresh action was instituted in this court in 1991. In the light of this, can the plaintiff claim the sum of N40,000.00 as special and general damages against the defendant after failing to minimise his own loss? I am of the firm view that this court should not allow his claim of N40,000.00 which has arisen as a result of his own failure to act timeously. The claim of N40,000.00 as special and general damages is hereby refused and it is accordingly dismissed.”

Being dissatisfied with the said judgment, the defendant (Alhaji Idris Alaya before that court and who is the present respondent cross-appellant aggrieved by a portion of that judgment appealed to the Court of Appeal (Kaduna Division) which granted an order of perpetual injunction against him, cross-appealed to this court.

As I have said, by the majority decision of that court and the court below, the appeal was allowed and a pronouncement was made that the claim for declaration of title failed thus setting aside the judgment of the court of trial with a proviso that the plaintiff/respondent before the court below, now appellant before us, should not be ejected until his equitable interest was satisfied. In the majority judgment, it was held inter alia:

“That notwithstanding, the appellant is duty bound to handover a plot of land to the respondent at Tanke, Ilorin because he received payment for the plot. By the act of payment of money to the appellant coupled with the later actions respondent has taken on the land, respondent has a right to an equitable interest which is enforceable by specific performance. It is my candid view that Exhibit 1 has not passed title to the respondent but has given rise to an equitable interest which is enforceable against the appellant. In order to be able to enforce his right to this equitable interest, the appellant should not do any act to prejudice the interest of the respondent until he has fulfilled his own part of the bargain by putting the respondent rightfully on a plot of land at Tanke.The claim for declaration of title has failed hence Issue. 2 is also resolved in favour of the appellant with a proviso that he should not eject the respondent from the land until his equitable interest is satisfied.” It is against the majority judgment that the appellant before the court below has filed an appeal via Notice of Appeal dated 30th April 1998 incorporating thereto three grounds of appeal. Suffice it to say that this appeal is against that portion of the judgment that dismissed his claim for title. In the minority judgment handed down by Ogebe JCA which judgment favoured the respondent (Pastor J.A. Akinduro) before that court, the learned justice, in reaching his decision, held inter alia:- “The first issue formulated by the appellant does not arise from any matter canvassed before the lower court. The question of the inadmissibility of Exhibit 1, the sale agreement for non-registration under the Land Use Registration Law of Kwara State was never raised in the lower court. The document was attacked that it was not stamped and did not come from proper custody. It follows therefore that the issue of non registration under the Land Use Registration Law is being raised for the first time in this court and the appellant requires leave of this court to raise.

I am firmly of the view that the appellant’s first issue is therefore incompetent and I hereby strike it out.” On Issue 2 formulated before the court below which reads:- “Whether from the totality of the case, the respondent who was claiming a declaration of title succeeded in proving same in accordance with any of the five methods of proving title to land under the law.”

The learned justice of the court below reasoned thus:

“Both sides are agreed that the appellant sold a piece of land to the appellant (sic) through a 3rd party who measured out the plots to numerous buyers, Exhibit 1 is a sale agreement which the parties signed. The respondent was shown the plot in dispute which he started developing before the appellant told him to leave it for another plot because he was given the wrong plot which he did not intend to sell. What is the effect of Exhibit 1?” In finding an answer to this question concerning Exhibit 1, the learned justice referred to the dictum of Bello, JSC (as he then was) in Okoye v Dumez Nig. Ltd (1985) 1 NWLR (Pt.4) 783 and held:- “Following this decision of the Supreme Court, I am of the view that the appellant cannot eat his cake and have it. By Exhibit 1 he has created an equitable interest in the land in favour of the respondent which he cannot now avoid. It is as good as a legal estate which the court must protect. Accordingly, I dismiss the appeal and affirm the decision of the lower court.” The respondent also cross-appealed against the portion of the majority judgment which granted equitable relief to the appellant. The Notice of Cross-Appeal dated 10th July 2000 carries two grounds of cross-appeal. When this appeal came before us for argument on the 27th of March 2007, Dr. Oluwole Aje learned counsel for the appellant referred to and adopted his client’s brief of argument deemed to have been properly filed on 11th December 2003 and the reply/cross-respondent’s brief deemed properly filed on 29/11/2003 and urged that the appeal be allowed. Mr. Eleja learned counsel for the respondent/cross-appellant also referred to and adopted his client’s brief filed on 23/7/03 and urged that the appeal be dismissed while the cross-appeal be allowed. He drew the attention of the court to paragraph 3 of his client’s brief and urged that the Notice of Preliminary Objection therein contained be upheld. I feel called upon to attend to the Notice of Preliminary Objection contained on page 3 of the cross-appellant’s brief. I have carefully examined additional grounds 1 and 4; it is true that both grounds relate to Exhibit 1 the receipt of money which the appellant paid to the cross-appellant as the purchase price of the land while the particulars appurtenant to ground 1 are mainly factual in nature; the particulars appurtenant to ground 4 are mainly of procedural law and case law. I think each can compliment the other, in the interest of justice, I am of the view that the two can stand. As to grounds 3 and 5, I agree with the cross-appellants that Issue No.3 does not flow from the judgment of the court below – it does not have any bearing on the judgment of the court below. Accordingly, I strike grounds Nos. 3 and 5 out; any issues emanating from them are hereby struck out. For the avoidance of doubt, it is only Issue No.3 that is caught by the preliminary objection considered above, I accordingly strike it out. The appellant/cross-respondent in his brief of argument therefore raised three valid issues for consideration by this court, they are, as contained in his brief, as follows:

“(1) whether there was a valid sale of a plot of land by the respondent to the appellant without Exhibit 1 being admitted in evidence.

(2) whether the learned justices of the Court of Appeal in their majority judgment were right to hold that the new point of objection on appeal raised for the first time in the Court of Appeal could be so validly taken and argued on appeal without the leave of the Court of Appeal being first sought and obtained as requested .

(3) whether the learned justices of the Court of Appeal in their majority judgment were right in holding that the claim for declaration of title by the appellant failed, after they had earlier in the same judgment held that the respondent was duty bound to hand over a plot of land at Tanke Ilorin to the appellant because the respondent had received payment for the plot.”

The cross-appellant for his part identified three issues as set out in his brief of argument; they are in the following terms:

“(1) whether the court below was not right in its view of Exhibit 1, having regard to the failure to register the said document, the purpose for which the document was tendered and the claim of the appellant before the trial court and whether the admissibility of Exhibit 1 was a new issue raised before the court below without the leave of court. (2) whether the court below failed to consider and resolve any of the issues properly raised before it by any of the parties in the appeal. (3) whether the court below was right in granting to the appellant a relief he did not claim at the trial, to wit, that the respondent should not eject the appellant from the disputed land having held rightly that the appellant was not entitled to declaration of title in his favour.”

I have read the arguments for and against the contention of the parties in their respective briefs as to whether there was a proper sale of land by the cross-appellant to the appellant. There is no doubt that the whole of ;he appeal rests entirely on Exhibit 1 or put in another way, whether valid title to land passed from the cross-appellant to the appellant. In determining this crucial issue, a resort to pleadings of the parties is most necessary in order to discern the case of each party. Put in another way, to ascertain the exact claim of a plaintiff in a land suit, we must have recourse to the writ of summons and the claim as endorsed in the statement of claim. The salient paragraphs of the statement of claim are 4, 5, 6, 7 and 8 and they are as follows:- Para 4 “The plaintiff is seized in good title and is the beneficial owner of all that plot of land situated and lying at Tanke Alangua Village, Ilorin.” Para 5 “The plaintiff purchased his right and title to the land from the defendant sometime in 1977. The plaintiff pleads the Deed of Agreement dated 10th of June 1977 and the site plan of the said land.” Para 6 “Subsequently, the plaintiff applied for and obtained permit to build on the said plot of land measuring 100 feet by 50 feet.”

Para 7 “The plaintiff commenced construction on the said land sometime in 1984 which has now reached lintel level.” Para 8

“The defendant has been obstruction (sic) the plaintiffs agents and workmen and other people on the site.”

The paragraphs of the statement of defence that are germane to the meaningful consideration of this appeal are 3, 4, 5, 6 and 7 which are in the following terms:- Para 3.

“In answer to paragraph 4 of the statement of claim the defendant avers that one Mr. Raphael Ogunleye (Baba Sabo) approached him and negotiated for a piece or parcel of land, amongst the defendant’s parcels of land situate, lying and being along NNPC pipeline at Tanke Village, Ilorin.” Para 4 “In answer to paragraph 5 of the statement of claim the said Mr. Raphael Ogunleye alias Baba Sabo, brought a prepared agreement for the signature of the defendant as well as his witnesses.” Para 5 “

In further reply to paragraph 4 of the statement of claim the defendant did not at any time take the plaintiff nor his agent to any particular spot out of the defendant’s parcels of land situate and lying at Tanke Village for survey.” Para 6 “In reply to paragraph 6 of the statement of claim the defendant did not at any time allocate the land in dispute on which the plaintiff is now constructing a building.” Para 7 “When the defendant discovered that someone whom he did not know his name was erecting a building on the land in dispute, he lodged a report to the “Nigerian Police “A” Division, Ilorin, whereby the workmen on the said land were invited to the Police Station by the Police.”

From the salient paragraphs of the pleadings by both sides which I have reproduced above, it is clear that the plaintiff/appellant is basing his ownership of land on documents of title. To be specific, he pleaded a Deed of Agreement dated 10th June 1977 as the document of title of course with the site plan. Having identified the most fundamental point calling for resolution in this appeal and after a revisit to the issues formulated by the two parties, it is my view that Issues Nos. 1 and 3 in the appellant’s brief of argument can be conveniently taken together with Issue No.1 on the cross-appellant’s brief and I shall so do. Production of document of title is indeed one of the five ways of establishing title to land. The document so tendered in evidence must, of course, be duly authenticated in the sense that it’s due execution must be proved unless they are produced from proper custody in circumstances giving rise to the presumption in favour of due execution in the case of documents twenty years old or more at the date of the contract. See Johnson & Ors v. Lawanson & Ors (1971) 1 ALL N.L.R. 56 and Section 130 of the Evidence Act. The guiding principles on proof of title by document of title are well adumbrated by this court in Romaine v. Romaine (1992) 4 NWLR (pt.238) 650 at 662 to the effect that production and reliance as an instrument of grant of title inevitably carries with it the need for the court to inquire into some or all of a number of questions including:

“(1) whether the document is genuine and valid. (2) whether it has been duly executed, stamped and registered. (3) whether the grantor had the authority and capacity to make the grant. (4) whether in fact the grantor had in fact what he purported to grant; and (5) whether it has the effect claimed by the holder of the instrument.” In other words, mere production of even a valid document of title of grant does not necessarily carry with it automatic relief for grant of declaration relating to such grant without taking into consideration the factors adumbrated above. Now, what is the evidence led? P/W1 before the court of trial who incidentally is the present appellant, in his testimony said inter alia:- “I know the defendant. I know him when he sued me concerning land matter which he sold to me. The land is at Tanke Area. It is off the University Road along oil pipe line. The land was sold to me in 1977 June. The land was 50 by 100 feet. There is an evidence of the sale of the land to me as I was given an agreement and site plan.” Objection was taken to the admissibility of the documents, but after listening to the submissions of counsel for and against the admissibility of the said documents, the trial judge in his ruling on the spot, admitted both the agreement and site plan and marked them as Exhibits 1 and 2 respectively. The cross-appellant who was the defendant in the case before the trial court flatly denied selling any land to the appellant but was able to recognise his signature on a document touching on land which was tendered as Exhibit 1 . It is common ground that though Exhibit 1 touches on land it was never registered. What is its effect? Before I answer that question, let me quickly state the position of the law as regards a plaintiff who claims title to land. It is trite law that a plaintiff who claims declaration of title to land has a compelling duty to establish his case by credible evidence to the satisfaction of the court; the weakness of the case of the defendant will not avail him unless it is seen that there are averments in the statement of defence or even the testimonies of the defendant and/or his witnesses which support the case of the plaintiff. See Akinola v. Oluwo & Anor. (1962) 1 ALL N.L.R. 224 and Bello v. Eweka (1981) 1 S.C. 101. Now, to the question I posed regarding Exhibit 1, an unregistered document that is Exhibit 1, as evidence of sale of land by the defendant/cross-appellant to the plaintiff/appellant is, ab initio inadmissible in evidence for contravening the provisions of Section 15 of the Land Registration Law, Cap 58 Laws of Northern Nigeria applicable to Kwara State, it provides:

“No instrument shall be pleaded or given in evidence in any court as affecting any land unless the same shall have been registered in the proper office as specified in Section 3.”

Land Instruments Registration Law has substantially universal contents in all the States in Nigeria. Under Section 2 of the Law the word “INSTRUMENT” is defined to mean a document affecting land in the state whereby one party usually called the grantor confers, transfers, limits, charges or extinguishes in favour of another party called the grantee any right or title to or interest in the state. Going by Section 15 aforesaid, an unregistered document affecting land must not be pleaded and neither is it admissible in evidence. See Ogunbambi v. Abowaba 13 WACA 22; Olowoake v. Salawu (2000) 11 NWLR (pt.677) 127 and Adesanya v. Aderounmu (2000) 6 S.C. (Pt.11) 18. And if such a document is pleaded a trial judge upon an application made to it, must strike out paragraphs of pleadings where such unregistered document is pleaded. See Ossai v. Nwajide & Anor (1975) 4 S.C. 207. Even where the unregistered document was mistakenly admitted in evidence; part of the evidence relating to that unregistered document should be expunged for reason of lacking evidential value. Based on the foregoing authorities, I agree with the court below that the plaintiff has woefully failed to prove his title to the land consequently relief No. 1 of his claim must fail. Issue No.2 of his claim must fail. Issue No.1 on the appellant’s brief is therefore resolved against him while I resolve Issue No.2 on the cross-appellant’s brief, which is materially similar to Issue No. 1 raised by the appellant, in his favour. After holding that title to land was not established, the learned justice delivering the leading majority judgment said:

“That notwithstanding, the appellant is duty bound to hand over a plot of land to the respondent at Tanke Ilorin because he received payment for the plot. By the act of payment of money to the appellant coupled with the later actions respondent has taken on the land respondent has a right to an equitable interest which is enforceable by specific performance. It is my candid view that Exhibit 1 has not passed title to the respondent but has given rise to equitable interest which is enforceable against the appellant. In order to be able to enforce his right to this equitable interest the appellant should not act to prejudice the interest of the respondent until he has fulfilled his own part of the bargain by putting the respondent rightfully on a plot of land at Tanke.” Let me say quickly that Exhibit 1 – the document touching on land was never pleaded as a receipt. It was put up as the source of he plaintiff/appellant’s title. Even if Exhibit 1 were to be regarded as a receipt evidencing payment of money there is no claim for equitable reliefs by the plaintiff. The court does not make a practice of granting a relief not sought. There is no leg of the claims for any equitable reliefs the lower court therefore went beyond the case formulated before it by prompting the respondent to enforce this right by specific performance when such was not prayed for. Having held and rightly in my view, that the claim for declaration failed any pronouncement by the court below that the appellant in that court was duty bound to hand over a plot to the respondent in that court, now the appellant, has no support in law. Therefore Issue No.3 on the appellant’s brief is resolved against him. The court below having rightly held that the plaintiff/appellant failed to prove that he was entitled to declaration of title, to the land through his freely chosen method of establishing title to land among the five methods known to law – presentation of document, of title to land – the lower court, per its majority judgment, was in error to have granted an order of perpetual injunction in favour of the plaintiff/appellant. It must always be remembered that a court, at the end of a successful prosecution of a land matter and where there is a claim for an order of injunction; a court which has granted a prayer for declaration of title, will readily grant an order of injunction to prevent multiplicity of suits or to prevent irreparable damage, or injury or irremediable mischief. In this case, as I have pointed out, the court below has rightly refused to grant the relief for declaration of title.

It is therefore not proper to order an injunction against the defendant/cross-appellant and his agents. It is even more worrisome when it is realised that. “ORDER OF PERPETUAL INJUNCTION” was what was granted against the cross-appellant. This court in the case of Chief Dada, The Lojaoke v. Chief Shittu Ogunremi & Anor (1967) NMLR 181 said that it is improper to grant a perpetual injunction at the instance of a limited owner when the owner of the absolute interest is not a party to the case. Here, the appellant is not even a limited owner of the land, his claim for declaration of title has failed woefully. There is even no legal basis for the award of the claim of N40,000.00 as special and general damages to the appellant who has failed to prove his title to land and had he proved his title, there was no scintilla of evidence to enable the trial court award special damages. I do realise that the court below refused the claim for N40,000.00. Proof of title to land is sine qua non to the success of the case and issue of admissibility of Exhibit 1 was raised at the trial and could still rightly be raised at the court below. For what I have been saying, Issue No.2 on the appellant’s brief is answered in the affirmative and I answer Issue No. 2 in the cross-appellant but in the negative. In conclusion, the cross-appeal against the majority judgment to the extent to which it attacks the order of perpetual injunction in favour of the appellant is meritorious.

That portion of the judgment is hereby set aside and in its place is an order dismissing the claim entirely as the claims for declaration of title to land and damages were dismissed. The appeal also succeeds against the pronouncement of the court below granting equitable reliefs to the appellant when same were not claimed. A fortiori, the cross-appeal succeeds to the extent to which it challenges the grant of equitable reliefs not sought by the plaintiff/appellant. For the avoidance of doubt, the majority judgment dismissing the claims for declaration of title to land and damages is upheld. Also for the avoidance of doubt, the minority judgment is hereby set aside and in its place is that part of the majority judgment which I have upheld in this judgment. For the avoidance of doubt, the claim of the plaintiff before the trial court is hereby dismissed in its entirety. There shall be no order as to costs.

SC. 296/2002