[PDF copy of this judgment can be sent to your email for N300 only. Just order through firstname.lastname@example.org and email@example.com or text 07067102097]
IN THE SUPREME COURT OF NIGERIA
18 NWLR (Pt.745) 361
BEFORE THEIR LORDSHIPS
ADOLPHUS GODWIN KARIBI-WHYTE, J.S.C. (Presided)
MICHAEL EKUNDAYO OGUNDARE, J.S.C.
SAMSON ODEMWINGIE UWAIFO, J.S.C. (Read the Leading Judgment)
AKINTOLA OLUFEMI EJIWUNMI, J.S.C.
Mohammed Fawehinmi ESQ. – for the Appellant
Respondents absent and unrepresented
APPEAL – Issue for determination – When may be considered as misconceived-Where considered misconceived-How treated.
APPEAL – Raising issue suo motu – Principles guiding – Court raising issue suo ntotu – Duty thereon to hear the parties thereon.
COURT- Raising issue suo motu – Principles guiding – Court raising issue suo motu – Duty to hear the parties thereon.
EQUITY – Equitable defences – How pleaded and proved – When defendant will not be allowed to rely thereon.
EVIDENCE – Presumptions – Presumption of withholding of evidence – Section 149(1) of the Evidence Act – When will be invoked.
EVIDENCE – Proof – Declaration of title to land – Party claiming – Onus on to succeed on the strength of his case and not on the weakness of the defence.
EVIDENCE- Proof- Title to land – Proof by production of document – Trite purport of the requirement – Whether requires both authentication and execution at same time – Idundun V Okumagba (1976) 9-10 SC 227 explained.
LAND LAW – Trespass to land – Owner of land- Right of to claim damages therefor
LAND LAW – Declaration of title – Party claiming – Onus on to succeed on the strength of his case and not on the weakness of the defence.
LAND LAW-Equitable defences- How pleaded and proved – When defendant will not be allowed to rely thereon.
LAND LAW-Title to land – Identity of land in dispute- Where land claimed by a party different from land in dispute – How re-solved.
LAND LAW – Title to land – Proof of – Proof by production of document-True purport of the requirement- Whether requires both authentication and execution at same time -Idundun V Okumagba (1976) 9-10 SC 227 explained.
LAND LAW – Trespass to land -Action therein – Form of possession required to ground trespass.
PRACTICE AND PROCEDURE -Appeal – Issue for determination – When may be considered as misconceived- Where considered misconceived – How treated.
PRACTICE AND PROCEDURE-Pleadings -Equitable defences – How pleaded and proved – When defendant will not be al-lowed to rely thereon.
PRACTICE AND PROCEDURE – Pleadings – Bindingness of on parties and court – Matter not in issue in the pleadings – Whether court can deal with.
PRACTICE AND PROCEDURE – Pleadings – Unnecessary facts in a party’s pleading – Failure to prove – Whether, fatal to the party’s case.
PRACTICE AND PROCEDURE-Raising issue suo motu – Principles guiding – Court raising issue suo motu- Duty on to hear the parties thereon.
TRESPASS-Trespass to land-Action therein-Form of possession required to ground same.
TRESPASS-Trespass to land- Owner of land-Right of to claim damages therefor.
UWAIFO, J.S.C. (Delivering the Leading Judgment):
This is an appeal from a judgment of the Court of Appeal, Lagos Division, given on 12 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 plain-tiff’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 de-fences 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 ad-mitted as Exhibit 1. By an instrument dated 31″ January, 1 9 7 3 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 21 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 15t respondent, Mr. Emmanuel A. Alao issued a receipt in the sum of N80,000.00 to the 2″° 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 be-come 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 be-come 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. 1 shall there-fore rely on the appellant’s issues for the determination of this appeal.
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 exhib-its 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 be-fore 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 plain-tiff averred ratification and confirmation by Egba Refu-gees 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, 1 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 1 was not executed by Mr. Thomas. In the same manner, 4’” 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 de-volved 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 (Ex-hibit 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 descend-ant 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. lkdundun V Okumagba (1976) 9-10 NSCC (vol. 10) 4451 is so clear and has been followed in sub-sequent 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.”
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 con-sent 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 context 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 “worth-less for the purposes of proving title to land.” But in the said case of Idundun V Okumagba (1976) 9-10 S.C. 227NSCC (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 …… “
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 add-tional 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 leamed 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 ex-ecution 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 Tho-mas. 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 Exhihit 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 ldundun V Okumagba (supra) this court reached that conclusion in the recent case of Aliyu V Sodipo (1994) 5 NWLR (Pt.342) 1. 1 must therefore answer issue in the negative.
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 DMA 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 DWI. 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 …………… 1 see Exhibit 3 and the survey plan attached to it. It (i.e. Exhibit 3) is the predecessor in title of the P’ defend-ant. Plot 2 was conveyed in 1973, January, 1973 to Durosimi Eti (sic). 1 see the four pillars shown in Ex-hibit 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 com-mon 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.l 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 con-veyance 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 per-verse.
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 Durosimi-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 ls’ 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. Alan who was her attorney who was responsible for the maintenance, (sic) building and the consequent (sic) sale of same to Tosil Holding Ltd.
It will be noted that no mention was made of the deed of con-veyance (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 Durosimi-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 15′ 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 111 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 evi-dence 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 (PW.3) to farm the land. An owner of land who has not alienated it by way of lease or ten-ancy 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.
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.373-3751:
“Although the respondent did not specifically raise the issue of the statute of limitation, he raised the equitable defences of estoppel, lathes, 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 equi-table 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 Jus-tice was in error to say that the parties raised the issue of those equitable defences in their submissions as nowhere 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 can-vassed 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) Ac-quiescence.”
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 S
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 2″° respondent was obviously done in a rush. The 1″ respondent who testified as DW5 said:
“In October 1983 the land was sold to 2”° defendant. In November 1983 the uncompleted structure on the land was pulled down in my presence. The following day 2″° defendant dug the land for foundation of the building.”
The evidence of DW6, Mohammed Muritala Shittu, a building con-tractor 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 Tho-mas 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.W7, Sylvester Okokhune Eguabor, 2 “° respondent’s General Manager, claimed that the land sold to them was 60 ft by 120 ft, the latter adding that they built on plat 9. As earlier said in this judgment, plot 2 is about 50 ft by 100 ft whereas the so-called plot 9 is 60 ft 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 DW,.4 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 2°1 respondent, has no root of title. The further truth is that the building erected by the 2″° 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. 1 answer issue 4 in the negative and issue 5 in the affirmative.
The appellant no doubt adduced compelling evidence in sup-port 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. 1 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:
I award N2,500 as costs in the trial court, N5,000.00 as costs in the Court of Appeal and NI0,000.00 as costs against the respondents jointly and severally in favour of the appellant.
KARIBI-WHYTE, J.S.C.: I have read the judgment of my learned brother Uwaifo JSC in this appeal, I agree with his reasoning that this appeal has merit and ought to succeed. I also, will, and hereby allow the appeal. I abide by the consequential orders made on the leading judgment
OGUNDARE, J.S.C.: I have read in advance the judgment of my learned brother, Uwaifo, JSC just delivered. I agree with him that this appeal has merit. I, too, like him, allow it; I set aside the judgments of both trial High Court and the Court of Appeal and, in their stead, enter judgment for the appellant (as plaintiff) in terms of his claims.
The plantiff (who is appellant in this appeal) had sued the defendants (now respondents) claiming –
“(a) A declaration of title to a statutory right of occupancy to all that piece or parcel of land, situate, lying and being at plot No. 53 Opebi Street, Onigbagbo Village Ikeja, Lagos State which is more particularly described and delineated on plan No. LS/EO. 17A/74 a n d marked plots 3 and 4 and demarcated with beacons No. EB 164; E13219; EB225; EB226; EB213 and EB212 dated the 19th day of December, 1971 attached to a deed of conveyance dated 25th (day of September 1972 and registered as No. 42 at page 42 in volume 1409 of the Lands Registry in the office at Lagos.
(b) N1,000.00 damages for trespass committed by the respondents.
(c) An order of perpetual injunction restraining the respondents, their servants, agents and/or privies from entering upon the land and committing further acts of trespass. “ In his amended statement of claim he pleaded, inter alia:
“4. The land in dispute is that piece or parcel of Land situ-ate, lying and being at No. 53 Opebi Street, Onigbagbo Village, Ikeja, Lagos State which is more particularly described and delineated on survey plan No. LS/WD/ 17A/71 attached to a deed of conveyance dated the 25th day of September, 1972 registered as No. 42 at page 42 in Volume 1409 of the Lands Registry office at Lagos.
(i) The deed of conveyance dated the 25th day of September 1972 and registered as No. 42 at page 42 in volume 1409 of the Lands Registry office at Lagos.
(ii) The survey plan No. LS/ED17A/71 counter-signed by the Surveyor-General of Lagos State on 17/7/72 with the beacon pillars shown thereon.”
In their statement of defence the defendants averred:
‘`2. The defendants arc not in a position to admit or deny paragraphs I, 6 and 20 of the statement of claim and put the plaintiff to the strict proof thereof.
10 The said survey plan No. LS/EB13/72 attached to the said conveyance was not only counter-signed by the Surveyor-General of Lagos State of Nigeria but was also signed by the plaintiff and dated 16°’ December, 1972. The said plan attached to the said conveyance is hereby pleaded.
(ii) The defendants have built a storey building of four floors on his (sic) said parcel of land which he (.sic) bought from Madam lyabode Adebiyi’s attorney Mr. Alao.
(iii) That on the 16th day of November, 1983 when construction work commenced on the land Mr. Opebi ‘alias Sugarbaby, of No. 33 Opebi Road through Mr. Tiamiyu Summoned Mr. Alao to see the Egha Refugees Community of Ikeja; that Mr. Alao gave N2,000.00 cash to Mr. G. T. Opebi of No. 34 Osho Street, Opebi, lkeja (the elder brother of ‘Sugarbaby’) for and on behalf of the Egha Refugees of Ikeja. The incident was witnessed by one Mr. Oyawale and Mr, Shittu and also Mr. Opebi ‘alias Sugarbaby’.
(iv) The 2″° defendant’s Managing Director Mr. S. O. Agbareh resides in the said building with his family.
(v) The 2″° defendant has his office and premises within the said parcel of land.
(vi) The 2″° defendant paid the sum of NI,000.00 (One thousand Naira) to the Lagos State Government before it commenced the said storey building, receipt of which is hereby pleaded.
(vii) The 2″° defendant has drawn a building plan which has been assigned No. DCB/4019/35K and submitted same to the Lagos State Government for approval. Relevant building plan and document are hereby pleaded.
(vii i) Tosil Holding Ltd. has applied to the Lagos State Government for the issue of certificate of occupancy and the Land Use and Allocation Office, Planning Way, Ilupeju, Lagos has acknowledged receipt of the said application. All relevant documents for the Certificate of Occupancy and the receipt No. 968015 of 23‘° November, 1983 are hereby pleaded.
(ix) On the 211′ day of April, 1984 the Land Use and Allocation Committee published the application of the 2″° defendant for the issuance of certificate of occupancy as Advert No. 28 at page 8 serial No. 269 in the GUARDIAN, the said publication is hereby pleaded.
(x) In the publication referred to above the committee invited any interested party to object within 21 days from the date of the publication in that advertisement but nobody objected. Appropriate officials shall testify at the trial.
(xi) The defendant only started in earnest the effective construction of the said storey building which is now completed when there was no ad verse claim to his said land after the publication in the Guardian as aforesaid.
(xii) The defendant employed the services of Messrs. Shittu Construction Company who laid the foundation of the storey building and built it to completion without any let or hindrance. The con-tractor shall testify at the trial and shall tender relevant documents.
(xiii) Madam Adebiyi’s attorney Mr. E. A. Alao, not only helped in clearing the parcel of land earlier on but also fenced round the said property before formally handing same over to the defendants for use and occupation.”
From the pleadings above, it is self-evident that both parties traced their root of title to Felix Olatunde Thomas who executed a conveyance in favour of the plaintiff in respect of the land he bought from Thomas and in favour of Durosimi-Etti (through whom the 2nd defendant claimed title) in respect of the land Durosimi-Etti bought from Thomas. The pleadings of the parties have obviously narrowed down considerably the question in dispute between them which is: Is the land in dispute plots 3 and 4 sold to the plaintiff or plot 2 (or 9?) sold to Durosimi-Etti? It is not in dispute that Olatunde Thomas laid out his land into plots which he sold to various people including the plaintiff and Durosimi-Etti. With profound respect to their lord-ships of the two courts below, had they adverted their minds properly to this main issue raised on the pleadings of the parties, it would not have been necessary for them to go on the adventure of “authentication and execution” of plaintiffs deed of conveyance.
At the trial of the suit, plaintiff tendered in evidence the conveyance Olatunde Thomas executed in his favour (Exhibit 1). Defendants also tendered the deed of conveyance Olatunde Thomas executed in favour of Durosimi-Etti (Exhibits 3 & 3A) Exhibit 1 shows that the land sold to plaintiff is described as “Plots 3 and 4 measuring 513.04 sq. yds. And 520.37 sq. yds. respectively and more particularly described and delineated with its dimensions and abuttals on the plan annexed to this deed of indenture and thereon coloured RED demarcated with beacons Nos. EB 164; EB219; ES225; EB226; EB213 and EB212) on the Plan No. LSED 17A/71 dated 19.12.71.
The Plan attached to Exhibits 3 & 3A on the other hand, show that the land Olatunde Thomas sold to Durosimi-Etti is Plot 2 and consists of an area of 603.38 sq. yds. and is bounded by beacons Nos. EB225; EB224; EB 160 and EB212; the land is “100 feet” in breadth; 51.3 feet” in length on the western side and “58.7feet” in length on the eastern side. It is this land that Durosimi-Etti sold to Madam Hannah Meude in April 1977 – see the plan attached to Exhibits 4 and 4A the deed of conveyance from Durosimi-Etti to Madam Meude. And it is this same land that Madam Meude sold to lyabo Adebiyi in March 1978; the plan attached to the deed of con-veyance (Exhibit 5) from Madam Meude to Iyabo Adebiyi bears this out.
The plan attached to Exhibit 1 (plaintiff’s conveyance), exhibit 2 (plaintiffs composite plan) and Exhibit 6 (defendant’s composite plan) show the relative positions of plots 3 and 4 bought by plain tiff), plot 2 (land bought by Durosimi-Etti which passed to Madam Meude and subsequently to Iyabo Adebiyi) and plot 9 on Thomas’layout. They are all distinct and separate pieces of land – plot 9 being far removed from the lands sold to plaintiff and Durosimi-Etti.
The case of the defendants is that V defendant is Iyabo Adebiyi’s attorney and that he, as attorney, sold Iyabo Adebiyi’s land to 2nd defendant. If this is true, the defendant could only sell plot 2 in Thomas’ lay out to 2nd defendant and that land is 603.38 sq. yds and is delineated by beacon Nos. E13225, EB224, EB160 and EB212. How then did the defendants come about the land shown on Exhibit 6C and said to belong to the 2nd defendant which land measures 120 feet by 60 feet and is 799.28 sq. yds in area and is delineated by beacons Nos. BL 2952 BL2972, BL2973 and BL2951 ? This is the land 1st defendant sold to 2nd defendant as per the purchase receipt the former issued on 30th September 1983. How did the 1st defendant come about this land which he sold to 2nd defendant? The purchase receipt (Exhibit 7) describes the land 1st defendant sold (in his own right and not as attorney to Iyabo Adebiyi or anyone else) to 2nd Defendant as ‘my plot of land known as No. 9 on Survey Plan No. J.O 333/77 with pillar Nos. BL2951, BL 2952, BL 2972 and BL2973 …” There is no averment in the statement of defence that 1st defendant owned any land which he laid out into plots or that he owned plot 9 in any layout estate. It was he who introduced “plot 9” to confuse. Before him, Durosimi-Etti’s land was always referred to as plot 2.
Exhibit 2 (plaintiff’s composite plan) shows that the 2″d defendant was developing plots 3 and 4 on Thomas’ layout with slight encroachments on plots 1 and 2. Had their Lordships of the two courts below properly considered the evidence before them which, in the main, is purely documentary they would have answered the main question raised on the pleadings of the parties in plaintiff’s favour, that is, that the land in dispute is plots 3 and 4 sold by Olatunde Thomas to the plaintiff in 1972 and not plot 2 sold to Durosimi-Etti. If 1″ defendant had authority to sell Iyabo Adebiyi’s land, it could only be plot 2 which found its way to Iyabo Adebiyi through Madam Meude.
The result of the proper evaluation of the evidence adduced in this case is that plaintiff has title to the land in dispute whereas the defendants have none. Possession in the land is, therefore, in the plaintiff and for disturbing his right to this possession, the defend-ants are liable to him in trespass. Because of the conduct of the defendants the plaintiff is entitled to an order of injunction to protect his possessory right.
It is for the above reasons and the other reasons given by my learned brother Uwaifo, JSC that I too allow this appeal and enter judgment for the plaintiff in terms of his writ.
ONU, J.S.C.: Having been privileged to read before now the judgment of my learned brother Uwaifo, JSC I am in entire agreement with him that this appeal is meritorious and must perforce succeed.
I however wish to add by way of expatiation the following words of mine.
The appellant as plaintiff in the High Court of Lagos State by a writ of summons dated 16/8/84 sued the respondents as defend-ants claiming the following reliefs:
“1 A declaration of title to a statutory right of occupancy to all that piece or parcel of land, situate, lying and being at plot No. 53 Opebi Street, Onigbagbo Village, Ikeja, Lagos State which is more particularly described and delineated on Plan No. LS/ED/17A/71 and marked plot 3 and 4 demarcated with beacons No. EB 164; EB219; EB225, EB.226, EB213 and EB212 dated the 19th day of December, 1971 attached to a deed of conveyance dated 25°’ day of September, 1972 and registered as No. 42 at page 42 in volume 1409 of the Lands Registry in the office at Lagos,
Pleadings were ordered, filed and exchanged but before the case went to trial, the appellant amended his statement of claim. The facts of the case are as admirably set out in the leading judgment of my learned brother Uwaifo, JSC. I adopt them in their entirety in my consideration of this appeal.
At the trial, which later ensued the appellant called three wit-nesses while the respondents called seven witnesses. The trial High Court dismissed the appellant’s action and (in his further appeal to the Court of Appeal, Lagos Division (hereinafter in the rest of this judgment referred to as the court below), the latter affirmed the trial court’s decision on the grounds that:
(1) Appellant did not prove due execution of Exhibit 1, his document of title, which is a deed of conveyance of
(2) That the equitable defence of estoppel, lathes, standing-by and acquiescence availed the respondents. The appeal herein is against that decision.
Five issues each were submitted as arising by the parties to this appeal for our determination but I adopt those culled out at the appellant’s instance as being enough to dispose of this appeal when they complain in the following terms:
“(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 de-fences of estoppel, ]aches 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 by the parties the lands by Felix Olatunde Thomas (late) to Durosimi-Etti DW4 is not different from the land in dispute in this case. TREATMENT OF THE ISSUES
It is without doubt established that both parties herein are ad idem as to the roots of title. They both agreed that Felix Olatunde Thomas was the owner of the disputed land and consequently each traced his title to him. See paragraph 8 of the amended statement of claim of the appellant vis-a-vis paragraphs 8 and 9 of the statement of defence of the respondents. In addition to the above, the respondents averred in paragraph 12 of their statement of defence as follows:
“The said Survey Plan No. LS/EB13/72 of 16th December, 1972 (mentioned in paragraph 10 above) has beacon No. EB.225, EB.224, EB212 and EB160 re-spectively in respect of plot 9 while plaintiff’s plots 3 and 4 as shown on Survey Plan LS/ED17A/71 are demarcated with beacons No. E13219, EB.164, EB 225 EB.226, EB 213 and EB 212 as shown by plaintiff’s conveyance and plan thereof’
The above shows clearly that both parties never challenged the au-thenticity of each other’s deed of conveyance but merely joined is-sue on the identity of the land sold to each patty or his predecessor in-title as the case may be by late Felix Olatunde Thomas. I am of the firm view that this contention is further buttressed by the un-equivocal admission by the respondents’ counsel at the court below where he said:
“I concede the issue of authenticity of (sic) due execu-tion of conveyance. Exhibit 1 is not crucial to the dispute place (sic) for adjudication before the trial court since both parties traced their title to same vendor Felix Olatundc Thomas. Both parties also agreed that plots 3 and 4 belonged to plaintiff while plot 2 belonged to the defendant.”
Further, at page 98 of the record, the defence counsel while addressing the learned trial Judge had this to say inter alia:
“It is common ground that both parties traced their title to a common vendor one Thomas who signed Exhibit 1.”
I am satisfied that it is stark clear that the issue of the execution of Exhibit 1 did not arise for determination by the court below as the respondents had conceded that point before the trial court. Such an admission or concession on a point of law is binding and cannot be ignored by the Court of Appeal vide Okonkwo V Kpajie (1992) 2 NWLR (Pt. 226) 633 at 656 paragraphs H-B. I am also mindful of the duty of court to decide the crucial issues in contention between litigants and not to purport to resolve them when there is no dispute or disagreement between the parties to base its decision thereon.
See the cases of Carlen (Nig.) Ltd. V Unijos (1994) 1 NWLR (Part 323) 631 at 665 C-D; Jallco Ltd. V Owoniboys Tech. Services Ltd. (1995) 4 NWLR (Pt. 391) 534 at 549 G, per Mohammed, JSC and Oro V Falade 1995) 5 NWLR (Pt. 396) 385 at 402.
In view of the foregoing, I am of the firm view that the learned Justices of the court below erred in law when they affirmed the decision of the trial Judge by holding as follows:
“A deed of conveyance without due authentication and execution is in law worthless for 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 their community 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 in Idundun is so clear and has been followed in subsequent cases, as not to admit of the sub-mission of learned senior advocate in this regard. 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.”
Accordingly, I agree with the submission that the court below lacked jurisdiction to determine this point of due execution which was not in issue before it. See Adeniji V Adeniji (1972) 1 All NLR (Pt.1) 1) 298. See Egri V Uperi ( 1974) 1 NMLR 22 and UBA Ltd. V Achoru (1990) 6 NWLR (Pt.156) 254. In the result, I am of the firm view that the respondents having conceded that THOMAS signed Exhibit 1 as demonstrated cannot now be heard to say that due execution was not proved.
My answer to issue 1 is accordingly in the negative. ISSUE 2
Issue 2 asks whether the appellant established his claims of being entitled to the grant of statutory right of occupancy to the land in dispute, trespass and injunction against the respondents.
One of the five ways of proving title to land is by the production of the documents of title executed in favour of the claimant (as the appellant in the case in hand) by an acknowledged owner of the land in dispute vide Idundun V Okuntagba (supra). In the instant case, the appellant relies on Exhibit 1 as evidence of his title – Exhibit 2 being his composite plan. The respondents as hereinbefore demonstrated, have conceded that the said Exhibit 1 was duly executed by the acknowledged rightful owner of the land in dispute – a point requiring no further proof from the appellant, the same having, been conceded. Consequently, I firmly hold that the appellant discharged the onus, which lay on him to establish his title by reliance on Exhibit 1 – a document of title. See Kodilinye V Odu (1935) 2 WACA 336 at 337 for the proposition that appellant in all cases, must rely oil strength of his case and not on the weakness of the defence.
The appellant’s grouse in this issue as pointed out above is whether the appellant established his claims of being entitled to the grant of statutory right of occupancy.
In the instant case, the appellant relies on Exhibit 1 as his evidence of title. The respondents, as earlier pointed out, have con-ceded that the said Exhibit 1 was duly executed by the acknowledged rightful owner of the land in dispute. The said exhibit clearly identifies the parcel of land (plots 3 and 4) in the survey plan attached thereto. The survey plan bears all the beacon numbers while plot 2 acquired by DW4 (Durosimi – Etti) is shown as having a common boundary with plot 4. The beacon numbers stated above are contained in the plans attached to the respective conveyances of the parties namely Exhibit 1 for the appellant and Exhibit 3 relied on by the respondents. In view of the beacon numbers on the respective deeds of conveyance, that of Exhibit 1 and Exhibit 3 and/or 3A, the two portions of land conveyed by late Felix Olatunde Thomas must be contiguous or touching each other. This is because the two survey plans which were prepared by the appellant show the two portions of land covered by Exhibits 1 and 3 sharing two beacons or beacon numbers in common viz EB.212 and EB.225 (the parties survey plans of Exhibits 2 and 6 clearly bearing this out).
Thus, the point of confusion as to the identity of the land in dispute seems to have arisen from Exhibit 6, the composite plan of the respondents.
It was asserted in support of Exhibit 6 that plot 2 covered exhibit 3, the deed of conveyance relied upon by the respondents which later became plot 9 when the Master Plan of Lagos State was made. It ought to be noted that this assertion by DW4 is not supported by DW 1, the respondent’s surveyor. From a cursory glance at the documentary evidence in this case, it is clear that the land now be-ing claimed by the respondents is not the land identified as plot 9 in Exhibit 6 –
“I see Exhibit 3 and the survey plan attached to it. It is the predecessor in title of the 1st defend-ant. Plot 2 was conveyed in 1973, January, 1973 to DUROSIMI-ETTI. (That is DW.4). I see the four pillars shown in Exhibit 3 are reflected on Exhibit 6.” (Parenthesis are mine).
The above evidence I agree, is an admission by the surveyor that Plot 9 as depicted in Exhibit 6 was not the land sold DW4 in 1973 which the respondents claim is now the land in dispute.
“The land in dispute is opposite my house. My vendor is dead and signed 3A” (i.e. Exhibit 3A which is the same as Exhibit 3,”
The house DW4 was referring to in his evidence was in fact the same as plot 2 sold to him by virtue of exhibits 3 and 3A and cannot be otherwise. This is the plot of land that is supposed to be contiguous to plots 3 and 4, which are the real plots of land in dispute in this case. Apart from Exhibits 3 and 3A, which relate to plot 2 there is no other evidence of a conveyance in favour of DW.4 of any other piece of land owned by Thomas. The entire case in its setting was that in which both parties traced their titles to Thomas, the undisputed owner. Thus, while the connection of the appellant to Thomas is direct and unbroken, there is no link between the title asserted by the respondents with the said Thomas. For instance, DW 5 who was 1″ respondent testified as follows:
“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 of my wife.”
Be it noted that DW.5’s name is Emmanuel Alao and the person he called his wife is Madam Adebiyi.
Later of DW.5 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. Later a purchase receipt was issued to TOSIL Ltd. This is the purchase receipt to the 2nd defendant I seek-to tender. Chief Morohundiya has no objection.
The purchase land receipt was pleaded and is admitted without objection as Exhibit 7.” DW5 further testified to the following effect:
“My power of attorney is with my counsel. My wife lives in Ibadan.”
As transpired, no power of attorney was eventually tendered in evidence. This definitely was a failure to produce evidence and the provisions of section 149(d) of the Evidence Act, Cap. 112, Laws of the Federation 1990 was invoked against the respondents and rightly so, in my view.
My answer to this issue is resolved against the respondents. Issue 3
The grouse in this issue is whether under the facts and circum-stances of this case, the Court of Appeal rightly held that the equitable defences of estoppel and laches availed the respondents.
In paragraph 40 of the statement of defence at page 40 of the records, the respondents pleaded the above defences. However throughout his counsel’s address at the trial court the learned counsel did not raise any of these equitable defences. They are, in my view, deemed abandoned, obviously because the trend of evidence led did not establish them. Accordingly, the learned trial Judge did not consider them in his judgment.
On appeal to the court below, none of the parties complained about this non-consideration of these equitable defences by the trial Judge. The respondents only raised the issue of statute of limitation, which was being argued at the Court of Appeal for the first time. Rather than considering the said unpleaded issue of limitation, the learned Justices of the court below raised suo motu in their judgment and determined same without the benefit of argument of counsel, the issue of the applicability of these defences. As Niki Tobi, J.C.A. put it:
“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 so I 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.” (Emphasis supplied). What the learned Justice said above, is with due respect, wrong. Nowhere in their submission both at the trial court and in the court below, did they raise it. The court below therefore raised and con-sidered same suo motu, relying on section 16 of the Court of Appeal Act. I hold the view that it is beyond the power and/or jurisdiction of the Court of Appeal under Section 16 of the Act to so raise and consider issues as well as determine them suo motu. Clearly, there-fore, although the court below had in its judgment berated the trial court for raising and considering the issue suo motu, it also fell into the same error. In the result, I hold that the court below cannot raise and determine this issue suo motu and decide it without hearing the parties on it. See Oro V Falade (1995) 5 NWLR (Pt.396) 385, 408 paragraphs C – D. As those defences were not pleaded specifically with adequate particulars their consideration by the court below was wrong.
In Olusanya V Olusanya (1983) 1 SCNLR 134 (1983) 3 SC 41 at 56/57 the Supreme Court said: “this court has no a number of occasions said that although an appeal court is entitled in its discretion to take points suo motu if it sees fits to do so, yet that discretion must be exercised sparingly and in exceptional circumstances only. Where the points are so taken the parties must be given opportunity to address the appeal court before the decision on the points is made by the appeal court…..” See also Odiase & Anor v Agho & Ors. (1972) 1 All NLR (Pt. 1) 170; Commissioner for Works, Benue State & Ors. V Devcon Development Consultants Ltd. & Ors. (1988) 3 NWLR (Pt.83) 407 at 408 & 420 per Karibi-Whyte, JSC; Ebba V Ogodo (1984) 1 SCNLR 472, (1984) 4 SC 84; UmarV Bayero University Kano (1988) 4 NWLR (Pt.86) 85 at 87 per Belgore, JSC; Maiyaki V Maidoya (1988) 3 NWLR (Pt.81) 226 at 227 per Maidama, JCA; Ugo V Obiekwe (1989) 1 NWLR (Pt.99) 566 and 582 per Nnaemeka-Agu, JSC and Sande V Abdullahi (1989) 4 NWLR (Pt. 116) 387. Otherwise, parties must be given the opportunity to be heard on the point.
My answer to the issue is rendered in the negative. Issues 4 and 5
In treating these two issues I can do no more than respectfully adopt the reasoning and conclusion of my learned brother, Uwaifo, JSC in their entirety and wholesomeness.
Accordingly, while I answer issue 4 in the negative my answer to issue 5 is rendered in the affirmative.
It is for the above reasons proffered by me and the more comprehensive ones contained in the leading judgment of my learned brother Uwaifo, JSC that I too allow the appeal and make the same conseqential orders as to costs contained therein.
EJIWUNMI, J.S.C.: The draft of the judgment just delivered by my learned brother, Uwaifo was read by me before now. I am in complete agreement with him that the appeal is meritorious. The appeal for the reasons given in the said judgment, is also allowed by me. The judgments of the trial High Court and the Court of Appeal are hereby set aside. In their place, judgment is hereby entered in favour of the appellant (as plaintiff) in terms of his claims in his writ of summons. I also award costs as ordered in the leading judgment.