3PLR – CLIFFORD O. IMOH V. ABIODUN ONANUGA & ANOR

POLICY, PRACTICE AND PUBLISHING, 3PLR, LAW REPORTS

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CLIFFORD O. IMOH

V.

ABIODUN ONANUGA & ANOR

IN THE COURT OF APPEAL OF NIGERIA

ON FRIDAY, THE 10TH DAY OF MAY, 2013

CA/L/314/06

3PLR/2013/42 (CA)

 

 

OTHER CITATIONS

(2013) LPELR-20682(CA)

BEFORE THEIR LORDSHIPS

AMINA ADAMU AUGIE, JCA

JOSEPH SHAGBAOR IKYEGH, JCA

CHINWE EUGENIA IYIZOBA, JCA

 

BETWEEN

CLIFFORD O. IMOH – Appellant(s)

AND

1. ABIODUN ONANUGA
2. FEMI ONANUGA

(For themselves and as principal Members and accredited representatives of the descendant and family of late Fasasi Okunola Onanuga) Respondent(s)

 

REPRESENTATION

Okafor C. I. A. Esq. – For Appellant

AND

Prince A. A. Mumuni – For Respondent

MAIN ISSUES

REAL ESTATE/LAND LAW:- Declaration of title to land – Onus on plaintiff who claims declaration of title to land to satisfy court that he is entitled on the evidence adduced by him to the declaration sought – Whether the onus never shifts – Exceptions – Where the defendant claims exclusive ownership of family land – How treated

REAL ESTATE/LAND LAW:-  Action for declaration of title to land – Where the plaintiff predicates his title on sale or grant by a particular person, family or community – Burden of proof that must be satisfied to succeed – Duty to plead and prove not only the sale or grant of the land to him but also the origin of the title of the particular person, family or community that sold or granted the land to him unless that title had been admitted

REAL ESTATE/LAND LAW:- Document registered in accordance with the provision of Section 17(1) – (4) of the Lands Instrument Registration Law Cap 158 Laws of Lagos State 2004 – Whether due execution is presumed

REAL ESTATE/LAND LAW – PROOF OF TITLE TO LAND:- How established – Whether claimant is not required to prove all the five methods – Whether claimant would succeed in his claim if he is able to establish any one of the five methods

PRACTICE AND PROCEDURE – EVIDENCE – BURDEN OF PROOF:-  Land law cases – Onus on plaintiff who claims declaration of title to land  -Need to satisfy the court that he is entitled on the evidence adduced by him to the declaration sought – Exceptions – if a party predicates his title on sale or grant by a particular person, family or community – What he must prove

PRACTICE AND PROCEDURE – EVIDENCE – FAILURE TO LEAD EVIDENCE: Whether fatal to claimant’s case

PRACTICE AND PROCEDURE – ACTION – PLEADINGS:- Pleadings not being supported by evidence – Whether deemed abandoned

PRACTICE AND PROCEDURE – ACTION – PLEADINGS:- Essential principle of the rules of pleading in Nigeria’s adversary system – Principle that each party is free to formulate his own case and once formulated he is bound by his pleadings and cannot be allowed to urge a case different from that formulated on the pleadings and the courts themselves are bound to decide only the case formulated on the pleadings and it would be contrary to the proper function of the court to adjudicate on any matter not put in issue by the pleadings – Justification – Implication foe fair hearing

PRACTICE AND PROCEDURE – EVIDENCE – PRESUMPTION OF LAW:- Land – Where a document is registered in accordance with the provision of Section 17(1) – (4) of the Lands Instrument Registration Law Cap 158 Laws of Lagos State 2004 – Whether due execution is presumed

MAIN JUDGMENT

CHINWE EUGENIA IYIZOBA, J.C.A.(Delivering the Leading Judgment):

This appeal is  against the judgment of Abiru J. of the High court of Lagos State dated the 2nd day of February 2006 in suit No ID/328/85. The Appellant herein was the defendant in the suit whereas the Respondents were the plaintiffs.
Briefly, the case of the plaintiff as deduced from their amended statement of claim is that by virtue of an indenture of conveyance dated the 15th day of March, 1956 the Ikate Chieftaincy family sold and conveyed about 67 acres of land at Ikate to Chief Joseph A. Ajao for an Estate in fee simple and thereafter put him into exclusive possession thereof. The plaintiff averred that around 1961, Chief Joseph Ajao sold the land in dispute to their father, Fasasi Okunola Onanuga and immediately put him into possession but without executing any formal deed of conveyance. The executors and executrix of the will of the said Chief Joseph Ajao eventually by an indenture of conveyance dated the 22nd day of August, 1964 sold and conveyed the land to their father, thereby confirming his ownership and possession of the land. They claimed to have been in possession since then until the defendant trespassed on the land, drove away their tenants and started erecting a building on the land. Consequently they took out a writ of summons against the defendant wherein they claimed as follows:

1. A declaration that they, as against the defendant are the persons entitled in the capacity in which they have sued to apply for and obtain a Certificate of Occupancy in respect of the land and premises situate at and known as Plot No. 98 in Ajao’s Layout, Ikate near Yaba in the Lagos State of Nigeria which land is shown and delineated on the plan accompanying an Indenture of Conveyance dated the 28th day of October, 1964 and registered as No. 36 at page 36 in Volume 798 of the Register of Deeds kept in the Lands Registry Office, Lagos.
2. N2000.00 (two thousand naira only) being damages for trespass committed by the said defendant on the said land by unlawfully breaking and entering upon the said land without the consent and/or permission of the plaintiffs.
3. A perpetual injunction restraining the defendant his servants and/or agents from committing any further act or act of trespass on the said land or any part of same.

The Defendant in his amended statement of defence at pages 6-8 of the record of appeal denied the claims of the Plaintiffs and traced his title to one Olaiya Coker whose title in turn is traced to Onikate Chieftaincy title a rival family claiming ownership of the same land in Ikate. The defendant relying heavily on some Supreme Court judgments averred that the conveyance of 15th March 1955 to the predecessor of the Plaintiffs’ father by the Ikate Chieftaincy family had been impugned and declared worthless thus leaving the plaintiff with no valid conveyance to rely on.

In proof of their case, the Plaintiffs called five witnesses while the defendant testified for himself and called no other witness. The learned trial Judge after hearing the parties witnesses and their Counsel entered judgment for the plaintiff granting all their claims.

Dissatisfied with the judgment, the defendant filed a notice of appeal on 14/2/05 containing three grounds of appeal. Counsel filed their briefs of argument which they relied on during the hearing. Counsel for the Appellant Okafor C.I.A. Esq out of the three grounds of appeal distilled one sole issue for determination as follows:

“Whether in the circumstances of this case the plaintiffs in this matter indeed satisfactorily discharged the legal burden of establishing their case to deserve the declaratory relief granted to them or which of the two parties has by preponderance of evidence proved a better title to the land in dispute.”

Learned Counsel for the Respondents Olusola Martins Esq in his brief of argument formulated three issues for determination. They are:

1. Whether the Ikate Chieftaincy Family or Onikate Chieftaincy Family is the authentic group that represents Ikate Chieftaincy Family for the purpose of selling and giving good title to Itire Chieftaincy Family lands.
2. Whether Plot 98 in Ajao Layout at Ikate is the same as or different from Plot no. 98 in Plan No. ASA/165/51 prepared by one E. O. Litan (Licensed Surveyor) and is now known as no. 129, Olaitan Odularu Street Ikate.
3. Whether the Plaintiff (now Respondents) have successfully discharged the onus of proving their title to the said piece of land now known as no. 129, Olaitan Odularu Street, Ikate.

All the issues overlap and would be considered together.

APPELLANTS’ ARGUMENTS:

Learned Counsel for the Appellant after quoting copiously from the judgment of the learned trial judge, the judgments of the Supreme Court in Bello v. Eweka (1981) 1 SC 101, Woluchem v Gudi (1981) 5 SC 291 submitted that the trial Judge misdirected himself on the interpretation of the real purport of legal burden of proof on the Plaintiff in a declaration of title suit. Counsel intended that the learned trial judge erred in holding that the Plaintiff discharged the legal burden on them of proving title to the property when the evidence adduced was fraught with all sorts of irregularities and half-truths and the source of their title non-existent. Counsel further argued that the Court does not make declarations of right either on admissions or in default of pleadings but only if the court was satisfied by evidence adduced by the Plaintiff. Learned counsel pointed out what he perceived as areas of weakness in the plaintiff’ case thus:

“The Plaintiffs’ claim for declaration of title to the land was predicated on a grant by conveyance for which they tendered Exhibits P1, the Plaintiffs’ Deed of Conveyance made to the plaintiffs’ father in 1964, Exhibit P2, a certified true copy of terms of settlement which they claimed confirmed Chief Ajao’s title to Ikate Chieftaincy land and Exhibit P9, a Deed of Conveyance dated 15th March 1956 and registered as No. 45 at page 46 in volume 145-1b of the Register of Deeds on which Exhibit pl is predicated on.”

Learned counsel argued that if Exhibit P1 was duly executed by the Executors appointed in a will dated 22/8/44, it was incumbent on the plaintiff to show that the land in dispute formed part of chief Ajao’s Estate by tendering the will and that since the plaintiffs failed to tender the will, it was safe to conclude that it was impossible for the land bought in 1956 to be part of a will made in 1944 without a codicil. Learned counsel submitted that the lower court erred in holding that the above issue should not have been raised in the defendant’s counsel’s address because the issue is a material fact and that nowhere in the pleadings of the defendant did he plead or raise the issue. counsel relying on Romaine v Romaine (1992) 4 NWLR (pt. 238) 650 submitted that mere production of a valid instrument of grant is not enough and that it is incumbent on the trial court to further inquire into a number of issues such as whether the document is genuine and valid; whether it has been duly executed, stamped and registered; whether the grantor had the authority and capacity to make the grant; whether the grantor had in fact what he purported to grant; and whether it has the effect claimed by the holder of the instrument. This, counsel argued is not as held by the lower court dependent on the pleadings of the defendant. Counsel submitted that at any rate, the defendant in paragraph 3 of the amended statement of defence out-rightly denied paragraph 5 of the plaintiff’s amended statement of claim, the conveyance to Chief Ajao among others and went ahead to put the plaintiff to its strictest proof. Counsel citing Buhari v Obasanjo (2005) 2 NWLR (Pt.910) 241 submitted that where a defendant specifically denies a fact averred by the plaintiff and goes further to put the plaintiff to strict proof thereof, issues are joined between the parties. The burden consequently rests on the plaintiff to substantiate his claim. Counsel submitted that it was improper for the learned trial judge to upturn all the principles of law with regard to the legal burden on a party claiming a declaration of title on the grounds that the defendant did not plead the issue in his defence.

Learned counsel further submitted that the lower court was wrong in holding that the protection afforded registered owners of a defective title under section 53(2) of Registration of Title Law Cap R4 Laws of Lagos State 2004 was opened to the Appellant. Citing the cases of Philips v. Ogundipe (1967) 1 All NLR 258 and Lababedi v. Lagos Metal Industries Ltd (1973) 8 NSCC 1. Counsel submitted that the section does not validate spurious transfers based on the principle of nemo dat qud non habet Learned counsel urged us to set aside the judgment of the lower court and award the land in dispute to the appellant who has a better and unimpeachable title to the land.

RESPONDENTS ARGUMENTS:

Learned Counsel for the Respondents in his brief after referring to certain paragraphs of the amended statement of claim submitted that the suit was fought on the basis that the land belonged to either Ikate Chieftaincy family or Onikate Chieftaincy family and whether the land the subject matter of the suit fell within the large parcel of land validly sold to Chief J.A. Ajao. Counsel submitted that the capacity of the executors of the will of chief Ajao to sell the estate land was never in issue and so the non-production of the will or the probate of Chief Ajao’s estate is not relevant to the issues at stake. Counsel argued that if the defendant had considered the capacity of the executors to execute the will relevant, he should have pleaded same in order to put the plaintiff on notice.

APPELLANT’S REPLY:

In reply to Respondent’s argument on issue 1, whether the Ikate chieftaincy Family or Onikate chieftaincy Family is the authentic group that represents the Family for purpose of selling and giving good tiTe to Itire chieftaincy Family lands, counsel submitted that the parties are in agreement that they derived their title from the same family. The Family has now split into two as a result of dispute. One is known as Ikate chieftaincy Family while the other is known as Onikate chieftaincy Family. Contrary to the contention of the Respondents, counsel submitted that there are numerous decided cases where court have validly upheld the conveyances issued and signed by the Onikate Chieftaincy Family. On whether the Respondents discharged the onus of proving their title, counsel submitted that they failed to prove their root of title because their title is hinged on the purported conveyance to Chief Ajao dated 15/3/56 which was discredited by the Supreme Court.

RESOLUTION:

I have considered carefully the submissions of the parties in this appeal. The age long principle in land matters is that the onus is on a plaintiff who claims declaration of title to land to satisfy the court that he is entitled on the evidence adduced by him to the declaration sought except in a few cases such as where the defendant claims exclusive ownership of family land, the onus never shifts.  To discharge the onus the plaintiff must rely on the strength of his own case and not on the weakness of the defence except where the defendant’s cases supports his case. Onwugbufor v. Okoye (1996) 1 NWLR (Pt.424) 252; Eze v. Atasie (2000) 9 WRN 73 @ 88; Adesanya v. Aderonmu (2000) 9 NWLR (Pt.672) 370. The plaintiff must prove his title by clear, emphatic satisfactory and cogent evidence. If the onus is not discharged the weakness of the defendant’s case will not help the plaintiff and the proper judgment is for the defendant. Kodinlinye v. Odu (1935) 2 WACA 336; Atuanya v. Onyejekwe (1975) 3 SC 161 @ 168; Onibude v. Akibu (1982) 7 SC 60 @ 84 – 85; Bello v. Eweka (1981) 1 SC 101; Lawson v. Ajibulu (1997) 6 NWLR (Pt.507) 14 @ 41 F – H.  The methods by which a claimant may establish title to land were settled by the Supreme Court in Idundun v. Okumagbe (1976) 9 – 10 SC 227. They are-

(a)     By traditional evidence

(b)     By production of documents of title duly authenticated and executed.

(c)     By acts of ownership extending over a sufficient length of time numerous and positive enough as to warrant the inference of true ownership.

(d)     By acts of long possession and enjoyment

(e)     Proof of possession of connected or adjacent land in circumstances rendering it probable that the owner of such connected and adjacent land would in addition be the owner of the land in dispute.

The claimant is not required to prove all the five methods. He would succeed in his claim if he is able to establish any one of the five methods.

From the evidence led by the Respondents as plaintiff in the lower court, they relied on documents of title and acts of long possession and enjoyment. I shall now examine the evidence led in the case to see whether the learned trial Judge was right in holding that the Respondent succeeded in proving their title to the land in dispute.

Documents of title:

The Respondents tendered the following documents in proof of their title:

1. Exhibit P1: Deed of conveyance executed in 1964 in favour of the Respondents’ father by the executors of chief Ajao his predecessor in title.
2. Exhibit P2: A certified true copy of terms of settlement which confirmed Chief Ajao’s title to Ikate Chieftaincy land.
3. Exhibit P9: a Deed of Conveyance dated 15/3/56 registered as No. 46 at page 46 in Volume 145-1b of the Register of Deeds on which exhibit P1 is predicated.

Learned counsel for the Appellant faulted all of the above documents tendered in proof of title by the Respondents on the ground that the Supreme Court in suit No.SC/298/76 between Awomuti v. salami pronounced as worthless Exhibit P9 Chief Joseph Adeniran Ajao’s conveyance of 15/3/56. The contention of learned counsel was that since Chief Ajao’s conveyance of 15/3/56 has been discredited, any document of title predicated on it is invalid and inadmissible in proof of title to land. The Respondents submitted that from the evidence of pw3 at the lower court it was clear that the land in dispute formed part or portion of a large parcel of land belonging to Ikate chieftaincy family. Counsel submitted that the Ikate chieftaincy family sold part or portion of their land to Chief Ajao in two trenches, first it was ten acres and then another 20 acres. Chief Ajao took more than the 20 acres he bought later and this led to litigation in suit no. IK/163/65. The parties in the suit settled out of court wherein the title of Chief Ajao to the larger area in the conveyance was confirmed but subject to the right of those who had purchased part of the land from Ikate chieftaincy family prior to the sale to Chief Ajao. Counsel argued that the Appellant did not purchase the land from the Ikate chieftaincy family or from chief Ajao. He could not therefore benefit from any irregularity in the title of chief Ajao. Counsel submitted that it was the same people who had wanted chief Ajao’s title set aside on grounds of fraud that later confirmed the said title. In view of the pleadings and evidence led by the Respondents, the Appellant cannot rely on the Supreme Court judgment in the manner he tried to do in this case. That is why the learned trial Judge in his judgment at page 143 of the record held that the Supreme Court judgment, exhibit D4 had no bearing in the present case in the following words.
“Exhibit D4 was in respect of a plot of land measuring approximately 50ft by 100ft situate, lying and being at No. 11 Ijero Street, Ikate, Lagos State. The land in dispute in the instant proceedings situates lies and is at No. 129 Olaitan Odularu Street, Ikate. The parties in Exhibit D4 were different from the parties in these proceedings and there was no evidence to show that any of the parties in these proceedings was a privy of any of the parties in Exhibit D4. The judgment in Exhibit D4 was in respect of who owned the plot of land at No. 11 Ijero Street, Ikate Lagos State and nothing was said about the ownership of the land at No. 129 Olaitan Odularu Street, Ikate.”

I agree with the learned trial Judge that the Supreme Court Judgment Exhibit D4 is not relevant here for reasons stated above. Further, the pleading of the Respondents had introduced a dimension which made it necessary to consider Exhibit D4 in the light of Exhibit P2, the certified true copy of terms of settlement which confirmed chief Ajao’s title to Ikate chieftaincy land as registered subject to the right of those who had purchased part of the land from Ikate chieftaincy family prior to the sale to chief Ajao. Instead of properly traversing this fact raised in paragraph 9 of the amended statement of claim, the Appellant merely averred in paragraph 17 of his amended statement of defence that the Defendant shall contend at the trial that para 9 of the statement of claim is a red herring; that the ‘misgiving’ referred to therein is fatal to the cause of the plaintiff”. That was a clear case of missed opportunity (that is) if the Respondent had an answer to the averment. Exhibit D4 did not declare the conveyance null and void but merely declared it worthless and the plan attached to it inadmissible in that particular case. No step had been taken by anyone pursuant to the view of the Supreme Court in Exhibit B1 to declare the conveyance to Chief Ajao null and void. As far as the grantors of the land were concerned, the conveyance was valid subject to the caveat in the terms of settlement. There has been no rectification of the Register to the prejudice of the title of chief Ajao. Even assuming without conceding that the title of Chief Ajao was defective, in the absence of allegation and proof of fraud or forgery the Plaintiffs/Respondents whose title is based on Exhibit p1 duly registered as No 36 at page 36 in Volume 798 of the Register of Deeds at the Lands Registry are protected by Section 53(2) of the Registration of Titles Law Cap R4, Laws of Lagos State, 2004. The section provides that the declaration of a registered instrument as null and void shall not invalidate any estate acquired by a subsequent registered owner, being a purchaser for value, or a person deriving title under such subsequent registered owner. See Banire v. Balogun (1986) 4 NWLR (Pt.38) 746; Yusufu v. Ojo (1958) 3 FSC 106. For section 53(2) to avail the Appellants they must show that their predecessor in title bought for valuable consideration. Exhibit P1 shows on the face of it that the property was bought for valuable consideration. Se Bada v. Pereira (1974) 11 SC 40; (1974) LPELR – SC 312/1972 – Where fraud or forgery is established, at whatever point then section 53(2) would be inapplicable as established in the cases of Philips v. Ogundipe (1967) 1 All NLR 258 and Lababedi v. Lagos Metal Industries Ltd (1973) 1 NSCC 1 referred to by Appellants counsel in his brief. As pointed out by the Court the section cannot be used as an engine of fraud. In the present case neither fraud nor forgery was alleged. The Supreme Court case declared Exhibit P9 worthless. There was no allegation of fraud or forgery. The appellant in his brief at page 16 submitted that Exhibit P9 and the plan attached to it are defective and for all material purposes fail to ground Exhibit Pl on grounds of fraud which takes it away from the protection of S.53(2) of the Registration of Titles law. That is certainly not a way to allege or prove fraud. Exhibit D4 did not allege fraud. It merely declared the Exhibit worthless for purposes of proving the title in that particular case. If the Appellant wanted to bring the issue of fraud into the matter, he should have specifically pleaded same and led evidence of the fraud. See Adimora v. Ajufo (1988) 3 NWLR (Pt.80) 1; Fabunmi v. Agbe (1985) 1 NWLR (Pt.2) 299. All these issues were fully considered by the learned trial judge in coming to the conclusion that the decision of the Supreme Court, Exhibit D4 did not detract from the validity of Exhibit P1. See pages 143 and 144 of the record. What learned counsel for the Appellant is contending in essence is that because the Supreme court declared in some other suit that the conveyance Exhibit P9 is worthless, all he needed to do was tender the supreme court judgment and then relax and watch the court demolish the claim of the Respondent on that ground! The Appellant refused to take into account or reckon with the explanation of the Respondent as pleaded that the defect in the title of Chief Ajao was rectified by terms of settlement reached in the suit instituted as to the actual size of the land sold to him. There is no doubt that Exhibit D4 could constitute etoppel per rem judicata. But for it to apply, the suit must be between the same parties or their privies and the subject matter must be the same. See Udeze v. Chidebe (1990) NWLR (Pt.125) 141. Learned counsel made a big deal about Exhibit D4 being a judgment in rem which binds all persons whether parties to the proceedings or not. He relied heavily on the case of Ogboru v. Ibori (2005) 3 NWLR (Pt.942) 319. In that case the Court of Appeal defined a judgment in rem as:

“The judgment of a court of competent jurisdiction determining the status of a person or thing, or the disposition of a thing, as distinct from a particular interest in it of a party to the litigation. Apart from the application of the term to persons, it must affect the ‘res’ in the way of condemnation, forfeiture, declaration, status or title, or order for sale or transfer, Examples of judgment in rem are:

(a)     Judgment of a probate court establishing a will or creating the status of administration;

(b)     Judgment of a divorce court of competent jurisdiction dissolving or establishing a marriage or affirming its existence;

(c)     Judgment on a parliamentary election petition

However there are judgments which resemble judgments in rem whereas they are not. For instance, a judgment is not in rem only because it has, in a suit inter partes, determined an issue concerning the status of a particular person or family. [Sosan v. Ademuyiwa (1996) 3 NWLR (pt.27) 241 referred to]
In addition to the above, this issue is completely settled by the case of Sosan v. Ademuyiwa (supra) which the Appellant referred to but which vital point he chose to ignore. There, the Supreme Court held that a judgment in a land case is a judgment in personam and not a judgment in rem because it is the rights or interests of the parties in respect of the land which are being determined and not the status of the land itself. The case further re-stated the point that a previous judgment cannot operate as estoppel per rem judicatam in a subsequent proceeding where the parties are different, the claim is different, and the pleadings and evidence are all different.

Learned counsel for the Respondent had submitted that PW1 and PW5 had testified to the sale of the plot of land, plot 98 to the father of the Respondents. To say that because the deed of conveyance Exhibit P1 had its root in the deed of conveyance Exhibit P9 which had been described as worthless in Exhibit D4 did not amount to saying that the parcel of land did not originally belong to the Ikate chieftaincy Family and that it had not been sold to chief Ajao. In the same vein, if the conveyance Exhibit P1 given by Ajao family is described as worthless, that would not affect the factual sale of the property to the Respondents father. Counsel finally submitted that the Appellant did not purchase the land in dispute from the Ikate chieftaincy Family and that unless he can convince the court that he purchased the land from Ikate chieftaincy Family, the irregularities or defects in Exhibits P1 and P9 will not assist him in any way. This is a correct for exposition of the law and facts as they stand. I agree totally with learned counsel for the Respondent.

Further on Exhibit P1, Appellant’s counsel relying on Romaine v Romaine (supra) had contended that mere production of a valid instrument of grant is not enough and that it is incumbent on the trial court to further inquire into a number of issues such as whether the document is genuine and valid; whether it has been duly executed, stamped and registered; whether the grantor had the authority and capacity to make the grant; whether the grantor had in fact what he purported to grant; and whether it has the effect claimed by the holder of the instrument. In his judgment at page 140-141, the learned trial judge resolved the matter thus:

“It is correct as stated by the Defendant’s Counsel that where a party tenders and relies on a registered document of title such production and reliance upon such an instrument inevitably carries with it the need for the court to inquire into some or all of a number of questions such as those enumerated by him above – Romaine vs. Romaine (1992) 4 NWLR (Pt.238) 650, Kyari Vs Alkali (2001) 11 NWLR (Pt.724) 412 and Atanda Vs. Ifelagba (2003) 17 NWLR (Pt. 849) 274. In resolving these questions however the court must consistently and constantly keep the pleadings of the parties in focus. This is because it is an essential principle of the rules of pleading in our adversary system that each party is free to formulate his own case and once formulated he is bound by his pleadings and cannot be allowed to urge a case different from that formulated on the pleadings and the courts themselves are bound to decide only the case formulated on the pleadings and it would be contrary to the proper function of the court to adjudicate on any matter not put in issue by the pleadings see Overseas Construction Co. (Nig) Ltd Vs. Creek Enterprise (Nig) (1985) 3 NWLR (Pt.13) 407 and Moghalu Vs. Wobo (2004) 17 NWLR (Pt.903) 465.This principle is an outflow of the doctrine of fair hearing that demands that a party must know in advance the nature of what he is to face in court and prepare for same and thus material facts must be set out to enable a party to be on his guard and tell him all that he will have to contend with at the trial – see Tate Industries Plc. Vs. Devcom Merchant Bank Ltd. (2004) 17 NELR (Pt. 901) 182.Looking through the pleadings of the Defendant, no where did he plead or raise issues on the capacity of the executors of the Estate of Chief J. O. Ajao to execute Exhibit P1 and/or on the inconsistencies in the date Chief Ajao bought the land and when he made his Will. These were material facts and not having been pleaded, it was improper for the Defendant’s Counsel to raise them in his address – see Mobil Producing Nigeria Unlimited Vs Lagos State Environmental Protection Agenry (2002) 18 NWLR (Pt 798) 1 and Trade Bank Plc Vs Chami (2003) 13 NWLR (pt.836) 158. And this is because a party must be consistent in presenting his case and he will not be allowed to take one stance in the pleadings and then turn somersault in the address – see Ezemba Vs Ibeneme (2004) 14 NWLR (pt.894) 617 and Aguocha vs Aguocha (2005) 1 NWLR (pt.906) 165.

This is very sound reasoning and takes care of all the arguments put forward by Appellants counsel concerning the capacity of the executors of the Estate of Chief Ajao to execute the conveyance in favour of the Respondents.

Learned Counsel for the Appellant had also argued that if Exhibit P1 was duly executed by the Executors appointed in a will dated 22/8/44, it was incumbent on the Plaintiffs to show that the land in dispute formed part of Chief Ajao’s Estate by tendering the will and that since the plaintiff failed to tender the will, it was safe to conclude that it was impossible for the land bought in 1956 to be part of a will made in 1944 without a codicil. These facts as rightly stated above by the learned trial Judge were not pleaded. Besides, it is not a rule that a testator must mention in his will every single real estate he owns. He could empower the executors to take control of all his landed property without mentioning them specifically in the will.

In his judgment at pages 144 – 146 the learned trial Judge incisively examined the root of title of the Respondents, their long possession of the land in dispute and the incidents of Exhibit P1 and at the end found, correctly in my view that the Respondents led credible evidence to sustain their claim for declaration of title to the land in dispute in accordance with the rule as laid down in Idundun Vs Okumagbe. The Respondents had led evidence of how the land was founded and first settled upon and how the ownership descended down the years to the Ikate family. They led evidence of how the Ikate Family sold a large parcel of the land including the land in dispute to Chief Ajao by a Deed of Conveyance, and of how Chief Ajao laid out the land into plots and sold the land in dispute to their father in 1961 and put him in possession without executing a Deed of Conveyance. They led evidence of how the Ikate family confirmed the ownership of the large parcel of land including the land in dispute by Chief Ajao in suit No IK/163/65 and how the executors of late Chief Ajao executed a Deed of Conveyance formally conveying the land in dispute to their father and how their father maintained possession of the land until his death in 1980 and that on the death of their ftther, they inherited the land and exercised acts of possession until the Appellant trespassed into the land in 1984. On the genuineness and validity of Exhibit P1, the conveyance by Chief Ajao’s Executors in favour of the Respondents, the learned trial Judge correctly found that the document was a certified true copy of the Deed of Conveyance duly registered at the Lands Registry in Lagos and that the registration particulars were duly reflected on it. That naturally raised the presumption under Section 114 of the Evidence Act that the document was genuine. These issues were not contested by the Appellant in his pleadings. The only concern of the Appellant which he thought was the clincher was that Exhibit P1 was predicated on a deed of conveyance which had been declared worthless by the Supreme Court. He was so certain that he had “closed the deal” on this contention that he chose to put all his eggs in that one basket. For that reason he did not traverse most of the averments in the amended statement of claim he ought to have traversed and he did not call witnesses to lead evidence of face averred in his own amended statement of defence. On the question of the capacity and authority of the grantees of Exhibit P1 to make the grant, the Respondents led evidence that the grantees were the executors and personal representatives of Chief Ajao who were empowered by Exhibit P10 to manage the estate and the question of their capacity was not contested by the Appellant in his pleadings and evidence. On the issue of due execution of Exhibit P1, as again correctly found by the learned trial Judge the document carried on its face indications that it was signed by the grantees added to the fact that the document was made on 28/10/64 and was over twenty years old on the date it was given in evidence and so enjoyed the presumption of due execution provided for under Section 123 of the Evidence Act. See Obawole Vs Williams (1996) 10 NWLR (Pt.477) 146; Adekuro V Ogunniya (2000) 3 NWLR (Pt 647) 151 @ 164 A-D.

Further, once a document is registered in accordance with the provision of Section 17(1) – (4) of the Lands Instrument Registration Law Cap 158 Laws of Lagos State 2004, due execution is presumed. See Jules v Ajani (1980) 5-7 SC 96; Adelaja v. Fanoiki (1990) 2 NWLR (Pt 131) 131 @ 154. OdubGeko v Fowler (1993) 7 NWLR (Pt.308) 637.The learned trial Judge considered all these factors and came to the conclusion that the Respondents discharged the onus on them to prove their entitlement to the land in dispute. His Lordship certainly did not as argued by learned counsel for the Appellant misdirect himself on the real purport of the legal burden of proof in land cases. On the contrary the judgment showed that the learned trial Judge understands fully the incidents of burden of proof in land matters. On being satisfied that the Respondents discharged the burden, the learned trial Judge then turned to the case of the Appellant as the evidential burden now shifted on him to establish his case. The Appellant testified for himself and called no other witness. This is how the learned trial Judge dealt with his evidence:

“The Defendant testified that he bought the land in 1984 from one Olaiya Coker and immediately took possession of it and built thereon and that before he bought the land he conducted a search at the Lands Registry to confirm that Olaiya Coker was the registered owner and he obtained a certified true copy of his Deed of Conveyance admitted as Exhibit D1. He gave evidence that his purchase of the land was evidenced by a Deed of Transfer admitted as Exhibit D2. Exhibit Dl showed that the said Olaiya Coker from whom the Defendant bought the land in dispute purchased the land from the head and principal members of the Onikate Family and West African Estate Development Corporation Limited, the attorneys of the Onikate family. The Plaintiffs challenged the right of the Onikate family, their attorneys and of Olaiya Coker to the land in dispute in their reply to the Defendants pleadings. The onus was thus on the Defendant to lead evidence in support of the rights of these persons to the land in dispute because the law is that in an action for declaration of title to land, if a party predicates his title on sale or grant by a particular person, family or community he is under a duty to plead and prove not only the sale or grant of the land to him but also the origin of the title of the particular person, family or community that sold or granted the land to him unless that title had been admitted – see Alade vs Owo (1974) 5 SC 215, Piaro vs Tenalo (1976) 12 SC 31, Elias vs Omo Bare (1982) 5 SC 25, Ogunleye vs Oni (1990) 2 NWLR (Pt.135) 745, Bamgbose vs Olusoga (1996) 4 NWLR (Pt.444) 520, Akpadiaha vs. Owo (2000) 8 NWLR (Pt.669) 436 and Olasa vs Ezimuo (2003) 17 NWLR (Pt.848) 129 and the proof of the origin of the title of the particular person, family or community must be by credible evidence. In Bamgbose vs Olusoga (Supra) Belgore JSC said thus at page 531:

“Whenever title is claimed through a grant or inheritance there must be clear traditional history of how the family or community came into the land and this must be done through clear pleadings and evidence in support of genealogy as continuous exclusive possession. Without this, sating just simply that a grant is from a family without more may not be enough.”

See also the cases of Bamgbose vs Oshoko (1998) 2 NWLR (Pt.78) 509 and Lawson vs Afani Construction Co Ltd (2002) 2 NWLR (Pt.752) 585.The Defendant pleaded the rights of the Onikate family and their attorneys to the land in dispute but he led no piece of evidence in support of the averments and the averments would be deemed abandoned – see Olasa v Ezimuo (supra).
At page 7 of the Appellant’s brief of argument, learned counsel set out the case of the defendant. He stated that the land in dispute formed part of a large tract of land belonging to the Onikate family through their ancestor Akodi who first settled on the tract of land over 200 years ago and exercised all acts of ownership thereon. He pleaded that the title of the Onikate Family over Ikate land was confirmed in judgments delivered in five suits and that by an instrument dated 18/11/67 duly registered in the lands Registry the Onikate family appointed West African Estate Development Corporation Limited its attorney in respect of the land. The Defendant further pleaded that the land in dispute was conveyed to his predecessor-in-title, one Olaiya Coker by a Deed of Conveyance dated 12/7/76 and duly registered and that Olaiya was put in possession of the land whereupon he exercised all rights of ownership thereon until he transferred his interest to him. All these are averments in the amended statement of defence. The Defendant testified and called no other witness. Evidence was therefore not led on the averment above. The learned trial Judge was right that where no evidence is led in respect of pleaded facts, the facts are deemed abandoned. N.I.M.V. Ltd v. F.B.N. Plc (2009) 16 NWLR (Pt.1167) 411 @ 437. It is an elementary principle of law that failure to lead evidence on pleaded facts is fatal to a claimant’s case. The Appellant, it appears regarded his pleadings as evidence. This can never be for once pleadings are not supported by evidence, they are deemed abandoned. Okolie v Marinho (2006) 15 NWLR (Pt.1002) 316; Ezeanah v Attah (2004) 7 NWLR (Pt.873) 468.Apart from the tendering of documents of title, the Respondents at the trial led evidence of long possession and enjoyment of the land. The Respondents’ father’s predecessor in title Chief Ajao sold the land in dispute plot 98 to him in 1961 and immediately put him into possession. He exercised full dominion over the land and apart from causing same to be surveyed, he kept and maintained on the land rent paying tenants until his death in 1980. Sometime in 1972, the defendant or his representative trespassed on the land. The Respondents’ father warned him off and caused his solicitor to write him a letter of warning. On their father’s death, the Respondents continued to exercise acts of possession over the land until early in the year 1985 when the Appellant trespassed into the land with large quantities of building materials, drove away the tenants of the Respondents and started building activities on the land. It is thus clear that the Respondents pleaded and led evidence of long possession and enjoyment of the land, long before the Appellant appeared on the land. As clearly set out in the Respondents brief of argument, two witnesses PW3 and PW4 gave evidence that the land in dispute was part of the Ikate Family land later christened Ikate Chieftaincy Family. They testified as to the genealogy of the Ikate Family and asserted that the only land owning family in Ikate is the Ikate Chieftaincy Family. The Defendant/Appellant who was the sole witness in his case did not rebut the testimony when he was giving evidence. It is consequently not in dispute that the land formed part or portion of a large tract of land belonging to Ikate Family. Both parties agreed and traced their origin to Ikate Family. The Appellant through the splinter group Onikate Family. As to who as between the Ikate Chieftaincy Family and the Onikate Family had the right to sell the land, learned counsel submitted that the evidence produced at the trial tilted heavily in favour of the Ikate Chieftaincy Family. I am in total agreement with this view. Indeed there is hardly any evidence on the side of the scale of the Onikate Family.

There were pleadings but no evidence in support.

In his brief, learned counsel for the Appellant concluded by urging the court to set aside the judgment of the lower court and in its place award the land in dispute to the appellant who has a better and unimpeachable title to the land. I had to go back to the processes filed to be sure that the Appellant did not file a counter-claim because in the absence of such counter claim, the question of awarding the land in dispute to the appellant simply does not arise.

The learned trial Judge after weighing the evidence adduced by the Respondents and the Appellants, on the imaginary scale, had no difficulty in coming to the conclusion that on the preponderance of evidence led by the parties, the Respondents established a better title than the Appellants and were entitled to the declaration of title to the land in dispute. The learned trial Judge is right in his conclusion. The sole issue formulated by the Appellant is resolved in the affirmative in favour of the Respondents.

In the final result, I hold that this appeal lacks merit and is hereby dismissed. The judgment of Abiru J of the High Court of Lagos State delivered on the 2nd day of February 2006 in suit No ID/328/85 is affirmed. Costs assessed at N100,000.00 in favour of the Respondents.

AMINA A. AUGIE, J.C.A.:

I have read in draft the lead Judgment just delivered by my learned brother, Iyizoba, JCA, and I agree with his reasoning and conclusion. He has dealt with all the issues, and I have nothing useful to add except to say that evaluation of evidence entails the assessment of evidence so as to give value or quality to it. It involves a reasoned belief of the evidence of one of the contending parties and disbelief of the other or a reasoned preference of one version to the other. There must be on record how the Court arrived at its conclusion of preferring one piece of evidence to the other – see Oyekola v. Ajibade (2004) 17 NWLR (pt.902) 356 & Idakwo v. Nigerian Army (2004) 2 NWLR (Pt.857) 249. In this case, the lower Court enumerated wide-ranging reasons for preferring the evidence of the Respondent, which cannot be faulted in any way by this Court.

Thus, I also dismiss the appeal as lacking in merit, and I abide by the consequential orders in the lead Judgment, including the order as to costs.

JOSEPH SHAGBAOR IKYEGH, J.C.A.:

With the unquestionable finding by the court below on page 143 of the record of appeal that Exhibit D4, the Supreme Court Judgment, was not between the same parties which expression includes their privies in blood or estate as explained in the cases of Coker v. Sanyaolu (1976) 9-10 S.C. 203 at 223, Banire v. Balogun (1986) 4 NWLR 746 at 753, together with the unassailable finding that the piece of land litigated in Exhibit D4 is not the same as the land that was in dispute before it, the court below was right to hold that the judgment in Exhibit D4 was not relevant to the dispute before it, as it was neither res judiciata nor an act of possession, See Udo v. Obot (1989) 2 NWLR {pt.95) 59, Makun v. Federal University of Technology Minna (2011) 18 NWLR (pt.1278) 190 at 221-222 and 232-233, Abiola and Sons Bottling Co. Ltd. v. 7up Bottling Co. Ltd. (2012) 15 NWLR (Pt.1322) 184.
It is for the reason stated (supra), and the fuller reasons contained’ in the lead judgment of my learned brother, Iyizoba, J.C.A., that I too find no substance in the appeal and hereby dismiss it and rest on the consequential orders contained in the said judgment.