POLICY, PRACTICE AND PUBLISHING, 3PLR, LAW REPORTS
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(1985) NWLR (Pt.6)167
Mr. P.C. Onumajulu, – for Appellant
Mr. A.B.C. Iketuonye, S.A.N. (with him Mr. FM. Iketuonye), – for Respondents
[Sam Eleanya, Agboola Omolola Oluwafolakemi, Eleanya Kalu Vincent, Eleanya Ugochi Vine]
Landlord and Tenant – Agreement for a lease not registered, section 15, Lands Instrument Registration Law Cap. 7Z Eastern Nigeria – Effect of – Status and nature of interest of the lessee in such cases.
Evidence – Admissibility vet non of unregistered registrable Instruments, s.15, Cap. 72, Eastern Nigeria – When Instrument may be admissible as evidence of transaction in relation to land and as receipt for money paid
Equity – Rights in equity of a holder of an unregistered registrable Instrument – Holder/Lessee in possession – Effect of – Rule in Walsh v. Lonsdale – When applicable – Possession of lessee in possession generally – cf Bucknor Mcleans v. Inlaks.
Practice and Procedure – Pleadings – Pleading of facts,- Questions of law to be inferred from facts averred – Settlement of issues – When and how commenced.
Torts – Trespass to land – Right of person in possession – To sue.
BELLO, J.S.C. (Delivering the Lead Judgment):
The facts of this case are simple and straight forward. In October 1956 the appellant’s father entered into an agreement for a lease for 99 years for a parcel of land, No. 7 Oparanozie Street, Owerri, from one Emmanuel Ikpeawuje, who was the head of the family that owned the land,, hereinafter referred to as the land in dispute. The tenant agreed to pay an annual rent of £4 and paid £40 being 10 years rent in advance. The agreement for the lease was in writing but because it was not registered in accordance with the provisions of the Land Instruments Registration Law, Cap. 72 Laws of Eastern Nigeria 1963 the trial judge admitted it in evidence as a receipt for the payment of the rent as exhibit B, and it reads:
“Land lease Agreement
An agreement made this 1st day of October 1956 between Emmanuel N. Ikpeawujo on behalf of himself, heirs and successors of Amawom, Owerri hereby called the Landlord, and Joseph A. Obijuru on behalf of himself, heirs and successors of Amawom – Owerri hereafter called the Tenant.
That the landlord and the tenant agreed as follows:-
The landlord agreed to lease to the tenant, and the tenant agreed to pay to the landlord £4 annually for that area of the plot measuring 50ft. by 100ft. at Ishiezi.
That the tenant has paid to the landlord the sum of £40 in advance for ten years and that the rent for subsequent years shall be made by annual payment of £4 after the expiration of the tenth year 1966.
In the event of the position of the site, should there be any opposition to hinder the tenant from the use of the plot, the landlord shall allocate to him another plot on any of his land.
This lease shall be subject to renewal after 99 years. In testimony of the parties declaration of consent to this agreement they hereto affixed their signatures and stamp.”
The evidence shows that immediately after the execution of the agreement, the lessee was put into possession of the land in dispute by the lessor and since 1956 the lessee’s family has been in possession of the land by planting and cultivating agricultural crops thereon. In 1969 both the lessee and the lessor died and the lease devolved to the appellant while the remainder devolved to Livinus Ikpeawujo (DW2) and Ezekiel Umunako (DW3).
While the appellant’s family were still in possession of the land in dispute and had their crops thereon, DW2 and DW3 published a public notice dated 13th March 1975 that they had sold the land in dispute and warned those persons cultivating or planting crops thereon to desist. In consequence of the aforesaid public notice, the appellant paid the sum of N64 on 24th March 1975 to DW2 and DW3 being arrears of rent for the said lease of the land in dispute from 1967 to 1974. DW2 and DW3 accepted the amount and issued a receipt, exhibit C, to the appellant. Thereafter, in April 1975 the respondent entered unto the land, destroyed the appellant’s crops, erected a zinc but and placed heaps of sand on the land.
In his testimony, the respondent stated that he had known that before the civil war the wife of one Clement Umunakwe was cultivating the land in dispute but he was satisfied before he purchased the land it was free from any incumbrances. He said he had made a search at the Land Registry, Enugu. He paid the sum of N420 to DW2 and DW3, the owners of the land, for its purchase under a deed of conveyance dated 24th June 1975, exhibit F, which was registered. He admitted entering onto the land and erecting a structure thereon but denied destroying the appellant’s crops. He said he did not know that the land had been leased to the appellant when he bought it.
The learned trial judge found from the evidence before him:
(1) that the appellant and his mother had been in possession of the land in dispute since 1956 and they had crops on the land in April 1975 when the respondent brushed the land;
(2) that the payment of rents as per exhibits B and C by the appellant’s family to the owners of the land coupled with the family’s uninterrupted possession of the land from 1956 to April 1975 conferred an equitable interest on the appellant’s family;
(3) that the respondent had known of the presence of the appellant’s family on the land in dispute and of the fact that the family had been farming on it and, consequently, the respondent had notice of the equitable interest of the appellant.
The trial judge concluded his assessment of the evidence with these words:
“The defendant admitted erecting some structures on the land in dispute. There is also a heap of sand on the said land as shown in exhibit A. Since I have come to the conclusion that the plaintiff was In undisturbed possession up to April, 1975 and that the defendant had notice of his presence on the land before his purchase, I am satisfied that the defendant committed the act of trespass complained of.”
Accordingly, the trial judge entered judgment for the appellant, who was the plaintiff, against the respondent as defendant in the sum of N200 as damages for trespass and granted injunction restraining the respondent from entering onto the land in dispute.
In a unanimous decision the Court of Appeal, on appeal by the present respondent to that Court, set aside the judgment of the trial court. While Belgore and Phil-Ebosie, JJ.C.A. entered a verdict of dismissal of the plaintiff’s claim, Aseme, J.C.A. ordered a retrial.
I think it is pertinent to set out the reasons stated by each Justice of the Court of Appeal for setting aside the judgment of the trial court. Belgore. J.C.A. said:
“To succeed the respondent ought to prove his title. The receipt for payment of money is certainly not a title and exhibit B is certainly not a receipt. Perhaps paragraph 3 of exhibit B which reads –
‘That the tenant has paid to the landlord the sum of £40 in advance for ten years and that the rent for subsequent years shall be made by annual payment of £4 after expiration of the tenth year’ (italics mine)
could be a receipt but that is only in the part up to the words ‘ten years’ for thereafter the wording connote (sic) nothing less than agreement on land. The learned judge held that exhibit B is Inadmissible as agreement; but by saying he admitted it as a receipt he never throughout his judgment indicated what part of exhibit B he read as a receipt………. Since the respondent could not indicate by evidence the agreement he entered Into and since exhibit B is inadmissible he has failed to prove his title to the land in dispute, the whole basis of his claim to relief has therefore failed. The judge seems to tie his judgment round equitable relief; this is a claim not made and therefore cannot be granted. (See Antonia E. Unoflia v. M.C. Ndem (1973) 12 S.C. 69). As I have earlier stated, the case that was fought on pleadings must be resolved on those pleadings, and anything not pleaded will go to no issue. It is not the duty of the court to distribute largesse by granting unclaimed relief (see George and Others v. Dominion Flour Mills Ltd. (1965) 1 All N.LR. 71, 77). The aim of pleading is to allow the other party to know what he is going to meet as the case against him. An agreement was pleaded but that agreement was not before the court and the normal thing to do by the trial judge would have been a dismissal of the respondent’s case. (Emegokwe v. Okadigbo (1973) 4 S.C. 113; National Investment and Properties Ltd. v. Thompson Organizations Ltd. and Others (1969) N.M.L.R. 99, 104). The issue raised by respondent in paragraph 5 of statement of claims (sic) an agreement entitling him to possession and by paragraph 2 of statement of defence that issue was joined by appellant.”
The reasons given by Aseme J.C.A. were entirely different:
There was an order of the court that parties should settle issues and have the same filed before hearing date. But this order was not complied with. Despite this non-compliance, learned counsel for the respondent before us says that issues were orally settled in the High Court before hearing in this case commenced. With this learned counsel for the appellant disagreed. The position has become more confounded by the learned judge who only stated in his judgment that issues were settled but he did not record this fact anywhere In the proceedings. The position therefore remains that before plaintiff opened his case, parties were not ad idem with respect to the issues to be tried and that being so there was nothing for the court to adjudicate upon. In the face of this somewhat unusual circumstance, I take the view that end (sic) of justice will be met by sending the case back to the High Court to be retried, see Ambrosini v. Tinko (1929) 9 N.L.R. 8. Unlike in Nwakuche’s case (supra) I have considered non- suit inappropriate for reason that in that case there was a statement of claim on the basis of which, the plaintiffs’ case proceeded. In the instant case there is no concensus on what pleading the issues to be tried were joined, before hearing commenced.”
It is apparent that Aseme, J.C.A. misconceived the issue. I think it is sufficient to set out the views, which accord with mine, of Phil-Ebosie, J.C.A. showing Aseme, J.C.A. was wrong in this respect. Disagreeing with Aseme, J.C.A., Phil-Ebosie stated:
‘With respect, I do not subscribe to this view. The rules of court on settlement of issues are clearly set down in Order 32 rules 1 to 4 the (sic) the Rules of the High Court of Imo State (Cap 61 of the Laws of Eastern Nigeria 1963) and which are reproduced hereunder:
By the above rules, proceedings for settlement can only commence at any time before or at the hearing of a case and certainly when a judge is delivering his judgment in the case. It is commenced on the application of one of the parties or by the judge suo motu who thereupon will proceed to ascertain and determine the material questions in controversy between the parties or may direct the parties to prepare such issues. Thereafter the questions will be reduced in writing and the judge will settle them in the form of issues stating questions of law on admitted facts or questions of disputed facts or questions of one kind or partly of another.
When this case first came up before Oputa. C.J. the records show that he directed the parties in compliance with the provisions of rule 2 to prepare the issues but as his direction was not complied with by the parties, he did not settle any issues. Before Ogwuegbu, J. apart from that (sic) he wrote in his judgment which is in conflict with the earlier address of the learned defence counsel in the lower court, there is no record that any application was made to the judge or that he sue motu proceeded to comply with the provisions of Order 32, rule 1.
It is my view therefore that there is nothing in the proceeding Showing that the provisions of the rules have been complied with. It was therefore an error to conclude from the observations of the judge as contained in his judgment, that there was a likelihood that parties must have settled issues. It is also my view that in the absence of any settlement, the plaintiff must rely and prove the averments in his pleadings.
There can be no other way. This was also the view of the judge on the pleadings.”
On his part, Phil-Ebosie, J.C.A. set aside the decision of the trial court on the grounds of the submissions of counsel for the appellant In that court, to wit, that the plaintiff’s claim was founded on an agreement pleaded in paragraph 5 of the statement of claim and as that agreement was inadmissible in evidence for reason of non-registration under section 15 of the Land Instruments Registration Law, the claim was not proved; that as it was not pleaded that the alleged transaction was under native law and custom section 4 of the Statute of Frauds ought to have been complied with; and that there was no proof of the execution of the receipt exhibit C in accordance with section 99 of the Evidence Act.
Being dissatisfied with the decision of the Court of Appeal, the appellant has appealed to this Court on seven grounds of appeal. Upon a preliminary objection taken by the respondent at the hearing of the appeal, we struck out grounds 2, 3 and 7 because they raised issues of facts or mixed law and facts and no leave had been obtained in accordance with the provisions of section 213(3) of the Constit6RlDn. The remaining . g grounds 1, 4; 5 and 6 were canvassed.
Ground 5 may be summarily disposed of. It reads:
‘The Federal Court of Appeal erred in law when it held that this case was fought on pleadings and so ignored the effect of settlement of issues at or before commencement of hearing as evidenced by the comment of the learned trial judge.
Particulars of Error
(a) The Federal Court of Appeal ignored the trial judge’s finding of fact that plaintiff’s counsel conducted the case on the basis that the issues agreed in open court to have been settled were so recorded by the court. The said trial judge held as follows: ‘The court failed to record this point …….. This no doubt must have led learned counsel for plaintiff not to call certain witnesses when he otherwise would have called ………..’
(b) By the said settlement of issues the plaintiff was relieved of the duty of proving the averments in the statement of claim.”
I have already endorsed the views of Phil-Ebosie J.C.A. that there was no proper settlement of issues in accordance with the relevant rules of the High Court. I would only add the observation of the trial judge on this issue. He said:
“Having considered the whole evidence and the submissions made by both learned counsel, I would like to remark that on 18th October, 1976 my learned brother ordered both parties to sign and file a settlement of issues which they want the court to adjudicate upon. When this case came up before me for hearing, it was agreed by both counsel that the issue for determination by this court was the effect of forfeiture of lease by a tenant who is in arrears of rent and the position of the purchaser who bought from the landlord or his successor in title when the tenant is in arrears of such rent.
The court failed to record this point believing that both counsel had filed the same as ordered on 18th October, 1976. Since there is no record of such settlement, the court cannot therefore proceed to determine this case on the basis of the said agreement by both counsel. This no doubt must have led learned counsel for the plaintiff not to call certain witnesses whom he would otherwise have called. This is unfortunate and as I said earlier, there is nothing this court can do about it at this stage.”
Ground 5 therefore fails.
Grounds 1 and 4 complain of errors of law by the Court of Appeal. Ground 1 complains that the court erred in law in holding that exhibit B was inadmissible in evidence not only by virtue of section 15 of the land Instruments Registration Law but also because the trial judge had not indicated what portion of it was a receipt or acknowledgment of money.
Ground 4 reads:
‘The Federal Court of Appeal erred in law when it held as follows: ‘Had there been a settlement of issues on pleadings for determination of the court I cannot foresee how the parties could arrive at the question of the position of long lease vis-à-vis the purchaser’ and thus failed to consider the import of several paragraphs of the statement of claim especially, paragraphs 5, 6, 7, 8, 10, 11, 12 and 13 and the statement of defence especially paragraphs 2 and 6.
Particulars of Error
(a) Paragraphs 5, 6 and 7 of the statement of claim clearly show that in consequence of an agreement between the predecessors in title of both the plaintiff and the vendors of the defendant, the plaintiff’s father paid money to the said predecessors in title of the said vendors whereupon the said plaintiff’s father was let into possession of the land in dispute. (b) Exhibit C a receipt dated 24th March, 1975 shows that the plaintiff in pursuance of the agreement mentioned in paragraph (a) above paid N64.00 arrears of rent to both Ezekiel Umunakwe and Livinus Ikpe the vendors of the defendant.
(c) Exhibit D dated 13th March, 1975 shows that the said vendors were aware that the plaintiff was cultivating the land in dispute in 1975, and that his crops were growing there.
(d) In exhibit E a letter (the receipt of which was admitted by the defendant) the plaintiff through his solicitor warned the defendant against the risk of buying the land in dispute from the defendant’s vendors as the interest of the plaintiff in the said land was still subsisting.
(e) It is an error in law to hold that in spite of paragraphs (a), (b), (c) and (d) of ground 2, the question of long lease vis-à-vis the purchaser could not arise from the pleadings.”
Learned counsel for the appellant submitted that exhibit B was admissible as evidence of acknowledgement of payment and as an enforceable agreement for a lease. Relying.on Yaya v. Mogoga 12 W.A.C.A. 132 and Gbenesiechie v. Awosika 14 W.A.C.A. 101, learned counsel argued that it is trite law that if a purchaser paid the purchase money for a parcel of land to his vendor and went into possession he has an equitable estate which arises by operation of law. Such equitable estate can only be defeated by a purchaser for value without notice. Referring to the pleadings of the parties learned counsel urged us to hold that the appellant had pleaded and proved sufficient facts, to wit long possession and payment of rents, from which equitable Interest arose by operation of law.
Responding, learned counsel for the respondent contended that the appellant having founded his claim to the land in dispute on the document, the land lease agreement exhibit B, and since the document was not registered as an instrument and it was caught by the mandatory provisions of section 15 of the Land Instruments Registration Law, the appellant had therefore tailed to prove his claim. He said exhibit B could not also be admitted as a receipt of a transaction that offended section 6 of the Law. Even as a receipt, according to learned counsel, exhibit B was worthless as no execution was proved.
Now, it may be reiterated that Belgore and Phil-Ebosie JJ.C.A. set aside the decision of the trial court because, in their views, the trial judge had made a case of equitable interest for the plaintiff, which according to both Justices, was not pleaded. This necessitates the examination of the relevant paragraphs of the statement of claim, namely 5, 6, 7, 8, 9, 11 and 14:
“5. On or about the 1st day of October 1956 the deceased father of the plaintiff one Joseph A. Obijuru entered into an agreement with one Emmanuel N. Ikpeawujo in respect of the land in dispute whereby the said Emmanuel N. Ikpeawujo agreed to let the plaintiff’s father into possession of the land in dispute for 99 years and the plaintiff’s father agreed to pay him an annual rent of £4 (now N8.00).
It Is clear from the foregoing that the appellant pleaded that his father had entered into an agreement with the owner of the land in dispute for a 99 years lease; that the father had paid 10 years rents and entered into possession in 1956; that since then the appellant’s family has been in possession of the land and has paid rents up to 1974. The effect of these averments in law is that the appellant has either a legal or equitable estate over the land in dispute. Whether the estate is legal or equitable is a matter to be decided from the facts of the case and operation of law on the facts. It is elementary rule of pleadings that facts must be pleaded but not the law. A plaintiff needs not plead “I have equitable estate” but must plead the facts upon which the court may conclude the existence of equitable estate or interest. It appears the Court of Appeal misconceived the effect of the appellant’s pleadings which averred sufficient facts constituting a plea of equitable interest by operation of law.
The admissibility of exhibit B as an acknowledgment of money may now be considered. The trial judge admitted it as such. In my view, he was right having regard to the decisions in Ogunbambi v. Abowab (1951) 13 W.A.C.A. 222 and Djukpan v. Orovuyovbe (1967) N.M.L.R. 287 at 291. Beigore J.C.A. treated the exhibit as inadmissible as a receipt not on the ground of any rule of law but simply because the trial judge did not show which portion of it is a receipt. Nevertheless, the learned Justice showed in the extract of his judgment, which I have earlier on quoted, the very portion of the exhibit showing the payment of £40 in advance for 10 years by the tenant to the landlord. It is rather odd that the learned Justice having pin-pointed the portion of the exhibit tantamounting to a receipt, which he said the trial judge had failed to do, that he held it to be inadmissible.
It is trite law that where a purchaser of land or a lessee is in possession of the land and has paid the purchase money to the vendor or has paid the rent to the lessor as the case may be, then in either case the purchaser or the lessee has acquired an equitable interest in the land which is as good as a legal estate and this equitable interest can only be defeated by a purchaser of the land for value without notice of the prior equity: Savage v. Sarrough (1937) 13 N.L.R. 141, Ogunbambi v. Abowab (1951) 13 W.A.C.A. 222 Fakoya v. Shagamu (1966) 1 All N.L.R. 74, Oni v. Admoro (1973) 3 S.C. 163 and Bucknor-Maclean v. lnlaks (1980) 8-11 S.C.1.
In Oni v. Arimoro (supra) as in this case, the trial Judge admitted a registrable document, which was not registered, as a receipt and he made use of its content as if it had been registered in reaching his decision. The former Western State Court of Appeal disapproved the use made by the trial Judge of the document and set aside his decision. On appeal to this Court in respect of the admissibility of the document and the use made by the trial judge on it, this Court had this to say:
“With respect to the attack of the Western State Court of Appeal on the admissibility of the document (Ex. E) and the use made by the learned trial judge of its contents, we will do no more than to refer to the observation of Farwell, L.J. in South Effstern Railway Co. v. Associated Portland Cement Manufacturers (1919) 1 Ch. 12 which reads –
‘But the fact that there Is some connection with or reference to land does not make a personal contract by A any less a personal contract binding on him, with all the remedies arising thereout, unless the court can by construction turn it from a personal contract into a limitation of land, and a limitation of land only.’
This observation was referred to with approval in Fakoya v. St. Paul’s Church, Shagamu (1966) 1 All N.LR. 74 at p.80 where Brett, J.S.C. who delivered the judgment of the court observed as follows:
‘The personal obligations created by a contract for the sale of land are already known to the parties to the contract and neither party can maintain against the other party that he was taken by surprise because the contract was not registered. Third parties may on occasion enter into unprofitable negotiations, but the register of instruments affecting land does not purport to record the personal obligations of those who have Interests in land, and the purchaser for value and without notice will have no less protection in consequence of our decision in this case than he had before.’”
The effect of non-registration of a registrable instrument in respect of a lessee in possession was fully considered by the full Court in Bucknor-Maclean v. Inlaks (Supra) where Idigbe, J.S.C. (the 6 other Justices concurring) stated the law at pages 27 and 28 as follows:
“The effect of not registering such a document would, it seems to me, be that the lessee, if he is already in possession pursuant to the instrument, holds the demised premises not as legal owner of the term but as a person who entered into a binding agreement for a lease. The position of such a person is that he holds the premises just as if a lease has been granted; the landlord has his legal remedy against him, for example, by distress as if a lease has been granted. This he can do by virtue of the terms and contents of the ineffective instrument of lease; ‘and he the landlord can only re-enter on such terms as the lease (operating as an agreement allows ………. and, indeed, it may well be that the position of the lessee until registration (is effected) is simply that he has no marketable title – defect however, which he can remedy at any time by (subsequently) applying for registration’ – [see Courtis and Rouff on Registered Conveyancing, 1938 Edition p.236 (brackets and italics supplied by me)]. Again, a lease for more than three years which, by the joint operation of the Statute of Frauds 1677 and the Real Property Act 1845 – Sec. 3 (now section 54 of the Law of Property Act 1925), is ‘void at law unless made by deed’ is, however, valid as an agreement for a lease [and is not’of no effect whatsoever’] – see Parker vs. Taswell 27 L.J. Ch. 812; and if the agreement is made for valuable consideration and the lessee is in possession he (the lessee) can on the doctrine of Walsh vs. Lonsdale (supra) ask for a proper or valid lease from the lessor.”
Now reverting to the facts of the case on appeal, I have already shown that the trial judge found that the appellant’s family has been in possession of the land in dispute since 1956 and has paid rents up to 1974. The appellant sued the respondent for damages for trespass. It is trite law that trespass to land is actionable at the suit of the party in possession: Arnakor v. Oblefuna (1974) 3 S.C. 67 at 75. The evidence shows that the respondent broke and entered on the land. Being in possession, the appellant is entitled to succeed in his claim unless the respondent can show that he has a better right to possess the land in dispute than the appellant. On the authorities, the respondent can only show a better right to possess if he is a purchaser of the legal estate for value without notice of the appellant’s equitable interest: Taylor v. Arthur (1947) 12 W.A.C.A. 179, Ogunbambi v. Abowaba (1951) 13 W.A.C.A. 222 at 224, Akingbade v. Elemosho (1964) 1 All N.L.R. 154 and Oni v. Arimoro (Supra). –
The trial judge found, as I have earlier shown in this judgment, that although the respondent was a purchaser for value, he had notice of the appellant’s prior equity when he purchased the land. Consequently, the respondent’s legal estate cannot defeat the appellant’s equity. The legal effect of the transaction is that the appellant has become the tenant of the respondent.
For these reasons, I allow the appeal set aside the decision of the Court of Appeal including the order as to costs. The decision of the trial court is restored. The Appellant is entitled to costs, N200 in the Court of Appeal and N300 in this Court.
ESO, J.S.C.: I have had the privilege of a preview of the judgment of my learned brother Bello, J.S.C. I agree with his conclusion and the reasoning by which he came to that conclusion. I agree that the appeal be allowed and it is allowed in the terms stated by my brother Bello, J.S.C. I also agree with his order as to costs.
COKER, J.S.C.: I agree that this appeal succeeds for the reasons given by Bello, J.S.C., in his lead judgment, the draft of which I have seen after I had myself drafted this judgment. My Lords, I may therefore be excused for repeating what has already been stated by my learned brother Bello in his lead judgment.
This is an appeal against the judgment of the Enugu Division of the Court of Appeal dated 5th December 1980 reversing the decision of Ogwuegbu, J., delivered on 15th March, 1978 in favour of the plaintiff. The claims of the plaintiff, now appellant in this Court, were for N400 damages for trespass to a plot of land described as Ishi Ezi measuring 100 feet by 50 feet; situate at 7 Oparanozie Street, Owerri, and for an order of injunction restraining the defendant, I.M. Ozim, from committing further acts of trespass to the land. The case was tried on pleadings and evidence was led by both parties.
The plaintiff’s case was that by an agreement dated 1st October, 1956, between his late father, Joseph A. Obijuru, and one late Emmanuel N. Ikpeawujo, who was the father of D.W.2, his father on payment of forty pounds representing 10 years rents advance, became a tenant of the land for a term of 99 years. His father was let into possession of the land, since the date of the agreement, and remained in continuous possession until his death in 1969. And he (the plaintiff), after his death, continued in possession up to a date in April 1975, before the defendant wrongfully entered thereon, and committed the acts which formed the subject matter of this dispute.
The trial Judge found that the plaintiff’s father took possession of the land after payment of the advance rents pursuant to the agreement and that after his death, the plaintiff continued in possession. That D.W.2 and D.W.3 jointly demanded and received from the plaintiff the rents accruing after the expiration of the advance of 10 years rents. The receipt, exhibit C, was signed by both of them. The receipt reads:-
“24th March, 1975
We the undersigned Ezekiel Chukwuemeka Umunnakwe and Livinus Ikpe on behalf of heirs and successors of late Emmanuel Ikpeawujo received the sum of N64.00 (£32.00)(Sixty four Naira only) being the arrears of rent of a plot of land situated at No.7 Oparanozie Street Ishiezi-Amawon Owerri from 1967 to 1974 at the yearly rate of NS (£4) from Lee O.C. Obijuru for heirs and successors of late J.A. Obijuru.
Payer Sgd. L.O.C. Obijuru
Sgd: Ezekiel C. Umunakwe
“ Livinus Ikpe
(1) Sgd. Stephen Obijr
(2) Sgd. Michael Ahazie
(3) Sgd. Denis Ahazie”
Livinus Ikpe, one of the two recipients was son of Emmanuel Ikpeawujo. Further, and before that date, the two D.W.2 and D.W.3 jointly issued a public notice dated 13/3/75 (exhibit D) which reads:
“Notice to the Public”
This is to certify that we Ezekiel Chukwuemeka Umunnakwe and Livinus Ikpe of Amawon Owerri do hereby jointly sold one piece and parcel of land known and called Isi Ezi, situate at No.7 Oparanozie Street Owerri, measures 50 x 100 or thereabout to Chief l. M. Ozims of No. 11 Royce Road, Owerri.
We are hereby warning those cultivating or planting there not to continue this year – If any one has anything remaining there, the one should go to remove it. Any one continuing after this written warning, does that at the one risk. This is our land and since our fathers died, people continue planting there unauthoritatively.
cc: To all Concern
Mr. & Mrs. Obinuru” (i.e. Obijuru) words in bracket mine.
The defendant at the trial denied knowledge of the agreement (exhibit B) between late Emmanuel N. Ikpeawujo, the father of D.W.2, and Joseph A Obijuru, the father of the plaintiff, who was claiming on behalf of himself and as representative of the family of Obijuru. The contention of the defendant before the trial court and the Court of Appeal, was that the agreement (exhibit B) was an estate contract, which could not be pleaded or given in evidence, because it was not registered as provided in section 15 of the Lands Registration Law of the then Eastern State of Nigeria. The learned trial judge was of the opinion that the document was admissible as evidence of the payment of the advance rent. He held that the father of the plaintiff paid the sum of £40.00 (i.e. N80) representing 10 years rent in advance and subsequently entered upon and took possession of the land pursuant to the agreement which was not evidence of title for non-compliance with the provisions of section 15 of the said Law. The trial judge therefore held that the plaintiff was in lawful possession and therefore entitled to maintain the action for trespass. On the evidence and the law, he held that plaintiff was entitled to judgment for N200 damages for trespass and for an order of injunction.
For the sake of clarity, I consider it necessary to reproduce the following passage of the judgment of his findings of fact, which were not disturbed by the court below:
“In any case I am satisfied from the evidence of P. W.1 and P. W.2 that they have been in possession of this land in dispute since 1956 and I am also satisfied from their evidence that they had crops on this land in April, 1975 when the defendant brushed this land in dispute. Both D.W.2 and D.W.3 issued exhibit C dated 24th March, 1975 to the plaintiff. It is for the sum of N64.00 being arrears of rent of plot of land situate at No.7, Oparanozie Street, Owerri i.e. the land in dispute. D.W.2 & D.W.3 described themselves as receiving the money ‘on behalf of heirs and successors of late Emmanuel Ikpeawujo.’ It covered the periods 1967 to 1974. Exhibit B covered the rent from 1956 to 1966. Exhibit D which is a public notice signed jointly by D.W.2 & D.W.3 was endorsed to P.W.1 and P.W.2. It was dated 13th March, 1975 – eleven days before their joint receipt of the sum of N64.00 from the plaintiff. Assuming that the plaintiff had no title to the land, he must have been on the land up to 1975 with the consent of the successors in title of Emmanuel Ikpeawujo i.e. D.W.2 and D.W.3″
Further in the judgment, the learned trial judge found:
‘The payment of money which were acknowledged in exhibits B and C coupled with possession since 1956 in my view gives rise to an equitable interest. I believe the P.W.1 & P.W.2 when they said that defendant knew of their presence in the land in dispute and of the fact that they have been farming on it. I will therefore presume that the defendant had notice of the equitable interest of the plaintiff.
Exhibit A shows coconut tree and banana suckers.
The P.W.1 and P.W.2 in their evidence stated that they own them.”
And still further in the judgment he stated:
“I had earlier found that the plaintiff was in undisturbed possession of the land in dispute shown in exhibit A until April 1975 when the defendant trespassed. The plaintiff was in exclusive possession up to that date. The plaintiff succeeds in his claim for damages for trespass and injunction.”
The defendant appealed against the decision and the main contention before the Court of Appeal was the question of inadmissibility of exhibit B, the agreement. It was submitted on behalf of the appellant that because it was not registered as provided in Section 15 of the said Law, the agreement could not be pleaded or given in evidence, a fortiori its contents. Belgore, J.C.A. delivering the leading judgment allowed the appeal and dismissed the plaintiff’s case. He upheld the contention that exhibit B was inadmissible, since it could neither be pleaded nor received in evidence.
This was how he came to his decision:
“To succeed the respondent ought to prove his title. The receipt for payment of money is certainly not a title and exhibit B is certainly not a receipt. Perhaps paragraph 3 of exhibit B which reads:-
‘That the tenant has paid to the landlord the sum of £40 in advance for ten years and that the rent for subsequent years shall be made by annual payment of £4 after expiration of the tenth year.’ (italics mine)
could be a receipt but that is only in the part up to the words ten years for thereafter the wording connote (sic) nothing less than agreement on land. The learned judge held that exhibit B is inadmissible as agreement; but by saying he admitted it as a receipt he never throughout his judgment indicated what part of exhibit B he read as a receipt. Since the respondent could not indicate by evidence the agreement he entered into and since exhibit B is inadmissible he has failed to prove his title to the land in dispute, the whole basis of his claim to relief has therefore failed. The judge seems to tie his judgment round equitable relief; this is a claim not made and therefore cannot be granted. (See Antonia E, Unoffia v. M. C. Ndem (1973) 12 S.C.69). As I have earlier stated, the case that was fought on pleadings must be resolved on those pleadings, and anything not pleaded will go to no issue. It is not the duty of the court to distribute largesse by granting unclaimed relief (see George and Others v. Dominion Flour Mills Ltd. (1965) 1 All N.L.R.71, 77).”
And he concluded by saying:
’The reception of exhibit B, a purported agreement for ninety-nine years lease, as a receipt has certainly influenced the decision of the learned judge. The document is inadmissible as it offends S.15 Land Registration Law and also because it was not indicated what portion of it was a receipt or acknowledgment of receipt of money. Exhibit B by being admitted was in fact a way of circumventing the clear provisions of the law that such document is inadmissible. It was wrongly admitted. Without it, no evidence as to the interests held by respondent was before the court.”
The only point argued before this Court relevant to my decision concerns the legal effect of the reception of exhibit B – the unregistered agreement between the privies of the parties in those proceedings. Firstly, whether the agreement could be pleaded and secondly, whether its contents have no evidential value, as Belgore, J.C.A. held.
There is no doubt that exhibit B the land lease agreement is an instrument within the provisions of section 15 of the Land Registration Law and that it was therefore prima facie inadmissible. The learned trial judge was therefore not only right in so ruling but he was equally right in holding that it was admissible as an acknowledgment of payment of money. The West African Court of Appeal in Ogunbambi v. Abowab (1951) 13 W.A.C.A. 222 at 224 stated:
“It is true that the purchaser cannot rely upon the written document, for it is not registered and he is therefore disbarred by statute from pleading it or giving it in evidence, save in the limited sense to which I have referred. It is true that payment of money is not sufficient part performance for it is not equivocal in the absence of the contract. But if this is coupled by his being let into possession of the property, it is presumed that he entered into the property not as a stranger and therefore prima facie a trespasser but under a contract of sale, and from this arises an equitable interest which may be converted into a legal estate by specific performance. I consider, therefore, that the respondent had prior to the subsequent conveyance purporting to convey the land to the appellant acquired an equitable interest in the property, and unless the appellant can establish that he is a purchaser of the legal estate for value without notice of the respondents prior equity he has not succeeded in proving that he has a better right to possession than the respondent.”
See Joseph Oni & Anor. v. Samuel Arimoro (1973) N.M.L.R. 237. Although the appellant was unable to satisfy the statutory evidential requirement of section 15 of the Land Registration Law,if he can establish fraud or dishonesty on the part of the respondent, and has shown part performance of the agreement of the 99 years lease, he cannot be dispossessed of the land. The court in the exercise of their equitable jurisdiction have always frowned at the use of statutory provisions such as section 15 of the Land Registration Law or similar prohibitory or mandatory sections (4, 28, 42 and 79) of the Registration of Titles Act, which require titles to land in the Lagos State to be registered under the provisions of the Act, to be used as an engine of fraud against a person with mere equitable interest over the land.
Idigbe, J.S.C. in Mrs. Bucknor-Maclean & Anor. v. Inlaks Ltd. (1980) 8-11 S.C.1 at pp26-27, speaking of the effect of non-compliance with the provisions of sections 4, 28, 42 and 79 of the Registration of Titles Act stated.
‘The effect of not registering such a document would, it seems to me, be that a lessee, if he is already in possession pursuant to the instrument, holds the demised premises not as legal owner of the term but as a person who entered into a binding agreement for a lease. The position of such a person is that he holds the premises just as if the lease has been granted; the landlord has his legal remedy against him …. This he can do by virtue of the terms and contents of the ineffective instrument of lease; ‘and he the landlord can only re-enter on such terms as the lease (operating as an agreement) allows ……. and, indeed, it may well be that the position of the lessee until registration (if effected) is simply that he has no marketable title – a defect, however, which he can remedy at anytime by (subsequently) applying for registration’ …. Parker v. Taswell 27 L.J. Ch. 812; and if the agreement is made for valuable consideration and the lessee is in possession he (the lessee) can on the doctrine of Walsh v. Lonsdale 21 Ch. D.9, ask for a proper or valid lease from the lessor.”
See also Bads v. Mrs. Pereiira & Ors. (1974) 1 All N.L.R. (PLl1) 360 p.366. There cannot be any doubt that the purported sale transaction between the D.W.2, D.W.3, on the one hand and the respondent on the other, was intended to defraud the appellant, who had been in undisputed possession of the land since 1956. Besides, after both D.W.2 and D.W.3 had in 1975 jointly demanded and received arrears of rent from the appellant on the basis of the unregistered agreement – exhibit B – they now argue he could not plead it or give it in evidence, or that its contents have no evidential value. To uphold that contention will be inequitable. The Court of Appeal was therefore in error in holding, per Belgore, J.C.A.:
‘To succeed the respondent ought to prove his title. The receipt for payment or money is certainly not a title and exhibit B is certainly not a receipt.”
In paragraphs 5, 6 and 7 of the statement of claim the appellant pleaded the agreement, payment of money and entry into possession of the land. The learned trial judge found those facts proved. And further, that respondent knew of his possession before he purported to buy the land. On the basis of the principles which I have enunciated, his judgment was right and the learned justice of appeal was in error.
For the above reasons, 1 will allow the appeal and set aside the decision of the Court of Appeal dated 5th of December 1980 together with the order for costs. The judgment of Ogwuegbu J. dated 15th March 1978, given in appellant’s favour is therefore restored. The appellant is entitled to the costs of this appeal fixed at N300 and N350 in the court below.
KARIBI-WHYTE, J.S.C.: I have had a preview of the judgment of my brother Bello, J.S.C. in this appeal, and I agree entirely with his reasoning and conclusions. I wish merely to express my own views in concurrence.
This is an appeal against the judgment of the Court of Appeal Division, Enugu, dated 5th December, 1980 reversing the judgment of Ogwuegbu, J. of the Owerri High Court dated 15th March, 1980. On the 18th June, 1975, plaintiff, who is now the appellant In this Court, brought an action against the defendant, who is now the respondent claiming damages for trespass to his land, known as and called “Ishi Ezi” or No. 7, Oparanozie Street Owerri and situate at Amawom Owerri. He also claimed an injunction permanently restraining the defendant, his agents and/or workmen from entering the land in dispute, or doing any manner or work therein. Plaintiff sued for himself and on behalf of the members of the family of Obijuru. Plaintiff succeeded his father Joseph A. Obijuru on the death of his father.
The action was tried on pleadings and oral evidence on both sides. Appellant in his evidence relied on an agreement made on the 1st October, 1956 between his deceased father Joseph A. Obijuru and one Emmanuel Ikpeawujo, who let the appellant’s father into possession of the land in dispute for 99 years at an annual rent of £4 (now N8). Appellant’s father paid £40 (N80) as rent in advance for ten years, and obtained receipt for such payment. This agreement was tendered in evidence as exhibit B. Appellant’s father entered into occupation and exercised acts of possession by planting food crops such as banana, coconut trees on the land. Appellant’s mother was annually planting crops on the land. Owing to the intervening civil war from 1967, appellant’s father fell into arrears. On the 24th March, 1975, and after appellant had received notice that the land in dispute may be sold to respondent, he paid and was issued receipt for the arrears of rent of N64 to Ezekiel Umunnakwe and Livinus Ikpeawujo on whom the estate of Emmanuel Ikpeawujo devolved on his death. The receipt was tendered as exhibit C. Also in evidence was exhibit D a notice of warning to the public at large from trespassing on the land in dispute. On the 25th March, appellant wrote to the respondent through his solicitor warning him from having anything to do with the sale or lease of the land.
At the trial, appellant tendered as receipt and relied on exhibit B, the lease agreement in respect of which his late father was put in possession of the land in dispute in 1956. Also tendered was exhibit C receipt of payment of arrears. Mr. Iketuonye for the defendant at the trial, who is now the respondent, raised the objection that the lease agreement, having not been registered as required by S.15 of Land Instruments Registration Law, was inadmissible in evidence. The objection was overruled by the learned trial judge who indicated he would give his reasons for so doing in his judgment. In his judgment the learned trial judge at p.66 said that the document exhibit B was admitted to prove payment of money. Relying on Djukpan v. Orovuyovbe & Anor. (1967) N.M.L.R. 287 and Ogunbambi v. Abowab (1951) 13 W.A.C.A. 222 the learned trial judge said,
“But paragraph 6 of the statement of claim specifically averred that plaintiff’s father paid rent in advance to late Emmanuel Ikpeawujo who issued a receipt. That receipt, I understand to be the acknowledgement in exhibit B. I cannot therefore expunge exhibit B from the records of this court …. exhibit B was not admitted in evidence to prove title since this cannot be done for non-compliance with section 15 of the Land Instruments Registration Law.”
The learned trial judge however relying on the evidence before him held that appellant had been in undisturbed possession of the land in dispute since 1956 and was still in possession in April 1975 when respondent came on to the land. For this he relied on exhibits C and D issued by DW2 and DW3; and exhibit B. The trial judge was of the opinion that appellant was on the land with the consent of the successors in title of Emmanuel Ikpeawujo, who are also the vendors to the respondent. He concluded therefore that the payment of money in respect of the land in dispute as evidenced in exhibits B & C coupled with the undisturbed possession from 1956 to 1975, gave rise to an equitable interest to which the legal estate of the respondent is in the circumstance subject. This is because respondent knew of the presence of the appellant on the land In dispute when he bought. In entering judgment in favour of the appellant the learned trial judge said:
“Since I have come to the conclusion that plaintiff was in undisturbed possession up to April, 1975, and that the defendant had notice of his presence on the land before his purchase, 1 am satisfied that the defendant committed the act of trespass complained of,” (See p. 69 lines 13 – 13).
The learned judge held that since appellant was not claiming a declaration of title it was sufficient for him to prove possession which he has done. It was therefore not fatal to his case that he did not call Ikpeawujo family in support of his claim. The injunction was also granted.
In the Court of Appeal, the judgment of the court turned essentially on the effect of the admission of exhibit B, by the learned judge. The four grounds of appeal argued in the court below were founded on exhibit B which was admitted by the trial judge in evidence and on which he decided the case in favour of the appellant. In the three separate unanimous judgments of the Court of Appeal reversing the trial judge, only A. Belgore, J.C.A. touched on the question of the inadmissibility on which appellant in the court below argued his appeal. Aseme, J.C.A., relied on the issue of pleadings of the parties allowed the appeal and ordered a retrial. (See p.123, 124). Similarly Phil-Ebosie, J.C.A., at pp. 126 – 127, who, as A. Belgore J.C.A., allowed the appeal of the appellants and dismissed the claim of the plaintiff respondent in that court.
Respondent in the court below who is now appellant in this Court, appealed to this Court on seven grounds alleging errors of law and fact. Before arguing, counsel for the respondent raised a preliminary objection seeking to strike out grounds 4 and 7 of the grounds of appeal because they raise questions of fact and/or mixed law and fact, and have been filed without leave of either the court below or of this Court, and are by virtue of s.213(3) of the Constitution 1979 incompetent. After argument on this application, grounds 2, 3 and 7 were held to have offended against s.213(3) of the Constitution and were accordingly struck out. Counsel for the appellant then was allowed to argue grounds 1, 4, 5 and 6 of his grounds of appeal. Counsel then sought and was granted leave to amend his brief of argument. In argument before us, counsel adopted the arguments advanced in his brief and made oral elaborations where necessary.
The grounds of appeal which survived are as follows –
“….. and exhibit B is certainly not a receipt. Perhaps paragraph 3 of exhibit B which reads ‘That the tenant has paid to the landlord the sum of £40 in advance for ten years and that the rent for subsequent years shall be made by annual payment of £4 after expiration of the tenth year 1966’ could be a receipt but that is only in the part up to the words ‘ten years’ for thereafter the wording connote (sic) nothing less than agreement on land. The learned judge held that exhibit B Is inadmissible as agreement; but by saying he admitted it as a receipt he never throughout his judgment indicated what part of exhibit B he read as a receipt ….. The document is inadmissible as it offends S.15 Land Registration (sic) Law and also because it was not indicated what portion of it was a receipt or acknowledgment or receipt of money’.
The error in law and misdirection consisted in the fact that in so holding, the Federal Court of Appeal precluded exhibit B being admitted as a receipt (in spite of its clear wording acknowledging receipt of the sum of £40) and as a memorandum evidencing transaction in land.
Particulars of Error and Misdirection
(a) The plaintiff at paragraph 5 of his statement of claim (P.6 of the record of proceedings of the High Court) pleaded an agreement to let his late father into possession of the land in dispute by Emmanuel Ikpeawujo at an annual rent of £4 (now N8). He also pleaded at paragraph 6(p.7 of the High Court records) that his father paid £40 rent in advance.
(b) At p.25 lines 13 – 17, of the record of proceedings of the High Court, the plaintiff gave evidence of the payment to and receipt by Emmanuel Ikpeawujo of the said sum of £40 (N80).
(c) Exhibit B clearly shows the receipt of the sum of £40 (N80.00)
(d) The defendant by the nature of his pleading in paragraph 3 of his statement of defence (p.11 of the record of proceedings of the High Court) is deemed to have admitted this fact.
(e) S.15 of the Land Instruments Registration Law did not preclude exhibit B from being tendered as a receipt once it is clear from it that it acknowledged receipt of money payment.
Particulars of Error
(a) Paragraphs 5, 6 and 7 of the statement of claim clearly show that in consequence of an agreement between the predecessors in title of both the plaintiff and the vendors of the defendant, the plaintiff’s father paid money to the said predecessors in title of the said vendors whereupon the said plaintiff’s father was let into possession of the land in dispute.
(b) Exhibit C a receipt dated 24th March, 1975 shows that the plaintiff in pursuance of the agreement mentioned in paragraph (a) above paid N64.00 arrears of rent to both Ezekiel Umunakwe and Livinus Ikpe the vendors of the defendant.
(c) Exhibit D dated 13th March, 1975 shows that the said vendors were aware that the plaintiff was cultivating the land in dispute in 1975, and that his crops were growing there.
(d) In exhibit E a letter (the receipt of which was admitted by the defendant) the plaintiff through his solicitor warned the defendant against the risk of buying the land in dispute from the defendant’s vendors as the interest of the plaintiff in the said land was still subsisting.
(e) It is an error in law to hold that in spite of paragraphs (a),(b),(c) and (d) of ground 2, the question of long lease vis-à-vis the purchaser could not arise from the pleadings.
Particulars of Error
(a) The Federal Court of Appeal ignored the learned trial judge’s finding of fact that the plaintiff’s counsel conducted the case on the basis that the issues agreed in open court to have been settled were so recorded by the court. The said trial judge held as follows:
‘The court failed to record this point …. This no doubt must have led learned counsel for plaintiff not to call certain witnesses when he otherwise would have called………..
(c) By the said settlement of issues the plaintiff was relieved of the duty of proving the averments in the statement of claim.
Particulars of Error
(a) The learned trial judge had held that the counsel for the plaintiff believing that the court had recorded the settled issues had failed to call witnesses whom he would otherwise have called.
(b) The plaintiff’s counsel had no means of knowing what the trial judge had written or not written in the record book until the same was raised in court. (c) Failure to record the issue settled in court was failure by the court.
Mr. Onumajulu, in his argument, submitted that the main complaint of appellant in this court related to exhibit B, held in the court below to be inadmissible. He submitted that exhibit B, though an agreement could be used as a receipt. This was the only valid ground relied on by the court below in reversing the trial judge. The issue of pleadings raised was not a ground of appeal before the court and should not be relied upon. Counsel submitted that appellants having paid money and were in possession, had an equitable interest. The cases of Yaya v. Mogoga 12 W.A.C.A. 132, Gbenebichie v. Awosika 14 W.A.C.A. 101, Wobo v. A.G. 14 W.A.C.A. 133 were cited and relied upon. Counsel further submitted that the claim of appellants was for trespass, damages and injunction. They were not seeking a declaration of title, consequently proof of possession and not title was sufficient. Counsel relied on Amakor v. Obiefuna (1974) 3 S.C. 67, 75 – 77. It was finally submitted that the respondents took subject to appellant’s equitable interest since they had knowledge of such interest It was conceded that respondents registered their deed, but submitted that mere registration under s.23 of the Land Instrument Registration Law did not confer title.
In his reply, Mr. Iketunonye, S.A.N., who also relied on his brief, submitted that appellant must prove title because as he said relying on Kponuglo & Ors. v. Kodale 2 W.A.C.A. 24, a claim for trespass and injunction presupposes title. Counsel conceded that receipt and entry into possession creates an equitable interest, but submitted that this must be pleaded. It was submitted that exhibit B is only admissible as a receipt where the transaction is under customary law, and that appellant did not rely on customary law, but on English law. It was submitted finally that appellant did not have any equitable interest.
The facts of this case conform to the quite familiar pattern of transactions where parties purporting to enter into transactions, use the only current recognised method to put their agreement in permanent form. There is no doubt in this case that the transaction evidenced by exhibit B was between two ordinary natives in respect of a piece of native land. The content of exhibit B, the signature of the writer, the witnesses are clearly indicative that the parties were merely putting into writing the agreement they have reached in respect of the piece of land, which is now the subject matter of the dispute. In Cole v. Folami (1956) 1 F.S.C. 66, Jibowu Ag. C.J.F., had suggested that reducing a transaction into writing is an inference that the transaction was to be governed by English law. But in the more recent case of Djukpan v. Orovuyovbe (1967) N.M.L.R. 287, the Supreme Court unequivocally declared that customary law was applicable to a transaction, though reduced into writing. This case is not one that should be considered under any of these principles. It is a simple transaction creating the relationship of landlord and tenant between the parties. The issue therefore is whether the document which is evidence of the transaction is sufficient for the purpose either as receipt or registrable in respect of the piece of land.
There is no doubt that by the definition of instrument under s.2 of Cap. 72, i.e. Land Instruments Registration Law, exhibit B, confers right or interest In land in Eastern Nigeria, and by virtue of s.15 is inadmissible in evidence in any court unless registered. – See Coker v. Ogunye (1939) 15 N.L.R. 57; Ogunbambi v. Abowab (1951) 13 W.A.C.A. 222; Elegbede v. Savage (1951) 20 N.L.R. 9. But it is pertinent to observe in cases of this nature that what confers the interest in the piece of land in dispute is not the document described as lease agreement per se but the payment to the landlord of the rent In advance, in this case this is the document which is the receipt of the first payment of £40 in advance for ten years. In Coker v. Ogunye (supra) Ames, Asst. J, held that since the equitable interest was not acquired by means of the memorandum of sale, but by the payment of the purchase price, the interest acquired in the land existed independently of the memorandum. In Elegbede v. Savage (supra) which is similar to the case in hand, the receipt tendered was not a document which although an integral part of the transaction, was not by itself an operative document, it was admissible to prove payment of money. The matter has been somewhat considered in Ayinla v. Sijuwola (1984) 5 S.C. p. 77, where it was stated that If there is proof that money was paid for land accompanied by entry into possession, this is sufficient to defeat the title of a subsequent purchaser of the legal estate if possession is continuously maintained. This is consistent with the earlier cases like Oshodi v. Balogun & Ors. 4 W.A.C.A. 1; Suleiman & Anor. v. Johnson 13 W.A.C.A., 213; Orasanmi v. Idowu (1959) 4 F.S.C. 40, that where an equitable interest is coupled with possession it cannot be overridden by a subsequent legal estate. Fakoya v. St. Paul’s Church, Sagamu (1966) 1 All N.L.R. 74, although a case of specific performance, involved a construction of S.16 of the Land Instruments Registration Law of Western Nigeria, identified with S.15 in issue in this case. The agreement in Issue there was not pleaded and not produced as affecting land, but to show that the purchasers had a contractual right which is enforceable by specific performance, and is admissible in evidence for this purpose.
In the High Court, in this case, the judge stated that he was admitting the document exhibit B described as lease agreement, not as evidence of appellant’s title, but to prove payment of money. I think he was not wrong to so hold. It was admissible for the purpose for which it was produced, namely evidence of payment of rent in respect of land. It was not produced as evidence of any interest in land, but of transaction in relation to land. On this principle the document is admissible.
The other and related issue is the interest of appellants with respect to the land in dispute by virtue of the payments made and possession of the land. It is an established principle of our land law that where there is acceptable evidence that the party in possession had paid money before being put in possession and had remained in undisturbed possession, he has acquired an equitable interest which cannot be defeated by a subsequent purchaser of the legal estate. In Orasanmi v. Idowu (1959) 4 F.S.C. 40, Idowu had bought land in Lagos, unknown to him that twenty years before Orasanmi had paid and obtained receipts in respect of the land and went into possession. However, Orasanmi did not remain continuously in possession with the result that Idowu had no actual notice of his possession and his enquiries did not reveal sale to Orasanmi. Orasanmi subsequently brought an action for declaration of title, damages and injunction, and Bellamy J, sitting at the High Court gave judgment in his favour. Idowu appealed to the Federal Supreme Court, against the judgment. The Federal Supreme Court approved of the view of the trial judge that “unless the plaintiff could show he was a purchaser of the legal estate for value without notice of the prior equitable interest of the defendant, the plaintiff would not have a better title to the possession of the land.” It was held that the defendant in that case had no such notice and therefore was free from the equitable interest of the plaintiff. This is partly because plaintiff was not continuously on the land, and also there was no other means of ascertaining plaintiff’s equitable interest. Citing Ogunbambi v. Abowab 13 W.A.C.A. 222, it was said, at p.41
“…there must be in addition to payment, an undisturbed and continuous possession for many years by the claimant or his predecessor in title under whom he claims. In other words, it was not enough that the appellant should go into possession after the sale to him, but is important that he remained in possession.”
Applying these principles to the appeal before us, there was uncontroverted evidence that appellant’s predecessor in title paid the rents agreed upon and was put in possession in 1956. Appellant continued in and maintained undisturbed possession until April, 1975, when exhibit D was published warning trespassers. Appellant was in such undisturbed continuous possession when the respondent purported to acquire the legal estate in respect of the property. There is no doubt on the facts there was at that time an equitable interest in the appellant in respect of the land which respondent knew or could have, with minimum diligence, discovered. He is therefore subject to such equitable interest.
Mr. Iketuonye argued that appellant was required to establish title, since a claim for trespass and Injunction presupposes title. He relied on Kponuglo v. Kodala 2 W.A.C.A. 24 for this proposition. A careful reading of the judgment cited clearly discloses that the claim included title. Or the claim in the writ of summons was for trespass, damages and injunction. The Judicial Committee of the Privy Council observed that on the evidence it postulated either that plaintiff is the owner of Bumyaland, or prior to the trespass complained of, had exclusive possession of it. This statement does not suggest that plaintiff must be owner. It is sufficient if he is in exclusive possession. This was clearly brought out in Pius Amakor v. Benedict Obiefuna (1974) 3 S.C. 67 at p.75, where Fatal-Williams J.S.C. said,
“It is trite law that trespass to land is actionable at the suit of the person in possession of the land. That person can sue for trespass even If he is neither the owner nor a privy of the owner. This is because exclusive possession of the land gives the person in such possession the right to retain it and to undisturbed enjoyment of it against all wrong doers except a person who could establish a better title. Therefore anyone, other than the true owner, who disturbs his possession of the land can be sued in trespass …………………………………………
In the appeal before us the evidence that appellant is in exclusive possession is overwhelming. What Kponuglo v. Kodela (supra) says is that an action in trespass can be brought either by an owner or a person in exclusive possession of the land in respect of which the action is brought. Appellant comes within the class and can maintain the action. As was held by the trial judge, appellant was in undisturbed possession from 1956 until 1975. This is evidence of exclusive possession which can support an action for trespass.
I am satisfied that the learned trial judge had on the evidence correctly given judgment in favour of the appellant. The Court of Appeal was wrong to have set aside that judgment.
For the reasons I have given in this judgment, I hereby allow the appeal, set aside the judgment of the Court of Appeal. The judgment of Ogwuegbu J. of the Owerri High Court, delivered on the 15th March, 1978, is hereby restored.
KAWU, J.S.C.: I have had the privilege of reading in draft the judgment of my learned brother, Bello, J.S.C. which has just been delivered. I agree entirely with his conclusion and will also allow the appeal.
The appellant, who was the plaintiff in the High Court of Owerri Judicial Division, sued the respondent claiming damages for trespass to a parcel of land called ‘Ishin Ezi’ or No.7 Oparanozie Street, Onitsha and injunction. The appellant’s case was that in October, 1956, one Emmanuel Ikpeawujo entered into an agreement with his late father – Joseph A. Obijuru whereby his late father was put into possession of the land for a period of 99 years at an annual rent of N8.00. It was his case that in furtherance of the agreement his late father paid N80.00 to Emmanuel Ikpeawujo, being 10 years’ rent in advance.
On 20th March, 1975 the appellant received a notice (exh. D) from Ezekiel Imuanakwe (3PW) and Livinus Ikpeawujo (2PW), the successors in title of Emmanuel Ikpeawujo to the effect that the land in dispute had been sold to the respondent.
On 24th March, 1975 appellant paid the sum of N64.00 to 2nd and 3rd PW as arrears of rent of the property for the period 1967 to 1974 which amount was acknowledged as such by 2nd and 3rd PW (see exh. ‘C’).
In April, 1975, the respondent, who claimed to have purchased the property, went on the land and committed the alleged trespass.
In the High Court the learned trial judge found on the evidence that the appellant and his family had been in undisturbed possession of the land from 1956 and were still in possession of the same in April 1975 when the respondent committed the act of trespass complained of. He therefore found for the appellant and awarded him N200.00 damages for trespass and granted an injunction against the respondent.
On appeal by the respondent to the Court of Appeal, that court allowed the appeal on the ground that the trial judge had made a case of equitable interest for the plaintiff when such a case was not pleaded and also that the appellant failed to prove title to the land.
The main complaint in this appeal was that the Court of Appeal was in error to have reversed the decision of the trial court on these grounds. 1 think there Is substance in that complaint. The evidence shows clearly that the appellant was in possession at the time the respondent committed the trespass and as trespass is essentially a violation of the right of possession, the High Court was right in finding for the appellant, and its decision should not have been disturbed by the Court of Appeal. I will therefore allow the appeal, set aside the decision of the Court of Appeal and restore that of the High Court. I also agree with the order as to costs contained in the judgment of my learned brother, Bello, J.S.C.