ADETAYO v. OLATUNJI
(2020)LCN/14382(CA)
In The Court Of Appeal
(AKURE JUDICIAL DIVISION)
On Wednesday, June 17, 2020
CA/AK/111/2018
Before Our Lordships:
Mohammed Ambi-Usi Danjuma Justice of the Court of Appeal
Ridwan Maiwada Abdullahi Justice of the Court of Appeal
Patricia Ajuma Mahmoud Justice of the Court of Appeal
Between
ADEFISOYE EMMANUEL ADETAYO APPELANT(S)
And
MRS FRANCISCA OLUWATOYIN OLATUNJI RESPONDENT(S)
RATIO
WHETHER OR NOT PARTIES ARE BOUND BY THEIR PLEADINGS AND EVIDENCE ON FACTS NOT PLEADED GOES TO NO ISSUE
There is no averment in respect of a complete alienation of the ownership of the land by the plaintiff/appellant as sought to be done by the respondent through Exhibit K. At this stage, it is necessary to re-echo the elementary but fundamental rule of pleadings, that parties as well as the Court are bound by the pleadings and evidence on facts not pleaded goes to no issue. UKAEGBU V UGOJI (1991) 6 NWLR, PT 196, 127; OLADUNJOYE V AKINTERINWA (2000) 4 SC, PT I, 19; OSHODI & ORS V EYIFUNMI & ANOR (2000) 7 SC, PT II, 145; ALAHASSAN & ANOR V ISHAKU & ORS (2016) 10 NWLR, PT 1520, 230 and IDRIS V SEINE (2019) LPELR – 46993 (CA).
If parties are bound by their pleadings, it means and it is also trite that they cannot be allowed to set up in Court a case at variance with their pleadings: IKEANYI V ACB LTD (1997) 2 NWLR PT 489, 509 and OKOKO V DAKOLO (2006) NSCQR, VOL 27, 297. It is therefore not open to the learned trial judge as done in the instant case to set out a case for the respondent at variance with her pleadings and use that evidence to dismiss the plaintiff’s case. This evidence Exhibit K used by the learned trial judge clearly goes to no issue. It is accordingly discountenanced. Indeed on the authorities of AMOBI V AMOBI (1996) 8 NWLR, PT 469, 638; OLOWOFOYEKU V AG, OYO STATE (1996) 10 NWLR, PT 477, 190 and ITO V EKPE (2000) 2 SC, 98, all Supreme Court cases, this evidence ought to and is hereby expunged from the records of the trial Court. PER MAHMOUD, J.C.A.
WHETHER OR NOT UNCHALLANGED EVIDENCE SHOULD BE ACCEPTED AND ACTED UPON BY THE COURT
The settled position of the law is that uncontroverted and unchallenged evidence that is neither incredible nor unbelievable should be accepted and acted upon by the Court: INEC V APGA (2015) LPELR – 40672 (CA); OMOREGBE V LAWANI (1980) 3-4 SC, 108 and MTN V CORPORATE COMMUNICATION INVESTMENT LTD (2019) LPELR – 47042 (SC). PER MAHMOUD, J.C.A.
WHETHER OR NOT CONTENTS OF A DOCUMENT CAN BE CONTRADICTED OR ALTERED BY ORAL EVIDENCE
This general rule is that the contents of a document cannot be contradicted, altered or varied by oral evidence. The only exception to this rule is where the document is shown to have been procured by fraud:ADENIGBA & ANOR V OMOWORARE & ORS (2015) LPELR – 40531 (CA); UGWUEGED V ASADU & ORS (2018) LPELR – 43717 (SC) and ASHAKACEM PLC V ASHARATUL MUBASHSHURUN INVESTIMENT LTD (2019) LPELR – 46541 (SC). PER MAHMOUD, J.C.A.
WHETHER OR NOT TRESPASS IS ACTIONABLE WITHOUT PROOF OF ACTUAL DAMAGES
It is settled law that trespass is actionable per se without proof of actual damage: STIRLING CIVIL ENGINEERING (NIG) LTD V YAHAYA (2005) 11 NWLR, PT 935, 181; CHUKWUMA V IFELOYE (2008) 18 NWLR, PT 1118, 204 and REGTD TRUSTEES OF MASTER’S VESSEL MINISTRIES (NIG) INCORP V EMENIKE & ORS. (2017) LPELR – 42836 (CA). PER MAHMOUD, J.C.A.
PATRICIA AJUMA MAHMOUD, J.C.A. (Delivering the Leading Judgment): The appellant, plaintiff in the Court below had by a Writ of Summons dated and filed on the 14/10/13 in the Osun State High Court sitting at Ile-Ife claimed the following four reliefs against the defendant/respondent:-
(i) A Declaration that the plaintiff is entitled to the certificate of occupancy over Plot 13, Block VIII on Residential Layout Plan of Awotodunbo Family at Borowaye Modomo Area, off New Ibadan Road, Ile-Ife with the following boundaries: on the Front side by Existing Road; on the Left side by Existing Fence (Plot 14), on the Back side by Existing Building (Plot 8) and on the Right side by Vacant Land (Plot 12); property delineated on survey plan No OS/2134/2013/091 with beacon numbers SC/OSP 9274FK; SC/OSP 9275FK; SC/OSP 9276FK; SC/OSP 9277FK.
(ii) Twenty Million Naira (N20,000,000.00) being general damages for acts of trespass committed by the defendants in that the defendants and/or his agents broke and entered the said land and prevented it from being developed.
(iii) Perpetual injunction restraining the defendants, their servants, agents, privies or anyone
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claiming though them from further acts of trespass upon or going upon the said land to build or construct any structure thereon or prevent it from being developed.
(iv) An order of Court directing the defendants to pay over to the plaintiff, the sum of Five Hundred Thousand Naira (N500,000.00) only being professional fee paid by the plaintiff to his counsel, ADEBUSOLA ADEDOYIN ESQ of Orion partners, 38, Ilesa Road, Ile-Ife for the prosecution of this action.”
The case of the plaintiff in that Court is that the land in dispute, Plot 13, Block VII on Awotodunbo Family Layout at Borowaye Modomo Area, off New Ibadan Road, Ile-Ife is bounded on the front side by existing road; on the left side by existing fence (Plot 14), on the back side by existing building (Plot 8) and on the right side by vacant land (Plot 12) which originally belonged to late Hon. Awotodunbo Titus Ajayi Benedict who died on the 7th August, 2012. The plaintiff averred that he purchased the land in dispute from Messrs Awotodunbo Bode and Awotodunbo Olumide children of Hon. Awotodunbo Titus Ajayi Benedict for and on behalf of the Awododunbo family. That this purchase agreement was
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reduced into writing. That at the time of the purchase, one of the vendors, Awotodunbo Olumide was farming maize on the land for which he the appellant paid an additional sum of N14,000.00 for the maize which he harvested. The plaintiff/appellant further averred that he transferred in part of the land to I.H.S Nigeria Limited but was still in full and firm control of the land. That on the 7th September, 2013, the respondent went to stop workers on the land claiming that her grandmother, Mrs Adetinayo Aduke Adedigba is the owner of the land.
In proof of his case, the plaintiff called two witnesses and tendered nine documents which were admitted and marked as Exhibits A-J.
The defendant on her part counter claimed against the plaintiff as follows:-
(a) A declaration that the 2nd Defendant is entitled to the Certificate of Occupancy over plot 13, block VIII on residential lay-out of Hon. Awotodunbo family at Borowaye Modomo Area, off New Ibadan Road, Ile-Ife with the following boundaries on the front side by lay-out road, on the Right side by plot 12, on the left side by plot 14 Irawo Owuro Co-operative society), on the back side by plot 8 (Mr.
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Orodiran Williams land) which land is delineated on Survey Plan Number OS/827/2001/155 with beacon numbers SAR2694,SAR 2696 and SAR 2697 which location map is as drawn on building plan number OSICPLA096/07/03 registered on 17th July 2003 and approved on 18th July, 2003.
(b) Special damage of N300,000.00
(c) A sum of Fifty Million Naira (N50,000,000.00) general damages for act of trespass committed by the Plaintiff on the 2nd Defendants land.
(d) Perpetual injunction restraining the Plaintiff, privies, agents and servants from dealing in anyway whatsoever with the land in dispute.
In her defence and in proof of her counter claim the defendant called four witnesses and tendered five documents. Three were admitted and marked as Exhibits K, L & M and the other two were rejected and accordingly so marked.
At the conclusion of hearing the learned trial judge, Hon. Justice Akin David Oladimeji in a considered judgment delivered on the 6th day of October, 2017 granted the defendant’s counter claim in part.
Dissatisfied with this judgment, the appellant appealed to this Court on the following seven grounds:-
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- The Judgment of the Honourable Court below is against the weight of evidence and thereby occasioned injustice.
2. The learned trial Judge erred in law when he failed to consider the issue of whether the defendant can substitute plot 13, block VIII for plot 14, Block VIII without agreement in writing, which was eminently raised in the pleadings and in evidence of the parties.
3. The learned trial judge erred in law by basing his decision on issues not raised by the parties in their pleadings.
4. The learned trial judge erred in law when he held that “It (Exhibit B) is not registered in the land office; it therefore offends S. 16 of the same Land Instrument Registration Law of Osun State. Such documents are forbidden to be pleaded and offered in evidence under the law. Although, it has been admitted, this Court has the power under the law to expunge it having being found not to have complied with the provisions of Land Instrument Registration Law of Osun State, 2002.
5. The learned trial judge erred in law when he gave judgment to the 2nd Defendant for title to land without admissible evidence.
6. The learned trial judge misdirected himself when
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he failed in his duty to evaluate the evidence before him but merely stated “The Survey Plan made by the grandmother of the Defendant in 2001 that also is evidence of act of possession” and “I believe therefore that the error came from Hon. Awotodunbo and this is more evidence in the survey plan Exhibit ‘E’ made in favour of the Defendant’s grand-mother on 27th December, 2001 and which indicated Plot 13 of Block VIII”
7. The learned trial judge misdirected himself when he held outside the evidence of the parties that “the plaintiff cannot sustain his evidence on possession, therefore there is no evidence on the other side of scale to tilt DW2’s evidence”.
Whereof the appellant sought an order of this Court setting aside the judgment of the lower Court and granting the reliefs sought by the plaintiff/appellant
In prosecuting his appeal, the appellant filed his brief of argument on the 07/09/2018 which was deemed on the 18/04/2019 and further deemed on the 21/01/2020. In it the appellant formulated four issues for the determination of the Court:-
(1) Whether on the totality of the
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evidence before the lower Court the learned trial judge considered and took a correct view on the admissibility and evidential values of Exhibit E, the evidence of the defendant/respondent’s witnesses; and was right in holding that the appellants case lacks merit while the respondent’s counterclaim succeeds in part. (Grounds 1, 5, 6 and 7)
2. Whether the learned trial judge was right when he gave judgment to the defendant/respondent without considering and deciding whether the defendant/respondent can substitute Plot 13, Block VIII for Plot 14, Block VIII without an agreement in writing, which was an issue eminently raised in the pleadings and evidence of the parties. (Ground 2).
3. Whether the learned trial judge made private investigation of Exhibit K outside the pleadings, evidence and issues placed before the Court to give judgment against the plaintiff/appellant on the ground that the plaintiff/appellant is no longer in possession of the land in issue (Ground 3).
4. Whether in the circumstances of the pleadings and evidence before the trial Court, the learned trial judge was right when he expunged exhibit B on the ground that it
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offends SECTION 16 of the Land Instrument Registration Laws of Osun State. (Ground 4).
In arguing the appeal, Mr Adebusola Adedoyin of counsel for the appellant adopted their brief as his legal arguments in support of the appeal. Counsel provided a numbered summary of his submissions on all the seven issues raised in line with ORDER 19(3)(4) of the Rules of Court, 2016. This is very commendable. In consequence I reproduce the summary as the counsel’s summation of his submissions on all the issues. MR Adedoyin submitted that Exhibits F and J, by the receipt of payment for the maize and the survey plan respectively the appellant acquired an equitable interest in the land in issue which requires protection by the Court. Counsel submitted that by interfering with his possession of the land, the respondent threatened his equitable right and committed trespass which warrants an action for injunction and damages.
Exhibit B was tendered as receipt for payment or evidence of purchase for value or memorandum of purchase. It was not specifically pleaded as Conveyance, thus, Section 16 of the Land Instrument Registration Law of Osun State, 2002 is
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not applicable. The exhibit B in the circumstances of case was tendered in support of equitable interest, thus, does not have to be registered before it could be pleaded or admitted in evidence. Exhibit B ought to have been considered and considering exhibit B would have made a difference in the outcome of the case. Exhibit B was a sale of land agreement tendered not to prove title, but to prove purchase or equitable interest, thus, admissible.
Counsel argued that the issue of whether the appellant is divested of his rights over the land or was in full and firm control was not submitted to the trial Court for determination at all. Issues were not joined on same but rather the respondent admitted the appellant is currently in possession of the land in issue. A whole consideration of the paragraphs of appellant’s pleadings will show that the act of transferring interest in part of the land is one of the act done in the disputed land in recent years. And the appellant is not prevented from protecting interest which includes the interest of a person who derived his root of title through him. Appellant made a full disclosure and the protection of benefits
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due to the third party is basically between the Appellant and the third party. Issues were not joined on same.
Counsel submitted that Exhibit K was neither pleaded nor tendered for the purpose of proving that the appellant is not in possession of the land in issue; thus it was not linked by the defendant/respondent for that purpose. The Exhibit K was not pleaded, demonstrated, linked or tendered for the purpose of proving that the plaintiff/appellant is no longer in possession of the land in issue by the defendant/respondent. Thus, the exhibit cannot be used for that purpose. It was the contention of counsel that contrary to the issues raised in the pleadings and written addresses of the parties the trial judge made private investigation of Exhibit K and linked the document for the respondent in search of evidence for the Respondent, thus, the findings of the lower Court that the Plaintiff/Appellant is no longer in possession, predicated on Exhibit K is tantamount to doing cloistered justice and amounts to descending into legal arena which amounts to the trial Court doing the defendant/respondent’s case for her and in the process occasioned
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injustice to the Plaintiff/Appellant.
Mr Adedoyin also submitted that the respondent relied on temporary receipt and sale of land agreement (Exhibit M) relating to plot 14 in order to prove ownership of the land in issue. The Respondent tendered sale of land agreement dated 15th September, 2002 (photocopy of which was tendered by Appellant and admitted as Exhibit D) as Exhibit M in this connection. Thus, there is no agreement linking the respondent to the land in issue, that is, plot 13. The respondent relied on Exhibit M in proof of her title to the land in issue, extrinsic evidence of its content is not admissible in evidence. Thus, the evidence of the respondent’s witnesses and Exhibit E (a survey plan) which evidently tend to vary the contents of Exhibit M are extrinsic and inadmissible. The appellant raised the issue on whether the Defendant now Respondent can substitute the Plot 14 contained in her Exhibit M for Plot 13 without any agreement in writing but the issue was neither considered nor decided by the lower Court. The failure of the lower Court to consider and determine this issue, which is vital to the resolution of the dispute between
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the parties, leads to miscarriage of justice.
Counsel contended that the Respondent pleaded that they discovered a mistake in the plot number contained in their sale of land agreement when their survey plan dated 27th December, 2001, which predated their temporary receipt and sale of land agreement was made; and admitted that Hon. Titus Awotodunbo lived till August, 2012 but no other sale of land agreement was made to correct the alleged mistake for those eleven (11) years their vendor lived. That Exhibit E which predated both the temporary receipt and sale of land agreement (Exhibit M) of the respondent is doubtful and unreliable and should not attract any evidential weight at all. More so, counsel argued as survey plan is not a title document and it’s only useful for proving the identity of a disputed piece of land. It cannot be used to establish title or possession. Furthermore that Exhibit E does not possess the characteristics of a valid contract, thus, it cannot vary Exhibit M. Counsel further contended that an extrinsic evidence or document for variation of an existing contract must itself possess the characteristics of a valid contract such
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as offer, acceptance and consideration. That a written agreement can only be varied by another agreement also in writing. Counsel also pointed out some discrepancies in the documents of the respondents as follows:
(A) The statement on oath of DW2 does not contain concluding words of an oath.
(B) The Statements on Oath of DW2 and DW3 were interpreted into English language and the Yoruba versions were attached but the Yoruba versions were not identified or adopted by them. The Yoruba versions were not adopted/tendered along with the English version. The English versions do not contain jurat with the name and signature of the interpreter.
(C) DW3 testified that he signed his statement on oath in his lawyer’s office.
(D) The documentary evidence of the Respondent as contained in Exhibits C, D and M as to plot number and boundaries of the land sold to the Respondent contradict her oral evidence in support of her claim.
(E) There are material contradictions which relate to proof of payment, possession and those who witnessed the putting in possession, in the evidence of the respondent’s witnesses, where evidence of a
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party’s witnesses are contradictory, the Court will not pick and chose which one to believe and which one to disbelieve, such should be resolved by the consideration of Exhibits but Exhibit M which is the main Exhibit in support of the Respondent’s case points at Plot 14 not Plot 13 in issue.
(F) The counterclaim of the Respondent was not supported with evidence or narrated by any witness and thus, it is moribund.
The authorities referred to by counsel in the brief not contained in the summary will be highlighted as the need arises in the course of this judgment. I must point out that I had praised the appellant’s counsel for summarizing his brief in line with the Rules of Court. I tried to reproduce this almost as verbatim as possible. I cannot however wonder at the numerous typographical and grammatical mistakes in the summary. This made me wonder whether a legal practitioner indeed prepared this summary and indeed the brief.
Whereof counsel urged the Court to allow this appeal and set aside the decision of the trial High Court.
In their defence and in opposition to this appeal, the respondent filed their brief of
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argument on the 18/04/2019. This was deemed properly filed on the 21/01/2020. In arguing the appeal, MR O. J. Omirin of counsel for the respondent adopted the brief as their legal arguments in opposition to the appeal. In it, counsel formulated the following two issues for determination:-
1) Whether in view of the totality of the pleadings and evidence (oral and documentary) placed by the parties before the Court below the trial judge was not right when he held “the interest of the plaintiff on land has extinguished” Grounds 3 and 4).
2) Whether in view of the pleadings and evidence before the trial Court, the learned trial judge was not right when he gave judgment to the respondent on ground that Plot 14 block VIII cannot be sold two times by Hon. Awotodunbo. (Grounds 1, 2, 5, 6 and 7).
Counsel did not give a numbered summary of his submissions in line with ORDER 19(3)(4) of the Rules of Court. I would not summarize the submissions. Suffice it to say that I will make reference to such submissions as it becomes necessary to do so in the course of this judgment. It is worthy of note to state that the respondent had a counter claim in
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the trial Court for which she got part judgment.
The appellant filed a reply brief on the 17/01/2020. It was also deemed as properly filed on the 21/01/2020 which counsel also adopted. I find that this reply brief is too verbose; for instance there is no need for any introduction. The counsel should have gone straight to the new points raised in the respondent’s brief and addressed them. Be that as it may since I have seen some new points, like illiteracy of the respondent I would allow the reply brief as competent within the confines of the Rules of Court, 2016. In other words, only so much of it that responded to new issues raised by the respondent will be considered.
I have reflected on the issues formulated by both parties. I find that the issues raised by the appellants overlap. For instance, issue 1 as raised covers the two issues raised by the respondent. These two issues are still what issues 2, 3 and 4 of the appellant postulate. The two issues raised by the respondent though a bit inelegant capture the four issues raised by the appellant. I therefore reframe the two issues formulated by the respondent for use in determining this appeal:
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(1) Whether from the totality of the evidence on record, the trial judge was right to have dismissed the appellant’s claim.
(2) Whether the learned trial judge was justified from the evidence on record in giving judgment to the respondent on her counterclaim.
In resolving issue (1), it is pertinent to restate the claim of the Plaintiff/Appellant before the trial Court. The substantive claim of the plaintiff was:-
(1) A declaration that the plaintiff is entitled to the Certificate of Occupancy over Plot 13, Block VIII on Residential Layout Plan of Awotodunbo Family at Berowaye Modomo Area, Off New Ibadan Road, Ile-Ife with the following boundaries: on the Front side by Existing Road; on the Left side by Existing Fence (Plot 14), on the Back side by Existing Building (Plot 8) and on the Right side by Vacant Land (Plot 12); property delineated on survey plan No OS/2134/2013/091 with beacon numbers SC/OSP 9274FK; SC/OSP 9275FK; SC/OSP 9276FK; SC/OSP 9277FK.
To prove this claim and the other ancillary claim, the plaintiff testified in his own behalf, called one other witness and tendered nine documents. These were admitted in evidence
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and marked as Exhibits A-H & J respectively. Exhibit A is the sale agreement between MR Awotodunbo Bode and the plaintiff. Exhibit B is the CTC of Residential Layout of Awotodunbo family dated 30/12/91. Exhibit C is the photocopy of hand written receipt date 29/7/2002; Exhibit D is the photocopy of sale of land agreement dated 15/9/02; Exhibit E is a Survey Plan No. OS/0827/2001/155 dated 27/12/01. Exhibit F is the receipt issued by Awotodunbo to Mr. Adefisoye Emmanuel dated 22/7/13 for the sum of N14, 000.00; Exhibit G is the cash invoice of Adebusola Adedoyin (ESQ); Exhibit H is the letter of Omirin & Associates to Mr. Adefisoye Emmanuel Adetayo dated 19/9/13 and Exhibit J is the Survey Plan No. OS/2134/2013/091 drawn by Surveyor Akande Sunday Bolarinwa. The learned trial judge found against the plaintiff on two or three main grounds:-
1) The first is that the plaintiff in his witness statement on oath which he adopted as his evidence in chief in paragraph 11 thereof testified that he is in full and firm control of the plot of land in dispute. While in paragraph 23 of the same evidence in chief, he testified that he had sold part of the land in
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dispute to IHS Nig Ltd. That the plaintiff did not state the quantum nor the size nor the area he sold to IHS Nig Ltd. The learned trial judge also referred to Exhibit K, a letter written to the defendant/respondent by the plaintiff/appellant’s counsel in which he referred to the property in dispute as that “which he in turn sold to the present occupier of the land…” to find that the plaintiff’s interest in the land has extinguished.
2) The second ground is that Exhibit A, an agreement on land is a registerable instrument under Section 6 of the Land Instrument Registration Law of Osun State, 2002. That failure to register it offends Section 16 of the said law. That not having been registered, Exhibit A is offensive to the said law and on the authority of OREDOLA OKEYA TRADING COMPANY LTD V AG, KWARA STATE (1992) 7 NWLR, PT 254, 412 AT 415, the learned trial judge expunged Exhibit A from the records and consequently dismissed the plaintiff’s claim.
The law is well settled as rightly found by the learned trial judge that a registerable land instrument not registered is inadmissible in evidence. What his Lordship failed to
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take into consideration however is the exceptions to this general position of the law. This is that an unregistered registrable instrument though not admissible to prove title is admissible to prove payment of money and coupled with possession of land by the purchaser, it may give rise to an equitable interest:- OLANREWAJU V OGUNLEYE (1997) 2 NWLR PT 485, 12; ADEYEMO V IDA (1998) 4 NWLR, PT 546, 504, OBIENU V OKEKE (2006) 16 NWLR, PT 1005, 225 and HON. COMM, LAND & HOUSING, KWARA STATE V ATANDA (2007) 2 NWLR, PT 1018, 360. Indeed the attitude of the Court in circumstances such as this is that a document like Exhibit A even if held to be a registrable instrument as the learned trial Court found should be taken as evidence of payment and acknowledgement of such payment for the sale of land. That it was therefore capable of conferring an equitable interest on the land in favour of the appellant as sought. I dare say that the learned trial judge was not entitled in the circumstances to have expunged Exhibit A in the manner he did. In the case of OYELEDUN V ADEWUYI (2017) LPELR – 43256 (CA), this Court when faced with a document similar to Exhibit A not
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only held that it was capable of conferring equitable interest on the land in favour of the appellant but further found that if the appellant was able to prove that he had been put into possession of the land, he was entitled to have title in the land declared in his favour. That such title could only be defeated by a purchaser of the land who had no prior knowledge or notice of the earlier equitable interest already created on the land in favour of the appellant. In fact, the Supreme Court has held that such a document cannot be rendered inadmissible. In the case of ANAGBADO V FARUK (2018) LPELR – 44909 (SC) the issue was whether Exhibit P2, a registrable document must be previously registered under the Kaduna State Lands Registration Law, Cap 85, Laws of Kaduna State 1991 before it would be admissible in evidence. The apex Court held among others thus:-
“…Section 15 of the Kaduna State Law Cap 85 cannot render inadmissible Exhibit P2 which evidence is material, relevant and admissible in evidence under the Evidence Act, 2011. A piece of evidence admissible in evidence under the Evidence Act cannot be rendered inadmissible in evidence by any
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law enacted by the House of Assembly of any state.” See also AGBA & ORS V JUBU (2019) LPELR – 47189 (CA).
Fortified by these authorities, I hold that the learned trial judge having admitted Exhibit A in evidence was wrong in law to have expunged same. He ought rightly to have found that Exhibit A while inadmissible to prove title was admissible as acknowledgement of the receipt of money from the appellant by Awotodunbo Bode as purchase price of the land in question.
There was also the question of whether or not the appellant was in possession of the land in dispute. The decision of the learned trial Court in dismissing the plaintiff’s claim revolved largely on the findings of the trial Court that the plaintiff’s right in the land had extinguished. This finding was premised on Exhibit K tendered by the respondent. Exhibit K is a letter supposedly written by the appellant’s counsel to the respondent. For the avoidance of doubt, I would quote the portion of the letter quoted and relied on by the learned trial judge:-
“ADEBUSOLA ADEDOYIN ESQ.
Date: 12th September, 2013
Barr. (Mrs) Francisca Oluwtoyin
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Olatunji,
C/O Omirin & Associates,
25, Fajuyi Road,
Ile-Ife
Dear Madam,
A PASSIONATE CALL FOR STATUS QUO ANTE BELLUM
We are solicitors to Mr. Adefioye Emmanuel Adetayo of 33, Omitoto Line 2, Ile-Ife, Osun State (herein referred to as our client) who has briefed us as follows:
1) …That he is the owner of a plot of land numbered plot 13 Block VIII on Awotodunbo Family Layout at Borowaye Modomo Area, Off New Ibadan Road, Ile-Ife Osun State, which he in turn sold to the present occupier of the land…”
It is this piece of evidence that led the learned trial judge to make the following finding upon which he dismissed the plaintiff/appellant’s claim:
“In the light of the above evidence coming from the Plaintiff himself, can the Plaintiff Mr. Adefioye Emmanuel Adetayo who sold to the present occupier be said to be in possession of the land in dispute again? The Plaintiff is bound by the lawyer’s letter Exhibit ‘K’ in this case. His testimony that he only sold part of the land in dispute can be best described as half truth; can the Plaintiff still be said to have interest over what he
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had sold? Can the Plaintiff be allowed to eat his cake and have it? I doubt it much if the Plaintiff has sold the land to a present occupier, the interest of the Plaintiff on the land has extinguished.”
This finding of the Court made me curious enough to go back to the pleadings of the parties. The statement of claim of the plaintiff/appellant runs from pages 7-11 of the records. The only paragraph that relates to the plaintiff/appellant divesting his interest in the subject property is 13. It avers as follows:-
“. The plaintiff avers that he harvested the corn on the disputed land and exercised numerous acts of ownership, the particulars of which are erecting corner piece undisturbed and the TRANSFER OF INTEREST IN PART OF THE LAND TO I. H. S. NIGERIA LIMITED.”(Emphasis provided).
I have also gone through the statement of defence/counterclaim of the defendant/respondent as contained at pages 66-71 of the record. There is no averment in respect of a complete alienation of the ownership of the land by the plaintiff/appellant as sought to be done by the respondent through Exhibit K. At this stage, it is necessary to re-echo the
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elementary but fundamental rule of pleadings, that parties as well as the Court are bound by the pleadings and evidence on facts not pleaded goes to no issue. UKAEGBU V UGOJI (1991) 6 NWLR, PT 196, 127; OLADUNJOYE V AKINTERINWA (2000) 4 SC, PT I, 19; OSHODI & ORS V EYIFUNMI & ANOR (2000) 7 SC, PT II, 145; ALAHASSAN & ANOR V ISHAKU & ORS (2016) 10 NWLR, PT 1520, 230 and IDRIS V SEINE (2019) LPELR – 46993 (CA).
If parties are bound by their pleadings, it means and it is also trite that they cannot be allowed to set up in Court a case at variance with their pleadings: IKEANYI V ACB LTD (1997) 2 NWLR PT 489, 509 and OKOKO V DAKOLO (2006) NSCQR, VOL 27, 297. It is therefore not open to the learned trial judge as done in the instant case to set out a case for the respondent at variance with her pleadings and use that evidence to dismiss the plaintiff’s case. This evidence Exhibit K used by the learned trial judge clearly goes to no issue. It is accordingly discountenanced. Indeed on the authorities of AMOBI V AMOBI (1996) 8 NWLR, PT 469, 638; OLOWOFOYEKU V AG, OYO STATE (1996) 10 NWLR, PT 477, 190 and ITO V EKPE (2000) 2 SC, 98,
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all Supreme Court cases, this evidence ought to and is hereby expunged from the records of the trial Court.
Without reliance on Exhibit K, the basis of possession or ownership of the disputed land by the plaintiff/appellant is covered by his averment in paragraphs 7-13 of his statement of claim. The plaintiff testified on his own behalf as PW2 while one of the vendors of the land, Awotodunbo Olumide testified as PW1. The witness statement on oath of PW1 which he adopted as his evidence in chief is contained at pages 17-20 of the record. Paragraphs 8-16 of this evidence support the pleadings. The witness statement of the plaintiff/appellant which he adopted as his evidence in chief is contained at pages 21-27. Paragraphs 8-23 of the evidence support the pleadings of the appellant on possession and ownership of the subject property. Both PW1 and PW2 were cross examined by the defendant’s counsel. Their evidence in respect of the ownership and possessory rights of the plaintiff in cross examination remained unshaken and consequently uncontroverted and uncontradicted. The settled position of the law is that uncontroverted and unchallenged evidence that
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is neither incredible nor unbelievable should be accepted and acted upon by the Court: INEC V APGA (2015) LPELR – 40672 (CA); OMOREGBE V LAWANI (1980) 3-4 SC, 108 and MTN V CORPORATE COMMUNICATION INVESTMENT LTD (2019) LPELR – 47042 (SC).
From the findings of the learned trial judge, it can be inferred that the decision to dismiss the plaintiff’s claim was predicated on Exhibit K which he wrongly admitted and Exhibit A which he wrongly expunged. If as I am inclined to do, I reverse the position or holdings of the trial judge in both situations, the status of the appellant in this case will be greatly altered to his advantage. In other words, if there is no Exhibit K, there will be nothing to cast doubt on the minds of the Court that the appellant had on the balance of evidence proved possession. If Exhibit A had not been wrongly expunged it would have had the effect of at least creating an equitable interest in the property in favour of the appellant when taken together with his possession thereof. In other words, based on these two situations, I hold that the finding of the trial judge is perverse having been based on a wrong application of
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the principles of law or wrong consideration of the evidence. Muntaka-Coomassie, JSC captured it very aptly in CHUKWU & ANOR V INEC (2014) LPELR – 25015 (SC):
“A finding is said to be perverse where it runs counter to the evidence on record or where it has been shown that the lower Court took into account matters which they ought not to have taken into account or shut their eyes to the obvious.”
I accordingly set it aside and reverse the decision in favour of the appellant. See: GENERAL TELEPHONE AND ELETRONICS LTD V AMCON (2017) LPELR 43558 (CA) and ODUMOSU & ANOR V OLUWOLE & ANOR (2002) LPELR – 12307 (CA).
Having set aside the finding of the learned trial judge and reversed same, I could have borrowed the words of the learned trial judge to state that addressing the counter claim of the defendant/respondent in the circumstance is a mere academic exercise. I am constrained from taking this position by many reasons. The first and most obvious is that this Court is not the last Court in this matter. It is important therefore to determine all the issues. Secondly a counter claim is an independent action that
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calls for a separate and definite determination. Thirdly and perhaps most importantly is the fact that in this case, both parties have laid claim to title of the property in dispute. Where this happens the law is that title will go to the party who proves a better title. To determine where the title tilts the Court will be required to put the cases of both parties on the proverbial imaginary scale. To do this fairly will no doubt require a review of the defendant’s defence/counter claim as well, having done same for the plaintiff.
The crux of the defendant’s defence/counterclaim is that the land, subject matter of the suit belongs to her grandmother. That her grandmother, Mrs Adetinuyo Aduke Adedigba purchased the land in dispute from Hon. Titus Ajayi Benedict Awotodunbo the original owner and father of the appellant’s vendors. That her grandmother paid the purchase price in installments and on completion of the installments, Hon. Awotodunbo at first gave her a hand written temporary receipt dated 29/08/2002, Exhibit C and later executed a purchase receipt titled sale of land agreement dated 15/09/2002, Exhibit M in favour of her
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grandmother. That before the issuance of Exhibits C & M, Hon. Awotodunbo took her grandmother to the land in dispute and gave possession to her in the presence of witness (sic) including herself the respondent. That before this sale to her grandmother, Hon. Awotodunbo had sold two plots, plots 14 and 15 to Irawo Owuro Co-operative society. That while Hon. Awotodunbo was making Exhibits C & M for her grandmother who was an illiterate, he erroneously referred to the land in dispute as plot 14 block VIII instead of Plot 13. That after her grandmother took possession of the land and commissioned her surveyor to survey the land for her as reflected in Exhibit E, the Surveyor discovered the land in dispute was plot 13 Block VIII. That when her grandmother brought this to the attention of the vendor he dismissed it as immaterial having put the grandmother in possession. That her grandmother placed building materials on the land in dispute and allowed one Orodiran Williams (DW4) to use the land for farming.
The learned trial judge in his judgment found that the sale of land between Hon. Awotodunbo and the defendant’s grandmother was a good sale
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under customary law because Hon. Awotodunbo took the grandmother to the land in dispute and gave her possession in the presence of witnesses. His lordship relied on the case of OGUNDALU V MACJOB (2015) EJSC VOL. 17, 146, 611. I have read this Supreme Court case also reported in (2015) 8 NWLR, PT 1460, 96. It does lay down three essential ingredients required to prove a valid sale under Yoruba Customary Law: (1) Payment of purchase price, (2) Purchaser is let into possession by the vendor and (3) In the presence of witnesses. The Court also did find in that case that: “It follows that where the purchase price is not fully paid there can be no valid sale even if the purchaser is in possession (as in this case).”
My understanding of this provision is that all three conditions must co-exist and be established by evidence to the satisfaction of the Court. Instead of doing this which is what he is expected to do to enable him form an opinion the learned trial judge seems to have gone on a voyage of chastising the children of the seller. He has not shown what evidence he has evaluated to show that the defendant’s grandmother paid the purchase
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price and how much it was and that she was put in possession in the presence of a witness(es) other than the respondent. I do not see how the mere tendering of Exhibits C and M provide sufficient evidence of payment. And especially how that amounts to payment of the purchase price under Yoruba Customary Law. I will come to this issue later. I have seen Exhibit C which is the temporary receipt. The month was cancelled and it is not clear by whom. There is no name of the witness or signature of the vendor’s witness. It is not clear if the signature under witness below vendor is that of F. O. Olatunji the purchaser’s witness or that of the vendor’s witness. There is no signature of the vendor on Exhibit C. This would have enabled the trial Court to compare it with the alleged signature of Hon. Awotodunbo to satisfy itself whether or not both documents were made by the same person. This is especially so as there is no independent credible evidence before the Court to confirm that the documents were indeed made by Hon. Awotodunbo. In the absence of any corroborative evidence to confirm that Hon. Awototunbo authored Exhibits C & M, I find that
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it is wrong for the trial judge to believe and rely on the evidence as credible. Assuming that the trial judge was right to have relied on the evidence as aforesaid, it is not in respect of the subject property. It is not right for the trial judge to have blankly said that I believe the evidence of DW1 when she said that Exhibits ‘C’ & ‘M’, the temporary receipt issued to the grandmother of the Defendant and the land agreement executed in her favour which was referring to the land in dispute as Plot 14 of Block VIII was an error from Hon. Awotodunbo more so that Cooperative Society who earlier bought Plot 14 from Late Hon. Awotodunbo purchased Plot 14 before the grandmother of the defendant purchased the alleged land from Hon. Awotodunbo. “Plot 14 therefore cannot be sold two times.” I have never been confronted with such warped logic! So because Plot 14 cannot be sold two times automatically makes it an error for the agreement to have Plot 14. It has to be Plot 13 just on the ip dixi of the party without more? From the findings of the learned trial judge in respect of the counter claim it is evident to me that he has
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failed in his duty in carefully examining the evidence, understanding and appreciating the issues involved, resolving them based on demonstrable evidence by the parties which is supported by law. As Uwaifo, JSC expressed it very directly in the case of ADELEKE & ORS V IYANDA & ORS (2001) 13 NWLR, PT 729, 1, a trial judge must “not impair the evidence either with his personal knowledge of matters not placed and canvassed before him, or by inadequate evaluation and should endeavour to avoid vitiating the case presented by the parties through his own wrongly stated or applied principle of law.” It is not enough as done in the instant case for the trial judge to simply hide under the cloak of the phrase ‘I believe’.
The phrase is not a magic wand that makes inadmissible evidence admissible or improbable story probable. Such belief must be backed by verifiable and legal evidence and the reason for such belief clearly stated. As the Supreme Court per Rhodes Vivour aptly summarized it in OGUDO V THE STATE (2011) 18 NWLR, PT 1278, 1, “It amounts to improper evaluation of evidence for a judge to rely on his belief or
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disbelief.”
Another strong reason why the belief of the trial judge cannot be sustained in the instant case is because it offends the general rule. This general rule is that the contents of a document cannot be contradicted, altered or varied by oral evidence. The only exception to this rule is where the document is shown to have been procured by fraud:ADENIGBA & ANOR V OMOWORARE & ORS (2015) LPELR – 40531 (CA); UGWUEGED V ASADU & ORS (2018) LPELR – 43717 (SC) and ASHAKACEM PLC V ASHARATUL MUBASHSHURUN INVESTIMENT LTD (2019) LPELR – 46541 (SC).
With all due respect to the learned trial judge, he went on a wrong premise of the law when he allowed and relied on oral evidence to vary the clear terms of Exhibit M. This is more troubling because the evidence before the Court was that this transaction occurred sometimes in 2002. The vendor died in 2012. Why did the defendant and her grandmother not do anything about this so called error for ten good years? I am not impressed by the assertion that the defendant’s grandmother was an illiterate. Neither will I be drawn into the silent controversy of whether her status
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as an illiterate was pleaded as I do not consider it a live issue in this appeal. It is curious though that the defendant/respondent who is the grand daughter and who testified to have been a witness to the transaction as well as when the grandmother was put in possession is not only literate but ‘learned’. Indeed from her witness statement on oath at pages 77-84 of the records and page 208 where she testified in chief the defendant is said to be a legal practitioner. It is not stated on oath how old she was on the 20/01/2014 when she made her witness statement on oath or on the 28/06/2016 when she gave her evidence in chief. My belief is that she was old enough to be a witness to Exhibit C in 2002 even if she was not a legal practitioner then she ought to have known that Exhibit M as it was spoke for itself and could not be altered by the self serving oral evidence that they gave in Court.
There is the other issue of possession or being put in possession by the vendor and whether the defendant gave any credible evidence of acts of ownership of the land to justify award of the counter claim in their favour. By the evidence in chief of the
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defendant as DW1, specifically paragraph 15 she testified that Hon. Awotodunbo put her grand mother in possession in her presence and the presence of Mr Moses Elufisan. This witness was not called to give evidence of the defendant’s grandmother being put in possession of the subjection property. This leaves only the ipix dixi of the defendant to support the fact that her grandmother was put in possession by the vendor, Hon. Awotodunbo. To prove acts of ownership, the defendant alleged that they dropped 5 double tipper loads of sand, 5 tipper loads of stone with the help of Mr. Orodiran Williams. The defendant also testified that her grandmother asked Mr. Orodiran to farm the disputed land and he did so from 2006-2012 when he had no time to farm it again. That in January, one Olumide Awotodunbo approached Mr Orodiran for permission to farm the land which she gave not knowing that the said Olumide Awotodunbo had ulterior motives. Mr Sijuade who testified as DW2 has his witness statement on oath at Pages 75-76 of the records. To draw home the point being made I reproduce the deposition which he adopted as his evidence in chief:-
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“1. That my name is Sijuade Abayomi
1. That I live at Odi-Olowo Street, off Oke-Ogbo Road, Ile-Ife.
2. That I work as a general contractor.
3. That as a general contractor, the nature of my work includes selling sands, stones and gravel to my numerous customers.
4. That I remember I supplied the 2nd defendant some tipper loads of sand and stone on her land at Modomo Area, of Ibadan Road, Ile-Ife some year ago.
5. That as at now, a tipper of single load of sand is N8,000.00 (Eight Thousand Naira) while a tipper of double load of sand is N15,000.00 (Fifteen Thousand Naira). There are two single loads of sand in a double load of sand.
6. That a tipper of single load of gravel is N9,000.00 (Nine Thousand Naira) while a tipper of double load of gravel is N18,000.00 (Eighteen Thousand Naira). Like sand, there are two single loads of gravel in a double load of gravel.
7. That a tipper of single load of stone is N12, 500 (Twelve Thousand Five Hundred Naira) while a double load cost N25,000.00 (Twenty five Thousand Naira). Just like the case of sand and gravel, there are two (2) single loads of stone in a double load of stone.
8. That I swear to this
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statement on oath on good faith.”
It is apparent from his testimony that the only reason this witness was called was to ascertain the cost of double sand and double stone for the purpose of computing their special damages. His only evidence in relation to the alleged sand and stone that the defendant testified that they put on the land is very vague as contained in paragraph 5 thereof. That he remembered he “supplied the 2nd defendant some tipper loads of sand and stone on her land at Modomo Area of Ibadan Road, Ile-Ife some years ago.”
If I was the plaintiff’s counsel I would not bother cross examining this witness. But perhaps it was useful that he did as the cross examination brought to the fore the fact that he was not a witness of truth. In the cross examination, DW2 who had in examination in chief stated that he supplied the loads of sand and stone to the 2nd defendant, the respondent’s grandmother, stated that it was MR Orodiran Williams who engaged him for the purpose, pointed out to him where to drop it, the back of his house and paid him. Interestingly, Mr Orodiran Williams gave evidence under subpoena as DW4.
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While DW3 stated in cross examination that the defendant’s grandmother was introduced to the land in the presence of DW4, DW4 categorically stated in cross examination that he was not there when ‘Mama’ as he referred to her was introduced to the land contrary to the evidence of DW2. DW4 stated in further cross examination that the defendant’s grandmother went to the land and told him that she was the owner of the land at the back of his own and later dropped sand on the land and told him she already had a bricklayer to assist her in the construction. DW4 also denied paying DW2 for the sand and stones. He testified that he farmed the land for two years before Olumide came to farm on it. This is contrary to the evidence of DW1 that DW4 farmed the land from 2006-2012. There are so many contradictions in the testimonies of the defence witnesses in respect of this act of possession that I am unable to agree that any probative value should be attached to it. Section 35 of the Evidence Act, 2011 leaves no one in doubt of the law that acts of possession and enjoyment of land may be evidence of ownership. However, such acts of possession have to
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be such that it can reasonably be presumed that possession may be evidence of ownership. See OCHE GBUDU V AGBALA (2014) LPELR – 22650 (CA). I do not see how putting heaps of sand/stone on a piece of land constitute any act of possession. This is especially so in the face of the conflicting evidence of the defendant whether or not the sand/stone were indeed put on the land. I could not help but wonder aloud how DW4 could have been farming the land with this pile of stones/sand on the plot!
I hold from all I have found so far that the defendant failed to prove any act of possession as to warrant evidence of ownership. On the contrary, the undisputed evidence on record is that the whole of the area in dispute was owned by late Titus Awotodunbo and known as Awotodunbo family residential layout. That during his lifetime he divided the place into plots which he sold out. If the evidence abounds that he owned plots 14, 15, 8 and that there were some plots he left unsold which included plot 13, the subject matter of this suit, it will be legitimate to invoke Section 35 of the Evidence Act, 2011 to the effect that if MR Awotodunbo owned Plots 14, 15, 8, 12
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and all the adjourning plots to plot 13, block VIII, he is presumed to own plot 13 as well. I so hold. This is particularly so as the defendant was not able to prove by any credible evidence that Mr Awotodunbo sold plot 13 to her grandmother. And since there is no contest from the defendant that the vendors to the Plaintiff are the children and heirs of Mr Awotodunbo, it follows that they passed a valid title to the plaintiff.
I did state earlier on in this judgment that I would return to conclude on the issue of customary law whether the alleged purchase of the land in dispute by the defendant’s grandmother was done in accordance with customary law as found by the trial judge?
The requirements for a valid sale under customary law are comprehensively set out in the recent Supreme Court case of ATANDA V HON. COMM. FOR LANDS & HOUSING, KWARA STATE & ANOR (2018) 1 NWLR, PT 1599, 32. Permit me to reproduce herewith the long holding of Nweze JSC in the case so that the point can be best appreciated:-
“My Lords, speaking for myself, I am greatly depressed that in 2017, counsel who practice regularly in our superior Courts in
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Nigeria could betray their misconception of such prerequisites as the requirements for sale under Customary Law: on issue which this Court had elaborately dealt with in numerous cases… Be that as it may, I now take the liberty to re-state prerequisites for a sale of land under customary law. These are that in addition to the payment of the agreed consideration, the transaction must have been concluded in the presence of persons who also witnessed the actual handing over of the land sold …There is the requirement that the names of such witnesses and facts of their having witnessed the sale transaction and the handing over of the land to the purchaser must be pleaded and evidence adduced thereon…”
These requirements were laid down very long ago by the Supreme Court in the case of AKINGBADE V ELEMOSHO (1964) LPELR -25225 (SC) where Ademola, JSC then reiterated the points simply in this manner:
“…since the sale to pearse in 1911 was an out and out sale of land held by the Oloto family by native law and custom, no conveyance or written contract was necessary to effect a valid sale. The payment of the purchase price and the delivery of
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possession to Pearse created a valid title by native law and custom – OGUNBAMBI V ABOWABA (SUPRA). See also the decision of this Court in MAIGADAJE V SULEI & ORS (2018) LPELR – 46504 (CA).”
It is apparent in the face of my findings on this issue that the defendant/respondent has not satisfied any of the requirements for a valid sale of land under customary law, at least not in respect of Plot 13 block VIII, the property in dispute. It was therefore wrong for the learned trial judge to find from the evidence on record that the respondent had proved sale under customary law and award their counter claim to them on that premise. Such a perverse finding deserves to and will be set aside.
I cannot end this judgment without putting it on record that in all my years on the bench and they have definitely been many and active, I have never come across such an outlandish claim of title to land as this counter claim. I could not help wondering in my mind how the claim would have been concocted and what the real deal is in this counter claim over Plot 13. The most perplexing is how a piece of land allegedly purchased in 2002 had its survey plan
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made in 2001! As they say wonders shall never end. While we are at liberty to keep wondering to our hearts’ desires a claim/counter claim can only be granted upon pleaded facts supported by credible evidence. The duty of a trial judge as I found before in this judgment is to put the evidence of both parties on the proverbial imaginary scale to see where it tilts and give judgment accordingly. In the instant case, it is either that the learned trial judge did not put the pieces of evidence on the scale or he had a momentary double vision that made him see the scale tilt on the wrong side – the side of the defendant/respondent. Having however resolved both issues as raised in favour of the appellant, this case stands resolved and in his favour. This appeal succeeds and it is hereby allowed. The judgment of the learned trial judge delivered on the 06/10/2017 is set aside. In its place, judgment is hereby entered in favour of the plaintiff/appellant as claimed in the following terms:-
(i) A Declaration that the plaintiff is entitled to the certificate of occupancy over Plot 13, Block VIII on Residential Layout Plan of Awotodunbo Family at Borowaye
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Modomo Area, off New Ibadan Road, Ile-Ife with the following boundaries: on the Front side by Existing Road; on the Left side by Existing Fence (Plot 14), on the Back side by Existing Building (Plot 8) and on the Right side by Vacant Land (Plot 12); property delineated on survey plan No OS/2134/2013/091 with beacon numbers SC/OSP 9274FK; SC/OSP 9275FK; SC/OSP 9276FK; SC/OSP 9277FK.
(iii) Perpetual injunction restraining the defendants, their servants, agents, privies or anyone claiming through them from further acts of trespass upon or going upon the said land to build or construct any structure thereon or prevent it from being developed.
In respect of the claim for trespass, having found that the appellant was the one in legal and valid possession of the property and the defendant/respondent having admitted to going there to drive the workers, trespass is proved. It is settled law that trespass is actionable per se without proof of actual damage: STIRLING CIVIL ENGINEERING (NIG) LTD V YAHAYA (2005) 11 NWLR, PT 935, 181; CHUKWUMA V IFELOYE (2008) 18 NWLR, PT 1118, 204 and REGTD TRUSTEES OF MASTER’S VESSEL MINISTRIES (NIG) INCORP V EMENIKE & ORS.
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(2017) LPELR – 42836 (CA). On the strength of these authorities, I assess damages for trespass at N400,000 in favour of the plaintiff/appellant and against the defendant/respondent.
On the claim for legal fees, I hold that the plaintiff/appellant has not proved same. It is hereby dismissed. The counter claim fails and it is also accordingly dismissed.
I assess costs at N100,000 in favour of the appellant and against the respondent
MOHAMMED AMBI-USI DANJUMA, J.C.A.: I have read in draft the judgment just delivered by my learned brother, Patricia A. Mahmoud JCA and agree that the appeal be allowed.
The plaintiff, now Appellant had proved his entitlement to his claims at the trial Court as against the counter- claim of the defendant/respondent that was allowed.
The evidence preponderated in favour of the Plaintiff/Appellant.
The reliefs sought for
(i) Declaration of title,
(ii) Injunction and
(iii) Damages for trespass as claimed are awarded and the order refusing same is set aside.
I also dismiss the claim for legal fees and the counter claim as allowed at the trial.
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I also abide by the order relating to the award of costs as entered in favour of the Appellant against the Respondent herein.
RIDWAN MAIWADA ABDULLAHI, J.C.A.: I read with keen interest the lead judgment delivered by my learned brother, Patricia Ajuma Mahmoud, JCA and very much convinced by the reasoning and conclusion which I accepted as apt in the just determination of the appeal.
I abide by the order as to costs in the lead judgment.
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Appearances:
MR Adebusola Adedoyin For Appellant(s)
MR O. J. Omirin – for 1st Respondent
MR O. Akintoye – for 2nd Respondent
The Counsel to the 3rd – 4th Respondents was served with ‘H’ notice on the 13/01/2020 but did not appear in Court For Respondent(s)
