MR. TITUS ADEKAYAOJA V. MR. JACOB OLAYEMI FAKEYE
(2012)LCN/5443(CA)
In The Court of Appeal of Nigeria
On Monday, the 4th day of June, 2012
CA/IL/41/2005
RATIO
“It is pertinent to state from the outset that the law is now trite that the objection/Defence of laches and/or acquiescence cannot avail a defendant where the defendant in his pleadings made reference to the defence of laches and acquiescence, but did not plead nor establish by evidence the fact upon which such defence could be based. See Ezekwesili V. Agbapnonwu (1003) FWLR pt. 162 pg 2016 @ 2042 para, E-G.” Per ABDULLAHI, J.C.A.
“In the case of Dago Adelege Mining & Construction Co. Ltd. V. Jakura Marble Ind. Ltd., & Anor (2007) All FWLR pt. 390 pg 1531 @ 1549 paras B-D, it was held that: “Time begin to run in land cases when, trespass is committed or possession is lost? where there is fraudulent concealment. In the instant case, time began to run against the Appellant from 31st May 1990 when it wrote a letter complaining about the trespass of the trespasser.” Per ABDULLAHI, J.C.A.
LAND LAW: NEMO DAT QUOD NON HABET: THE NATURE
“It is the law that you cannot place something on nothing, it will surely collapse. Simply put that you cannot give what you don?t have. Can it be rightly said that DW3 had in fact what he purportedly granted or has the capacity and authority to make the grant? I answer this question in the negative. That is he cannot do so. See the case of Olufemi Aginde V. Chief Ayodele Kuforiji (2007) AII FWLR (pt. 362) pg 1966 @ 1981-1982 paras F-A.” Per ABDULLAHI, J.C.A.
JUSTICES:
TIJJANI ABDULLAHI (PJ) Justice of The Court of Appeal of Nigeria
ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria
OBANDE FESTUS OGBUINYA Justice of The Court of Appeal of Nigeria
Between
MR. TITUS ADEKAYAOJA – Appellant(s)
AND
MR. JACOB OLAYEMI FAKEYE – Respondent(s)
TIJJANI ABDULLAHI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Kwara State High Court of justice holding at Ilorin in suit No. KWS/194/99, (coram) O. Ajayi (J) delivered on the 24th day of February, 2005.
The Respondent was the plaintiff whilst the Appellant was the defendant in the lower court. The respondent by his writ of summon filed on the 19th Day of November, 1999, sued the Appellant herein and claimed the following reliefs:
1) A declaration that the plaintiff is the owner of a piece of land situate and being at Okedaba Area, off Erinle Street Gaa Akanbi Ilorin.
2) A declaration that the defendant is a trespasser to the said land by his act of going to the land to erect building on the land.
3) A declaration that the defendant and all his privies agents and servant should vacate the said plot of land.
4) A declaration that any purported grant of certificate of occupancy on the land in favour of the defendant is null and void.
5) A perpetual in junction restraining the defendant his privies agents and servants from entering the land to do anything whatsoever.
The Respondent as plaintiff and the Appellant as defendant filed their statement of claim and defence respectively and the case proceeded to hearing. The Respondent in support of his case called four witnesses and tendered three Exhibits marked Exhibit 1, 2 and 3. The Appellant called three witnesses and tendered five documents and marked exhibits D1, D2, D3, D4 and D5. The Respondent’s statements of defence are contained on pages 51-57 of the record.
In a reserved Judgment delivered on 24th day of February, 2005, the learned trial Judge found for the Respondent and held inter-alia thus:
“I hereby declare as prayed by the plaintiff that Mr. Jacob Olayemi Fakeye is the owner of the piece of land situate and being at Okedaba Area off Erinle Street Gaa Akanbi, Ilorin.”
Aggrieved by the decision of the learned trial judge the Appellant filed a notice of appeal consisting seven grounds and sought for the following reliefs:
“(a) Allow the appeal
(b) Set aside the judgment of the trial court.
(c) Give judgment to the Appellant.”
In a brief settled by Chief S. F. Odeyemi, Esq., learned counsel for the Appellant distilled four issues for determination to wit:
“(1) whether the trial Judge was correct in declaring the respondent as the rightful owner of the land purchased by the appellant from madam Asana Lawal and covered by a statutory right of occupancy No Kw 10152 (covers grounds 3, 4 & 2 of grounds of Appeal).
(2) Whether the judgment of the trial judge is not against the weight of evidence (covers ground 1 & 6 of grounds of Appeal).
(3) Whether the award of N 10,000.00 (Ten Thousand Naira) damages made by the trial judge against the appellant was tenable in law (Ground 7 of grounds of Appeal).
(4) Whether the trial judge was not wrong in omitting to consider issues in limitation of time, laches and acquiescence raised in pleadings, evidence and addresses of parties. (Ground 5 of the Grounds of Appeal).”
On the other hand, in a brief settled by O.J. Adeseko, Esq., learned counsel for the Respondent adopted all the issues distilled in the Appellant’s brief of Argument with a slight modification of issue one and four. The issues adopted are:
1) Whether the trial judge was correct in declaring the respondent as the rightful owner of the land in dispute having regard to the evidence placed before the Court (As modified) (covers grounds 3, 4 & 2 of grounds of Appeal).
2) Whether the judgment of the trial judge is against the weight of the evidence (covers grounds 1 & 6 of grounds of Appeal).
3) Whether the award of Ten Thousand Naira (N 10,000.00) only as damages made by the trial judge against the Appellant was tenable in law (Ground 7 of grounds of Appeal).
4) Whether the trial Court failed to consider issues of limitation of time, laches and acquiescence raised by parties in their respective pleadings evidence and addresses (As modified) (Ground 5 of Grounds of Appeal).”
On the 13th of March, 2012, when the appeal came before us for hearing, Chief Adeyemi for the Appellant adopted his brief dated and filed on 19/10/2010 and the Reply-Brief filed on 12/03/2012 as his arguments in this appeal and urged us to allow the appeal.
Counsel for the Respondent, Mr. Adeseko adopted his brief dated and filed on 1st March, 2012 as his argument in the appeal and urged us to dismiss same as lacking in merit.
ARGUMENT OF ISSUES
In arguing issue No. I which is whether the trial Judge was correct in declaring the respondent as the rightful owner of the land purchased by the appellant from madam Asana Lawal and covered by a statutory right of occupancy No Kw 10152 learned counsel submitted that the oral and documentary evidence relied upon by the Respondent do not prove his title which the trial awarded to him.
It is the submission of the learned counsel that in a land matter, as the case in hand, a plaintiff who claims title to land must specifically plead and establish his root of title. This root of title can be shown or proved in either of the two ways. He relied on case of Yesufu Oyediran & Family V. Tafa Amao & Ors (1970) 1 All NLR (Reprint) 311 and 315 to buttress his submission on this point.
It is the submission of the learned counsel that though the plaintiff in the case cited above pleaded direct settlement on land but during trial he was proving his root of title based on grant. The Supreme Court held that such a claim should be dismissed and it was dismissed. Learned counsel argued that the Respondent who based his root of title on purchase of the land from Asana Abio Suberu turned back to claim that he acquired the land by grant from his father.
After x-raying the evidence adduced by the Respondent as plaintiff learned counsel urged us to hold that the Respondent during trial based his root of title on grant. Learned counsel contended that if a party bases his root of title on purchase in his pleadings and beings to prove evidence of grant, as in the case in hand his claim must be dismissed, learned counsel further canvassed.
Learned counsel submitted that the learned trial judge was wrong when he declared the appellant’s Certificate of Occupancy null and void and also wrongly declared the Respondent the owner of the land because,
1. Appellant’s title to the land in dispute was never challenge by the Respondent or his brother and sisters between 1976 and 1999.
2. Appellant proved a better title to the land then the Respondent.
3. The Respondent did not show any root of title to the said land on which the Appellant built his house to a lintel level.
4. Respondent did not prove that the Certificate of Occupancy was illegal or irregular.
In support of the above submission learned counsel referred us to the case of Diocess of Aba V. Nkume (2002) 1 SCNJ, 15, 16 where the Supreme Court, according to the learned counsel, held that since the appellant did not prove his root of title, its claim must be dismissed and that there was no need considering other issues.
On issue No. 2 which is whether the judgment of the trial judge is not against the weight of evidence, learned counsel urged us to hold that the judgment of the learned trial court is against the weight of evidence before him and also awarded contradictory reliefs which were not in the statement of claim.
Learned counsel contended that in his statement of claim the respondent as plaintiff did not ask for a relief to restrain the appellant. Learned counsel further contended that a court cannot restrain a person from doing an act and at the same time order him to go there to perform an act. Learned counsel further contended that an order that the Appellant should remove his house within 30 days is not in the Respondent’s reliefs and that the order is prejudicial to the appellant.
On issue no. 3, learned counsel urged us to hold that the award of N 10,000.00 (Then Thousand Naira) damages made by the learned trial judge against the Appellant is wrong in law and should be dismissed, because:
I. The Respondent’s claim is for general damages for trespass to his land and for destruction of his beacons.
II. Destruction of beacons requires strict proof of special damage which the respondent failed to prove.
III. The trial Judge did not specify whether the award of damages was in respect of general damages or special damages.
Issue No. 4 is whether the trial judge was not wrong in omitting to consider issues of limitation of time, laches and acquiescence raised in pleadings, evidence and addresses of parties. In arguing this issue, learned counsel submitted that the trial judge was wrong in law for not considering the issues of limitation of time, laches and acquiescence raised in the pleadings, evidence and addresses of counsel.
Learned counsel submitted that the trial judge has a duty to consider and specifically rule on all issues raised before him. He further learned counsel submitted that even if the respondent bought the land (which is not conceded) he is guilty of laches and acquiescence and therefore estopped from taking this action.
On limitation of time, learned counsel submitted that if it is true that the land in dispute belongs to the Respondent (which is not conceded) he should have challenged the appellant between 1976 and 1999 during which period he was aware that the appellant was trespassing on his land. Since he took no step to challenge the Appellant for more than 10 years, the respondent’s action is statute-barred because the cause of action arose in 1976. See section 4 of the Kwara State limitation Law Cap 89 Law of Kwara State 1994.
On radical title, learned counsel for the Appellant submitted that relief (a) in the Respondent’s statement of claim states as follow: “An order of this Honourable Court that he is the rightful owner of the land in dispute”. This is a claim for radical title which has been abolished by the land use Act, 1978. A court cannot therefore grant ownership of land to anybody. A court can only grant a Right of Occupancy; since the Respondent is asking for what a court cannot grant, the Respondent’s claim must be dismissed, especially when the case has been heard on merit. It is submission of the learned counsel that this is not an occasion to order a retrial. Since there is pleadings, evidence and address. Learned counsel urged us to EVALUATE the pleadings and evidence which the trial judge failed to evaluate and give judgment in respect thereof. Learned counsel contended that this court has power to do that. He relied on the case of Chief Johnson Imah & Anor V. Chief Ajowele Okogbe & Anor (1993) 12 SCNJ 57. In the premises of all the foregoing submissions, learned counsel urged us to allow this appeal.
For his part, counsel for the Respondent, in arguing issue No. 1, submitted that the trial court was right and correct in awarding the land in dispute to the Respondent considering the avalanche of evidence placed before it. Learned counsel after X-raying the evidence adduced by the Respondent submitted that some members of his family bought their own land from the same vendor and they gave evidence to buttress the facts pleaded by the Respondent in his statement of claim.
It is the submission of the learned counsel that this aspect of the case has neither been denied nor contradicted by the Appellant. Learned counsel further submitted that it is now settled that evidence not controverted is deemed admitted. He relied on section 123 of the Evidence Act 2011 and the case of Chief Edmundi I. Akaminwo & Ors v. Chief O. N. Srimi & Ors (2008) 1 S.C. (pt. 111) 151 @ 205 holding 10-25. Learned counsel went on to contend that though the Appellant’s counsel tried to counter the facts pleaded on this aspect of the case as can be seen at p.60 of the record in his written address, it is trite law that no matter how beautiful, elegant and for strong a counsel’s address is, it can surely not take the place of evidence. He relied on the case of Edward Okewijiminor V. G. Gbakeji & ors (2008) 1 SC (111) 263 @ 315.
It is the submission of the learned counsel that there is no contradiction on the face of Exhibits 2 and 3 and same show an existing road on the southern part of same. A careful perusal of the site plan showing property of the Appellant (the subject matter in this case attached to the counter-affidavit filed on 23/2/200 against the Respondent Motion on Notice dated 18/11/1990 and filled on 19/11/1999 clearly shown an existing road on the Southern part of the land in dispute (see page 26 of the record).
Learned counsel posed this question: What then is the contention of the learned Counsel to the Appellant in this regard? His argument/submission in this regard does not enjoy any legal flavour. If counsel is saying that Exhibit 2 and 3 are not genuine on the alleged grounds, then can he rightly say that the Appellant’s site plan is not equally genuine? We were urged to discountenance the argument of the Counsel in this regard since the document being challenge bears nothing different from that of the Appellant.
On issue No. 2, learned counsel submitted that the learned trial court’s judgment was fully in support of the weight of evidence as placed before it, as such he urged us to discountenance all the canvassed arguments under issue two of the Appellant’s brief of argument.
It is the submission of the learned counsel that all the arguments of learned counsel to the Appellant under this issue is not substantial or weighty enough to upturn the judgment of the learned trial judge. Learned counsel further submitted that the learned trial judge has the power to form opinion of any witness during the trial of a case, this the learned trial judge did when he said “it is not unlikely that the same piece of land was resolved to DW1”. Learned counsel submitted that with respect due to the learned counsel for the Appellant his submission on this point is a misconception of the power of the court to form opinion of witness(es) as well documents placed before the court.
On issue No. 3 learned counsel urged us to discountenance the submission of the learned counsel to the Appellant as adumbrated under paragraph 5.0-5-1-1-(iii) and we were equally urged to hold that the award of N10,000.00 damages against the Appellant was in order.
It is the contention of the learned counsel that it is very clear from the wording of the relief claimed by the Respondent that he is claiming general damages as against special one which requires strict proof of the damage suffered by the claimant. (See paragraph 27 (b) of the statement of claim-page 54 of the records).
On issue No. 4, which relates to limitation of time, laches and acquiescence raised by the Appellant, learned counsel began consideration of the same by urging us to discountenance all the arguments/submissions of counsel for the Appellant’s counsel as they are not worth considering. It is clear without much ado that the Respondent became aware of the Appellant’s act of trespass in July 1999 and he promptly took necessary step to curtail further act of trespass of the Defendant which later culminated into this case. Learned counsel referred to paragraphs 15, 16, 17, 18, 19 and 20 of the statement of claim (page 54 of the record) and further submitted that from the totality of the evidence before the court below, there was nothing to show that the Defendant was aware of the Appellant’s occupation of the land since 1976, except July, 1999.
Learned counsel went on to contend that it was only in July, 1999 that the Appellant constituted himself a threat to the title of the Respondent over the land in dispute. The Respondent, learned counsel went on is not guilty of any laches, or acquiescence in that he only became aware of the adverse claim of the Appellant around July as stated supra. Learned counsel urged us to resolve this issue in favour of the Respondent and against the Appellant.
It is to be observed that the Appellant’s counsel filed a Reply-Brief on 12th March, 2012, dated 8th day of March, 2012. However, apart from filing the Reply-Brief under a wrong Order and Rule of this court, as the appropriate Order and Rule under which a Reply-Brief shall be filed is order 18 Rule 5 of the Court of Appeal Rules, 2011 not to 2007 Rules, as erroneously referred to by the learned counsel to the Appellant, a close look at the Reply-Brief would reveal the fact that the so-called Reply-Brief is a reargument of the Appellants brief. A Reply-Brief shall deal with all new points arising from the Respondent’s brief. See Order 18 Rule 5 of the Rules of this court.
In the light of the foregoing, the Reply-Brief of the Appellant, having offended the provisions of Order 18 Rule 5 as stated a while ago, would not be countenanced in dealing with the appeal under consideration.
RESOLUTION OF ISSUES
Now, in resolving issue NO. 1 as distilled by the Appellant’s counsel and modified by the Respondent’s counsel, the question that must be asked and answered from the outset is whether from the evidence adduced by both parties, oral and documentary, the trial court was right to have declared the respondent the rightful owner of the land in dispute. To answer this question, recourse had to be made to what transpired in the court below pertaining to the evidence adduced by both side of the divide.
A hard look at the evidence adduced by the Respondent would leave no one in any doubt that the Respondent has proved his case against the Appellant and on balance of probabilities too as required of him under sections 131(1) and 134 of the Evidence Act, 2001.
It is instructive to note that apart from the Exhibits tendered, i.e. Exhibit 1 which is the land agreement, exhibit 2 which is the site plan showing the Respondent’s land along with other family members as pleaded in paragraphs 6 and 7 of the Statement of Claim: Exhibit 3, which is the Personal Survey Plan by the Respondent and Exhibit 4 which is a letter dated 22/7/1999 written by Mr. Jacob O. Fakeye to the Executive Secretary, Kwara State Town Planning and Development Authority, Ilorin, the Respondent equally gave evidence and called other 3 witnesses i.e. PW2, PW3 and PW4 to support his case. See pages 88 and 92 and 86 – 95 of the record of proceeding.
That aside, the Respondent pleaded specifically that some of his family members equally bought their own land from the same vendor (paragraph 6 and 8 of the statement of claim page 53 of the record, see also Exhibit 2 @ page 7 of the record). It is not in dispute that the family members of the Respondent gave evidence to buttress and/or support this leg of the Respondent’s pleading without any contradiction and neither was same controverted by the Appellant.
On the contention that the date of purchase on Exhibit 1 contradicted the testimonies of the Respondent’s witnesses, i.e. his witnesses remained consistent with the date of purchase, notwithstanding the fact that the date of purchase was erroneously written on the face of exhibit 1.
As can be gathered from the records of the lower court, evidence abound that the Respondent and all his witnesses shared boundary with each other with no challenge to title of the other members except that of the Respondent. (See pages 86-96 of the record).
Learned counsel for the Appellant has made heavy weather of the fact that the Respondents had pleaded many roots of title to the land in dispute. With due respect to the learned counsel, a cusory look at the proceedings of the court below would show that there is nothing on record to show that the Respondent gave evidence to the effect that he derived his title from grant, all that the Respondent did was to support his case that other members of his family equally own land within the same vicinity as pleaded.
On the contention that the Respondent did not deny by concrete evidence the occupation of the Appellant on the land between 1976 and 1999, the Respondent was able to deny this assertion through his evidence and that of his witnesses PW2 and PW4 (86 -96 of the record).
I am of the considered view that the Appellant has woefully failed to establish a valid title in law to the land in dispute. This is due to the fact that the source of his purported title is in law substantially defective land same cannot be relied upon. Exhibit D1 which is the purported land agreement conveying title to the Appellant was not signed or thumb printed by the named transferor on the said Exhibit, but rather it was Dw3 who purportedly signed on behalf of the transferor without any written authority to that effect and/or without his name being written on the said exhibit. It is this same exhibit the Appellant premised his certificate of occupancy upon. It is the law that you cannot place something on nothing, it will surely collapse. Simply put that you cannot give what you don’t have. Can it be rightly said that DW3 had in fact what he purportedly granted or has the capacity and authority to make the grant? I answer this question in the negative. That is he cannot do so. See the case of Olufemi Aginde V. Chief Ayodele Kuforiji (2007) AII FWLR (pt. 362) pg 1966 @ 1981-1982 paras F-A.
I am also of the further view that the signing of Exhibit D1 by DW3 on behalf of the transferor (page 101 lines 4 of the record) renders the document illegal and of no effect and all ancillary documents thereto are equally void.
In the light of all that has been said, this issue is resolved in favour of the Respondent and against the Appellant.
ISSUE 2
In paragraph 4.3., the learned counsel for the Appellant submitted inter-alia that the respondent did not ask for a relief to restrain the Appellant. He relied on the case of Chief Ajanakaiye & 10 ors V. Military Governor, Bendel State (1994) 9 SCNJ, 102. Let me state here and now that I am in complete agreement with the learned counsel for the Respondent when he submitted thus:
“We further submit with respect that the submission contains in paragraph 4.3 of the Appellant’s brief is nothing but a mere attempt to waste the precious time of your Lordships. Assuming thought not conceding that the learned trial court granted an order that was not prayed for as being postulated. Can we rightly say that the order restraining the Appellant from entering the land in dispute and doing anything on it can be used to upturn the judgment of the court below, even where other relief(s) properly claimed had been properly granted? The answer is no.”
The submission of the learned counsel represents the correct position of the law and without much ado; this issue like the previous one is resolved in favour of the Respondent and against the Appellant.
ISSUE 3
The issue under consideration is whether the award N 10,000.00 damages was enable in law.
I am of the humble view that taking into consideration what transpired at the court below as can be gathered from the proceedings of that court; the Appellant should have appreciated the learned trial court for awarding the minimal damages against him considering what he has already expended on the land in dispute. It will be out of place for the learned trial judge to make specification as to what damages being awarded, when the wording of the reliefs are so and unambiguous. See the case of Akinkugbe v. Ewulum (2008) 6 MJSC, 134 @ 154 para C-D 154-155 paras G-C.
In the light of the above, this issue is resolved in favor of the Respondent and against the Appellant.
ISSUE 4
Last but not the least issue for determination is issue No. 4 which relates to limitation of time, laches and acquiescence.
It is pertinent to state from the outset that the law is now trite that the objection/Defence of laches and/or acquiescence cannot avail a defendant where the defendant in his pleadings made reference to the defence of laches and acquiescence, but did not plead nor establish by evidence the fact upon which such defence could be based. See Ezekwesili V. Agbapnonwu (1003) FWLR pt. 162 pg 2016 @ 2042 para, E-G.
I am of the humble view that there is no evidence placed before the court to establish the fact upon which the defence of laches and acquiescence can be placed. The totality of the Appellant’s evidence in support of his case are as contained on page 96-101 of the record, and nothing can be found there to support the defence of laches and acquiescence being raised.
It is not in dispute that the Respondent became aware of the Appellant adverse claim sometime around July 1999 and he promptly took the appropriate and legal action against the Appellant (paragraph 15, 16, 17, 18, 19, 20 and 21 of the statement of claim) (page 54 of the record). In the case of Dago Adelege Mining & Construction Co. Ltd. V. Jakura Marble Ind. Ltd., & Anor (2007) All FWLR pt. 390 pg 1531 @ 1549 paras B-D, it was held that:
“Time begin to run in land cases when, trespass is committed or possession is lost… where there is fraudulent concealment. In the instant case, time began to run against the Appellant from 31st May 1990 when it wrote a letter complaining about the trespass of the trespasser.”
In the view of the foregoing, this issue like the previous three issues is resolved in favour of the Respondent and against the Appellant.
In conclusion, with all the four issues having been resolved in favour of the Respondent and against the Appellant, the appeal fails and is accordingly dismissed for lacking in merit with N 40,000.00 costs to the Respondent and against the Appellant.
ITA G. MBABA J.C.A.: I had the advantage of reading the draft of the Judgment of my learned brother, Tijjani Abdullahi JCA (PJ), just delivered and I agree with him completely, and hereby adopt his reasonings and conclusions as mine.
I dismiss the appeal and affirm the decision of the lower court in the suit-KWS/194/99, delivered on 24/2/2005. I abide by the order as to cost, in the lead judgment.
OBANDE OGBUINYA, J.C.A.: I have had a preview of the leading judgment delivered by my learned brother, Tijiani Abdullahi, JCA. My noble Lord duly considered all the nagging issues in controversy in the appeal. I endorse his reasons and conclusions to the effect that the appeal is bereft of any merit. In the circumstance, I, too, dismiss it. I abide by the consequential orders made in the leading judgment.
Appearances
Chief S.F Odeyemi For Appellant
AND
O.J Adeseko Esq. with him is A.B Yahaya For Respondent
