ALHAJA RISIKAT ALADE v. CHRISTIANA ADEJUMOKE SOFOLARIN & ORS
(2015)LCN/7950(CA)
In The Court of Appeal of Nigeria
On Thursday, the 9th day of July, 2015
CA/L/264/2007
RATIO
LAND LAW: INSTRUMENTS; THE DEFINITION OF “INSTRUMENTS”
Section 2 defines instruments and provides thus:
“Instruments” means a document affecting land in the Lagos State whereby one party (hereinafter called the granter) confers, transfers, limb, charges or extinguishes in favour of another party (hereinafter called the grantee) any right or title to, or interest in land in the Lagos State and includes a certificate of purchase and a power of attorney under which any instrument may be executed, but does not include a will.”
Furthermore, Section 15 of the said law provides as follows:
“No instrument shall be pleaded or given in evidence in any court as affecting any land unless the same shall have registered.”
Similar Sections received judicial interpretation in a plethora of cases. See the case of ANYABUNSI V. UGWUNZE (1995) 6 NWLR (pt 401) 255; WEST AFRICAN COTTONS LTD V. SALISU SAMAILA YANKARA (2007) LPELR – 9045 (CA); SAVANNAH BANK PLC V. IBRAHIM (2000) 6 NWLR (Pt 662) 585 at 603 and OLOWOLARAMO v. UMECHUKWU (2003) 2 NWLR (Pt 805) 537. per. YARGATA BYENCHIT NIMPAR, J.C.A.
PRACTICE AND PROCEDURE: PLEADINGS; WHETHER PARTIES ARE BOUND BY THEIR PLEADINGS
I agree with the appellant that parties are bound by their pleadings, see the case of A.T. LTD v. A.D.H. LTD (2007) 15 NWLR (pt 1056) 118 where the Supreme Court held as follows:
“It is settled law that parties are bound by the case they presented to the court and the issues raised thereby for trial. Similarly, the court is bound to limit itself to the case presented and the issues raised by the parties. And none of the parties is allowed to make a new case either at the court of trial or an appeal without amending the originating process.”
See also AKINFOLARIN v. AKINOLA (1994) 3 NWLR (pt 335) 659; ONIAH V. ONYIA (1989) 1 NWLR (pt 99) 514; ENANG V. ADU (1981) 11 – 12 SC 25 at 36 and ODONIGI V. OGELEKE (2001) 6 NWLR (Pt 708) 12.
A party cannot be allowed to go out of its pleadings to set up a different case from that which is presented by the pleadings. The Respondents having rooted their interest on Exhibit K cannot be allowed to put up a different root of tenancy such as the unregistered lease created by Exhibit L, which in any case, is not registered and cannot therefore establish legal interest but equitable interest, see the case of CHIEF CHRISTOPHER I. MONKOM & ORS v. AUGUSTINE ODILI (2009) LPELR – 3927 (CA) wherein the court held:
“I agree with learned counsel for the appellant, that once a document qualifies as an instrument under Section 15 of the Land Registration Law, non registration of such document makes it prima facie inadmissible. However such unregistered document is admissible as an acknowledgment of payment of money.” per. YARGATA BYENCHIT NIMPAR, J.C.A.
JUSTICES
UZO I. NDUKWE-ANYANWU Justice of The Court of Appeal of Nigeria
SAMUEL CHUKWUDUMEBI OSEJI Justice of The Court of Appeal of Nigeria
YARGATA BYENCHIT NIMPAR Justice of The Court of Appeal of Nigeria
Between
ALHAJA RISIKAT ALADE Appellant(s)
AND
1. CHRISTIANA ADEJUMOKE SOFOLARIN
2. JOSEPHINE ADESOLA, SOBOGUN
3. SQ. LDR WINIFRED T. OKAGBARE (RTD)
4. MS. STELLA OLAIDE SHONDE
5. MRS. MARGARET MODUPE SOREMEKUN
6. MRS. COMFORT ABIMBOLA SOREMEKUN
7. MRS. DEBORAH JACOB
8. MRS. OLASUNBO OSHIYEMI
9. MR. OLUBUKUNOLA O. SOREMEKUN
10. MRS. KOFOWOROLA JINADU
11. MISS. OLUBUNMI SOREMEKUN Respondent(s)
YARGATA BYENCHIT NIMPAR, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of Lagos State presided over by HON. JUSTICE Y.O. YUSUPH delivered on the 14th day of March, 2000 wherein judgment was given in favour of the plaintiffs and aggrieved with the said judgment, the appellant who was 2nd defendant at the lower court appealed by filing an Amended Notice of Appeal dated 6th day of April, 2000 amended on the 25th April, 2007 pursuant to order of the court made on the 12th March, 2007 setting out 6 grounds of appeal.
The claim of the Respondents before the trial court as per their Amended Statement of Claim dated 13/7/94 states thus:
(i) A Declaration that the Plaintiffs are tenants of Alhaja Ashimowu Adepeju and/her administrators in respect of the piece and parcel of land lying, being and situate at Ishaga Ajibode Aga Village, Iju Agege Lagos State within the jurisdiction of the Honourable Court which is clearly delineated, shown edged and red and marked “A” on the survey plan annexed to the Deed of Lease dated 7th May, 1976 and registered as No. 53 at page 53 in Volume 1554 of the Lands Registry in the office at Lagos now Ikeja.
(ii) Perpetual injunction restraining the Defendants their servants and/or agents from entering and/or committing any or further acts of trespass on the said piece and parcel of land.
(iii) N300,000.00 (Three Hundred Thousand Naira) and N200,000.00 (Two Hundred Thousand Naira) special damages against the 1st and 2nd defendants respectively and N200,000.00 (Two Hundred Thousand Naira) general damages against the defendants jointly and severally.
The Appellant and one other were defendants at the trial to the claim of the Respondents herein. The Respondents alleged that their father got on to the land in dispute via a lease which was duly registered. Alhaja Ashimowu Adepoju happens to be the same vendor the appellant claims to have bought the land from. The Respondents alleged that the lease was in 1973 while the Appellant said she bought the land in 1985. The matter went to trial and judgment was entered for the Respondents. Dissatisfied with the decision, the Appellant appealed to this court.
The Appellant filed her brief of arguments dated 15/9/2008 on the 22/9/08 and deemed on 20/11/08 and a reply brief dated 19/1/09 both adopted at the hearing of this appeal.
The Respondent’s brief dated 16/12/08 was filed on 19/12/08 and also adopted at the hearing of the appeal.
The appellant formulated 4 issues for determination as follows:
(1) Whether the learned trial Judge evaluated at all the evidence led by the parties at the trial and made correct findings of facts on the evidence led before him.
(2) Whether if the answer to the above is in the affirmative the learned trial Judge in entering judgment in favour of the Respondents herein was right to have relied on Exhibit L an unregistered lease agreement dated 26th of July, 1973 as creating an interest of 99 years in the land in dispute in favour of the Respondents’ father.
(3) Whether having regard to Exhibit K, the Deed of Lease dated 7th May, 1976 and registered as No. 53 at page 53 in Volume 1554 of the Lands Registry, Ikeja, Lagos, the Respondents as persons with limited interest in the land in dispute are entitled to an order of perpetual injunction.
(4) Whether the Learned trial Judge was right to have awarded the sum of N150,000.00 (One Hundred and Fifty Thousand Naira) as general damages against the Appellant.
The Respondents on their part formulated 2 issues namely:
(a) Whether the learned trial Judge in his humble final decision in this case has not written a good judgment as postulated by the Supreme Court in the case of KARIBO & ORS V. GREND & ORS to occasion a miscarriage of justice necessitating an order allowing this appeal or an order of retrial.
(b) Whether the judgment does not support the totality of the evidence (oral and documentary) before the court.
Both sides proferred arguments in support of issues they formulated. The court shall adopt the issues formulated by the appellant as issues for resolution in this appeal.
ISSUE ONE:
The appellant argued issue one as the main basis of the appeal. She contended that the trial court failed to evaluate the evidence before the court before arriving at the judgment. That the trial court merely reproduced the written submissions of counsel to the Respondents unedited as its judgment. Several paragraphs were identified and highlighted to support the allegation that evidence was not evaluated.
Appellant challenged the findings of the trial court that Exhibit M was valueless because it had no illiterate’s jurat when the jurat is visible on the exhibit. Appellant further argued that Exhibit K (registered lease of 20 years in favour of the Respondent’s father expired on 25/7/1992 during the pendency of this case at the trial court but the court relied on Exhibit L, an unregistered deed for 99 years dated 20/7/73 having a consideration in pounds when Naira was already in circulation. Furthermore, that Exhibit L was not tendered as proof of title but as evidence of payment.
Again, that the trial court lifted from Respondent’s written address before it awarded damages without evaluation. On what a judgment should entail, the appellant relied on MOGAJI V. ODOFIN (1978) 4 SC 91; JELAPE V. ALOKWE (2001) FWLR (Pt 47) 1013 at 1024 and KARA V. WASSAH (2001) FWLR (Pt 78) 1191 at 1202.
Appellant identified elements that make evidence of a party weighty and these are:
(i) Whether the evidence is admissible
(ii) Whether it is relevant
(iii) Whether it is credible
(iv) Whether it is more probable than that given by the other party.
Appellant argued that the judgment in this case did not meet the requirement of law as the trial Judge failed to evaluate the evidence and the defect is fatal, she placed reliance on the cases of OYADEJI V. AKINYELE (2001) FWLR (Pt. 77) 970 at 997 on the meaning of a perverse decision.
Submitting further, the appellant contended that the case being one that was fought largely on documentary evidence, this court can evaluate the evidence to arrive at a just decision.
ISSUE TWO:
The appellant, in arguing this issue, submitted that it was wrong for the trial court to place reliance on Exhibit L which is an unregistered instrument executed in favour of the Respondent’s father for 99 years which is contrary to the case of the Respondents’ and the ruling of the trial court dated 15/9/98 admitting the said exhibit in evidence. She referred to the Amended Claim of the Respondents and relief one thereof specifically asking that it be declared that they are tenants on the lease duly registered – Exhibit E and K (the same document). That on the basis of the pleadings which binds parties and the court, the Respondents had specified what they wanted i.e. to be declared tenants, relied on JIAZA V. BAMGBOSE (1997) 7 NWLR (Pt 610) 180 at 191 and NJOKU v. EME (1973) 5 SC 293.
Appellant referred to the Ruling of the trial court at page 238 on the unregistered Exhibit L, the basis on which the Respondent sought the declaration but surprisingly, the lower court relied on it to give judgment to the Respondents which is also a reproduction of the Respondents’ counsel address. The appellant asked whether the court could overrule itself on Exhibit L vis a vis Section 2 of the Land Instruments Registration Law. Arguing that since Exhibit L is not evidence for the lease, it means that the averment on the 99 years lease is abandoned and should have been struck out. She relied on the case of ADESANYA V. ADERONMU (2000) FWLR (Pt 15/2492) to urge the court to reverse the findings of the trial court on Exhibit L purportedly creating a 99 years lease in favour of Respondent’s father.
Another contention of the appellant is the currency used in the lease agreement which is ‘Pounds’ instead of ‘Naira’. She urged the court to find that Exhibit L tells a lie about itself as by its date of execution, the Naira was legal tender in this country. And moreso, Exhibit L does not satisfy the legal requirement of a lease. Furthermore, that the interest of the Respondents was limited to Exhibit K which came after Exhibit L and so Exhibit L cannot create a legal estate having been made in 1973 and said to be for 99 years while Exhibit K made in 1976 is for 20 years which made no reference to Exhibit L. She argued further that the trial court imported into Exhibit K and L what was not contained therein, relied on AFROTECH SERVICES LTD V. MIA & SONS LTD (2001) FWLR (Pt 35) 642 on the principle that in interpreting documents no additions should be made to what the document says. She urged the court to find for the appellant under this issue.
ISSUE THREE:
This issue questions the propriety of the trial court making an order for perpetual injunction on a lease, Exhibit K for 20 years. The Appellant asked what happens after the expiration of the lease since the Respondents would have no interest then; relied on the case of NWADIOGBU V. NRADOZIE (2001) FWLR (Pt 61) 1623 to say that a claim for injunction puts title in issue.
Here both parties claimed their root of title to the same person, Madam Ashimowu Adepeju and that Respondent’s interest expired in 1993 even before trial commenced in this case and so the Respondents had no title to protect by the order of injunction, she cited the case of AFRO-TECH SERVICES LTD V MIA & SONS LTD (SUPRA) and the Book, Injunction and Enforcement of Orders by Afe Babalola, SAN Chapter 7 wherein the author said:
“A perpetual injunction is generally a post trial relief. It is usually granted after a full trial of the case on the me… Perpetual injunction because of its very nature of finality can only be granted if the plaintiff has successfully proved his case on the balance of probability or the preponderance of evidence.”
Appellant submitted that the lease had expired and notwithstanding the option to renew, it was not renewed. That the argument of the Respondents is therefore not tenable in law. Furthermore, that the trial court also reproduced the submission of counsel at page 305 of the record. Moreso, the issue of renewal was not pleaded. In addition to that renewal was dependant on certain terms under the renewal option clause and the lessor was no longer alive even if the Respondents sought to renew. She urged the court to find for the appellant under this issue.
ISSUE FOUR:
Appellants on damages awarded conceded to the objective of a trial court’s award of damages generally which is to compensate for injury suffered, that there was no basis for it here. That the Respondents by relief (iii) at page 193 of the Record of Appeal sought for both special and general damages jointly and severally against the defendants and the trial court awarded general damages against the appellant alone and without justification, referred to page 108 and 309 where the court held thus:
“(iii) N500,000.00 (Five Hundred Thousand Naira) special damages and N150,000.00 (One Hundred and Fifty Thousand Naira) general damages against the 1st and 2nd defendants respectively for trespass committed by each of them on the said land.”
The appellant argued that the holding of the court is a reproduction of the submission of counsel to the Respondents at page 296 of the records which the trial court lifted and made it part of its judgment. She submitted that there is no justification for the award of damages and it must be set aside, relied OYEDEJI v. AKINYELE (SUPRA).
Appellant finally urged the court to allow the appeal.
RESPONDENTS ISSUE ONE AND TWO:
The Respondents on their part, reacted to the 4 issues of the appellant with 2 issues which are primarily addressing the first issue of the appellant. Both shall be taken together. Respondents argued that the trial Judge wrote a good judgment as postulated by the court in KARIBO V. GREND & ORS (1992) 3 NWLR (Pt 230) 426 and his judgment did not occasion a miscarriage of justice. They gave a description of how evaluation of evidence is done and that the record indicates that the trial Judge evaluated the evidence before the court and also considered who was in possession to arrive at a decision.
On the allegation that the trial Judge merely reproduced portions of the written address of counsel to the Respondents, the Respondents admitted that parts of their written address were reproduced by the court but that it did not occasion a miscarriage of justice. They relied on ONYEKWE V. THE STATE (1992) 9 LRCN 983 at 985; under their issue, the Respondents argued that the judgment affirmed their tenancy in respect of the land and then an order of injunction from further acts of trespass. They submitted that the trial court reviewed and evaluated the evidence before it and argued further that there is no illiterates jurat on Exhibit S and S1 at pages 363 and 364 of the record.
Arguing further, Respondents submitted that a plaintiff succeeds on the strength of his case but can take advantage of the evidence adduced by the defendant to strengthen its title, relied on MACAULAY & ORS V. OMIYALE (1997) 4 NWLR (Pt 497) 94 and OLOWOLAGBE (1995) 4 NWLR (Pt 387) 116. Furthermore, they submitted that the appellant admitted paragraphs 17 and 20 of the amended statement of claim and those paragraphs averred to trespass and destruction of building on the land in dispute even when she knows that she had no title to the land.
They submitted that the statement of defence was omitted from the compilation of records of appeal and therefore the claim was not defended but beyond that, that there was evidence before the court to justify the general damages awarded against the appellant.
They finally urged the court to dismiss the appeal.
In reply on points of law, the appellant submitted that the Respondents erroneously saw the appellants issue one as a complaint against the style of writing the judgment. Appellant contended that the Respondent could distinguish between their submissions and the evaluation by the trial Judge and if all the trial court did was to reproduce submissions of counsel, then no evaluation was done and that has occasioned a miscarriage of justice and the case of KARIBO V. GREND and ONYEKWE V. STATE (SUPRA) are not relevant.
On issue two, the appellant responded by saying that Exhibit L was tendered to prove payment of money not for the purpose of establishing a lease. She submitted the purpose for which the document was admitted and Section 15 of the Land Instrument Registration Law Cap 111 Laws of Lagos State 1994 are known authorities on this point as against Exhibit K – a lease for 20 years only. On the alleged statement of defence omitted from the record of appeal, the appellant referred to pages 87 – 89 of the record of appeal which is the statement of defence. Furthermore, that Paragraphs 3, 17 and 20 of the statement of claim admitted do not reflect what the Respondents counsel alleged they do. That the complaint of the appellant is against lack of evaluation which resulted in a perverse decision. The appellant reproduced portions of the judgment that were a verbatim reproduction of what Respondents had presented in their written address before the trial court. That there were not findings by the Judge. She finally urged the court to find for the appellant and allow the appeal.
RESOLUTION:
In view of the approach taken by the Respondents in addressing all the issues formulated by the appellant, resolution shall be all at once.
The appellant’s first challenge is one questioning evaluation purportedly done by the trial Judge. It is settled that it is the duty of the trial Judge to evaluate evidence presented during trial before making its primary findings of fact. Unless the trial Judge fails in this duty, an appellate cannot interfere, see ARE V. IPAYE (1990) 3 SC (Pt 11) 109 where the Supreme Court held thus:
“I think it has to be appreciated that the evaluation of evidence and findings of facts are within the province of the trial court, and that an appellate court will only interfere if such evaluation and findings are perverse and show a misapprehension of the facts.” Per NNAMAMI J.S.C.
How evaluation is done has also received judicial attention where superior courts set out the approach to evaluation of evidence. See ABISI V. EKWEALOR (1993) NWLR (Pt 302) 642 where the apex court said thus:
“Before a Judge before whom evidence is adduced by the parties before him in civil case comes to a decision as to which evidence he believes or accepts and which evidence he rejects, he should first of all put the totality of the testimony adduced by both parties on that imaginary scale, he will put the evidence adduced by the plaintiff on one side and that of the defendant on the other side and weigh them together. He will then see which is heavier not by the number of witnesses called by each party, but by the quality or the probative value of the testimony of those witnesses. This is what is meant when it is said that a civil case is decided on the balance of probabilities therefore, in determining which is heavier, the Judge will naturally have regard to the following:-
(a) Whether the evidence is admissible
(b) Whether it is relevant
(c) Whether it is credible
(d) Whether it is conclusive, and
(e) Whether it is more probable that that given by the other party.
Finally, after invoking the law, if any that is applicable to the case, the trial Judge will then come to his final conclusion based on the evidence which he has accepted.”
The complaint here is that the trial Judge failed in that duty and merely reproduced portions of the written address of the Respondents (unedited) to form the basis of his judgment without following the guideline set out on how evaluation of evidence is done.
The judgment of the lower court was based on 2 leases dated 20th July, 1973 for 99 years – Exhibit L and one dated 7th May, 1976 for a term of 20 Years, – Exhibit K, both in favour of the Respondents’ father. The appellants and Respondents were all in possession. The trial court clearly on record admitted Exhibit L (an unregistered lease) as evidence of payment but found that taken along possession it can found a declaration that Respondents are tenants. But the same lower court found that the Appellant as 2nd Defendant at the trial court was in possession. So the Respondents had no possession to go along with the registered lease having been disposed by the Appellant.
I have gone through the judgment of the trial court and truly, he largely reproduced the submissions of learned counsel to the Respondents unedited and there is little or no input or evaluation of his own. Having failed to consider the pillars of evaluation, this court must perform that duty now.
The Respondents as plaintiffs before the trial court sought reliefs as follows:
“(i) A declaration that the plaintiffs are tenants of Alhaja Ashinowu Adepeju and/or of her executors and/or of her administrators in respect of the piece and parcel of land lying and being situate at Isaga Ajibade Age Village, Iju Agege, Lagos State within the jurisdiction of this Honourable Court which is clearly delineated shown edged red and marked A on the survey plan annexed to the Deed of Lease dated 7th May, 1976 and registered on No. 53 at page in volume 1554 of the Lands Registry in the office of Lagos now Ikeja.
(ii) Possession of the said piece and parcel of land lying being and situate at Isaga Ajibade Age Village, Iju Agege, Lagos.
(iii) Perpetual Injunction restraining the defendant their servants and or agents from entering and/or committing any or further acts of trespass on the said piece and parcel of land.
(iv) N500,000.00 (Five Hundred Thousand Naira) special damages against the 1st and 2nd defendants respectively and N200,000.00 (Two Hundred Thousand Naira) general damages against the defendants jointly and severally. Particulars of Special Damages. Present cost of building the two (2) bedroom boys quarters flat which was completed before demolition by the 1st defendant N300,000.00 (Three Hundred Thousand Naira) against the 1st defendant N200,000.00 (Two Hundred Thousand Naira) against the 2nd defendant present cost of building a block of 4 flats to decking level (without windows, doors but merely wall block) which was demolished by the 2nd defendant.”
Both sides called evidence and also tendered documents in evidence. The relevant documents or those of paramount importance in determining this matter are Exhibit K same as Exhibit E and Exhibit L. The trial court decided the matter on the basis of these Exhibits. The appellant’s defence was founded on Exhibits S, S1 and M dated 1976.
As observed earlier, the Respondents claimed possession and alleged trespass against the appellant and one other at the trial court. Their vendor is the same Madam Ashinowu Adepeju.
Exhibit K (same as Exhibit E) is a lease dated 7th May, 1976 registered as No. 53 at page 53 in volume 1550 of the Land Registry for 20 years in favour of Respondents’ father.
Exhibit L, another lease dated 26th July, 1973 is unregistered deed for 99 years. It was admitted as evidence of payment or purely as receipt of payment. It therefore cannot be evidence of legal interest. The Respondents by their pleadings relied on Exhibit K as evidence of tenancy not Exhibit L. Taking the date of Exhibit K and 20 years therefrom, the lease expired in 1996. I agree with the appellant that parties are bound by their pleadings, see the case of A.T. LTD v. A.D.H. LTD (2007) 15 NWLR (pt 1056) 118 where the Supreme Court held as follows:
“It is settled law that parties are bound by the case they presented to the court and the issues raised thereby for trial. Similarly, the court is bound to limit itself to the case presented and the issues raised by the parties. And none of the parties is allowed to make a new case either at the court of trial or an appeal without amending the originating process.”
See also AKINFOLARIN v. AKINOLA (1994) 3 NWLR (pt 335) 659; ONIAH V. ONYIA (1989) 1 NWLR (pt 99) 514; ENANG V. ADU (1981) 11 – 12 SC 25 at 36 and ODONIGI V. OGELEKE (2001) 6 NWLR (Pt 708) 12.
A party cannot be allowed to go out of its pleadings to set up a different case from that which is presented by the pleadings. The Respondents having rooted their interest on Exhibit K cannot be allowed to put up a different root of tenancy such as the unregistered lease created by Exhibit L, which in any case, is not registered and cannot therefore establish legal interest but equitable interest, see the case of CHIEF CHRISTOPHER I. MONKOM & ORS v. AUGUSTINE ODILI (2009) LPELR – 3927 (CA) wherein the court held:
“I agree with learned counsel for the appellant, that once a document qualifies as an instrument under Section 15 of the Land Registration Law, non registration of such document makes it prima facie inadmissible. However such unregistered document is admissible as an acknowledgment of payment of money.”
The said Exhibit L could along possession create an equitable interest subject to an innocent purchaser without notice but the contradictions between Exhibit K and L made Exhibit L unreliable. Most importantly, Exhibit K had expired, which makes the possession of the Respondents unlawful as against the possession of the appellant whose possession is backed by valid legal documents.
The trial court held that the unregistered lease which was admitted as receipt along possession established the tenancy of the Respondents because Exhibit K has a life span of 20 years. The court relied on an unregistered deed of lease of 99 years. The interesting part of it is that the lease of 99 years was made earlier and the one for 20 years was later in time. The question is if the said Exhibit L is for 99 years why make another deed of lesser duration i.e. 20 years? If Exhibit L could found a title then Exhibit M tendered by 1st defendant at the lower court which has no defect would have a higher weight than Exhibit L because there is possession too. Exhibit M is a sale of land acknowledgment in favour of Dr. M.O. Taiwo dated 10th July, 1976 not tenancy. The trial court discountenanced it on the ground that the Respondents said it had no illiterates jurat. This again is from the submission of counsel to the Respondents. I believe the trial Judge did not even view the said Exhibit to verify. The jurat is clearly manifested on the face of Exhibit M and therefore should not have been discountenanced by the trial court.
Exhibit L, having been admitted as a receipt therefore, cannot inure title to the Respondents as Section 15 of the Land Instruments Registration Law of Lagos State clearly prohibits it. Section 2 defines instruments and provides thus:
“Instruments” means a document affecting land in the Lagos State whereby one party (hereinafter called the granter) confers, transfers, limb, charges or extinguishes in favour of another party (hereinafter called the grantee) any right or title to, or interest in land in the Lagos State and includes a certificate of purchase and a power of attorney under which any instrument may be executed, but does not include a will.”
Furthermore, Section 15 of the said law provides as follows:
“No instrument shall be pleaded or given in evidence in any court as affecting any land unless the same shall have registered.”
Similar Sections received judicial interpretation in a plethora of cases. See the case of ANYABUNSI V. UGWUNZE (1995) 6 NWLR (pt 401) 255; WEST AFRICAN COTTONS LTD V. SALISU SAMAILA YANKARA (2007) LPELR – 9045 (CA); SAVANNAH BANK PLC V. IBRAHIM (2000) 6 NWLR (Pt 662) 585 at 603 and OLOWOLARAMO v. UMECHUKWU (2003) 2 NWLR (Pt 805) 537.
From the above therefore, no evidence can be led on the said Exhibit L as to support title or legal lease because Exhibit L was a mere receipt of payment and nothing more.
Indeed, it was wrong for the learned trial Judge to hold that Exhibit L created a legal interest of 99 years in favour of the Respondents when there was no such lease upon which the court could base its judgment. The court fell into error because Exhibit L falls short of a lease agreement, see OKECHUKWU V. ONUORAH (2001) FWLR (Pt 33) 219 where the apex court held a valid lease to be:
“For a lease agreement to be valid, there must be among other essential, agreements on the date of commencement of the term; and in the absence of this date, validity will not be given to the agreement. In order to have a valid agreement for a lease, it is essential that it should either be in express terms or by reasonable inference: from the language used in the instrument on what day the term must be either certain or capable of being rendered certain before the lease takes effect. In other words, there must be a certain beginning and a certain ending otherwise, it is not a perfect lease and a contract must contain this reference.”
Another vitiating element of the said Exhibit L was that it was only stamped in 1999 years after the claim of the Respondents had been instituted.
The trial court failed to again see that Exhibit K which was made in 1976 had no reference to Exhibit L (made in 1973) if it was truly made earlier. The appellant posed a fundamental question thus:
“Infact one is tempted to ask the question: Why would the Respondent’s father who in 1973 had been granted a lease of 99 years in respect of the land in dispute accept a lesser lease of 20 years of the same land to commence on 26th July, 1976 if this was not the agreement between the parties?”
The answer to the above is obvious that it does not make sense nor add up.
It was further established by evidence that the vendor died before the institution of the claim and therefore the issue of renewal of Exhibit K did not arise. It was also during the pendency of the suit that the tenure of Exhibit K also expired. So after the expiration of the lease, can the Respondents still maintain a title such that it can allow the court to make an order of perpetual injunction? A perpetual injunction has been defined in the case of RECTOR KWARA POLY V. ADEFILA (2007) 15 NWLR (Pt 1056) 42 thus:
“A perpetual injunction has been defined as a post trial relief usually granted after a full trial of a case in the merit and it is usually directed at the final settlement and enforcement of the rights of the parties, which were in dispute.” Per AGUBE J.C.A.
Being a final consequential order, which naturally flows from a declaratory order made by the court, a perpetual injunction also obviates the necessity of multiplicity of suits and it is therefore improper to grant a perpetual injunction at the instance of a limited owner of the absolute interest. It is obviously the error of the trial court finding and declaring leasehold in favour of the Respondents that informed the making of the order of perpetual injunction. If the claim of the Respondents fail the order of injunction must also fail because it cannot stand alone. It is a consequential order and not one that can have legs to stand on as of right.
The argument of the Respondents justifying the order of injunction on an expired lease cannot stand. The renewal clause in the expired lease having not been called to existence cannot be the basis of the injunction as argued by the Respondents. The lease expired before judgment and the trial Judge should have noted the expiration date on Exhibit K if he truly reviewed the evidence before him.
Part of the complaint is on the award of damages. The trial Judge at page 308 of the record held that the Respondents were entitled to damages and made the following award:
“(iii) N500,000.00 (Five Hundred Thousand Naira) special Damages and N150,000.00 (One Hundred and Fifty Thousand Naira) general damages against the 1st and 2nd defendants respectively for trespass committed by each of them on the said land.”
The appellant (who was the 2nd Defendant at the lower court) questioned how the general damages of N150,000.00 (One Hundred and Fifty Thousand Naira) was arrived at against the appellant alone. The trial court used the word ‘respectively’ wrongly. The word is defined by www .dictionary .com as follows:
“- Adverb
1. In precisely the order given, sequentially.
2. (of two or more things, with reference to two or more things previously mentioned) referring or applying to in a parallel or sequential way.”
The mere use of the word “respectively” gave the award a different meaning which is contrary to the latter part of the order where the trial Judge said “for trespass committed by each of them on the said land.” To say trespass committed by each of them and use ‘respectively’ is wrong. He should have said against ‘each of them’. Anyway, if the foundation of the claim is destroyed can the award survive? I answer in the Negative.
The basis of the claim in special damages and general damages is the belief that Exhibit K is evidence of valid tenancy. Exhibit L is evidence payment expired before therefore on what basis did the trial court find that the Respondents proved damages on it? I find that the trial court erred in this finding.
Flowing from above therefore, the claim of the Respondent was not made out before the lower court and the lower court proceeded on the wrong application of principles of proving interest to land to find for the Respondents. The error in failing to evaluate evidence made the court to arrive at a perverse decision. And that cannot be allowed to stand. This is one case that interference by this court is necessary to reverse the injustice done by the wrong decision.
Now, just a word about the way the Judge wrote his judgment. The complaint is not about his chosen style, agreed, style is an individual approach and all that is expected is that certain elements should exist in the judgment.
There are traditional elements of a judgment, these are identification of issues, evaluation of evidence, make clear findings of fact, apply the law and arrive at definite conclusion, see MBAWI v. BOSI (2006) 11 NWLR (Pt 991) 400. An appellate court therefore will not interfere when those elements have been complied with and exist on record. On the other hand, counsel address is meant to assist a court and not a substitute for evaluation of evidence by the court. A case is won on the evidence before the court not address of counsel. What the trial Judge did in this case was to reproduce counsel address unedited thereby giving the impression that he had no input in the judgment. A court can agree with what counsel submits to the court but to just copy and paste especially when such submission is contrary to evidence before the court is rather unfortunate. It does not show that the court had anything of its own in the judgment. I think a Judge should know that submissions are made to him to assist him in making findings, how then can the court copy submissions of counsel and say they are findings of the court? Just a little industry on the part of the trial Judge would have saved the parties from the waste of time and resources. I say no more.
The claim of the Respondents should have failed. This appeal succeeds and I hereby set aside the judgment of the trial court delivered by HON. JUSTICE Y.O. YUSUPH on the 14th day of March, 2000 and its consequential orders.
Each party to bear its cost.
UZO I. NDUKWE-ANYANWU, J.C.A.: I had the privilege of reading in draft form, the Judgment just delivered by my learned brother Yargata Byenchit Nimpar, JCA.
My learned brother has adequately resolved the issues as articulated by the parties. I have nothing more to add.
I also hold that the appeal succeeds in the terms in the lead judgment.
The judgment of the lower court is hereby set aside.
SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.: I had the privilege of reading before now the lead judgment just delivered by my learned brother Y.B. NIMPAR, JCA.
The issues adopted for the resolution of the appeal have been adequately and judiciously addressed in consonance with the relevant laws and authorities.
I agree with the reasoning and conclusions reached therein.
I also hold that the appeal has merit and it is accordingly allowed. The judgment of the lower court delivered on 14-3-2000 is hereby set aside.
I abide by the order as to costs.
Appearances
I. A. KOKUMOFor Appellant
AND
I. A. AKIYODEFor Respondent
