MR. ADEKUNLE TAIWO v. CHIEF FELIX KOLA OGUNWALE
(2019)LCN/12525(CA)
In The Court of Appeal of Nigeria
On Thursday, the 17th day of January, 2019
CA/AK/55/2017
RATIO
DOCUMENT: WHO HAS THE FULL CAPACITY TO SIGN A DOCUMENT
“It is trite law that any person of full age and capacity and understanding who signs a document, being not illiterate is deemed or presumed to understand what he appended his signature upon. Whatever that document says and undertakes is binding upon him and plea of non est factum will not avail him. SeeEgbase V. Oriareghan (1985) 2 NWLR 884, 899; Chief R. A. Okoye & Ors V. A. Santilli & Ors (1994) 4 SCNJ 333 at 353. Similarly Ogundare, JCA (as he then was) stated, in the case of Sahabi Umaru Tsalibawa V. Hajiya Habiba (1991) 2 NWLR (Pt. 174) 461 at 479, that it is common knowledge that a person’s signature, written names or mark on a document, not under seal, signifies an authentication of that document that such a person holds himself out as bound, or responsible for the contents of such a document.” PER MOHAMMED AMBI-USI DANJUMA, J.C.A.
INTERPRETATION: MEANING OF THE TERM ACQUIESCENCE AND LACHES
“The term Acquiescence implies fraud or the failure to act while the infringement was going on. Laches means the failure to take action for long time after knowledge that the infringement had taken place. See Buremoh V. Isiaka Akande (2001) 15 NWLR (Pt. 736) 293. In Inspector Kayode V. J. A. Odutola (2001) 11 NWLR (Pt. 725) 659, the Supreme Court held that, ‘acquiescence is not just mere lapse of time, it has been said that an acquiescence which will deprive a man of his legal rights must amount to fraud and in my view that is an abbreviated statement of a very true proposition. A man is not to be deprived of his legal rights unless he acted in such a way as would make it fraudulent for him to set up those rights.’ See Abbey V. Ollenu (1954) 14 WACA 564 at 568.” PER MOHAMMED AMBI-USI DANJUMA, J.C.A.
JUSTICES
MOHAMMED AMBI-USI DANJUMA Justice of The Court of Appeal of Nigeria
RIDWAN MAIWADA ABDULLAHI Justice of The Court of Appeal of Nigeria
PATRICIA AJUMA MAHMOUD Justice of The Court of Appeal of Nigeria
Between
MR. ADEKUNLE TAIWO Appellant(s)
AND
CHIEF FELIX KOLA OGUNWALE Respondent(s)
MOHAMMED AMBI-USI DANJUMA, J.C.A. (Delivering the Leading Judgment):
This appeal is against the judgment of A. O. Oyebiyi J., of the High Court of Justice, Ede Judicial Division, Osun State, delivered on the 22nd December, 2016.
The Respondent herein as the Plaintiff at the trial Court commenced this action against the Appellant who was the defendant by a Writ of Summon and Statement of Claim dated and filed on the 3rd August, 2015. The Plaintiff also filed a Consequential Amended Statement of Claim dated and filed 6th April, 2016. He claimed against the defendant the following reliefs:
1. A DECLARATION that the Plaintiff is the person entitled to the Statutory Right of Occupancy in respect of ALL THAT piece or Ga Fulani, Halleluyah Area, near Dada Estate in Egbedore Local Government Area of Osun State.
2. AN ORDER of perpetual injunction restraining the Defendant, his servants, agents and privies from committing any acts of trespass on the said piece or parcel of land or from erecting any structure thereon or from selling or tampering in any way with the said piece or parcel of land situate, lying and being at Ga Fulani, Halleluyah Area, near Dada Estate in Egbedore Local Government Area of Osun State.
3. A SUM OF FIFTY MILLION NAIRA (N50 MILLION) Only as general damages against the defendant for acts of trespass committed by him on the said piece or parcel of land being the subject-matter of this suit.
The Defendant responded by filing amended statement of defence and counter claim dated and filed on the 14th January, 2016. He counter claimed against the Plaintiff the following.
i. An Order restraining the Plaintiff, his agents, privies and servants from entering upon the business complex of the Defendant situate and being at Woru Osefiri family land, Woru Village, Halleluyah Area, Dada Estate, Off West Bye Pass, Osogbo to cause any form of disturbance, assault and molestation to the Defendant and/or any of the occupants of the business complex.
ii. The sum of Ten Million Naira (N10,000,000.00) being general damages for the disturbance, assault and molestation caused the Defendant by the Plaintiff from 2014 which still continues.
iii. One Million Naira (N1,000,000.00) as cost of litigation.
It was the Plaintiff’s case, from the pleadings and evidence adduced, at the trial Court, that the Plaintiff acquired a vast parcels of land including the land in dispute by purchase from different families at Halleluyah Area near Dada Estate in Egbedore Local Government Areas of Osun State. Since then he has been selling portions of the land to individuals and organizations for building and farming purposes. That the defendant was not one of those he sold land or portion to, some individuals, including the defendant encroached in his parcel of land, and he instructed his solicitor to write to all of them. The defendant, inspite of the warning, continued unabated to commit trespass on the land which made the plaintiff to report the matter to police and was later advised to go to Court.
The Defendant, on the other hand, contended that though the land in dispute formed part of large parcel of land purchased by the Plaintiff from the Esa Woru Osefiri family of Woru Village, the Plaintiff sold portions of this land to individuals including Mrs. Grace Adunola Taiwo, the Defendant’s mother. The transaction between the Defendant’s mother and the Plaintiff was conducted through his Lawyer Attorney, Mr. Samuel Oladepo Omowumi, who was appointed vide power of Attorney dated 15th day of September, 2006.
A sale agreement dated 13th November, 2006 was executed in favour of Mrs. Grace Adunola Taiwo (the Defendant?s mother) covering 32 plots of land, she made an outright gift of 16 plots to the Defendant in which a Deed of gift dated 12th March, 2008 was executed in his favour.
The Defendant, thereafter, erected a fence construction. Covering the land transferred to him, and was completed in December, 2008. He also contended that he obtained necessary building document and constructed a business complex in 2013.
In the course of the proceedings the Plaintiff testified in chief and called no other witness but tendered documents marked Exhibits P1, P2, P3, P3A – C, P4 and P5. The Defendant on his part testified as DW1 and called one other witness. He also tendered documents marked Exhibits D1 – D8, D9A – D, D10, D11, D12 – D12E, D13, D14 – D14I and D15 A – C. Written Addresses were filed and exchanged between the parties; the defendant thereafter replied on point of law.
Judgment was entered in favour of the Plaintiff and the Defendant’s Counter Claim was dismissed on the 22nd December, 2016.
Dissatisfied with the decision of the trial Court, the Appellant herein approached this Court vide a notice of appeal dated and filed 23rd December, 2016 containing 3 Grounds. He later filed 15th November, 2017. The amended notice of appeal contained twelve (12) Grounds and reliefs sought by the Appellant.
In line with the rules of this Court, the Appellant, through his Counsel, filed appellant’s Brief on the 14th March, 2018. The Respondent on his part, through his Counsel, filed the Respondent’s brief of argument dated and filed on the 4th December, 2017.
Respective Counsel on both sides adopted their brief of argument on the 18th October, 2018. The Appellant submitted four (4) issues for determination, they are as follows:
1. Whether Exhibit P5 (photocopy) which was also marked as Exhibit D2 (original copy with stamped duty receipt) is worthless, inchoate and void by virtue of Section 17 of the Registration of Instrument Law Cap 64, Laws of Osun State and rightly expunged by the trial Judge. Grounds 1, 3, 4, 5, 6 and 7.
2. Whether the Appellant discharged the onus placed on him as to how the Respondent divested himself of the title of land in dispute and same vested on the Appellant. Grounds 8, 9 and 10.
3. Whether the defence of laches and acquiescence does not avail the Appellant. Ground 11.
4. Whether the counter-claim of the Appellant was rightly dismissed. Ground 12.
The Respondent in his part submitted five (5) issues for determination, they are as follow:
1. Whether Ground 2 of the Grounds of Appeal as contained in the Amended Notice of Appeal dated and filed on 15th November, 2017 has not been abandoned. (Ground 2).
2. Whether Exhibits PS which was also tendered and marked Exhibit 02 is not worthless, inchoate and void by virtue of Sections 2, 3 (1) & (2); 16 & 17 of the Lands Instruments Registration Law 2000, Cap 64 Laws of Osun State and properly and rightly expunged by the learned trial Judge. (Grounds 1, 3, 4, 5, 6 & 7).
3. Whether, having regard to the evidence led in this case, the Respondent has been divested of the title to the land in dispute. (Grounds 8, 9 & 10).
4. Whether the defence of laches and/or acquiescence can avail the Appellant in the circumstances of this case.
5. Whether the Appellant’s Counter-Claim was sustainable having regard to the totality of the evidence before the learned trial Judge.
The two set of issues for determination submitted by parties are identical, they were only framed in different form, except Respondent’s issue 1 which challenged the competency of Ground 2 of the Appellant’s Amended Grounds of Appeal; I shall therefore adopt all the Appellant’s issues for determination with such modification where necessary and issue 1 of the Respondent’s issue, for the determination of this appeal.
ARGUMENT
ISSUE ONE
Whether Ground 2 of the Grounds of Appeal as contained in the Amended Notice of Appeal dated and filed on the 15th November, 2017 has not been abandoned. (GROUNDS 2).?
This issue as earlier pointed out was formulated by the Respondent in his brief of argument to which the Appellant responded at pages 4-5 of Reply brief Arguing the issue, the learned counsel for the Respondent in the Respondents brief of argument settled by Degbite Moronkeji Esq., submitted that the Appellant filed 12 Grounds of appeal from which he distilled 4 issues for determination; the issues covered Grounds 1, 3, 4, 5, 6, 7, 8, 9, 10, 11 and 12. He argued that the Appellant did not proffer any argument in support of Ground 2, the Appellant did not formulate any issue to cover the said Ground 2.
He submitted that when a Ground of Appeal is not treated by formulating an issue on it in an appeal, it is deemed abandoned. He referred us to the cases of Mrs. R. Y. Ajibade & Anor V. Madam T. I. Pedro & Anor (1992) 5 NWLR (Pt. 241) P. 257; Are V. Ipaye (1986) 5 NWLR (Pt. 29) P. 416 at 418; Lemboye V. Ogunsiji (1990) 6 NWLR (Pt. 155) P. 210.
He urged us to hold that the Appellant has abandoned Ground 2 on which no issue was formulated.
The Appellant’s lead counsel Wilson Atirene Esq., respondent to this issue in the appellant’s reply brief that the submission of the respondent on this issue is a misconception of the law. Grounds 2 alleged to have been abandoned is not a complaint against a specific finding of court rather it is a complaint against the general findings of Court having regard to the evidence led and conclusion or findings of Court.
The Learned Counsel copiously produced the dictum of Kalgo J. S.C. in the case of Akinlagun V. Oshoboja (2006) 12 NWLR (Pt. 993) 60 and argued that a perusal of Appellant’s issue two will reveal that the issue is a complaint against the totality of evidence and that ground two has been subsumed and argued in the said issue two. It will amount to proliferation of issue if another or additional issue is formulated on Ground 2. Proliferation of issue has been frowned at by this Court and Supreme Court. He referred to the cases of Okwuagbala V. Ikwueme (2010) 19 NWLR (Pt. 1226) 54 and Nwankwo & Ors V. Yar’adua (2010) 12 NWLR (Pt. 1209) 518 and submitted that Ground 2 of the Appellant’s Amended Notice of Appeal, having been covered and argued under the Appellant?s issue two, is not abandoned and urged this Court to so hold.
ISSUE TWO
Whether Exhibit P5 which was also marked Exhibit D2 is worthless, inchoate and void by virtue of Section 17 of the Land Instrument Registration Law, Cap. 64, Laws of Osun State, 2000 and rightly expunged. Ground 1, 3, 4, 5, 6 and 7.
The learned Counsel for the appellant argued this issue in issue one of the Appellant’s issues for determination. He recapped the facts of the case as it relates to Exhibits P5 and D2 and submitted that the holding of the trial Court in its Judgment, that Exhibit D2 is worthless, inchoate, void and same was expunged, was not only perverse but also caused mis-carriage of justice. That S.17 of the land instrument Registration law has been interpreted by plethora of authorities that unregistered registrable instrument can be admitted to prove equitable interest which is as good as Legal interest if it is coupled with possession. He cited the cases ofADESEGUN OGUNSANYA & ANOR V. SKYE BANK PLC (2013) LPELR 20555 (CA) AT P.34 PARAS A – G; MRS. GLADYS APPAH V. MRS. CHINYERE EGWUATU (2012) LPELR 20847 (CA) PP 22 – 23 PARAS E – A; GODWIN NSIEGBE & ANOR V. OBINA MGBEMENA & ANOR (2007) LPELR 2065 (SC).
The learned counsel contended that evidence abound at the trial Court that the Appellant is in active and exclusive possession of the land in dispute and this is evident by Exhibits D6, D7, D8, D9 – D9D, D13, D13, D14, D15 – D15C and P1. He further argued that the appellant having been in possession of the land in dispute on the basis of unregistered registrable instrument, the trial Court ought to have held that the Appellant had acquired equitable interest on the land in dispute. He cited the case of ETAJATA & ORS V. OLOGBO & ANOR (2007) LPELR 1171 (SC) and submitted that S. 17 of the Land instrument Registration Law is not a magic wand that will defeat all interests acquired by registrable instrument which is not registered, that when a person is in possession of land with such instrument not registered, the person has acquired equitable interest which is as good as legal estate.
The learned Counsel referred to paragraphs 14 and 17 of his Amended pleadings as well as Exhibit D2 and submitted that assuming without conceding that Exhibit D2 does not satisfy the requirements of S. 16 of the Land instruments registration Law, the trial Court ought to have looked at the purpose to which the Exhibit was pleaded and tendered which was to show the agency relationship between respondent land S. O. Omowumi and tendered to prove equitable interest in and.
He relied on the case of ABU V. KUYABANA (2002) 4 NWLR (PT. 758) 599. He also submitted that by Exhibit D2 and totality of Respondent’s evidence at the trial Court the agency relationship between the respondent and S.O. Omowumi has been established. The Respondent having executed Exhibit D2, it is his duty to register it. He relied on the case of ADESEGUN OGUNSANYA & ANOR V. SKYE BANK PLC (SUPRA).
The learned Counsel submitted that the duty of Equity is not to allow a party to profit from his own wrongful act in a transaction and to contend that the transaction is unenforceable or to use the Court to perpetuate the wrongful act. He argued that the Respondent used Exhibit D2 to institute an action in Exhibit D12 which is still pending before the same trial judge, he cannot therefore be allowed to run away from the effect of his action as same will be unjust to the appellant. He relied on the case of AYANKOYA V. OLUKOYA (1996) 4 NWLR (PT. 440) 1 (SC) and also produced in extensor the decision in PATRICK CHIEKE V. IYABO OLUYEMISI OLUSOGA & ANOR (1997) LPELR 845 (SC). He urged this Court to hold that the holding of the trial Court that Exhibit D2 is worthless, inchoate, void and effectual and expunging of same has no basis.
The Counsel to the respondent, on the other part, after copious references to the facts of the case and Sections 2(c) 3, 16 and 17 of the lands instruments Registration Law Cap 64, Laws of Osun State 2000, submitted that Exhibit D2 was not registered and so it is a worthless document upon which nothing can be built. He cited the case of Registered Trustees of Muslim Mission Hospital Committee V. Oluwole Adeagbo (1992) 2 NWLR part 226 P. 690, where similar provision as with relied on the decision of the Supreme Court in the case ofAlhaji A. B Abubakar V. Alhaji Abubakar Duniyan Waziri & Ors (2008) All FWLR (Pt. 436) P. 2025 at 2035 and the case of Madam Oredola Ogunameh & Ors V. Olugbenga Adebayo (2009) All FWLR (Pt. 467) P. 188 @ 190 – 191.
The Counsel submitted that a power of Attorney properly so called shall operate as a public document. That being the case only a certified true copy by the Registrar of deeds at the land registry will satisfy the law, on this again, he submitted, that Exhibits P5 and D2 are worthless and accordingly void.
On the appellants submission that Exhibit D2 is capable of being a ground of equitable relief on him, the Respondent’s counsel submitted that it could not be so. The Respondent did not at any time condone the act of trespass committed on his parcel of land by the Appellant, Exhibit P1 is clear in that respect. He further submitted that the Respondent did not sell his land to the Appellant or his mother. On the meaning and effect of declaring Exhibit P5 and D a nullity, he cited the cases of Billy Ikpongette & Anor V. Commissioner of Police (2009) All FWLR (Pt. 471) P. 996 at 1000; Alhaji T. A. Ogboriefon V. Ismaila & Anor (2012) All FWLR (Pt.625) P. 321 at 325 and U.A.C. V. MACFOY (1961) 3 All ER 169.
On the contention of the Appellant that the Exhibit D2 was merely tendered not to prove title but as evidence of payment, the Respondent’s Counsel submitted that the Respondent’s case is based on the claim of title to the land in dispute and that Exhibit D2 did not indicate any amount for it to be evidence of payment and to who the money were paid. The Appellant did not prove these facts by credible evidence at the trial.
He further submitted that credible evidence must be led to show that the money was actually paid and received by the Respondent and not to an unauthorized person; that is why the laws makes it mandatory for power of attorney to be registered. He relied on the cases of Mr. Edmud Chukwu & Ors V. Chief J. A. Amadi & Ors (2009) All FWLR (Pt. 472) P.1189 at 1193 – 1194; Prince Olusegun Adeola & Ors V. Mr. Isaac Adeyinka Ayeoba & 4 Ors (2009) All FWLR (Pt. 458) P. 355 @ 362; Co-operative Bank V. Attorney General, Enugu State (1992) 8 NWLR (Pt. 261) P. 528.
On the contention that the Respondent did not give disclaimer in respect of Exhibit D2, the Respondent’s counsel submitted that the principle of ‘Caveat Emptor’ applies, they ought to have exercise utmost caution by thoroughly investigating the property he intended to buy. He should, therefore, be ready to face the consequences of his action or omission.
On the interpretation of statutes, he cited the cases of Federal University of Technology Yola V. A.S.U.U (2012) All FWLR (Pt. 643) P.1852 at 1858. Network Security Ltd V. Dahiru (2008) All FWLR (Pt. 419) P. 475 at 481.
He urged us to hold that Exhibit P5/D2 is worthless, inchoate and void by virtue of Sections 2, 3 (i) & (2), 16 and 17 of the Land Instruments Registration Law 2000, Cap 64, Laws of Osun State and that the trial judge rightly expunged the Exhibit.
The Appellant’s Counsel, in his reply brief, submitted that the purpose of tendering Exhibit P5 or D2 was to establish contractual relationship between the Respondent and his Attorney. The law allows power of Attorney though not registered, to be admitted if possession can be established. He relied on the case of Skye Bank Plc & Anor V. Mrs Damaris Doris James & Ors (2016) LPELR 41812 (CA). He submitted that paragraph 2(v), 14 and 17 of the amended statement of defence and counter – claim, pleaded Exhibit D2 to show the transaction and agency relationship that existed between the Respondent and his Attorney. The Appellant’s mother has been in actual possession of the land in dispute since 2007 when the Fulani herdsmen changed their land lord from the Respondent to the Appellant’s mother via Exhibit D4. The Appellant has also been on the land in exclusive possession since 2008, that the Appellant’s case falls under the exception established in the case of Skye Bank Plc & Anor V. Mrs. Damaris Doris James & Ors (supra).
In response to the admissibility of Exhibit P5 and D2 on the grounds of Certificate or being secondary evidence, the Appellant’s Counsel submitted that the argument was not covered by any of the Grounds of appeal, therefore liable to be struck out for being incompetent. He relied on the case of UFFORD V. UDOH (2012) LPELR 7908. He also submitted that issue of admissibility of Exhibit P5 on the ground of being photocopy was not raised at the trial Court, therefore, the Respondent can only raise it for the first time here with the leave of this Court. He cited the cases of IKEANYI V. ACB LTD (1997) LPELR 1469 (s) P.77 and AFRICAN NEWS PAPERS OF NIGER V. FRN (1985) NWLR (Pt. E. 137). He urged this Court to strike out argument contained in paragraph 4.00 of the Respondent?s brief.
The learned counsel further responded that Exhibit D2 is the original of Exhibit P5. The original being a primary evidence is the best form of evidence which a Court of law can act on.
He cited the case of BANKOLE V. BANKOLE (2012) LPELR 7988 (CA) and submitted that the objection of the Respondent on the Exhibit is misconceived and urged this Court to dismiss same.
Counsel also submitted that the answer given by the Respondent under cross examination that Exhibit P5 was stolen was a mere attempt to rescind from Exhibit D2 as at no time, crime was pleaded or proved by the parties and urged the Court to discountenance it. He submitted that the Appellant’s mother purchased the land in dispute from the Respondent’s Lawful Attorney, which is deemed to have been purchased from the Respondent and she executed Exhibit D3 in favour of the Respondent. That the Appellant’s mother had been in active possession of the land since 2007 when she executed Exhibit D4 in favour of some Fulani who were occupying the land prior to the purchase. Exhibit D2 was tendered merely to establish contractual relationship between the Respondent and his Attorney and the Appellant’s mother purchased the land in dispute on the strength of Exhibit D2 to which the respondent admitted that he executed.
He referred to the cases of Kamalu V. Umunna (1997) 5 NWLR (Pt. 505) (no page provided) and Onyenge V. Ebere (2004) 13 NWLR (Pt.889) 20 and submitted that the Respondent allowed his Lawful Attorney in Exhibit D2 to Institute an action in Exhibit D12 knowing fully the Exhibit D2 was not registered cannot now gain the advantage of his own wrong. Relied on the Maxim ‘Nullum commodum caperepotest de injurua sua propria’ (no one gain advantage of his own wrong). He cited the case of IBRAHIM V. OSUNDE & ORS (2009) LPELR 1411 (SC); PATRICK CHIEKE V. IYABO OLUYEMISI OLUSOGA & ANOR (1997) LPELR 845 (SC). He submitted that the power of Mr. Samuel Omowumi to sell the land in dispute to the Appellant’s mother is settled by the respondent’s admission that he executed Exhibit D2. He finally, on the issue, urged this Court to hold that Exhibit D2 does not qualify as an instrument under the land instruments registration Law and is admissible without registration.
ISSUE THREE
Whether the appellant discharged the Onus placed on him as to how the Respondent divested himself of the title of land in dispute and same vested on the appellant.?
Grounds 8, 9 and 10.
The learned Counsel for the Appellant arguing this issue, submitted that the appellant gave details of the investigation of the authority to Samuel Omowumi by the Respondent and the title of the Respondent to the land in dispute.
The Respondents lawyer who prepared Exhibit D2 also authenticated the document presented by the Respondent’s lawful Authority and the Fulani herdsmen who were tenants on the land as to the true owner of the land. It was also in evidence that the Fulani herdsmen were relocated to the other portion of land after the Appellant’s Mother had ejected them from the premises and no one questioned her action.
He referred to paragraphs 2 (v and viii) of his pleadings and submitted that by Exhibits D1, D2 and D3 the Appellant has established how the Respondent divested himself of the land in dispute and how same was vested in him. He argued that the standard of proof is on the balance of probability, he relied on S.134. Evidence Act, 2011 and the cases of BUHARI V. INEC & ORS (2008) 18 NWLR (PT. 1120) 246; UTC NIGERIA LIMITED V. SAMUEL PETERS (2009) LPELR 8426. He urged this Court to uphold his submission on this.
The counsel to the Respondent, in his response, referred to paragraph 12 of the consequential Amended statement of claim and defence to the counter-claim, he also referred to paragraphs 2 – 8, 11, 13, 15 17 ( e – g) and 19 – 21 thereof and the Respondent’s witness statement on oath at pages 382 – 385 vol. II of the record. He submitted that in order to discredit the Appellant’s claim that his mother lawfully and legally bought parcel of land from the respondent, tendered Exhibit P2C. The land in Exhibit P2C also form part of the land alleged to have been purchased by Appellant’s mother through Mr. Samuel Oladepo Omowumi, the alleged lawful Attorney.
Learned Counsel produced the recitals in Exhibit P2C and submitted that the Appellant’s mother had been dealing in the respondent’s parcel of land since 1977 when Mr. Samuel Oladepo Omowumi, the Attorney, had no power to deal with the Respondent’s land. He further submitted that the appellant’s mother and Mr. Samuel Oladepo Omowumi were alive at the trial of this case but the Appellant who ought to have called them as witnesses refused to call any of them which is fatal to his case. He cited the case of ONAH V. STATE (1985) 3 NWLR (PT.12) P. 236 @ 237. He submitted that from the evidence led in this case, the Respondent has not been divested of the title to the land in dispute and urged us to so hold.
The Appellant’s counsel, in his reply brief, submitted that there was no Exhibit in this case marked as P2C, the document referred to by the Respondent is Exhibit P3A. He argued that the Appellant predicated his case on Exhibit D1, D2 and D3, it is therefore a weak argument that since Exhibit P3A was back dated the claim of the appellant fails.
He submitted that Appellant gave explanation as to 1977 is on Exhibit P3A, he argued a Deed takes effect from the time of its delivery and not the day it was made or executed. He cited the case of AWOJUGBAGBE LIGHT LTD V. CHINUKWE (1995) 5 NWLR (PT. 390) 409 and submitted that the inference drawn by the respondent with respect to Exhibit P3A is misconceived and urged this Court to so hold.
The Counsel submitted, on his failure to call his mother and alleged Respondent’s Attorney as witnesses, that a party is not bound to call a number of witnesses before he can succeed in his case and that even if they are called they cannot go contrary to Exhibit D1 and D2. He cited the cases of BABATOLA V. ADEWUMI (2011) LPELR NWLR (PT. 1148) 182. He submitted that credible evidence were led to establish that Respondent has divested the title of the land in dispute to the Appellant and urged this Court to so hold.
ISSUE FOUR
Whether the defence of Laches and acquiescence did avail the Appellant.”
The Appellant’s Counsel arguing this issue submitted that the defence of Laches and acquiescence availed the appellant in this case. That the defence of Laches acquiescence is an equitable principle whereby a Court denied relief to a claimant who has unreasonably delayed or being negligent in asserting the claim and where granting such relief is unjust or unfair. He cited and relied on the cases CHUKWU V. AMADI (2009) 3 NWLR (PT. 1127) 56 and ISAAC V. IMASUEN (2016) LPELR 26066.
He submitted that the Appellant pleaded the said defence with its particulars in paragraph 13 of his pleading. He also referred to the paragraphs 2 (xv, xvi, xvii & xviii) and 19 thereof and submitted that the Appellant’s mother purchased the land in dispute in 2006 vide Exhibit D1 and executed Exhibits D4 in 2007 and D3 in 2008. Exhibit D3 is an instrument of gift of land in favour of the Appellant, he took possession immediately, drawn Exhibit D6 and applied for and was granted Exhibit D7 to which he fenced the land in 2008.
Counsel also submitted that the Appellant established a block making industry and completed shopping complex building on land in 2013, he made references to various Exhibits tendered and submitted that the Respondent who is living in Osun State and who is not far from the land on dispute cannot claim knowing or aware of the presence of the Appellant before 2014. He further submitted that DW2 confirmed that she received Exhibit P1 in the completed shopping complex, the Respondent regularly visits the land and even and chatted with D2.
The Counsel submitted that the defence of laches and acquiescence is available to the Appellant contrary to the holding of the trial judge and urged us to so hold.
The Respondent’s Counsel, on the other hand, in arguing this issue referred to paragraphs 4 – 11, 13, 15, 18 (b – f), 17, 20 and 21 of the plaintiff’s pleading, he also copiously produced paragraphs 20 and 21 of the said pleading and submitted that by exhibit P1 which the Appellant acknowledge receipt vide Exhibit P2, the respondent could not be said to be guilty of laches and acquiescence.
The Learned Counsel also submitted that the Appellant intensified his act of trespass on the land in dispute after receipt of Exhibit P1 and taking advantage of almost one year strike embarked by the workers of Osun State judiciary. That a trespasser, cannot by his act secure the possession of the land. He referred to the case of KARIMU AYINLA V. SIFAWA SIJUWOLA (1984) 5 SC. 44 @ 47.
The learned Counsel further submitted that the Respondent took immediate steps when he noticed encroachment by the appellant on the land in dispute even though the Appellant ignored the warning in Exhibit P1. He drew the attention of this Court to the Appellant’s two separate affidavits, paragraph 13 of the Appellant’s affidavit in support of preliminary objection and paragraph 17 of the Appellants counter affidavit and submitted that the two paragraphs are contra dictionary and thus the evidence of the Appellant is not reliable.
The Counsel also referred to paragraph 2(xvii) of the Defendant’s pleading and submitted that the Appellant rushed activities on the land upon being aware that the Respondent would challenge his action. The Counsel relying on the case of EDMUND CHUKWU & ORS V. CHIEF J. S. AMADI & ORS (2009) ALL FWLR PART 472 PAGE 1189 @ 1193 and submitted that the defence of laches and acquiescence would not avail he Appellant in the circumstances of this case. He urged us to so hold.
In his reply on point of law the learned counsel to the Appellant referred to paragraphs 2 (viii) and 2 (x), he also made reference to Exhibits D1, D4, D6, D7,D8, D9 – D9D, D13, D14 – D14 1 and D15 – D15C and submitted that all these evidence point to the fact that the Appellant and his mother have been on the land in dispute since 2006/2007 to the knowledge of the Respondent without any challenge or objection until 2014 when Exhibit P1 was written in preparation for this action and after he had completed building shopping complex on the land in dispute.
He cited the case ofAKANNI & 7 ORS V. MAKANJU & 2 ORS (1978) LPELR 322 PP 16 – 17 PARAS F – C and submitted that the appellant has been carrying his daily business on the land since 2008; by this the Appellant has changed his position to his detriment and therefore the Respondent is caught by the doctrine of laches and acquiescence and urged this Court to so hold.
ISSUE FIVE
Whether the counter – claim of the Appellant was rightly dismissed.? Grounds 12.
The Appellant’s Counsel, on this issue, adopted his argument on issue two and submitted that by Exhibits D1, D2 and D3 the Appellant has acquired interest in the disputed land through the Respondent’s lawful Attorney.
That he who does an act through another does it himself ‘per alium fact per scipsam facers videtur’, he referred us to the case of LEVENTIS TECH V. PETROJESSICA ENT. (1999) 6 NWLR (PT. 605) 45.
He submitted that the Respondent having divested himself of the land in dispute through his lawful attorney has no right to be disturbing the Appellant on the land in dispute. The trial judge erroneously dismissed the Appellant’s counter -claim for having for having no foundation which occasioned miscarriage of justice and urged this Court to so hold.
The respondent on his part through his counsel submitted for the appellant to succeed on his counter claim he must prove that he was legally on the land in dispute and has led credible evidence to justify the counter claim.
He submitted that the appellant admitted in his pleading that the Respondent is the Original owner of the land in dispute and the title still reside in him. The trial judge rightly dismissed the Appellant’s counter claims. He argued that the Appellant did not lead credible evidence to establish the counter claim. That the allegation of harassment and the like were not substantiated. The claim of Ten million Naira for disturbance, assault and molestation being criminal allegations must be proved beyond reasonable doubt. He referred to S.135 (1) of the Evidence Act 2011 and submitted that the Appellant, failed to satisfy the requirement of law these respects.
The Respondent’s Counsel also argued, on the claim of one million naira cost of it proceeding, that he was not a party to the contract between the appellant and his solicitor and therefore not binding on him. That a stranger cannot take the benefit or otherwise under a contract between two parties. He submitted that the Respondent was a stranger on the contract between the Appellant and his solicitor. He relied on the case of MOBIL PRODUCING NIG. LIMITED V. CETOABASI EFFIONG (2013) ALL FWLR PART 673 PAGE 1942 AT 1947 and submitted that the trial judge was right in dismissing the Appellant’s counter – claim as lacking in merit.
The Appellant’s Counsel in his reply submitted that in civil case, the proof is on the balance of probability and not proof beyond reasonable doubt. He referred to S. 134 evidence Act, 2011. He submitted that by Exhibits D1, D2 and D3 the Appellant was able to establish his counter – claim and how Respondent divested himself of the land in dispute and urged this Court to so hold.
RESOLUTION
Issue one is an objection on the competency of Ground 2 of the Appellant’s Grounds of Appeal. As canvassed by the Respondent’s Counsel, the Appellant did not formulate any issue to cover it.
Grounds 2 reads as follows:
The judgment, was against the weight of evidence.
It is obvious that ground 2 is an Omnibus ground of appeal which attacked the Judgment of the trial Court against the weight of evidence. Issue arising from such ground of appeal must be one relating to evidence before the trial Court, the evaluation of such evidence and the appreciation by the trial Court, upon the preponderance of evidence.
RESOLUTION
ISSUE ONE
This is an objection on the ground 2 of the Appellant’s grounds of appeal, the Respondent’s Counsel argued that the Appellant did not formulate any issue to cover the ground and accordingly urged this Court to deem it as abandoned and strike it out.
Ground two of the Appellant?s grounds of appeal is as follows:
The Judgment was against the weight of evidence.
It is obvious that the ground is an Omnibus ground of appeal as rightly contended by the Appellant. It clearly attacked the Judgment of the trial Court on the weight of evidence. Where there is a complaint in the Omnibus ground of appeal that the judgment is against the weight of evidence, the appellate Court in considering the complaint must concerned mainly with the appraisal and evaluation of all evidence rather than with specific findings of fact on an issue or weight to be attached to any particular piece of evidence. Therefore issue for determination must be one that relates to the appraisal and evaluation of all the evidence, this is because the Omnibus ground postulates that there was no evidence, which if accepted would support the finding of the trial Court. See CHIADI V. AGGO (2018) 2 NWLR (PT. 1603) 175, OSOLU V. OSOLU (2003) 6 SCNJ 162.
In the instant case, it was the Appellants contention that ground two has been subsumed by issue two of his issues for determination. I do not find how Appellant’s issue two subsumed ground two, this is because Appellant’s issue two relates to how the Respondent divested himself of the land in dispute while ground two is a complaint against the weight of evidence.
Therefore it is clear from the Appellant’s issues submitted for determination ground two of the Appellant’s amended grounds of appeal was not covered by any of the issues. The law is settled that any ground of appeal not covered by an issue for determination is deemed abandoned and liable to be struck out. SeeK.L.M Royal Dutch Airlines V. Aloma (2018) 1 NWLR (PT. 1601) 473, Comex Ltd. V. Nigeria Arab Bank Ltd. (1997) 4 SCNJ 38 and Atunrase V. Philips (1996) 1 SCNJ 145.
In the instant case, the appellant’s ground two of the amended grounds of appeal being not covered by any issue for determination is hereby deemed abandoned and is accordingly struck out. Consequently, the objection of the Respondent on the Appellant’s ground two succeeds and issue one is resolved in favour of the Respondent against the Appellant.
ISSUE TWO. This issue relates to Exhibit P5 which is also the same with Exhibit D2, it is a power of Attorney to manage landed property dated 15th September, 2006. The exhibit is an unregistered registerable instrument which the trial Court relying on S. 17 of the Land Instruments Registration Law, Cap 64, Laws of Osun State held that it is worthless, inchoate and void.
I have carefully considered the argument canvassed by both parties in this appeal that the Appellant?s Mother, Mrs. Grace Adunola Taiwo, relied on Exhibit P5 which is also Exhibit D2 to purchase a landed property. In exhibit P5/D2 is an authority conferred upon one Mr. Oladepo Omowomi by the Respondent among other things, to sell, collect properties and give receipts in respect of parts or portions of the said landed property. Also by paragraph 3 (I) thereof it stated that:
‘That I shall rectify and confirm whatsoever the Attorney shall lawfully do or cause to be done concerning or property by virtue of this deed.’
The exhibit was duly executed and attested by a Chief Magistrate, Osogbo. The exhibit as pointed earlier was not registered, being an instrument under the land instrument registration law of Osun State, it is unregistered registerable land instrument that was caught by S. 17 of that Law.
However, the Appellant pleaded the document under paragraph 2 (v, vi, and vii) of the amended statement of defence and counter claim dated and filed 14E January, 2016. It is the basis upon which the transaction of the land in dispute was founded, therefore relevant to the Appellant’s case and admissible under the evidence Act, 2011.
The law is now settled that a document that is pleaded and admissible under the evidence Act cannot be rendered unpleaded and inadmissible by a state law.
This is because ‘EVIDENCE’ is now item 23 in the Exclusive Legislative List, Second Schedule to the Constitution of the Federal Republic of Nigeria 1999 as amended. Consequently unregistered Land documents are admissible even as proof of title. See BENJAMIN V. KALIO (2018) ALL FWLR (PT. 290) P.1.
In the instant case, Exhibit P5/2 an unregistered power of Attorney dated 15th September, 2006 having been pleaded by the appellant in his pleading, relevant and admissible under the evidence Act 2011 ought to have been acted upon by the trial Court in its Judgment. Accordingly, the trial Court was therefore in error to have declared the document worthless, inchoate, void and expunged it from the record. S. 17 of the Land Instruments Registration Law, Cap 64, Laws of Osun State, 2000 or such other similar provisions, being State law cannot operate to render Exhibit P5/D2 inadmissible in evidence and I so hold.
This issue is therefore resolved in favour of the Appellant against the respondent.
ISSUE THREE
It is on record that at the trial Court, the Respondent in proof of his claim testified in chief and tendered various Exhibits, Exhibit P4 is his evidence of ownership of a vast land which include the land in dispute, it is dated 23rd August, 1976 this exhibit was also tendered by the Appellant and marked as Exhibit D5. The appellant on his part testified in chief and tendered variously exhibits, among the exhibits are Exhibit D1, the sale of land agreement dated 13th November, 2006 between his mother (Mrs. Grace A. Taiwo) and the alleged Respondent’s lawful attorney Mr. Samuel Oladepo Omowumi. Exhibit D2 i.e. Power of Attorney to manage land dated 15th September, 2006 executed by the Respondent in favour of the alleged lawful Attorney Mr. Samuel Oladepo Omowumi and Exhibit D3, a deed of grant dated 12 March, 2008 in which Mrs. Grace A. Taiwo the Appellant?s mother granted him portion of the land in dispute measuring 200ft by 400ft.
The learned Counsel to the Respondent, in his brief and from the evidence of the Respondent, argued that the Respondent denied handing over Exhibit P5/D2, the power of Attorney, to the donee Mr. Samuel Oladepo Omowumi and also did not take any step to consummate the said Exhibit. With due respect to the Learned Counsel to the Respondent, that argument is without substance. The power of Attorney was duly executed by the Respondent by appending his signature and that of the donee as well as authenticated by a Chief Magistrate of Osogbo. The Respondent failed to show that the Power of Attorney was repudiated before the sale of land in dispute or that it was caught by any of the vitiating elements such as Duress, undue influence, mistake and or that it is against a statutory provision that rendered it unenforceable. It is trite law that any person of full age and capacity and understanding who signs a document, being not illiterate is deemed or presumed to understand what he appended his signature upon. Whatever that document says and undertakes is binding upon him and plea of non est factum will not avail him. SeeEgbase V. Oriareghan (1985) 2 NWLR 884, 899; Chief R. A. Okoye & Ors V. A. Santilli & Ors (1994) 4 SCNJ 333 at 353.
Similarly Ogundare, JCA (as he then was) stated, in the case of Sahabi Umaru Tsalibawa V. Hajiya Habiba (1991) 2 NWLR (Pt. 174) 461 at 479, that it is common knowledge that a person’s signature, written names or mark on a document, not under seal, signifies an authentication of that document that such a person holds himself out as bound, or responsible for the contents of such a document.
Further more in Exhibits D12, D12A ? E which includes Writ of Summons, Statement of Claim and Witnesses Statement on Oath in Suit No: HED/06/2011 dated and filed on the 27th May, 2013 the Respondent in this appeal was the Plaintiff suing by his lawful Attorney Mr. Samuel Oladepo Omowumi, the donee of the Power of Attorney Exhibit D2, in his Witness Statement on Oath Exhibit 12B paragraph 9 thereof clearly made reference to the Power of Attorney, Exhibit D2, was executed in his favour by the Respondent. Moreover, both sale of land agreement in Exhibit D1 and the Power of Attorney in Exhibit D2 were prepared by the same Solicitor and witnessed by the same clerk to the Solicitor. I cannot therefore find how the Respondent would not be bound and responsible for the subsequent transactions or actions carried out by the lawful Attorney pursuant to such instrument. The Respondent is therefore bound and liable in the sale of land between his lawful Attorney and Mrs. Grace A. Taiwo that was evidenced by a sale agreement dated 13th November, 2006 and marked by the trial Court as Exhibit D1 which subsequently gave rise to Deed of grant executed in favour of the Appellant in Exhibit D3 and license agreement executed in Exhibit D4. Consequently, the Respondent has divested himself of the land in dispute which is situated at Ago Fulani, off Dada Estate, Osogbo and I so hold.
This issue is therefore resolved in favour of the Appellant and against the Respondent.
ISSUE FOUR
The Appellant at the trial Court pleaded and relied on the equitable defences of laches and acquiescence, he contended that the equitable defences are applicable to this case since the Respondent allowed him to develop the disputed land, before he issued a warning letter in Exhibit P1.
The term Acquiescence implies fraud or the failure to act while the infringement was going on. Laches means the failure to take action for long time after knowledge that the infringement had taken place. See Buremoh V. Isiaka Akande (2001) 15 NWLR (Pt. 736) 293. In Inspector Kayode V. J. A. Odutola (2001) 11 NWLR (Pt. 725) 659, the Supreme Court held that, ‘acquiescence is not just mere lapse of time, it has been said that an acquiescence which will deprive a man of his legal rights must amount to fraud and in my view that is an abbreviated statement of a very true proposition. A man is not to be deprived of his legal rights unless he acted in such a way as would make it fraudulent for him to set up those rights.’ See Abbey V. Ollenu (1954) 14 WACA 564 at 568.
In the instant case, the Appellant maintained two pronged attack in respect of the Respondent?s claim at the trial Court. He pleaded Exhibit D1, D2 and D4 as his source of title, he also put up the equitable defences of laches and acquiescence. I cannot infer from the conduct of the Respondent any act that could give rise to the conclusion that he behaved fraudulently or that he willfully remained passive when he became aware of the presence of the Appellant on the land in dispute.
It is trite that loss of title through laches and acquiescence requires knowledge on the part of the Plaintiff of all the facts giving him a cause of action and a high degree of acquiescence to obliterate the original owner?s reversionary right in land in favour of the occupier. See Tiamiyu Dania V. Yesufu Soyenu (1937) 13 NLR 143; Mogaji V. Nuga (1960) 5 FSC 107.
The Respondent in this appeal from his pleadings and evidence before the trial Court clearly shows that he positively acted when he became aware of the presence of the Appellant in the land in dispute. I am therefore of the respectful view that the Appellant’s defences of laches and acquiescence could not stand, the trial Court, rightly rejected the defences though on different ground. Consequently, this issue is resolved in favour of the Respondent and against the Appellant.
ISSUE FIVE
I have considered the submission of both learned Counsel to the parties vis-a-vis the record of Appeal and prevailing law. The law is settled that a counter-claim is a claim which must be proved to the satisfaction of the Court as required by law. The onus of proof which lies on the Plaintiff to prove his claim is also on the defendant to prove the averments in his counter-claim against the Plaintiff or he will fail in his claim and the standard of proof appropriate to be attained in order to give judgment on a counter-claim in favour of the defendant is of the type required of the plaintiff in every civil claim, that is, proof based on preponderance of evidence. See Unokan Ent. Ltd V. Omuvwie (2005) 1 NWLR (Pt. 907) 293; Usman V. Garke (2003) 14 NWLR (Pt. 840) 261 and Ogbonna V. A.G. Imo State (1992) 1 NWLR (Pt. 220) 647.
The Appellant having successfully established his title to the land in dispute at the trial Court by his evidence in chief and Exhibits D1, D2 and D3, the trial Court ought to have granted his counter-claim. Consequently relief (i) of the Appellant’s Counter Claim is hereby granted by me. On relief (ii) to which the Appellant claimed for general damages, it is apparent that in such claim the law does not require proof by evidence; the law presumes to be the natural or probable consequence of the defendant?s act (Respondent in this case); it needs not be specifically pleaded; it arises by inference of law and may be averred generally. See Obasuyi V. Business Ventures Ltd (2000) 12 WRN 112, INCAR (Nigeria) Limited V. Benson Transport Ltd (1975) NSCC 115 and Odulaja V. Haddad (1973) NSCC 614.
Accordingly, the sum of Fifty Thousand Naira (N50, 000.00) is awarded as general damages. On relief (iii), Costs is the discretionary power of the Court and in the award of costs between the parties, solicitor and client costs should not be a prominent feature. See the case of Rewane V. Okotie-Eboh (1960) 1 NSCC 135. This issue is also resolved in favour of the Appellant and against the Respondent.
In the final analysis, this appeal is meritorious and is hereby allowed. The judgment of the trial Court is hereby set aside and the sum of Twenty Thousand Naira (N20, 000.00) is awarded as costs in favour of the Appellant against the Respondent.
RIDWAN MAIWADA ABDULLAHI, J.C.A.: I have had the benefit of reading in draft form the judgment of my learned brother, Mohammed Ambi – Usi Danjuma, JCA, just delivered. My noble Lord has stated the law in a clear terms. All the issues adumbrated has been exhaustively and painstakingly dealt with and I have nothing useful to add. I entirely concur with the reasons advanced and the conclusion reached therein that this appeal has merit and deserves to be allowed.
I adopt the said lead judgment as mine. I also allow the appeal. I subscribe to the orders made therein including the order as to cost.
PATRICIA AJUMA MAHMOUD, J.C.A.: I had the privilege of reading in draft the lead judgment of my learned brother, MOHAMMED DANJUMA, JCA.
He has comprehensively and exhaustively dealt with all the issues raised in the judgment. I have nothing to add. I adopt all the reasonings as mine as well as the order for costs.
Appearances:
Taofeeq I. Ibikunle with him, Olugbenga AwoyemiFor Appellant(s)
A. Morenikeji, Esq.For Respondent(s)
