OJIAYAN & ANOR v. ANI DEVT ENTERPRISES LTD
In The Court Of Appeal
(LAGOS JUDICIAL DIVISION)
On Friday, June 11, 2021
Before Our Lordships:
Obande Festus Ogbuinya Justice of the Court of Appeal
Obietonbara Owupele Daniel-Kalio Justice of the Court of Appeal
Onyekachi Aja Otisi Justice of the Court of Appeal
1. MR. JASPER OJIAYAN 2. MRS ROSE AGIDI APPELANT(S)
ANI DEVELOPMENT ENTERPRISES LTD RESPONDENT(S)
OBIETONBARA OWUPELE DANIEL-KALIO, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of Lagos State (the lower Court) delivered on the 30th day of June, 2010 by A. A. Oyebanji, J., in respect of a land matter. The matter began its sojourn in the lower Court in 1993 when the writ of summons was filed. It has been variously heard by C. O. Segun, J., now retired; F. O. Atilade, J, later CJ, also now retired; Williams-Dawodu, J., now JCA; A. O. Taiwo, J., and Lufadeju, J now retired, before being eventually heard and decided by Oyebanji, J. The case of ANI DEVELOPMENT ENTERPRISE LIMITED, the claimant at the lower Court and the Respondent in this appeal, is that it bought a large parcel of land at Agia Village in Kirikiri in the Apapa/Ajegunle/Ojo Local Government Area of Lagos State, of which the land in dispute is a part, from the Alahun-Osunba families, for the sum of N48,000.00 on or about the 8th day of June, 1976. After the purchase, the Respondent was given possession and immediately exercised all rights of possession. When in March 1993 the Respondent noticed that the 1st Appellant trespassed into the land in dispute, it filed a motion on notice seeking a restraining order against the 1st Appellant. The 2nd Appellant in a counter-affidavit in response to that motion, also claimed ownership of part of the land. This set the stage for the suit against the Appellants by the Respondent. In their defense to the Respondent’s suit, the 1st and 2nd Appellants claimed that they bought the land from the attorney of the same Alahun-Osunba families and were put in possession on the land in December 1976. They pleaded that the Respondent’s action is statute barred; they also raised the defense of laches and acquiescence. After hearing from the parties, considering the pleadings as well as the evidence before the Court, the learned trial judge held thus: “I do not believe the evidence of the Defendants and their witnesses because they did not seem to me to be witnesses of truth under cross-examination.” Further, the learned trial judge held: “Upon a careful consideration of the evidence before the Court, I have come to the conclusion that the defense of laches and acquiescence and standing by is not made out by the Defendants.” The lower Court then held that: “By the claimants uncontradicted evidence, the said large parcel of land includes the land in dispute. The Court therefore holds that in the circumstances, there is high probability that the Claimant is the owner of the land in dispute.” The lower Court further held that although the Respondent’s lease agreement was not registered, the Respondent had an equitable title in the land which is as good as a legal title and that the title so acquired defeated any title acquired by subsequent purchasers. Judgment was entered in favor of the Respondent.
Aggrieved, the Appellants filed a Notice of Appeal challenging the judgment. They also filed an amended Notice of Appeal which was deemed by this Court as properly filed and served on 18/9/18. The judgment of the lower Court was challenged on five grounds of appeal. The parties exchanged briefs of argument. The Appellants filed their brief of argument on 26/10/2017 and in response to the Respondent’s brief of argument, filed their Appellants reply brief of argument on 30/11/2018. The Respondent’s brief of argument was filed on 18/10/18. Both the Appellants’ brief and reply brief were settled by Adetunji Adedoyin Adeniyi, Esq. The Respondent’s brief was settled by J.K Aworinde, Esq.
The Appellants formulated the following five issues for determination in this appeal:
1. Whether the trial Court erred in law when it held that the Respondent was not incorporated as at the date it claimed to have purchased the plots of land given to it by the judgment of the lower Court delivered on the 30th of June, 2016 pursuant to the receipt dated 3rd February, 1975 and [whether] the Respondent’s failure to place any pre-incorporation contract before the trial Court, does not render the judgment of the lower Court a nullity on the ground that a non-existent company could not have purchased land.
2. Whether the trial Court erred in law when it relied on averments not supported by evidence.
3. Whether the trial Court was right to rely on Exhibit F, the lease agreement, being a registrable instrument which is not registered in delivering its judgment in favour of the Respondent.
4. Whether the learned trial judge was right in holding that the Appellants have failed to prove a better title to the land in dispute, when the Appellants never had any counter-claim before the Court.
5. Whether the trial Court erred in law when it relied on the composite plan that was not tested on cross-examination and when no witness was called to tender same.
The Respondent in its brief of argument, raised a preliminary objection to grounds 1 and 2 of the Amended Notice of Appeal and to issues 1 and 2 raised by the Appellants on the following four grounds, viz-
1. Ground 1 of the amended Notice of Appeal and issue 1 distilled therefrom, are against the obiter dictum rather than being against the ratio of the judgment appealed against.
2. Ground 1 of the Amended Notice of Appeal and issue 1 of the Appellants’ Brief distilled therefrom are against a decision of the learned trial judge on the purchase receipt, against which no appeal is pending.
3. Ground 2 of the Amended Notice of Appeal is deemed abandoned because argument canvassed under issue 2 distilled therefrom are at variance with Ground 2 and issue 2.
4. Issue 2 of the Appellants’ brief is abandoned because argument canvassed under it is at variance with the issue as formulated.
I shall return to the preliminary objection anon, but let me state that the issues for determination in this appeal, in the Respondent’s reckoning, are the following:
1. Whether the learned trial judge erred in law when she admitted the purchase receipt dated 3rd February, 1975 in evidence and for stating her view that “clearly, a pre-incorporation contract can be ratified by the company upon incorporation” and nothing more.
2. Whether in circumstances of this case, the learned trial judge erred in law to have relied on the Lease agreement pleaded and tendered in evidence by the Respondent.
3. Whether in the circumstances of this case wherein parties to the suit traced their respective roots of title to the Alahun-Osunba family, the learned trial Judge erred in law to have stated that the Appellants failed to prove a better title to the land in dispute and that such finding occasioned a miscarriage of justice so as to vitiate Judgment.
4. Whether the learned trial judge erred in law or misdirected herself when she relied on the composite plan drawn by the office of the Surveyor-General of Lagos State and admitted in evidence as Exhibit N2.
I did state that I would shortly consider the preliminary objection. I do so now and brevi manu. The purpose of a preliminary objection to an appeal is to terminate the appeal in limine. See A.G KWARA STATE & ANOR V. LAWAL & ORS (2017) LPELR-42347 ( SC) 14-15. Where the Court is approached to strike out one or more of the grounds of appeal as in this case, and not to terminate the entire appeal, the proper approach to the Court should be by way of a motion on notice. See CBN V. UBANA & ORS (2016) LPELR-40366 (CA) 6-7. As the preliminary objection merely seeks the striking out of some grounds of appeal and not the entire appeal, the preliminary objection is incompetent and is hereby struck out.
Now to the appeal, I shall consider the issues as formulated by the Appellants.
On issue 1, the Appellants’ learned counsel Adetunji Adedoyin-Adeniyi, Esq., submitted that it is only an existing company that can engage in business transactions and that where a company claims that it has been involved in business transactions before incorporation, it must place before the Court the pre-incorporation agreements by its promoters as well as documents that show that the pre-incorporation agreement has been ratified. It was contended that the Respondent not having been incorporated at the time the land was purchased, lacked the legal capacity to enter into the land purchase agreement. Learned counsel cited the case of REV. RUFUS IWUAJOKU ONUEKWUSI & 8 ORS V. THE REGISTERED TRUSTEES OF THE CHRIST METHODIST ZION CHURCH (2011) 2-3 SC (Pt. 1) 1. It was submitted that whereas the purchase of land receipt tendered by the Respondent and admitted as Exhibit C relied upon by the lower Court was issued on the 3rd of February, 1975, the Respondent was incorporated on the 7th of April, 1975. Learned counsel submitted that although the Respondent claimed that the purchase receipt was wrongly dated due to inadvertence, the Respondent failed to give evidence as to the actual date that ought to have been stated in the receipt. It was contended that the Respondent also failed to lead evidence on the promoter or agent that acted on its behalf in the land purchase, submitting that before a company is incorporated certain acts are carried out by promoters of the company before its incorporation. On the meaning of a pre-incorporation contract, we were referred to the case of TRANS BRIDGE CO. LTD V. SURVEY INTL. LTD (1986) 2 NSCC 1084. It was contended that the lower Court was wrong to have based its judgment on the purchase receipt of the land since at the time of the receipt, the Respondent was not in existence as a legal entity. It was further submitted, relying on TRANS BRIDGE CO., LTD V. SURVEY INTL LTD (Supra) and SOCIETE GENERALE FAVOURISER LE DEVELOPMENT DU COMMERCE ET DE L’INDUSTRIE EN FRANCE V. SOCIETE GENERAL BANK (NIG) LTD (1997-1998) ALL NLR 158 that at common law, a company before incorporation has no capacity to enter into a contract and consequently, nobody can contract for it as agent, nor can an a pre-incorporation contract be ratified by the company after its incorporation. It was submitted that whereas the Respondent in its pleading stated that the land purchase agreement was ratified by its Exhibit F (the lease agreement) there is nothing that shows that such ratification was done. We were urged that Exhibits C and F which it was contended are the basis of the judgment of the lower Court, are void and of no effect and that the lower Court ought not to have relied on them.
In his submission in response to this issue, J. K. Aworinde, Esq., for the Respondent argued that the lower Court was right to have admitted the purchase receipt, Exhibit C. The law, he submitted, is settled that a document relevant to facts in issue as pleaded, is relevant and admissible. The case of OLOMO V. APE (2015) 14 NWLR (Pt.1478) 46 at 61 was cited in support. The purchase receipt he noted, was pleaded by both parties. It was submitted that the argument of the Appellants’ learned Counsel that there was no basis for the lower Court to admit the purchase receipt in evidence, is wrong and should be discountenanced.
The learned counsel referred to the pleadings of the Appellants at the lower Court with regard to the pre- incorporation purchase of the land by the Respondent and argued that the onus was on the Appellants to prove their assertion that the purchase transaction was a pre- incorporation contract and that it could not be ratified. Learned Counsel referred to the pleadings of the Respondent with respect to the purchase receipt and submitted that it was not the case of the Respondent as shown in its pleadings that the purchase receipt was pre its incorporation or that same required to be ratified. Consequently, it was submitted, the Respondent was not bound to prove a pre-incorporation contract and/or ratification of such a contract. It was submitted that the only onus on the Respondent was to prove that the purchase receipt was wrongly dated and no more. That burden, it was submitted, was discharged by the Respondent through its CW1, Alhaji Dauda Abari in his statement on oath of 30th March, 2005, at page 146 of the record of appeal. The learned counsel also referred to the evidence of CW2 under cross-examination where that witness was quoted to have answered in response to a question on the date in the purchase receipt that “that must have been the mistake of the person that signed it”. In response to the same question, CW3 was also quoted to have said: “this must have been a mistake from the lawyer, Mr. A.A. Ogunsiji…” We were referred to pages 462 and 469 of the record of appeal. It was contended therefore that there was evidence on the part of the Respondent that the date on the purchase receipt was a wrong one. It was contended that the Appellants’ witness, one Mr. Gafar Okanlawon (DW3) confirmed in his evidence that the family lawyer between 1970 and 1976 was Mr. Ogunsiji.
It was submitted that the only time that the Respondent joined issues with the Appellants on the Appellants’ assertion on a pre-incorporation contract and ratification of same, was in the address of Counsel. We were referred to pages 335-338 and 258-360 of the record of appeal. It was submitted that the judgment of the lower Court was not based and could not have been based on the purchase receipt, whether or not it was obtained pre-incorporation.
It was submitted that the Respondent proved by the Lease Agreement (Exhibit F) and the evidence of CW2 and CW3 that the land was alienated to it in 1976. We were urged that the Appellants’ learned counsel’s submission that the purchase receipt predated the incorporation of the Respondent, holds no water and should be discountenanced.
Now, it is settled law that parties are bound by their pleadings. SeeJAMES V. MID-MOTORS (NIG) CO. LTD (1978) LPELR-1593 (SC) 35-36 and that evidence at variance with the pleadings go to no issue. See EMEGOKWUE V. OKADIGBO (1973) 4 SC 113, ODUMOSU V. ACB (1976) 11 SC 56; NJOKU V. EME (1973) 5 SC 293; EHIMARE V. EMHONYON(1985) 1 NWLR (Pt.2) 177; ACHONU V. OKUWOBI (2017) LPELR- 42102 (SC) 28-29. Indeed, the Court is also bound by the pleadings of the parties before it. See NATIONAL INVESTMENT CO., LTD V. THOMPSON ORGANISATION (1969) NMLR 104; GEORGE & ORS V. DOMINION FLOUR MILLS LTD (1963) 1 ANLR 71 at 77; EMEGOKWUE V. OKADIGBO (supra); WOLUCHEM V. GUDI (1981) LPELR-3501 (SC) 31. I have looked very carefully at the pleadings of the parties and it is clear that the Respondent in its amended statement of claim never stated that it entered into a pre-incorporation contract with the vendors of the land in dispute. Rather, it was the Appellants that averred in their pleadings that the Respondent was not in existence when the purchase receipt was issued to the Respondent. This is the pleading of the Appellants in that regard as can be seen in paragraph 1 of their amended statement of defence:
“… and with reference to paragraph 4 which is denied, the defendants say the plaintiff could not acquire land by purchase or howsoever on 3/2/75 as it was not in existence.”
This pleading is clear, it only says that the Respondent did not exist as at 3/2/75 and therefore could not have purchased the land in dispute at that time. In response, the Respondent in paragraph 3 of its reply to the Amended Statement of Defence of the Appellants, averred as follows:
“3. With reference to paragraphs 1, 2 and 4 of the amended statement of defence, the plaintiff avers that the purchase receipt of the large area of land including the land in dispute was wrongly dated by the late A. O. Ogunsiji Esq., Solicitor to the Alahun and Osunba Family and through inadvertence the plaintiff referred to it as the purchase receipt without carefully reading the date thereon…”
From the Respondents averment therefore, the date on the receipt is a mere error on the part of the vendor’s late solicitor, A. O. Ogunsiji, Esq., and nothing more. It is clear therefore that there was no issue joined as to the time that the Respondent came into corporate existence. There was no rejoinder by the Appellants on the Respondent’s averment that the date on the purchase receipt was a mistake. However, since it was the case of the Respondent that the date on the receipt was a mistake, it was left to it to prove same. In that regard, we were referred by the learned counsel of the Respondent, to the statement on oath of Alhaji Dauda Abari, the CW1. Indeed, in the said statement on oath, the said CW1 stated on oath that “The purchase receipt of the large area of land including the land in dispute was wrongly dated by the late A. O. Ogunsiji, Esq., Solicitor to the Alahun-Osumba Families and through inadvertence the the claimant referred to it as the purchase receipt without carefully reading the date thereon.” CW2 a member of the family that sold the land stated under cross-examination when shown Exhibit C, that there was a mistake as to the date in the Exhibit by the person who signed it. See at p. 462 of the Record of Appeal.
Now, there is a presumption under Section 157 of the Evidence Act that when any document bearing a date has been proved, it is presumed to have been made on the date it bears. The presumption is however rebuttable as the same Section states that “but independent proof of the correctness of the date will be required if the circumstances are such that collusion as to the date might be practiced, and would, if practiced, injure any person, or defeat the object of any law”. In the case of UCHIEZE V. EZENAGU & ORS (2010) LPELR-5043 (CA), Ogunwumiju, JCA, now JSC had this to say in a situation such as the one on appeal:
”If a document is not dated or wrongly dated, the reason for the wrong dating must come from evidence of the maker. See M/S O ILEMOBOLA CO LTD V. GOV. KADUNA STATE (2007) 7 NWLR (Pt.666) p.633. ”
From the evidence on record, the maker of Exhibit C, i.e. the Solicitor to the Alahun-Osumba Families, A. O. Ogunsiji, Esq., is now late and therefore cannot be called to testify with regard to the date that the purchase receipt was made. In the circumstances and considering the evidence of CW2, a member of the Alahun-Osumba family who testified that the date on the purchase receipt is a mistake of the Solicitor of the family; the evidence of CW3, that the Solicitor of the said family is dead, and the evidence-in-chief of CW1 that the date on the purchase receipt is a mistake, the onus on the Respondent that the date of the purchase receipt is a mistake was discharged. The arguments of the Appellants’ learned Counsel on the purchase receipt being a pre-incorporation contract, it must be emphasized, is not one based on the pleadings of the parties. The argument is therefore in the nimbus and not on terra firma. Issue 1 is resolved against the Appellants.
On issue 2 which is whether the trial Court erred in law when it relied on averments not supported by evidence, the Appellants’ learned Counsel submitted that the lower Court erred when it based its judgment on averments that were not supported by evidence. In particular, the Appellants’ learned counsel submitted that there was no evidence adduced to show ratification of the purchase of land by the Respondent. Learned counsel submitted that the Respondent’s averment that the date on the purchase receipt was wrongly dated due to inadvertence of counsel A. O. Ogunsiji, Esq., who dated it, was an averment not supported by concrete proof. It was contended that in a plethora of authorities, the Courts have held that a Court should be wary of basing its judgment on assertions that are not backed by evidence. The case of FRANK UWAGBOE V. THE STATE (2008) 4 SCNJ 459 was cited in support. We were urged that no credible evidence was placed before the lower Court to warrant its judgment.
The Respondents learned counsel did not address this issue and this is probably because issue 2 is subsumed under issue 1. In treating issue 1, I did point to the evidence of CW1, CW2 and CW3 which established the pleadings of the Respondent that A. O. Ogunsiji, Esq., the now late, solicitor of the Alahun-Osumba family, inadvertently wrote the wrong date on the purchase receipt. It is therefore not correct, as submitted by the Appellants’ learned counsel, that there was no evidence in support of the averment on the wrong date in the said purchase receipt. Issue 2 is therefore also resolved against the Appellants.
On issue 3 which is whether the trial Court was right to rely on Exhibit F, the Lease Agreement, being a registrable instrument which is not registered, the Appellants’ learned Counsel began by contending that what the Respondent pleaded was a Lease Agreement and not a Sale Agreement, yet, evidence led was that the Respondent was sold the land by the Alahun-Osuba family. It was submitted that no evidence was led to show that the Lease Agreement and the sale of the land were distinct transactions.
The Appellants’ learned counsel submitted that the Lease Agreement which the Respondent claimed gave it title to the land, is an instrument affecting land and as such, is a registrable instrument. Having not been registered, it cannot be pleaded, or tendered in evidence and therefore same should be ignored or expunged. It was argued that the fact that no objection was made to the admissibility of the lease agreement does not stop it from being ignored or expunged. The lower Court it was further argued, erred in law when it admitted the Lease Agreement in evidence and relied on it in its judgment even when it was not registered. An unregistered instrument is void and of no effect, it was submitted. The cases of DAUDA V. BAMIDELE (2000) 9 NWLR (Pt. 671) P.199 at 212; ONWUGBUFOR V. OKOYE (1996) 1 NWLR (Pt. 424) p.252 at 289; ALELU V. EZE (2015) 13 NWLR (Part 1475) p.74 at 85 were cited in support.
It was contended that the Respondent never stated that it was ever in physical possession of the land at any point in time and therefore, the Respondent is not entitled to any equitable relief with respect to title to the land in dispute. It was submitted that whilst the Respondent did not show that it was ever in physical possession of the land in dispute, the Appellants on their part, proved that they had remained in physical possession of the land until 1993 when dispute arose between them and the Respondent. It was contended that having been established that the Respondent was not in physical possession of the land and considering also that the Respondent’s title was not registered, the lower Court was wrong to have relied on the Lease Agreement.
In his argument in response, the learned Counsel for the Respondent submitted that a specific element in a pleading which is not specifically denied is considered in law as having been admitted. He cited EZENWA V. KATSINA STATE HEALTH SERVICES MANAGEMENT BOARD (2011) 9 NWLR (Pt. 1251) 89 at 132. The learned Counsel referred to paragraph 4 of the Amended Statement of Claim wherein the Respondent pleaded that it bought a large portion of land for the sum of N48,000.00 from the Alahun- Osunba families on or about the 8th of June, 1976 and that there was a Deed of Lease as evidence of payment/receipt of the said sum of N48,000.00. The said pleading it was submitted, was not denied by the Appellants. This fact it was further submitted, was noted by the lower Court which also noted that the Appellants neither joined issues on the Lease Agreement nor cross-examined the Respondent’s witnesses on it. We were referred to p.543-544 of the Record of Appeal. It was also submitted that the decision of the lower Court at the pages aforementioned was not appealed as there is no ground of appeal on it. It was submitted that since the Appellants did not dispute that the large portion of land was leased to the Respondent by the Alahun-Osunba families, the Appellants cannot rightly contend that the lower Court erred in law to have relied on the Lease Agreement. The learned Counsel submitted further that assuming though not conceding that the Appellants are correct that the pleadings on the Lease Agreement were not supported by evidence, the pleadings having not been specifically denied, are deemed admitted and consequently no further proof is needed. Section 123 of the Evidence Act was cited in support.
Further, and in the alternative, it was submitted that the Respondent did not only plead the Lease Agreement, it led credible and convincing evidence in support of it. We were referred to the Lease Agreement tendered as Exhibit F and to page 440 of the Record of Appeal. We were further referred to the evidence of CW2 and CW3. It was submitted that the evidence of CW2 under cross-examination and the Lease Agreement were convincing evidence that the lower Court rightly relied on in entering judgment in favor of the Respondent.
With regard to the argument of the Appellants’ learned Counsel on whether the land was leased or sold, we were urged to disregard the argument as it has no relationship with ground 3 of he Amended Notice of Appeal and issue 3 formulated by the Appellants. Besides, the Appellants, it was submitted, not being members of the Alahun-Osunba family, lack the locus to contend on whether the land was leased or sold to the Respondent.
On the question of the admissibility of the Lease Agreement, it was contended by the learned Counsel that the fact that it is a registrable instrument which was not registered does not make it inadmissible in evidence. The case of OGUNJUMO V. ADEMOLU (1995) 4 NWLR (Pt. 389) 254 was cited in support. We were also referred to the decision of the lower Court in that regard at p. 440 of the Record of Appeal, which decision it was submitted, is correct.
It was further submitted that contrary to the argument of the Appellants’ learned counsel, the Respondent was put into immediate possession of the land by the Alahun-Osuba family. We were referred to paragraphs 4 and 5 of the Respondent’s Amended Statement of Claim and the evidence of CW1 which are respectively, the pleadings and evidence led with regard to the Respondent haven been put in possession of the land. The evidence of the Respondent that it was in possession of the land, it was submitted, was corroborated by the Appellants when they testified before the lower Court that they pulled down the fence that the Respondent erected on the land. We were referred to pages 195, 198, 479 and 503 of the Record of Appeal.
Now issue 3, if I may reiterate, is “whether the trial Court was right to rely on Exhibit F, the Lease Agreement, being a registrable instrument which is not registered in delivering its judgment in favor of the Respondent”. The issue is narrow, concise and cannot be clearer or more straight forward. It is not for learned counsel having formulated an issue to digress from it by proffering arguments that have nothing to do with the issue. To do so is tantamount to moving or shifting the goalposts. The essence of the formulation of issues is to narrow the arguments on the issues within those formulated issues. As stated by Tobi JSC in the case of MOZIE & ORS V. MBAMALU & ORS (2006) LPELR-1922 (SC) p. 13-14 “…..parties are bound by the issues formulated in their briefs. In other words, a party cannot advance an argument outside the issue or issues formulated in the brief without leave of Court. This stems from the larger ambit of our adjectival law that parties are bound by their briefs.” No leave of this Court was sought by the Appellant’s learned counsel to argue under issue 3, whether or not the land in dispute was sold or leased to the Respondent or whether or not the Respondent was in physical possession of the land. The Appellants cannot therefore advance arguments in respect of those issues and having done so, the arguments in respect of those issues are hereby discountenanced. With regard to the germane issue which is whether the trial Court was right to rely on Exhibit F, the Lease Agreement, being a registrable instrument which is not registered, the law is settled. Where such a registrable instrument is tendered to show receipt of purchase of land, it is eminently admissible for that purpose. The law is that a registrable instrument which has not been registered is admissible to prove equitable interest and to prove payment of purchase money or rent. See SAVAGE V. SARROUGH (1937)13 NLR 141; OGUNBAMBI V. ABOWAB (1951) 13 WACA 222; FAKOYA V. ST. PAUL’S CHURCH, SHAGAMU (1966) 1 ALL NLR 74; ONI V. ARIMORO (1973) SC 163; BUCKNOR- MACLEAN V. INLAKS (1980) 8-11 SC 1; AWAOGBO & ORS V EZE (1995) LPELR- 645 (SC) 17-18. The Respondent in its Amended Statement of Claim was quite clear about the reason for pleading the Lease Agreement. The relevant part of its Amended Statement of Claim is in paragraph 4 and it reads: “The plaintiff shall rely at the trial of this suit on the said Deed of Lease as evidence of payment/receipt for the said sum of N48,000.00 and the transaction between the plaintiff and the Alahun- Osumba families”. The evidence of CW1 was in line with this pleading. The lower Court in its judgment at page 548 of the Record of Appeal acknowledged that the Lease Agreement though a registrable instrument was not registered but held that it showed that the Respondent had an equitable title to the land. The lower Court cannot be faulted in admitting the Lease Agreement in order to establish that the Respondent had an equitable title to the land. Issue 3 is also resolved against the Appellants.
Issue 4 as will be recalled is whether the learned trial judge was right in holding that the Appellants have failed to prove a better title to the land in dispute when the Appellants never had any counter-claim before the Court. On this issue, learned Counsel of the Appellants submitted that the lower Court erred when it gave judgment to the Respondent because the Appellants did not establish a better title to the land. Success in a claim of title to land does not depend on the weakness of the defendants case or the defendants failure to prove a better title, it was submitted. The cases of ADEWUYI V. ODUKWE (2005) 14 NWLR (Pt. 945) p. 473 at 491; OYENEYIN V. AKINKUGBE (2010) 4 NWLR (Pt.1184) 265 at 295; and OJO V. AZAM (2001) 4 NWLR (Pt. 702) p.71 were cited in support. It was submitted that the Appellants did not file a counter-claim that would warrant them to prove their title to the land in dispute.
In his response on this issue, the learned Counsel for the Respondent submitted that assuming but not conceding that the lower Court erred in finding that the Appellants failed to prove a better title to the land in dispute, such a finding did not cause a miscarriage of justice. It was submitted that it was not the case of the Appellants that the lower Court did not evaluate the evidence before it or that the Appellants were denied a fair hearing. It was submitted that the lower Court did not base its judgment on the weakness of the Appellants case but based it on the evidence before it.
Now, did the lower Court give judgment to the Respondent because the Appellants did not establish a better title? The answer to this question is in the negative. The portion of the judgment of the lower Court that the Appellants’ learned counsel appears to have hinged his submission on, is at p.549 of the Record of Appeal and it reads:
“For the reasons herein adumbrated, the Court finds that the Defendants have failed to prove a better title to the land in dispute. I further find that the land in dispute belongs to the Claimant…..”
It is non sequitur to argue that by reason of the above passage, the lower Court gave judgment to the Respondent because the Appellants did not establish a better title. There was no use of a conjunction word like “therefore” which joins together the two sentences in the passage quoted that would warrant such a surmise. The lower Court was simply stating in that passage that for the reasons it had earlier adumbrated, the Appellants had failed to prove a better title. It certainly was not saying that the Respondent was entitled to judgment because the Appellants had failed to prove a better title. The lower Court had earlier in its judgment at page 543-544 and at page 548 given reasons why it gave judgment to the Respondent. At page 543-544 of the Record of Appeal, it gave the following reason:
“…The claimant averred and led evidence that it was put in possession of the large expanse of land which included the land in dispute in the presence of the Head and principal members of the Alahun Osumba families. Apart from the general denial in the Amended Statement of Defence, the Defendants did not join issues with the claimant on this issue, neither was there any cross-examination whatsoever on this piece of evidence…….Guided by the Supreme Court authorities, the Court holds that by the failure to join issues with the claimant on this issue, the Court hereby holds that the Defendant accepted that the claimant owns the large parcel of land measuring 4.00 acres or 1. 709 hectares and was put in possession by the Alahun Osumba families. By the claimant’s uncontradicted evidence, the said large parcel of land includes the land in dispute. The Court therefore holds that in the circumstances, there is a high probability that the claimant is the owner of the land in dispute.”
Again, at page 548 of the Record of Appeal, the lower Court gave the following reason for giving judgment in the Respondent’s favor:
“Based upon the pleadings, evidence led and Exhibits tendered by the claimant, I am satisfied that the claimant has succeeded in proving that the Alahun Osunba families gave to the claimant, title in the 4.00 acres of land leased from the families which includes the land in dispute.”
The lower Court cannot in the face of the above, be said to have based its judgment in favour of the Respondent on the premise that the Appellants failed to prove a better title. The law is settled that a party seeking a declaratory relief has the burden of establishing his entitlement to the reliefs and must succeed on the strength of his own case and not on the weakness of the defence. See DUMEZ NIG. LTD V. NWAKHOBA (2008) 18 NWLR (Pt. 1119) 361; BELLO V EWEKA (1981) 1 SC (Reprint) 63; BULET INT’L (NIG) LTD & ANOR V. OLANIYI & ANOR (2017) LPELR-42475 (SC) 29-30. The lower Court was satisfied that the Respondent proved its case on the strength of its own case based on evidence it tendered. Issue 4 is also resolved against the Appellants.
Issue 5 as will be recalled is whether the trial Court erred in law when it relied on the composite plan that was not tested under cross-examination and when no witness or maker of the said composite plan was called to tender same. On this issue, the Appellants learned Counsel submitted that the failure of the Respondent to call the maker, witness, or a Surveyor from the Lagos State Surveyor-General’s Office to give evidence on the composite plan is fatal to the Respondent’s case. It was further submitted that the lower Court was in error to have relied on that plan and therefore the judgment of that Court is a nullity. It was contended that in every case, a party must be given the opportunity to challenge evidence tendered by an opponent. The cases of UDOM V. UMANA (2016) 12 NWLR (Part 1526) p.179 at 273; GENERAL MUHAMMADU BUHARI V. INEC & ORS (2008) 12 SC (Pt. 1); IKPEAZU V. OTTI (2016) 8 NWLR (Pt.1513) 38 were cited in support. The said document it was contended, was tendered from the bar.
In his argument in response, the Respondent’s learned Counsel contended that it is strange that the Appellants’ learned Counsel, in the face of the voluminous Record of Appeal compiled by the Appellants, would contend that the composite plan was tendered from the bar. The learned Counsel referred us to pages 525-526 of the Record of Appeal as well as to p. 520, 522, 523, and 524 of the said Record. It was submitted that the lower Court ordered the parties to submit their respective Survey Plans to the Surveyor-General of Lagos State in order for him to produce a composite plan and that pursuant to that order, the Surveyor-General of Lagos State produced a composite Survey Plan which plan was tendered in evidence. One Egbeyemi Oladimeji from the Surveyor- General’s office was subpoenaed to testify. He testified, tendered the composite plan and was duly cross-examined. We were referred to page 525-526 of the Record of Appeal. Given these facts, it was submitted that the argument that composite plan was tendered from the bar that no officer from the office of the Surveyor-General of Lagos State was called to testify on the composite plan and that the composite plan was not tested under cross-examination, are frivolous. It was further submitted that assuming, but not conceding that the Appellants did not cross-examine the witness from the Surveyor-General’s office, that was to their own peril, having been given an opportunity to cross-examine the witness.
Now from the submission of the Appellants’ learned Counsel on this issue, he is contending the following-
1. That no witness was called from the office of the Surveyor-General to tender the composite survey plan; and
2. The Appellant was not given an opportunity to cross-examine on the Survey plan.
The submission of the learned Counsel to the Respondent in summary, is that the contentions of the Appellants’ learned Counsel are entirely false.
I have looked carefully at the Record of Appeal, and with regard to the above enumerated summary of the contentions of the Appellants learned Counsel on the issue at hand, I find that the contentions are not borne out by the Record. At page 523- 524 of the Record of Appeal, the lower Court ordered the parties to submit to the office of the Surveyor-General of Lagos State, copies of the Survey Plans they were relying upon at the trial, within 7 days and that the Surveyor- General of Lagos State shall prepare a composite plan showing the relative position of the lands depicted on the Survey Plans and also visit the land in dispute to take physical measurements and calculation and fix the location of the land on the composite plan and submit same to the Court within 21 days. The order of the lower Court was complied with and a Subpoena Duces Tecum served on the Surveyor-General of Lagos State ordering him to attend before the lower Court and bring with him and produce at the place and time mentioned in the said subpoena, a Composite Plan with Misc. No. 2951 dated 29th day of August, 2014. See copy of the Subpoena at page 381 of the Record of Appeal. Pursuant to the Subpoena Duces Tecum, a witness was called from the office of the Surveyor-General. Even though the Subpoena as stated was a Subpoena Duces Tecum, that is, a Subpoena requiring a person to attend Court and bring documents and which type of subpoena does not require the witness to testify and be cross-examined, (seeOLUBEKO V AWOLAJA & ANOR (2017) LPELR-41854 (CA) 23-27) the lower Court nonetheless gave both counsel an opportunity to cross-examine the subpoenaed witness. The following is what transpired at the lower Court on 5/5/16 as revealed at page 525-526 of the Record of Appeal:
J.K. Aworinde Esq., for the claimant.
K.C. Akhigbe Esq., for the Defendant.
Akhigbe: I apologise for the absence of the 2nd Defendant.
Mr. Aworinde: We have a motion dated 15/04//16. It was served on 21/4/16.
Case stood down.
Case recalled at 2:40 p.m.
Parties as stated above.
Same appearance for claimant.
Same appearance for the Defendant.
Mr. Aworinde: We have a motion on notice dated 15/04/16 for leave to the claimant/Applicant to re-open its case.
Mr. Akhigbe: I confirm service of the motion. I am not opposing prayer 1 but I oppose prayer 2. We want to cross-examine the Surveyor-General.
Mr. Aworinde: Our motion on notice is dated 15/04/16. Motion moved.
Mr. Akhigbe: Not opposed to prayer 1.
COURT: Prayer 1 is ordered as prayed. Prayer 2 is refused. Learned counsel on both sides shall be at liberty to cross-examine the witness.
Case reopened on 5/5/16
Sworn on Holy Koran and says in English language. I am Egbeyemi Lateef Oladimeji
Mr. Aworinde: We seek to tender the letter dated 29/08/14 and the composite plan dated 29/08/14
Mr. Akhigbe: No objection.
COURT: Letter dated 29/08/14 and Composite Plan dated 29/08/14 are admitted in evidence without objection and marked Exhibit N1 and N2 respectively.
Cross-Examination by claimant’s counsel.
Mr. Akhigbe: We wish to take a date for re-adoption of our written addresses.
Mr. Aworinde: That is the case.
COURT: Case adjourned to 8/06/16 for adoption of final written addresses.
Hon. Justice A. A. Oyebanji (Mrs)
From the above, it is clear that Egbeyemi Lateef Oladimeji, the witness from the Surveyor General’s Office testified and tendered a letter dated 29/8/14 and a Composite Plan dated 29/8/14 as Exhibit N and N1 respectively. It is also clear that the lower Court gave learned counsel on both sides an opportunity to cross-examine the witness. It is further clear that rather than use the opportunity given him to cross-examine the witness, the Appellants’ learned Counsel at the lower Court, Mr. Akhigbe failed, refused or neglected to take advantage of the opportunity and instead asked the Court for a date to re-adopt written addresses. Given the relevant portion of the Record of Appeal referred to above, the Appellants’ learned Counsel’s argument that no witness was called from the office of the Surveyor-General of Lagos State to tender the Survey Plan and that the Appellants were not given an opportunity to cross-examine such witness, is an argument written on water. Indeed, it has no impact whatsoever. It flies in the face of the Record of Appeal. It seems to me that the Appellants’ learned Counsel either did not read the Record of Appeal properly or set out to mislead the Court by his argument. As far as the case of the party he is handling is concerned, learned Counsel of that party is dominus litis. It is therefore of great concern that the Appellants’ learned Counsel appeared not to have been abreast of the proceedings at the lower Court, so much so that he stated by way of argument, the very opposite of what transpired in Court. Learned Counsel owe it to themselves to carry out matters on behalf of their clients with consummate professionalism and they also owe it to the Court, not to mislead it. In the face of the said Record of Appeal, the arguments of the Appellants’ learned Counsel on issue 5 are absolutely untenable and fall like a house of cards. I also resolve the issue against the Appellants.
The result is that the appeal is bereft of merit. It is hereby dismissed. The judgment of the lower Court is affirmed. Costs of N100,000.00 is awarded against the Appellants.
OBANDE FESTUS OGBUINYA, J.C.A.: I had the singular opportunity to read, in advance, the leading judgment delivered by my learned brother, Obietonbara O. Daniel-Kalio, JCA. I endorse in toto the reasoning and conclusion in it. l too dismiss the appeal and abide by the consequential orders decreed in it.
ONYEKACHI AJA OTISI, J.C.A.: I was privileged to read before now, a copy of the lead Judgment of my learned brother, Obietonbara O. Daniel-Kalio, JCA, in which this appeal has been dismissed. The issues distilled for determination have been characteristically comprehensively resolved. I agree with the reasoning and conclusions therein, which I adopt as mine.
The appeal is without merit. I also dismiss the appeal and abide by the orders made in the lead judgment, including the order as to costs.
ADETUNJI ADEDOYIN-ADENIYI, Esq. For Appellant(s)
J. K. AWORINDE, Esq. For Respondent(s)