PA LAWRENCE OJAEKOMO & ORS v. ATTORNEY GENERAL OF LAGOS STATE & ORS
(2019)LCN/13408(CA)
In The Court of Appeal of Nigeria
On Friday, the 31st day of May, 2019
CA/L/926/2012
JUSTICES
MOHAMMED LAWAL GARBA Justice of The Court of Appeal of Nigeria
TIJJANI ABUBAKAR Justice of The Court of Appeal of Nigeria
GABRIEL OMONIYI KOLAWOLE Justice of The Court of Appeal of Nigeria
Between
1. PA LAWRENCE OJAEKOMO
(Head of Sapata Village, Eti-Osa Local Government Area)
2. OGO OLUWA OJAEKOMO
3. OLU ADETIMEHIN
(For themselves and on behalf of the people of Sapata Village, Eti-Osa Local Government Area) Appellant(s)
AND
1. ATTORNEY GENERAL OF LAGOS STATE
2. SURVEYOR GENERAL OF LAGOS STATE
3. NEW TOWN DEVELOPMENT AUTHORITY
4. CHIEF TIJANI AKINLOYE
OJOMU OF AJIRAN VILLAGE,
ETI-OSA LOCAL GOVERNMENT AREA
(For themselves and on behalf of Ojomu Royal family of Ajiran land) Respondent(s)
RATIO
WHETHER OR NOT A DOCUMENT AFFECTING LAND MUST BE REGISTERED
It is well known principle of law that once a document affecting land qualifies as an instrument, it must be registered. An instrument affecting any land which is registrable but is not registered cannot be pleaded and given in evidence and if pleaded would be inadmissible and liable to be expunged or ignored. PER ABUBAKAR, J.C.A.
THE LEGAL EFFECT OF AN UNREGISTERED REGISTRABLE INSTRUMENET
The law is trite on this point. In UMAR Vs. BAILEY & ORS (2018) LPELR-44285 (CA) Pg. 37 ? 45, Paras. E ? B this Court while considering the legal effect of such an unregistered registrable instrument held that:
The legal effect is that where an instrument is required to be registered but is not registered, it cannot be pleaded and is therefore inadmissible in evidence. In other words, any registrable instrument which is not registered cannot be pleaded nor tendered in evidence. Where it has been pleaded and tendered, it will be inadmissible in any event. Such an unregistered instrument may however be pleaded and admitted to prove payment of purchase price, or as evidence of the transaction between the parties. if properly proved and admitted is proof of equitable interest which if coupled with possession is capable of ripening into a legal interest
This position has long been established even by the Supreme Court of Nigeria. In OKOYE Vs. DUMEZ NIG. LTD [1985] NWLR (Pt. 4) Pg. 263; (1985) LPELR-2506 (SC) Pg. 14, Paras. B ? E where BELLO, JSC (CJN) (of blessed memory) held that ?A registrable instrument which has not been registered is admissible to prove such equitable interest and to prove payment of purchase money or rent See also ETAJATA Vs. OLOGBO [2007] 16 NWLR (Pt. 1061) Pg. 554; (2007) LPELR-1171 (SC) Pg. 55-56, Paras. F ? B; and FIRST BANK OF NIG. PLC Vs. OKELEWU & ANOR (2013) LPELR-20155 (CA) Pg. 43-44, Paras. G ? C where this Court held that: an unregistered registrable instrument, though, is not admissible to prove title, is admissible to prove payment of money and coupled with possession of land by the purchaser it may give rise to an equitable interest. PER ABUBAKAR, J.C.A.
WHETHER OR NOT THE COURT MUST CONSIDER THE ENTIRE PLEADINGS OF EACH PARTY TO AN ACTION
The law is trite that in order to understand that case being put forward by the parties, the Court must consider the entire pleading of each party. In considering the question in controversy between the parties, the Court must consider only matters in respect issues have been joined by the parties. in other words, the Court in determining a case before it is bound by the pleadings of the parties and should confine itself to the issues raised therein
See also FAGBENRO Vs. AROBADI [2006] 7 NWLR (Pt. 978) Pg. 172; (2006) LPELR-1227 (SC) Pg. 28-29, Paras. F ? A. It is also trite that the Court has no power to grant what has not been claimed. See: SODIPO & ORS Vs. OGIDAN & ORS (2007) LPELR-3962 (CA) Pg. 29-30, Paras. G ? C and JOE GOLDAY CO. LTD Vs. C.D.B. PLC [2003] 5 NWLR (Pt. 814) Pg. 586; (2003) LPELR-1617 (SC) Pg. 25, Paras. A ? C where UWAIFO, JSC held that: The guiding rule is that the court must not grant a party what it has not asked for in clear terms and sufficiently proved.? PER ABUBAKAR, J.C.A.
TIJJANI ABUBAKAR, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Judgment of the High Court of Lagos State sitting in the Ikeja Judicial Division, delivered by IDOWU, J. on the 27th day of September, 2012 in Suit No: LD/1170/2005, the judgment is at pages 585 ? 607 of the Records of Appeal. The Appellants? (Claimants) suit at the Court below was commenced by Writ of Summons and Statement of Claim filed on the 15th of July, 2005 found at pages 1 ? 21 of the Records of Appeal; but the Appellants? case is founded on the Amended Statement of Claim contained at pages 445 ? 447 of the Records of Appeal. In response, the 1st, 2nd and 3rd Respondents filed their Amended Statement of Defense and accompanying processes which are contained at pages 333 ? 351 of the Records of Appeal. The 4th Respondent as 4th Defendant filed his Amended Statement of Defense and Counter-claim and accompanying processes which are contained at pages 391 ? 403 of the Records of Appeal. Trial commenced and all the parties called their respective witnesses; and filed their respective Final Written Address. In
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the end, the learned trial Judge dismissed the Appellants? claims and granted the 4th Respondents Counter-claim.
?
The Appellants became nettled by the Judgment of the lower Court and filed a Notice of Appeal on the 10th day of October, 2012 containing 8 Grounds of Appeal as contained at pages 611 ? 615 of the Records of Appeal. The Amended Appellants? Brief of Argument was prepared and filed by Soji Oyebisi Esq. on 30th day of December, 2016. The 1st ? 3rd Respondents? Brief was filed through Samuel M. Ajanaku Esq. on the 26th day of May, 2015. The 4th Respondent?s Brief was prepared and filed by Olagbade Benson on the 2nd day of June, 2015. The Appellants? counsel flied a Reply Brief on the 9th day of April, 2018. Learned counsel for the Appellants crafted 2 (two) issues for determination as follows:
1. Whether on the state of pleadings and on the preponderance of evidence adduced before the lower Court, the Appellants made out a credible case of ownership of the parcel of land lying and being also known as Sapata Village and which is more particularly delineated on Survey Plan No KESH/1/2211 dated the 14th of
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October, 1983.
2. Whether or not the Appellants are the proper persons to be the beneficiaries of the excision of fifty (50) hectares of land meant as compensation for the acquisition of the parcel of land lying and being known as Sapata Village and which is more particularly delineated on Survey Plan No KESH/1/2211.
The 1st and 3rd Respondents? counsel equally formulated 2 (two) issues for determination, the issues are:
1. Whether the Appellants have placed sufficient evidence before the Court to establish their ownership through acts of long possession of the land in dispute?
2. Whether the agreement of sale of land between the Appellants and the 4th Respondent qualifies as a registrable instrument.
The 4th Respondent distilled 3 (three) issues for determination as follows:
1. Whether the Learned Trial Judge was right when the Court held that the Claimants did not prove their case?
2. Whether the Learned Trial Judge was right when the Court held that the Appellants were customary tenants of the 4th Respondent and thereby granted the 4th Respondents Counter Claim?
3. Whether the Court below relied on EXHIBIT N
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in dismissing the Appellants? suit and entering judgment in favor of the 4th Respondent?s counter-claim?
SUBMISSIONS OF COUNSEL FOR THE APPELLANTS
ISSUE ONE
Learned counsel for the Appellants relied onELEGUSHI Vs. BAYEOKU [1998] 2 NWLR (Pt. 76) Pg. 263; NWOFOR Vs. NWOSU [1992] 9 NWLR (Pt. 264) Pg. 229; ONWUGBUFOR Vs. OKOYE [1996] 1 NWLR (Pt. 424) Pg. 252; UNITED BANK FOR AFRICA PLC Vs. AYINKE [2000] 7 NWLR (Pt. 663) Pg. 83 and OYENEYIN Vs. AKINKUGBE [2010] 4 NWLR (Pt. 1184) Pg. 265 to submit that where a Claimant?s claim for title to a piece of land in dispute is predicated on ownership, as in the Appellant?s case, the onus is on him to first prove and establish his ownership. Counsel further referred to OBAWOLE Vs. COKER [1994] 5 NWLR (Pt. 345) Pg. 416; ADESANYA Vs. ADERONMU [2000] 9 NWLR (Pt. 672) Pg. 370 at 382; NRUAMA Vs. EBUZOEME [2006] 9 NWLR (Pt. 985) Pg. 217; BASSEY Vs. PAMOL (NIG) LTD [2009] 6 NWLR (Pt. 1136) Pg. 36; EDOHOEKET Vs. INYANG [2010] 7 NWLR (Pt. 1192) Pg. 25 and OBINECHE Vs. AKUSOBI [2010] 12 NWLR (Pt. 1208) Pg. 383 to submit that to succeed in a claim for ownership of land, the Court must be
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satisfied with respect to the precise nature of title claimed and evidence establishing the nature of title claimed.
Learned counsel cited UGOJI Vs. ONUKOGU [2005] 16 NWLR (Pt. 950) Pg. 97; ASHIRU Vs. OLUKOYA [2006] 11 NWLR (Pt. 990) Pg. 1, NJOKU Vs. REGISTERED TRUSTEES OF THE CONGREGATION OF THE HOLY GHOST FATHERS [2006] 18 NWLR (Pt. 1011) Pg. 239; LAWAL Vs. AKANDE [2009] 2 NWLR (Pt. 1126) Pg. 425; CHUKWU Vs. AMADI [2009] 3 NWLR (Pt. 1177) Pg. 83 and OGUNJEMILA Vs. AJIBADE [2010] 11 NWLR (Pt. 1206) Pg. 559 to submit that a party claiming ownership must succeed on the strength of his case and not on the weakness of the other party?s case; and where he fails, the weakness of the other party?s case will not be of any help to him. Counsel referred to KAIYAOJA Vs. EGUNLA (1974) SC Pg. 55 at 61; ABAYE Vs. OFILI [1986] 1 NWLR (Pt. 15) Pg. 134; UGWUNZE Vs. ADELEKE [2008] 2 NWLR (Pt. 1070) Pg. 148; EYO Vs. ONUOHA [2011] 11 NWLR (Pt. 1257) Pg. 1; MOMOH Vs. UMORU [2011] 15 NWLR (Pt. 1270) Pg. 217; AWENI Vs. OLORUNKOSEBI [1991] 7 NWLR (Pt. 203) Pg. 336; ADELEKE Vs. IYANDA [2001] 13 NWLR (Pt. 729) Pg. 1; ADEWUYI Vs. ODUKWE [2005] 14 NWLR (Pt. 473); EGWA Vs.EGWA
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[2007] 1 NWLR (Pt. 1014) Pg. 71; NDUBUKA Vs. IZUNDU [2007] 1 NWLR (Pt. 1016) Pg. 348 Pg. 432 and MINI LODGE LTD Vs. NGEI [2009] 18 NWLR (Pt. 1173) Pg. 245 to submit that a claimant must prove to the satisfaction of the Court that he has a better title than the defendant to the land in dispute; and that the standard of proof is on a balance of probabilities.
Learned counsel further argued that the quality of evidence that will sufficiently and satisfactorily support a claim of ownership of land must necessarily depend on the state of the pleadings and the issues joined by the parties thereto; and that pleadings are the means by which the parties are enabled to state and frame the issues which are in dispute between them. Counsel relied on AMINU Vs. HASSAN [2014] 5 NWLR (Pt. 1400); MBANEFO Vs. MOLOKWU [2014] 6 NWLR (Pt. 1403) Pg. 377 at 418, Paras. A ? C; CORPORATE IDEAL INSURANCE LTD Vs. AJAOKUTA STEEL CO. LTD [2014] 7 NWLR (Pt. 1405) Pg. 165 at 188, Paras. A ? B; ANYAFULU Vs. MEKA [2014] 7 NWLR (Pt. 1406) Pg. 396 at 424, Para. G and AWUSE Vs. ODILI [2005] 16 NWLR (Pt. 952) Pg. 504, Para E ? F to submit that the primary function of
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pleadings is to define and delimit with clarity and precision the real matter between the parties; and that it also serves as the basis upon which the Court will be called upon to adjudicate between the parties.
Learned counsel for the Appellant further citedBUNGE Vs. GOVERNOR OF RIVERS STATE [2006] 12 NWLR (Pt. 995) Pg. 573 at 599-600, Paras. B ? A; AKANDE Vs. ADISA [2012] 15 NWLR (Pt. 1324) Pg. 538 and ONOBRUCHERE ANOR Vs. ESEGINE & ANOR [1986] 2 SC Pg. 385 at 397 to submit that facts admitted, whether expressly or impliedly by omission of an express traverse, require no evidence; and that from the pleadings filed by the parties in the instant case, there were no issues joined as to who was, and had been in possession of the Sapata Village which is more particularly delineated on Survey Plan No. KESH/1/2211. Counsel argued that the Respondents did not contest the averments of the Appellants that the said parcel of land had been in undisturbed possession of one John Omojogberun Ojaekomo and his descendants and the Appellants herein since 1929; and that the only issue joined with respect to the Appellants? claim of ownership of the said
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land was whether the Appellants and their progenitors were, and had been in possession of the land as owners by outright purchase from the Ojomu Royal Family of Ajiran land, as claimed by the Appellants or as customary Tenants of the Ojomu Royal Family as counterclaimed by the Respondents.
Learned counsel submitted that the case of the Appellants before the lower Court was not predicated on evidence of traditional history; citing LEBILE Vs. REGISTERED TRUSTEES OF CHERUBIM & SERAPHIM CHURCH [2003] 2 NWLR (Pt. 804) Pg. 399; ARCHIBONG Vs. ITA [2004] 2 NWLR (Pt. 858) Pg. 590; FAYEMI Vs. AWE [2009] 15 NWLR (Pt. 1164) Pg. 315; OYEKOLA Vs. AJIBADE [2004] 17 NWLR (Pt. 902) Pg. 356; OJOH Vs. KAMALU [2005] 18 NWLR (Pt. 958) Pg. 523 at 562, Paras. C ? E and IRAWO Vs. ADEDOKUN [2005] 1 NWLR (Pt. 906) Pg. 199; counsel argued that the present case wherein the Appellants claimed that the land in dispute was purchased by their family in 1934 which was less than 70 (seventy) years before the commencement of this suit does not qualify as case a where traditional history will come into play. Learned counsel further submitted that the case of the Appellants, whose
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status as the descendants of John Omojogberun Ojaekomo was not contested by any of the Respondents, is that their progenitor, John Omojogberun Ojaekomo initially rented the land from the Ojomu Royal Family vide a Rent Agreement dated 4th of August, 1929 paying 1 Pound as rent and subsequently purchased the said land by a Sale Agreement dated 6th of March, 1934 for 500 Pounds.
Learned counsel submitted that Exhibits A and A1 were tendered and admitted in proof of the foregoing by the Claimants/Appellants? first witness and the Respondents counsel did not cross-examine the said witness as to the authenticity, genuineness or validity of the Sale Agreement. Counsel relied on AGBONIFO Vs. AIWEREOBA [1988] 1 NWLR (Pt. 96) Pg. 182; IWUNZE Vs. FRN [2013] 1 NWLR (Pt. 1334) Pg. 119 and OFORLETE Vs. STATE [2000] 12 NWLR (Pt. 681) Pg. 415 at 436, Paras. C ? E to submit that the testimony of a witness on a document which is not challenged is to be believed as it is given and any subsequent challenge to the authenticity or validity of the Sale Agreement is to be treated as an afterthought. Learned counsel argued that the 4th Respondent merely made a bare
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denial of the sale; and that the testimonies and pleadings of the Appellants as to the description of the land were not challenged neither was the content and signatures on the Sale Agreement contested. Counsel referred to ALI Vs. SALIHU [2011] 1 NWLR (Pt. 1228) Pg. 227 and NNPC Vs. FAMFA OIL LTD [2012] 17 NWLR (Pt. 1328) Pg. 148 to submit that a bare denial is not enough and that in the absence of any challenge by the 4th Respondent as to the authenticity or due execution of the Sale Agreement, the trial Court had no business making any findings on the due execution and authenticity of the said document.
Learned counsel further submitted that the trial Court did not fault the authenticity or genuineness of the Rent Agreement or the Sale Agreement in the judgment and that the trial Court did not find that the Appellants? progenitor – John Omojogberun Ojaekomo did not rent and later purchase the land in question from the Ojomu Royal Family; but that the trial Court rejected the Sale Agreement on the ground that it was not registered and cannot therefore be pleaded and relied on. Counsel referred to FOLARIN Vs. DUROJAIYE [1988] 1 NWLR (Pt. 70) Pg.
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351; IRAGUNIMA Vs. UCHENDU [1996] 2 NWLR (Pt. 428) Pg. 30; EZEAGWU Vs. ONWUCHEKWA [1997] 4 NWLR (Pt. 502) Pg. 689; NJOKU Vs. DIKIBO [1998] 1 NWLR (Pt. 534) Pg. 498; OJELADE Vs. SOROYE [1998] 5 NWLR (Pt. 549) Pg. 284; BURAIMOH Vs. KARIMU [1999] 9 NWLR (Pt. 618) Pg. 310 and COMMISSIONER FLOR LANDS & HOUSING KWARA STATE Vs. ATANDA [2007] 2 NWLR (Pt. 1018) Pg. 360 to submit that the Appellants relied on a Sale Agreement which is in writing which brings their case as one under the received English Law. Learned counsel submitted that it is not the law that an unregistered registrable land instrument is inadmissible for all purposes; that it is admissible to prove an equitable interest in land.
Learned counsel referred to FAKOYA Vs. ST PAULS CHURCH, SHAGAMU [1966] All NLR 74 at 80; UMOFFIA Vs. NDEM [1973] 12 SC 69; ORIZU Vs. ANYAEGBUNAM [1978] 5 SC 21; OBIJURU Vs. OZIMS [1985] 4 SC (Pt. 1) Pg. 142 at 163; IKONNE Vs. WACHUKWU [1991] 2 NWLR (Pt. 172) Pg. 214; OYEBANJI Vs. LAWANSON [2004] 13 NWLR (Pt. 889) Pg. 62; NSIEGBE Vs. MGBEMENA [2007] 10 NWLR (Pt. 1042) Pg. 364; GBINIJIE Vs. ODJI [2011] 4 NWLR (Pt. 1236) Pg. 103; AGBOOLA Vs. UBA PLC [2011] 11 NWLR (Pt.
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1258) Pg. 375 and BUCKNOR-MACLEAN Vs. INLAKS [1980] 8-11 SC (Pt. 76) Pg. 1 at 27-28 to submit that under the received English Law, where a document of title is not registered, but shows evidence of payment of the purchase price, and its holder is in possession of the land in issue, an equitable interest in the land inures to his benefit and this is as good as a legal interest. Counsel contended that in the instant case, the Sale Agreement showed payment of purchase price in the sum of 500 pounds by the Appellants to the Ojomu Royal Family of Ajiran and it was not contested that the Appellants had been in possession of the land since 1929.
Learned counsel further cited KACHALLA Vs. BANKI [2006] 8 NWLR (Pt. 982) Pg. 364; YARO Vs. AREWA CONSTRUCTION LTD [2007] 17 NWLR (Pt. 1063) Pg. 333; EZENWA Vs. OKO [2008] 3 NWLR (Pt. 1075) Pg. 610; WEST AFRICAN COTTON LTD Vs. YANKARA [2008] 4 NWLR (Pt. 1077) Pg. 323; IRAGUNIMA Vs. RIVERS STATE HOUSING AND PROPERTY DEVELOPMENT AUTHORITY [2003] 12 NWLR (Pt. 834) Pg. 427; ASHIRU Vs. OLUKOYA [2006] 11 NWLR (Pt. 990) Pg. 1 and ETAJATA Vs. OLOGBO [2007] 16 NWLR (Pt. 1061) Pg. 554 to submit that the Appellant led ample evidence
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of their equitable interest in the land in question and the Courts have held that such an interest is sufficient to sustain a claim of ownership of land; and that the lower Court was in error when it rejected the case of the Appellants simply because the Sale Agreement they relied on was not registered.
Learned counsel relied on FADIORA Vs. GBADEBO [1978] All NLR Pg. 42; EZEWANI Vs. ONWORDI [1986] 4 NWLR (Pt. 33) Pg. 27; ODJEVWEDJE Vs. ECHANOKPE [1987] 1 NWLR (Pt. 52) Pg. 633; DAUDA Vs. A.G., LAGOS STATE [2011] 13 NWLR (Pt. 1265) Pg. 427; DAKOLO Vs. REWANE-DAKOLO [2011] 16 NWLR (Pt. 1272) Pg. 22 and EZEANYA Vs. OKEKE [1995] 4 NWLR (Pt. 388) Pg. 142 to submit that the judgment of the High Court of Lagos State delivered on the 18th of October, 1991 in Suit No: ID/1883/89 between the 4th Respondent herein and the Lagos State Government wherein the 4th Respondent herein was declared the owner of the parcel of land in dispute in that case which includes the parcel of land in dispute in the instant case known as Sapata Village particularly delineated on Survey Plan No. KESH/1/2211 does not foreclose the rights of the Appellants herein. Counsel argued that a
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judgment in previous proceedings would only constitute an estoppel and foreclose the rights in a subsequent litigation if the parties and issues determined in the previous litigation are the same as in the subsequent one; and that where they are not; the previous judgment is of no consequence in the later litigation.
Learned counsel submitted that the judgment in Suit No: ID/1883/89 and the composite plan prepared and tendered by the 2nd Respondent showing that the parcel of land known as Sapata Village was part of the larger parcel of land litigated in Suit No: ID/1883/89 were of no relevance in the present suit. Counsel contended that the case of the 4th Respondent was that the Appellants were in possession of the parcel of land known as Sapata Village as customary tenants and not as owners of the said land; while the Appellants who are in possession claimed that they own the land. Counsel referred to ODUARAN Vs. ASARAH [1972] 5 SC 272; DADA Vs. BANKOLE [2008] 5 NWLR (Pt. 1079) Pg. 26; UDEZE Vs. CHIDEBE [1990] 1 NWLR (Pt. 125) Pg. 141; BABATUNDE Vs. AKINBADE [2008] 5 NWLR (Pt. 1079) Pg. 26 and DIM Vs. ENEMUO [2009] 10 NWLR (Pt. 1149) Pg. 353 to submit
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that the 4th Respondent as counter claimant had a duty to show that he put the Appellants in possession; it is not enough to merely assert that the defendant paid customary tribute; there must be positive proof that the defendant is a customary tenant and he in fact paid customary tribute; and that by virtue of Section 143 of the Evidence Act, 2011, there is a presumption that a defendant in exclusive possession is the owner of the land and the only way to rebut that presumption is by strict proof of the alleged customary tenancy.
It was further contended that apart from the bare assertions in the 4th Respondents pleadings that the Appellants were customary tenants, the 4th Respondent did not plead any other facts as to how and when the Appellants became his customary tenants; neither were the terms of the customary tenancy pleaded nor was the payment of ishakole or any incidence of customary tenancy pleaded and proved. Counsel relied on AKANBI Vs. SALAWU [2003] 13 NWLR (Pt. 838) Pg. 637 and ADEDEJI Vs. OLOSO [2007] 5 NWLR (Pt. 1026) Pg. 133 to submit that acts of ownership must be satisfactorily established both in pleadings and on the evidence adduced;
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and that a party who asserts that it received or was entitled to payment of Ishakole ought to plead and lead evidence as to the nature of Ishakole. Learned counsel further submitted that it was only the 3rd Respondent?s witness who stated for the first time under cross-examination that the Appellants use to bring fish and pay homage to them as incidences of customary tenancy; counsel argued that these facts were not pleaded and as such evidence led thereon goes to no issue and cannot be relied upon by the Court.
Learned counsel argued that although it is true that as submitted by the 2nd Claimant?s Witness that the Appellants initially paid rents for the use of the land to the Ojomu Royal Family by way of local gin, kolanuts and fish in 1924 before the formal lease agreement of 1929 and the Sale Agreement of 1934; but that this evidence was also given on facts not pleaded by any of the parties and cannot therefore constitute useful evidence upon which the trial Court could rely. Counsel referred to MOGAJI Vs. ODOFIN [1978] 4 SC Pg. 91; ARASE Vs. ARASE [1981] 5 SC Pg. 33; AWUZIE Vs. NKPARIAMA [2002] 1 NWLR (Pt. 747) Pg. 1; SARHUNA Vs. LAGGA
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[2002] 3 NWLR (Pt. 754) Pg. 322; MINI LODGE LTD Vs. NGEI (Supra) and EYO Vs. ONUOHA (Supra) to submit that in civil suits, cases are won upon a preponderance of evidence; that the burden is on the Claimant in a land dispute to prove his claim and when he does so, the burden will then shift to the Defendant to adduce evidence in rebuttal. Learned counsel further relied on IMANA Vs. ROBINSON [1979] 3-4 SC 1; EZEUDU Vs. OBIAGWU [1986] 2 NWLR (Pt. 21) Pg. 208; NNORDIM Vs. EZEANI [1995] 2 NWLR (Pt. 378) Pg. 448; IHEANACHO Vs. CHIGERE [2004] 17 NWLR (Pt. 901) Pg. 130; BABA-IYA Vs. SIKELI [2006] 3 NWLR (Pt. 968) Pg. 508; MANI Vs. SHANONO [2006] 4 NWLR (Pt. 969) Pg. 133 and DABO Vs. ABDULLAHI [2005] 7 NWLR (Pt. 923) Pg. 181 to submit that the Appellants made out a better case of ownership of the land in question than the 4th Respondent and that the lower Court erred when it dismissed the case of the Appellants and allowed the 4th Respondent?s counterclaim. Counsel urged this Court to resolve this issue in favor of the Appellants.
ISSUE TWO
Learned counsel for the Appellants submitted that the 1st ? 4th Respondents asserted in their respective
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pleadings the fact that the Lagos State Government acquired a large expanse of land along the Lekki Corridor in 1993; counsel submitted that the Lagos State Government policy is to excise portions of the parcels of land acquired and grant them back to those families as compensation for the acquisition. Learned counsel submitted that by virtue of Sale in 1934, the 4th Respondent herein had been divested of all rights and interest in the parcel of land known as Sapata Village which is particularly delineated on Survey Plan No. KESH/1/2211 and cannot lay any claim of ownership to the said land again. Counsel cited IGE Vs. FARINDE [1994] 7 NWLR (Pt. 354) Pg. 42; AMUDA Vs. AJEBO [1995] 7 NWLR (Pt. 406) Pg. 170; OKOLI Vs. OJIAKOR [1997] 1 NWLR (Pt. 479) Pg. 48; YUSUF Vs. KODE [2002] 6 NWLR (Pt. 762) Pg. 231; JINADU Vs. ESUROMBI ARO [2009] 9 NWLR (Pt. 1145) Pg. 55; ODUOLA Vs. COKER [1981] 5 SC Pg. 197; SANYAOLU Vs. COKER [1983] 3 SC Pg. 125; OLAWORE Vs. OLANREWAJU [1998] 1 NWLR (Pt. 534) Pg. 263 436 and AJAO Vs. OBELE [2005] 5 NWLR (Pt. 918) Pg. 400 to submit that a party who has made an outright sale of land to a third party, can no longer assume any interest in the
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land as all his propriety interest has become completely extinguished.
Learned counsel further referred to FARAJOYE Vs. HASSAN [2006] 16 NWLR (Pt. 1006) Pg. 463; NWOSU Vs. OTUNOLA [1974] 4 SC Pg. 21; UDO Vs. OBOT [1989] 1 NWLR (Pt. 95) Pg. 59 and SKYE BANK PLC Vs. AKINPELU [2010] 9 NWLR (Pt. 1198) Pg. 179 to argue that upon the sale of the land, all the rights and interest in the land become vested in the new owner; and that where a claimant has disposed of a property in respect of which he seeks an injunction, there is no justification for granting any order of injunction in his favour. Counsel submitted that there was no interest whatsoever inuring to the benefit of the 4th Respondent in the parcel of land known as Sapata Village which is particularly delineated on Survey Plan No. KESH/1/2211 as at the date of acquisition in 1993 by the Lagos State Government; and that the entire interest in the said parcel of land was vested in the Appellants as at the time of the acquisition and therefore the Appellants were the rightful persons to be granted the 50 (fifty) hectares of land approved by the Lagos State Government as compensation for the acquisition of
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the land in question as published in the Lagos Horizon Newspaper of 10th ? 17th February, 1998.
Learned counsel for the Appellants submitted that the effect of the purported excision of the 50 (fifty) hectares of land approved by the Lagos State Government as compensation for the acquisition of the land in question in favour of the 4th Respondent is that the Appellants? land which was acquired was being re-allocated to other private individuals for their use which is wrongful, unlawful and not permissible in law. Counsel relied on MAIYEGUN Vs. GOVERNOR, LAGOS STATE [2011] 2 NWLR (Pt. 1230) Pg. 154 to submit that the purported excision of the 50 (fifty) hectares of land approved by the Lagos State Government as compensation for the acquisition of the land in question in favour of the 4th Respondent published in the Official Gazette No 40 in Volume 40 dated the 31st of May, 2007 during the pendency of this suit before the trial Court was therefore wrongful and unconscionable. Learned counsel urged this Court to resolve this issue in favour of the Appellants; allow this appeal; and set aside the judgment of the lower Court. Counsel further urged
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this Court to grant the reliefs sought by the Appellants at the trial Court.
SUBMISSIONS OF COUNSEL FOR THE 1st?3rd RESPONDENTS
Learned counsel for the 1st?3rd Respondents referred to AKINDURO Vs. ALAYA [2007] 15 NWLR (Pt. 1057) Pg. 312 and IDUNDUN Vs. OKUMAGBA [1976] 9-10 SC Pg. 227 to submit that for a party to succeed in a claim for declaration of title to land, he must prove by credible evidence his entitlement/ownership of the land in dispute so as to be entitled to the declaration he claims; and that it is incumbent on the Appellants in the instant case having put their title in issue to give credible evidence to prove their title. Counsel further relied on AMAECHI Vs. INEC [1998] 2 NWLR (Pt. 76) Pg. 263 to submit that he who alleges must prove; and that the Appellants failed woefully to prove their case on any of the ways of proving title; and that they failed in their pleadings and evidence to prove that they are entitled to the declaration of title to land in dispute. Learned counsel referred to paragraphs 7 ? 12 of the Appellants? Amended Statement of Claim as contained at pages 445 ? 446 of the Records of
21
Appeal to submit that the Appellants evidently relied heavily on long possession thereby giving contradictory evidence of their ownership of land in dispute.
Learned counsel further submitted that from the evidence adduced by the Appellants at the trial Court as well as paragraphs 8 and 9 of the Appellants Amended Statement of Claim, it is crystal clear that the Ojomu Royal Family represented by the 4th Respondent are the owners of the land in dispute. Counsel referred to OLUFEMI AYORINDE Vs. CHIEF AYODELE KUFORIJI [2007] All FWLR (Pt. 362) Pg. 1966 at 1981-1982, Paras. F ? A to submit that the Appellants in the instant case are tenants and a better title cannot flow them. Learned counsel cited USIOBAIFO Vs. USIOABIFO [2005] 3 NWLR (Pt. 913) Pg. 665 to further contend that there were material inconsistencies and contradictions in the Appellants case; that the Appellants gave evidence that they first settled on the land; and later they said that they are customary tenants of the Ojomu Royal Family and finally they claimed that they bought the land from the Ojomu Royal Family. Counsel further submitted that it is unimaginable to say that a person who
22
claimed to have first settled on a land to as well claim thereafter that he bought the particular land in question. Counsel urged this Court to hold that the Appellants have failed to proof their case and as such their case should collapse accordingly.
Learned counsel for the 1st ? 3rd Respondents further referred to GIRGIRI Vs. ELF MARKETING (NIG) LTD [1997] 2 NWLR (Pt. 487) Pg. 368 at 378, Paras. B ? C to argue that lease and sale Agreements ? Exhibits A and A1 relied upon by the Appellants have no probative value because the name of the vendor therein is not known to law but it is merely a title and not a person known to law; and that size of the land is not known or ascertainable from the Sale Agreement; and that the purported Chief Ojomu who signed the said Sale Agreement did so by thumbprint without any illiterate jurat which is in breach of the Illiterate Protection Act. Learned counsel further submitted that, assuming without conceding, that the Appellants have led credible evidence as to entitle them to the land in dispute or that there is a valid sale of the land in dispute to the Appellants, the Appellants by paragraph 11 of
23
their Amended Statement of Claim admitted that the land in dispute was acquired by the Lagos State Government in 1993.
Learned counsel further referred to Section 123 of the Evidence Act, 2011 and OBASI BROS CO. LTD Vs. M.B.A.S. LTD [2005] 9 NWLR (Pt. 929) Pg. 117 to submit that facts admitted in a pleading need no proof. Counsel further submitted that the effect of the admission in the Appellants Amended Statement of Claim is that the Appellants should be estopped from denying the acquisition having admitted the fact; and that the right of the Appellants if any, has been extinguished by the provisions of Section 28 (3) of the Land Use Act. Counsel referred to UKAEGBU Vs. UGOJI [1991] 6 NWLR (Pt. 196) Pg. 127 and OGOLO Vs. OGOLO [2006] 5 NWLR (Pt. 972) Pg. 173 to submit that it is apparent from the pleadings and evidence led at the lower Court that the Appellants are not the owners of the land in dispute as they failed to prove ownership as claimed; and that declarative reliefs of this nature cannot be granted without credible evidence adduced by the Appellants and that even where the Respondents expressly admitted same in the pleadings.
24
Learned counsel further argued that contrary to the submissions of learned Counsel for the Appellants that the 1st ? 3rd Respondents failed to contradict the Appellants? proof as regards ownership of the land in dispute; the 1st ? 3rd Respondents at paragraphs 2, 11 ? 14 and 17 ? 20 of the 1st ? 3rd Respondents Amended Statement of Defense contained at pages 333 ? 335 of the Record of Appeal vehemently challenged the claims of the Appellants; and specifically denied the material facts that the Appellants are the customary owners of the land in dispute. Counsel urged this Court to hold that the 1st ? 3rd Respondents acquired the land in dispute and accordingly excised part of it properly. Learned counsel further urged this Court to hold that the Appellants have failed to prove their title to the land in dispute and as such the learned trial Judge was right to have dismissed their claims.
ISSUE TWO
Learned counsel for the 1st ? 3rd Respondents referred to YAYA Vs. MAGOGA [1947] 12 WACA Pg. 132 to submit that a receipt is nothing more than an acknowledgment of the receipt of money paid by the purchaser and
25
therefore not an instrument. Counsel argued that the applicable law as at the time the alleged purchase was made was the Land Instrument Registration Ordinance which is now the Land Instrument Registration Act. Learned counsel submitted that, assuming without conceding, that the trial Judge wrongfully applied the law not in existence at the time the purchase receipt was made, the same conclusion would still be arrived at in the event the proper law is applied to the instant case; that no miscarriage of justice was occasioned by the application of the Instruments registration law. Counsel submitted that the Sale Agreement tendered by the Appellant qualifies as a registrable instrument under the Registration of Title Law and the Land Instruments Registration Law of Lagos State which must be registered. Learned counsel contended that the Sale Agreement dated 6th of March, 1934 relied upon by the Appellants having not been registered does not avail the Appellants as same is inadmissible for failure of valid registration.
?
Learned counsel further argued that while it is agreed that an unregistered receipt is an acknowledgement of payment, same does not extend
26
to a Sale Agreement which requires registration before it can be admissible. Counsel referred to IGBUDU Vs. ALAMANJO [2007] All FWLR (Pt. 372) Pg. 1876 at 1888, Para. A; Pg. 1888-1889, Paras. H ? B; OBIJURU Vs. OZIMS [1985] NWLR (Pt. 6) Pg. 167 and OKOYE Vs. DUMEZ NIG. LTD [1985] NWLR (Pt. 4) Pg. 263 to contend that non-registration of a registrable instrument renders same inadmissible as evidence in a litigation where such instrument is relied upon as evidence of title; and that the Appellants in the instant case have not shown that the Sale Agreement was registered so as to render same admissible as an evidence of title. Learned counsel submitted that the Sale Agreement relied upon by the Appellants lacks merit and probative value and should not be given any relevance by this Court.
?
Learned counsel argued that a document tendered as evidence of title must be duly authenticated and its due execution must be proved unless they are produced from proper custody in circumstances giving rise to the presumption in favour of due execution as in the case of documents that are 20 years old or more at the date of the contract. Counsel referred to
27
Section 155 of the Evidence Act; JOHNSON & ORS Vs. LAWANSON & ORS [1971] 1 All NLR Pg. 56 and AKINDURO Vs. ALAYA [2007] 15 NWLR (Pt. 1057) Pg. 312 to submit that the Appellants cannot place reliance on the Sale Agreement as same was not duly authenticated or registered. Counsel relied on LUFTHANSA GERMAN AIRLINE Vs. WILLIAM BALLANYNE (2012) LPELR-7977 (CA) to urge this Court to expunge Exhibits A and A1 as improperly admitted evidence as same were admitted in error by the trial Court. Learned counsel further relied on ELEGUSHI Vs. BAYEOKU [1998] 2 NWLR (Pt. 76) Pg. 263 to argue that even though the Respondents did not object to the admissibility of Exhibits A and A1 at the trial Court, this Court is not precluded from discountenancing and expunging the inadmissible evidence wrongly admitted by the trial Judge. In conclusion learned Counsel urged this Court to hold that the claims of the Appellants before the trial Court were properly dismissed.
SUBMISSION OF COUNSEL FOR THE 4th RESPONDENT
Learned counsel for the 4th Respondent referred to DAVID MBANI Vs. MBIABE BOSI & ORS [2006] 5 SC(Pt. III) Pg. 54 at 61; IDUNDUN Vs. OKUMAGBA (Supra); OMOREGIE Vs. IDUNGIENWANYE
28
[1985] 2 NWLR Pg. 41 at 54-59; PIARO Vs. TENALO [1976] 12 SC (Reprint) 19; ACHIAKPA Vs. NDUKA (2001) 7 (Pt. 111)172 SC Pg. 67; CHIEF VICTOR WOLUCHEM & ORS Vs. CHIEF SIMEON GUDI & ORS [1981] 5 SC and THOMAS NRUAMA & ORS Vs. RUEBEN EBUZOME & ORS [2006] 9 NWLR (Pt. 985) Pg. 217 at 237 to submit that the Courts have established various modes of establishing title to land; that a Plaintiff seeking for a declaration of tile to land must lead such evidence as would lead a Court to make a declaration in his favour; that a party must succeed on the strength of his own case; and that a party cannot plead various methods of entitlement to the land as done by the Appellants herein and wait for the Court to give judgment on any claim that fits his evidence. Counsel referred to the finding of the lower court at pages 604 ? 605 and OMODELE ASHABI EYA ORS Vs. ALHAJI BELLO QUDUS [2001] 15 NWLR (Pt. 737) Pg. 615-616 to submit that a party must succeed on the strength of his own case and not on the weakness of the Defendant?s case who has not set up a Counterclaim.
Learned counsel further relied on UKWU EZE & ORS Vs.GILBERT ATASIE & ORS
29
[2000] 10 NWLR (Pt. 676) Pg. 470 at 482 to contend that the Appellants herein have failed to prove how the title to the land in dispute devolved upon them traditionally; and that the averments in paragraphs 7 ? 10 of the Appellants? Amended Statement of Claim at pages 445 ? 446 are not sufficient and that the evidence in support of the Appellants? claims created gaps which cannot be explained. Counsel explained that the Appellants did not explain who their own fathers or mothers were and how they were linked to John Omojogberun Ojaekomo assuming they had a title to the land; and that the Appellants? attempt to rely on traditional evidence failed. Learned counsel further relied on JOSEPH OMOTAYO & ORS Vs. PAUL AYODELE & ANOR [1993] 8 NWLR (Pt. 314) Pg. 717 and AZER MYAGBA Vs. KAOM MBAHAN [1996] 9 NWLR (Pt. 471) Pg. 207 at 227 to submit that the learned trial Judge was right in holding at page 605 of the Records of Appeal that the Appellants failed to establish their clams. Learned counsel referred to Exhibits C, K, L, M and P to submit that the 4th Respondents consistently continued to protect the
30
integrity of the land in dispute against every form of trespass.
Learned counsel further argued that the Appellants having admitted that they were customary tenants cannot be allowed to turn around to claim ownership of the land in dispute; and that the learned trial Judge was right in holding that the Appellants did not prove their case. Counsel referred to Paragraph 4 of the Amended Statement of Defense and paragraphs 8 ? 11 of the Appellants? Amended Statement of Claim to contend that the Appellant admitted that John Omojogberun Ojaekomo was a customary tenant to the 4th Respondent; and that no further proof is required to prove that fact by virtue of Section 75 of the Evidence Act. Learned counsel further referred to Section 155 of the Evidence Act and argued that the 4th Respondent has at all times denied the fact that the Appellants through John Omojogberun Ojaekomo purchased the land in dispute; and that the trial Judge was entitled to either presume or not that Exhibits A and A1 were duly executed and attested to; and that the duty to believe or not that the documents were duly executed was solely at the discretion of the trial judge.
31
Learned counsel submitted that the learned trial Judge was right to have relied on the case of CO-OPERATIVE BANK LTD Vs. MUSIBAU LAWAL [2007] 1 NWLR (Pt. 1015) Pg. 287 in arriving at the conclusion at page 604 of the Records of Appeal. Counsel submitted further that the trial Court is also entitled to presume a document is genuine if produced from proper custody; but that where the document ought to have been registered but it was not, as it is with Exhibits A and A1 in the instant case, the Court would not presume the genuineness of same especially where the alleged vendor?s name was not mentioned, and the said vendor who was an illiterate did not sign before a commissioner for oath and there was no illiterate jurat on the face of the document. Learned counsel further submitted that since the Appellants contended that they stopped to pay rent, and it has been settled that the Appellants were customary tenants; it implies that they challenged the title of the overlord and the trial Court was right to have dismissed their claims and made an order of forfeiture. Counsel further submitted that the Appellants were unable to establish their
32
further claim for declaration of title by production of documents; that Exhibits A and A1 are not authenticated documents and were rightly discountenanced by the trial Court. Learned counsel referred to DAVID MBANI Vs. MBIABE BOSI & ORS (Supra) and urged this Court to resolve this issue in favour of the 4th Respondent.
ISSUE TWO
Learned counsel for the 4th Respondent referred to FREDERIC ONAGBA ODUARAN & ORS Vs. CHIEF JOHN ASARAH [1972] 5 SC Pg. 272 at 285 to submit that the learned trial Judge was right to have held that the Appellants were customary tenants; that the 4th Respondent led evidence through DW3?s Witness Statement on Oath that the Appellants? ancestor John Omojogberun Ojaekomo settled on the disputed land with the permission of the Ojomu Royal Family as the only customary tenant and that the Appellants? ancestor always brought local gin, coolant and fish to the 4th Respondent as ishakole on yearly basis. Counsel argued that the 4th Respondent?s position was buttressed by the Appellants? CW1?s Witness Statement on Oath where it was stated that the Appellants? ancestor paid rents by way of
33
local gin, kolanut and fish annually to the Ojomu.
Learned counsel further submitted that before the compulsory acquisition of the land in dispute by the Lagos State Government, the Appellants have been tenants who settled on the land with the permission of the Ojomu Royal Family; and that by virtue of Exhibits K and L wherein the 4th Respondent has been declared the owner of the customary right of occupancy over the said disputed land, the Appellants still remain customary tenants of the Ojomu Royal Family. Counsel relied on ONIAH Vs. ONYIA [1989] 1 NWLR (Pt. 99) Pg. 514 and CHIEF ADEDEJI Vs. OLOSO & ANOR [2001] 1-2 (Pt. 1) Pg. 76 at 111-112 to further contend that since the Appellants have now challenged the title of the 4th Respondent, they are liable to forfeiture of their customary tenancy; and that the learned trial Judge was right in granting the 4th Respondent?s counterclaim and holding that the Appellants are customary tenants of the 4th Respondent.
ISSUE THREE
Learned counsel for the 4th Respondent referred to the Judgment of the lower Court at pages 585 ? 606 of the Records of Appeal and relied on OLUFEMI BABALOLA & ORS Vs. THE STATE
34
[1989] 4 NWLR (Pt. 115) Pg. 263 and CHIEF IDIO NKOKO & ORS Vs. CHIEF OKON UDO UDO AKPAKA [2000] 7 NWLR (Pt. 664) Pg. 225 at 241, Paras. F ? G to submit that the trial Court did not rely on Exhibit N in dismissing the Appellants? claim and granting the 4th Respondent?s? Counter-claim. Counsel further relied on MADAGALI LOCAL GOVT. Vs. NATIONAL POPULATION COMMISSSION [1998] 11 NWLR (Pt. 572) Pg. 16 at 73, Paras. C ? D & G to submit that apart from the fact that the Appellants have not shown where the learned trial Judge relied on either Exhibit N or P to have found that the claims of the Appellants lacked merit and that the counterclaim of the 4th Respondent succeeds.
Learned counsel referred to the proceedings at page 449 of the Records of Appeal and also referred to ALHAJI DAHIRU SAUDE Vs. ALHAJI HALLIRU ABDULLAHI [1989] 4 NWLR (Pt. 116) Pg. 387 at 431 to submit that the Appellants did not object to the admissibility of Exhibits N and P; and that even if this Court finds that they objected to the admissibility of the said evidence; the decision of the trial Court admitting the said evidence
35
was not appealed against. Counsel further submitted that the admission of Exhibit N in evidence did not in one way or the other affect the decision of the lower Court. Learned counsel urged this Court to resolve this issue in the favour of the Respondents and dismiss this appeal entirely.
APPELLANTS? REPLY
Learned counsel for the Appellants filed a Reply to the 4th Respondent?s Brief and submitted that the 4th Respondent raised new facts and a new cause of action in his Brief contrary to the records of the Court and the case canvassed before the lower Court. Counsel relied on GOWON Vs. IKE OKONGWU [2003] 6 NWLR (Pt. 815) Pg. 38; GTB Vs. INNOSON NIG LTD [2017] 5 CA (Pt. 1) Pg. 119 at 140, Paras. A ? C; ONIBUDO Vs. AKIBU [1982] 7 SC Pg. 60 and ADELEKE Vs. ASERIFA [1990] 3 NWLR (Pt. 136) Pg. 94 at 111 to argue that the practice of adducing fresh evidence which was not considered by the trial Judge is not acceptable at the appellate Court; and that the correctness of the decision of a trial Court cannot be assessed on the new evidence adduced at the Appellate Court which the trial Judge did not consider.
?
Learned counsel urged
36
this Court to expunge the issue of Fraud raised in the 4th Respondent?s Brief as same can only be raised with the leave of Court since it was not properly raised in the 4th Respondent?s Amended Statement of Defense and was not considered by the lower Court in the judgment now on appeal. Counsel argued that raising the issue of Fraud for the first time on appeal is an attempt to overreach the Appellants. Learned counsel urged this Court to allow this appeal.
RESOLUTION
I have carefully considered the various issues submitted by all the contending parties in this appeal as canvassed by their respective counsel; it is my view that the first and main issue which must be resolved is: ?Whether the Sale Agreement dated 6th of March, 1934 between the Appellants and the 4th Respondent qualifies as a registrable instrument which must be registered to prove title to the disputed land.? This is because having carefully read the Judgment of the learned trial Judge, particularly at page 603 – 604 where the learned trial Judge found as follows:
?Further, it is trite law that where a Plaintiff?s claim to a piece of land in
37
dispute, as in the case in this Suit, is predicated on ownership, the onus is on him to prove and establish his ownership. ?
The Claimants has presented before this Court an agreement purported to be the agreement for sale of land in issue between the forefathers of the parties; and the parties have presented arguments with this respect.
It is well known principle of law that once a document affecting land qualifies as an instrument, it must be registered. An instrument affecting any land which is registrable but is not registered cannot be pleaded and given in evidence and if pleaded would be inadmissible and liable to be expunged or ignored.?
And at pages 605 ? 606, the learned trial Judge concluded on the Plaintiff?s case in the following word:
?Placing the pleadings, evidence of witness of the parties on the imaginary scale of justice, the assertions of the Claimants do not hold water and cannot be held to be credible, reliable and dependable evidence upon which a declaration of title to land can be predicated. ?
Thus the Claimant?s case hereby fails in its entirety and is hereby dismissed. ?
38
From the foregoing, what can be inferred is that the Appellants? claim of ownership of the land in dispute is predicated on the Sale Agreement dated 6th of March, 1934; however, the trial Court found the said Sale Agreement to be an unregistered registrable instrument which is inadmissible and therefore concluded that the Appellants? claim failed. Therefore, the success or failure of this appeal is built on the issue of ?Whether the Sale Agreement dated 6th of March, 1934 between the Appellants and the 4th Respondent qualifies as a registrable instrument which must be registered to prove title to the disputed land,? and every other issue in this appeal is ancillary, and therefore subordinate to this important issue. In challenging the foregoing findings made by the learned trial Judge, the Appellants contended that the case of the Appellants, whose status as the descendants of John Omojogberun Ojaekomo was not contested by any of the Respondents, that their progenitor, John Omojogberun Ojaekomo initially rented the land from the Ojomu Royal Family via a Rent Agreement dated 4th of August, 1929 paying 1 Pound as rent and
39
subsequently purchased the said land by a Sale Agreement dated 6th of March, 1934 for 500 Pounds as shown by Exhibits A and A1 which were tendered and admitted without any cross-examination from the Respondents? counsel as to the authenticity, genuineness or validity of the Sale Agreement.
The Appellants argued that the testimony of witness on a document which is not challenged is to be believed as it is given and any subsequent challenge to the authenticity or validity of the Sale Agreement is to be treated as an afterthought; that the 4th Respondent merely made a bare denial of the sale; that the testimonies and pleadings of the Appellants as to the description of the land were not challenged neither was the content and signatures on the Sale Agreement contested; and that in the absence of any challenge by the 4th Respondent to the authenticity or due execution of the Sale Agreement, the trial Court had no business making any findings on the due execution and authenticity of the said document.
?
The Appellant further argued that the trial Court did not fault the authenticity or genuineness of the Rent Agreement or the Sale Agreement in the
40
judgment and that the trial Court did not find that the Appellants? progenitor – John Omojogberun Ojaekomo did not rent and later purchase the land in question from the Ojomu Royal Family; but that the trial Court rejected the Sale Agreement on the ground that it was not registered and cannot therefore be pleaded and relied on.
It was contended that it is not the law that an unregistered registrable land instrument is inadmissible for all purposes; that it is admissible to prove an equitable interest in land; that where a document of title is not registered, but shows evidence of payment of the purchase price, and its holder is in possession of the land in issue, an equitable interest in the land inures to his benefit and this is as good as a legal interest; that in the instant case, the Sale Agreement showed payment of purchase price in the sum of 500 pounds by the Appellants to the Ojomu Royal Family of Ajiran and it was not contested that the Appellants had been in possession of the land since 1929; and that lower Court was therefore in error when it rejected the case of the Appellants simply because the Sale Agreement they relied on was not registered.
41
The 1st ? 3rd Respondents contention on this issue is that there were material inconsistencies and contradictions in the Appellants? case; that the Appellants gave evidence that they first settled on the land; and later they said that they are customary tenants of the Ojomu Royal Family and finally they claimed that they bought the land from the Ojomu Royal Family. The 1st ? 3rd Respondents went on to argue that the lease and sale Agreements ? Exhibits A and A1 relied upon by the Appellants have no probative value because the name of the vendor therein is not known to law but it is merely a title and not a person known to law; and that size of the land is not known or ascertainable from the Sale Agreement; and that the purported Chief Ojomu who signed the said Sale Agreement did so by thumbprint without any illiterate jurat which is in breach of the Illiterates Protection Act.
?
It was further submitted that the Sale Agreement tendered by the Appellant qualifies as a registrable instrument under the Registration of Titles Law and the Land Instruments Registration Law of Lagos State which must be registered; and
42
since it was not registered it does not avail the Appellants as same is inadmissible for failure of registration. The 1st ? 3rd Respondents further argued that while it is agreed that an unregistered receipt is an acknowledgement of payment, same does not extend to a Sale Agreement which requires registration before it can be admissible; that non-registration of a registrable instrument renders same inadmissible as evidence in a litigation where such instrument is relied upon as evidence of title; that the Appellants in the instant case have not shown that the Sale Agreement was registered so as to render same admissible as an evidence of title; and that the Sale Agreement relied upon by the Appellants lacks merit and probative value and should not be given any relevance by this Court.
It was further argued that a document tendered as evidence of title must be duly authenticated and its due execution must be proved unless they are produced from proper custody in circumstances giving rise to the presumption in favour of due execution as in the case of documents that are 20 years old or more at the date of the contract; that the Appellants cannot
43
place reliance on the Sale Agreement as same was not duly authenticated or registered; that this Court ought to expunge Exhibits A and A1 as improperly admitted evidence as same were admitted in error by the trial Court; and that even though the Respondents did not object to the admissibility of Exhibits A and A1 at the trial Court, this Court is not precluded from discountenancing and expunging the inadmissible evidence wrongly admitted by the trial Judge.
On this issue, the 4th Respondent submission is that he has at all times denied the fact that the Appellants through John Omojogberun Ojaekomo purchased the land in dispute; and that the trial Judge was entitled to either presume or not that Exhibits A and A1 were duly executed and attested to; that the duty to believe or not that the documents were duly executed was solely at the discretion of the learned trial Judge; that the trial Court is also entitled to presume a document is genuine if produced from proper custody; but that where the document ought to have been registered but it was not, as it is with Exhibits A and A1 in the instant case, the Court would not presume the genuineness of same
44
especially where the alleged vendor?s name was not mentioned, and the said vendor who was an illiterate did not sign before a commissioner for oath and there was no illiterate jurat on the face of the document. It was further submitted that the Appellants were unable to establish their further claim for declaration of title by production of documents; that Exhibits A and A1 are not authenticated documents and were rightly discountenanced by the trial Court.
From the foregoing, there is no contest as to the fact that the Sale Agreement dated 6th of March, 1934 in the instant case is a registrable instrument which must be registered to be admissible as proof of title/ownership of land. The law is trite on this point. In UMAR Vs. BAILEY & ORS (2018) LPELR-44285 (CA) Pg. 37 ? 45, Paras. E ? B this Court while considering the legal effect of such an unregistered registrable instrument held that:
The legal effect is that where an instrument is required to be registered but is not registered, it cannot be pleaded and is therefore inadmissible in evidence. In other words, any registrable instrument which is not registered
45
cannot be pleaded nor tendered in evidence. Where it has been pleaded and tendered, it will be inadmissible in any event. Such an unregistered instrument may however be pleaded and admitted to prove payment of purchase price, or as evidence of the transaction between the parties. if properly proved and admitted is proof of equitable interest which if coupled with possession is capable of ripening into a legal interest
This position has long been established even by the Supreme Court of Nigeria. In OKOYE Vs. DUMEZ NIG. LTD [1985] NWLR (Pt. 4) Pg. 263; (1985) LPELR-2506 (SC) Pg. 14, Paras. B ? E where BELLO, JSC (CJN) (of blessed memory) held that ?A registrable instrument which has not been registered is admissible to prove such equitable interest and to prove payment of purchase money or rent See also ETAJATA Vs. OLOGBO [2007] 16 NWLR (Pt. 1061) Pg. 554; (2007) LPELR-1171 (SC) Pg. 55-56, Paras. F ? B; and FIRST BANK OF NIG. PLC Vs. OKELEWU & ANOR (2013) LPELR-20155 (CA) Pg. 43-44, Paras. G ? C where this Court held that: an unregistered registrable instrument, though, is not
46
admissible to prove title, is admissible to prove payment of money and coupled with possession of land by the purchaser it may give rise to an equitable interest
Therefore, in the light of the judicial authorities cited above, the decision of the trial Court to the effect that the Sale Agreement dated 6th of March, 1934 being an unregistered registrable instrument is in admissible to prove the Appellants? claim is in conformity with the long line of authorities on the legal effect of an unregistered registrable instruments and therefore unimpeachable as it were. The question that however craves for answer is whether the Appellants case falls under the exception to the general rule; the exception being that where the unregistered registrable instrument is sought to be relied upon as proof of payment or proof of the existence of a transaction, then it is admissible and if coupled with act of possession, may result in an equitable interest which may be equated to a legal interest. To establish this, recourse must be had to the Appellants pleadings. The Appellants laid so much emphasis on the effect of pleadings and rightly submitted that
47
the primary function of pleadings is to define and delimit with clarity and precision the real issue in controversy between the litigating parties; and that it also serves as the basis upon which the Court will be called upon to adjudicate between the parties.
?In the instant case, the Appellants? Amended Statement of Claim is contained at pages 445 ? 447 of the Records of Appeal. I have meticulously perused the averments therein and I cannot deduce or infer that the Appellants claim was for equitable interest or that the purpose of the Appellants? reliance on the Sale Agreement dated 6th of March, 1934 was to establish that payment was made; rather the Appellants? contention as clearly found in paragraph 8 of the said Amended Statement of Claim is that the 4th Respondent?s predecessor in title had sold the land in dispute to the Claimants? predecessor in title. Therefore, I am of the opinion that since the Appellants? case was not for a declaration that they had equitable interest in the land but rather that they were entitled to the land by virtue of the Sale Agreement dated 6th of March, 1934, then the said Sale
48
Agreement dated 6th of March, 1934 being an unregistered registrable instrument cannot be relied upon to vest title in the land in the Appellants.
As contended by the Appellants, the pleadings of the parties are the basis upon which the Court will adjudicate between the contending parties. In UGBO & ANOR Vs. UGBO (2018) LPELR-43783 (CA) Pg. 11-12, Paras. E ? B this Court held as follows:
The law is trite that in order to understand that case being put forward by the parties, the Court must consider the entire pleading of each party. In considering the question in controversy between the parties, the Court must consider only matters in respect issues have been joined by the parties. in other words, the Court in determining a case before it is bound by the pleadings of the parties and should confine itself to the issues raised therein
See also FAGBENRO Vs. AROBADI [2006] 7 NWLR (Pt. 978) Pg. 172; (2006) LPELR-1227 (SC) Pg. 28-29, Paras. F ? A. It is also trite that the Court has no power to grant what has not been claimed. See: SODIPO & ORS Vs. OGIDAN & ORS (2007) LPELR-3962 (CA) Pg. 29-30,
49
Paras. G ? C and JOE GOLDAY CO. LTD Vs. C.D.B. PLC [2003] 5 NWLR (Pt. 814) Pg. 586; (2003) LPELR-1617 (SC) Pg. 25, Paras. A ? C where UWAIFO, JSC held that: The guiding rule is that the court must not grant a party what it has not asked for in clear terms and sufficiently proved.? Therefore, since the Appellants? have not made a claim for equitable interest in the land in dispute in their Statement of Claim or even proffer an argument on the issue of equitable interest in their Final Written Address contained at pages 503 ? 526 of the Records of Appeal; the learned trial Judge cannot be said to have erred in accepting the Sale Agreement dated 6th of March, 1934 as sufficient proof of the Appellants? equitable interest; this was not the contention of the Appellants.
?In conclusion therefore, since the Appellants claims were that they were entitled to a declaration of title to the land in dispute, the Sale Agreement dated 6th of March, 1934 tendered as evidence of purchase is inadmissible to prove the Appellants? title, it may have been sufficient to proof that payment was made or sufficient to proof
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equitable interest of the Appellants if the Appellants had made a claim for a declaration that they were entitled to an equitable interest. Therefore, the learned trial Judge was right in concluding that: that once a document affecting land qualifies as an instrument, it must be registered. An instrument affecting any land which is registrable but is not registered cannot be pleaded and given in evidence and if pleaded would be inadmissible and liable to be expunged or ignored In the light of the foregoing, this issue is hereby resolved against the Appellants.
?Having resolved that the trial Court was right not to have refused to rely on the Sale Agreement dated 6th of March, 1934 as evidence of the Appellants? title, it there follows that the lower Court was right in dismissing the Appellants? claim since, as the Appellants submitted, their case was that their progenitor, John Omojogberun Ojaekomo initially rented the land from the Ojomu Royal Family vide a Rent Agreement dated 4th of August, 1929 paying 1 Pound as rent and subsequently purchased the said land by a Sale Agreement dated 6th of March, 1934 for 500
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Pounds; and since the said Sale Agreement dated 6th of March, 1934 is inadmissible in evidence been a registrable instrument that was not registered, it cannot therefore be said that the Appellants made out a credible case of ownership. Consequently, the Appellant?s issue No. 1 as formulated in the Appellants? Brief is therefore resolved against the Appellants.
With respect to the Appellants? issue No. 2 as formulated in their Brief, which is: ?Whether or not the Appellants are the proper persons to be the beneficiaries of the excision of fifty (50) hectares of land meant as compensation for the acquisition of the parcel of land lying and being known as Sapata Village and which is more particularly delineated on Survey Plan No KESH/1/2211? This issue is also tied to whether or not the Appellants proved their claim of ownership. The Appellants who failed to lead credible evidence of ownership which they claimed cannot be entitled to fifty (50) hectares of land meant as compensation for the acquisition of the parcel of land. Without subjecting this issue to any further discourse, it is equally resolved against the Appellants.
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The fact that the 4th Respondent was the original owner of the land in dispute is not in disputed, since the Appellants have failed to establish that their tenancy metamorphosed into ownership, the Appellants cannot be entitled to the fifty (50) hectares of land.
The next issue which I will briefly consider is the second issue formulated by the 4th Respondent which is: ?Whether the Learned Trial Judge was right when the Court held that the Appellants were customary tenants of the 4th Respondent and thereby granted the 4th Respondents Counter Claim I am of the view that having dismissed the Appellants claim for failure to lead credible evidence in proving their claims of outright purchase of the land in dispute from the 4th Respondent, the lower Court was right to have considered the 4th Respondent?s counter-claim; and from the pleadings of the parties, it is well established that the Appellants were customary Tenants of the 4th Respondent. Paragraph 8 of the Amended Statement of Claim at pages 445 ? 447 of the Records of Appeal and Paragraphs 4(iv) and 11 of the 4th Respondents Amended Statement of Defense at pages 391 ?
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393 of the Records of Appeal establish the facts that the Appellants were tenants of the 4th Respondent. The fact that the 4th Respondent was the original owner of the land in dispute is not in contention; also the Appellants did not contend being tenants to the 4th Respondents, in fact they averred that their progenitor rented the land from the Ojomu Royal Family via a Rent Agreement dated 4th of August, 1929. Therefore, the learned trial Judge was right in granting the 4th Respondents counter-claim.
The law is well settled that in a claim for declaration of title to land, the Claimant, as the Appellant herein must lead credible evidence to establish his claims of ownership. In UGBO & ANOR Vs. UGBO (Supra) at Pg. 39-40, Paras. E ? A, this Court restated the age long principle of law that: ?It is the well-established position of the law that any person claiming a declaration of title to land must prove by evidence that he is entitled to the declaration he seeks. ? In proving title, he must rely on the strength of his case and not on the weakness of the defence. The party is able to prove title to land in issue is deserving of
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judgment.? See also OKPALA & ANOR Vs. IBEME & ORS [1989] NWLR (Pt. 102) 208; (1989) LPELR-2512 (SC) Pg. 18, Paras. A ? F and SAMESI Vs. IGBE & ORS (2011) LPELR-4412 (CA) Pg. 32-33, Paras. B ? C.
In the light of the foregoing therefore, this appeal is unmeritorious, and deserves to be dismissed, it is hereby dismissed by me. The Judgment of the lower Court delivered by IDOWU, J., on the 27th day of September, 2012 in Suit No: LD/1170/2005 is hereby affirmed.
Parties in this appeal shall bear their respective costs.
MOHAMMED LAWAL GARBA, J.C.A.: After reading a draft of the lead judgment of my learned brother Tijjani Abubakar JCA in this appeal, I agree that the appeal is devoid of merit and join him in dismissing same in terms of the lead judgement.
GABRIEL OMONIYI KOLAWOLE. J.C.A.: My learned brother, Tijjani Abubakar, JCA availed me with the draft of the judgment he prepared an this appeal, and having read the analysis of the issues in contention between both parties and his resolution thereof, I agreed that he has reached an impeccable conclusion based on the facts as
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can be garnered from the Record of Appeal, that this appeal lacks merit and should be dismissed.
The decision of the lower Court in LD/1170/2005 delivered by Idowu J., on 27/9/12 is hereby affirmed.
?
The appeal is dismissed and I abide with the consequential order made directing both parties to bear their respective costs of the appeal.
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Appearances:
O. Oyebisi with AkanwoFor Appellant(s)
Temitope Olabisi for the 1st and 3rd Respondent
Olagbade Benson with O. F. Ojo, K. C. Igwe for the 4th Respondent
For Respondent(s)
Appearances
O. Oyebisi with AkanwoFor Appellant
AND
Temitope Olabisi for the 1st and 3rd Respondent
Olagbade Benson with O. F. Ojo, K. C. Igwe for the 4th RespondentFor Respondent
